A light history of the Second Amendment

This post is coming in after my self-imposed week-to-week deadline, and for anyone who was looking for it, I apologize. I’ve been traveling, and this dropped on my list of priorities.

I figured since gun violence is back in the news in the wake of the Thousand Oaks shooting, it might be productive to engage this issue.

The public at large generally seems to view the Second Amendment in one of two ways: As an antiquated protection for another time; or as an absolute right grounded in an individual’s right to self defense, and a check on the potential tyranny of a government gone wild. There are, of course, as in most things, a spectrum of beliefs on gun regulation, but for the sake of this discussion it’s useful to lump all of those beliefs into these two categories.

The text of the Second Amendment reads: “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” U.S. Const. amend. II. Much ado is oft made over the intent of the Framers with respect to the amendment. That analysis is interesting, enlightening, and useful in this discussion, but it also often tortured and misused. There is a doctrine of law called the plain meaning rule, it is one of three rules of statutory construction adopted in American legal theory from the old English common law to prevent courts from taking sides in political issues. The plain meaning rule requires a reader to do just what its name suggests: read the statute by applying the ordinary meaning of the language in the statute. If, after applying the ordinary meaning of the words in the statute, the statute’s meaning is plain, then no further analysis is required and additional information should not be considered.

Read as it stands, and applying basic principles of constitutional law, the Amendment prevents the federal government from passing legislation restricting the keeping and bearing of arms because the militia is necessary to protect the State. For over a hundred years there was no serious debate over what the Second Amendment meant, or how it should be applied: the Amendment protected citizens from restrictions imposed by the federal government, but the states regulated firearms in the manner they saw fit. United States v. Cruikshank, 92 U.S. 542, 551 (1876). See also Presser v. Illinois, 116 U.S. 252, 264-65 (1886); Miller v. Texas, 153 U.S. 535, 538-39 (1894) (holding that the Second Amendment restricted the power of the federal government, but not the states, from infringing on the right of the individual to keep and bear arms). Note that the opinions cited above were written after the ratification of the Fourteenth Amendment, and that the Second Amendment was not incorporated.

It might be useful here to sum all that up: Until 1939 the Second Amendment placed a restriction on the powers of the federal government to infringe on the individual right to keep and bear arms. States were free to do with firearms what they wished.

In 1934 Congress passed the National Firearms Act, which prohibited possession of short-barreled shotguns and rifles, machine guns, and silencers. 26 U.S.C. § 5841. In 1939, the Supreme Court heard the appeal of Jack Miller, who had been convicted of possessing a sawed-off shotgun in violation of federal law, on the grounds that the National Firearms Act unconstitutionally infringed on his individual right to keep and bear arms. United states v. Miller, 307 U.S. 174 (1939). The Miller opinion held that, because the weapon in question did not have “some reasonable relationship to the preservation or efficiency of a well regulated militia” the Second Amendment did not apply. Id. At the moment that opinion was published the meaning of the Amendment changed, from “the federal government shall not infringe on the right of the individual to keep and bear arms,” to “the federal government shall not infringe on the right of the individual to keep and bear arms that have a reasonable relationship to the preservation or efficiency of a well regulated militia.” The opinion went further. In what is considered dicta in the wake of Heller and McDonald, the Miller opinion engaged in an originalist analysis of the Second Amendment, and found that the Amendment existed solely to support the calling of the militia in aid of the national defense. Id. I won’t reproduce that analysis here, I will suggest that it is compelling, particularly because it finds support in Article I, section 8 of the Constitution, and because there was a very strong sentiment against maintaining a standing army at the time the Amendment was written.

So there’s your background. Up until 2008 when Heller was written, the Second Amendment was basically moot. The U.S. maintains a standing army that provides for the national defense, and even has a federally-sanctioned state militia program through the National Guard. Gone were the days when the People would be called to rise up and assemble to defy foreign invaders or put down insurrections. That is not to say that the debate over the right to individually keep and bear arms was dead. Each state had its own regulatory framework for the individual right to keep and bear arms, but those frameworks varied widely, and the question of whether and how much the federal government could restrict gun ownership because the states had domain was very much alive.

In 2008, the Supreme Court published District of Columbia v. Heller, which held that Washington D.C.’s handgun ban unconstitutionally violated an individual’s right to keep and bear arms. 554 U.S. 570 (2008). Heller found that an individual had a right to keep and bear arms unconnected to militia service, dispensing with Miller and reviving the legal debate over federal gun rights. Id. In 2010, the Court published McDonald v. City of Chicago, which incorporated the Second Amendment, creating for the first time an individual protection for gun ownership against the states. 561 U.S. 742 (2010).

So here we are, and now, if you continue reading, you get to learn my opinion. On a personal level, I support responsible individual gun ownership. I believe people should be able to equip themselves for self defense, to hunt, and that there’s nothing wrong with sport shooting. But I don’t think the Framers intended to enshrine the right to keep guns to protect oneself in the Constitution. I think Miller essentially had it right: The Framers hated the idea of a standing army, believing it to be a threat to democracy, and they believed the militia was the solution. To that end, they authored and ratified an Amendment to the Constitution that was intended to promote the militia and limit the federal government’s ability to interfere with it. That view, I think, best provides a holistic understanding of Congress’ powers to raise and equip the militia, of how the President may deploy it, and of the prohibition on infringements related to individual firearm ownership. As the U.S. moved away from the militia model (a migration that started in the 1780’s) the question of gun ownership began its slide from a national security question to one of individual preference. Today, the notion of the Congress calling on citizens to show up to repel a foreign invader armed with their personal firearms is ludicrous.

The Heller opinion reads a right into the Second Amendment that simply isn’t there, and that no amount of tortured historical analysis can reasonably create. It is infuriating to me that Antonin Scalia could claim to be an originalist and author an opinion that dispenses with bedrock principles of legal analysis to create a federal right where none had existed. His analysis in Heller rests on translating the word “militia” into the words “the People” as if the Framers weren’t perfectly capable of writing those words if that’s what they meant, and as if the words mean the same thing when they have obviously distinct connotations. Heller, 554 U.S. 570. Scalia routinely argued that if a strict originalist and textual reading of a statute did not say something, then it could not do that thing. In an interview with California Lawyer, Scalia argued that the court had erred by applying the Fourteenth Amendment to sexual discrimination and sexual orientation, arguing that if Congress wanted to protect women or homosexuals from discrimination it should pass legislation to accomplish that goal. California Lawyer, January 2011, http://legacy.callawyer.com/2011/01/antonin-scalia/. The same standard ought to have applied to the Second Amendment: if Congress intended to protect individual firearm ownership for the purpose of self defense, it should pass legislation to that end.

OK, so what does all of that mean in the wake of Thousand Oaks? Can the government restrict access to firearms, or certain types of firearms, in the public interest? The answer, for now, is yes. While Heller found an individual right to keep and bear arms for self defense, the identified right stopped at handguns. Heller, at 570. The door is wide open for states to pass legislation barring the ownership of certain firearms and ammunition. In fact, the State of Maryland successfully defended a ban in Kolbe v. Hogan when the 4th Circuit ruled that the Second Amendment does not protect ownership of semi-automatic rifles. The Supreme Court subsequently denied certiorari, allowing the ban to stand. That fight, I think, is far from over. The Court’s latest additions have shifted its ideological spectrum firmly to the right. A more conservative Court may deign to hear a challenge to assault weapons ban and overturn the 4th Circuit’s decision, expanding federal protections for individual gun ownership.

Birthright Citizenship

I’ve recently fielded several questions with relation to Trump’s statement that he is planning to end birthright citizenship via executive order. These questions have come from both pro, and anti-Trump camps, and they’ve all been some iteration of “can he do this?”

I have read several answers to this question recently. Most of them can be safely reduced to “it’s the Constitution, stupid.” A few seek to offer a more nuanced view by way of close examination of the text of the 14th Amendment, and a distinguishing argument with regard to U.S. v. Wong Kim Ark. A very few have taken the bold misstep of citing the Slaughterhouse Cases.

As an aside: For anyone tempted by the language of the majority in Slaughterhouse, please refrain. While technically still good law, the opinion is not exactly on-point, and is widely viewed as a fundamental misreading of the 14^th Amendment.

To answer the question of all those remotely interested in whether I believe Trump can legally eliminate birthright citizenship…it’s complicated.

Can Trump legally amend or abrogate a constitutional right by executive order?

Generally, no. Without dragging anyone still reading this down a rabbit-hole discussion regarding executive agency interpretations of statutory grey areas in their respective ambits, the President does not have the power to directly contravene constitutional provisions or federal statutes. The President is not above the law, and may neither alter or abridge the law. I wish I could stop writing right here, but bear with me for another few paragraphs.

Is birthright citizenship protected by the 14^th Amendment?

This is a better question than the first. In 1898 the Supreme Court decided U.S. v. Wong Kim Ark. Wong Kim Ark was a Chinese laborer born to Chinese nationals in 1873. In 1882, Congress passed the Chinese Exclusion Acts. In 1895 Wong Kim Ark boarded a ship to China for a visit, and on his return was detained by a customs officer as an illegal immigrant. He filed a writ of habeus corpus, and the case was taken up by the Supreme Court.

The majority in Wong Kim Ark held that persons born in the United States, who are not the children of foreign officers or enemies of the United States, are citizens of the United States. 169 U.S. 649, 705 (1898). The holding itself is very narrow, framing the question with terrifically limiting language. The Court held that: “…a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States.” Id.

Before anyone gets too carried away and starts picking apart that limiting language, the majority conducted an analysis of the history of birthright citizenship in the pages before its ultimate conclusion. That analysis painted birthright citizenship with a much broader brush. Id. at 654-659. The takeaway is that anyone born within the jurisdiction of the United States to parents who are not foreign officers, and who are not enemies of the U.S. are citizens by right of birth.

The question turns on whether those who have entered the country illegally are rightfully within the jurisdiction of the United States. The opinion in Wong Kim Ark won’t be of much use to us in finding an answer. Wong Kim Arks parents weren’t illegal immigrants, there was no such thing at the time they entered the country and took up residence. That leaves two lines of inquiry: (1) The conduct of the government with regards to the children of illegal immigrants; and, (2) whether an illegal immigrant can be said to be properly within the jurisdiction of the United States.

I’m sure we’re all aware of the government’s conduct with regard to the children of illegal immigrants, but I’ll spell it out anyway. Wong Kim Ark was the last time the question was seriously raised. For over two hundred years, people born in this country whose parents were not diplomats or saboteurs have been born citizens of this country. That’s what an anchor baby is, that’s been the gripe from the political right, that’s what Trump wants to change. So, if the argument hinges on custom, there’s no question.

Jurisdiction is a trickier question, but I think, just as easy an answer. Following the analysis of the Court in Wong Kim Ark, and the arguments of Lymun Trumbull and Jacob Howard during the Senate debate on the Civil Rights Act of 1866, whether a person can be properly said to be subject to the jurisdiction of the United States hinges on whether they owe political allegiance to anyone else. I have had the dubious pleasure of reading multitudes of social media posts and several op-eds that suggest that children of illegal immigrants are not, and were never intended to be automatically granted citizenship. All of those arguments cite Trumbull, who helped author the Civil Rights Act, and the majority opinion in the Slaughterhouse Cases as support for their positions. These opinions are specious at best.

At the time the Civil Rights Act of 1866 was passed, there was no such thing as illegal immigration. Without any further information, one might surmise that it is unlikely there would be a lively debate about the status of infants born to the parents of illegal immigrants absent such a distinction. One would be right. Lymun Trumbull, who has been so oft-cited by opponents of birthright citizenship, was of the view that birthright citizenship was the law of the land at the time of passage of the 14^th Amendment and the Civil Rights Act. Congressional Globe, 1^st Session, 39^th Congress, pt. 1, p. 498. Senator Edgar Cowan asked whether the Act would have the effect of naturalizing the children of Chinese and Gypsies born in the United States, to which Trumbull responded: “undoubtedly.” Id. He went on to say: “I understand that under the naturalization laws the children who are born here of parents who have not been naturalized are citizens. That is the law, as I understand it, at the present time.” Id.

Most of the debate over birthright citizenship in 1866 concerned the status of American Indians. See Congressional Globe, 1^st Session, 39^th Congress, pt. 1, p. 497 (for the proposition that most of the debate regarding citizenship was focused on the status of American Indians). The question of jurisdiction was settled quickly, and in the same manner as the majority opinion in Wong Kim Ark: Children born to parents who are not foreign officers, saboteurs, or non-taxpaying American Indians are citizens.

Nothing in the 1866 debate or the opinion in Wong Kim Ark is particularly helpful to opponents of birthright citizenship. It has clearly been the practice of the government to treat all children born of foreign nationals who are not foreign officers as citizens. “Complete jurisdiction” within the parlance of the debate over birthright citizenship refers only to the notion that the parents are not members of the excepted class.

All of these arguments and decisions were advanced before the government created a class of illegal immigrants. Since that time, it has been the practice of the government to treat the children of illegal immigrants as citizens, but the Supreme Court has not issued an opinion on the matter since the creation of that class. That means that this could actually be a case of first impression, 130 years after it was ripe for challenge. I would think that the Court would have to weigh custom, and the historical definition of “complete jurisdiction” to decide if the children of illegal aliens are automatically naturalized. I, personally, don’t see why an illegal alien would not be subject to the complete jurisdiction of the U.S. Illegal aliens are domiciled here, subject to U.S. laws, can be sued, served and forced to comply with court orders and judgements, and pay taxes. They have manifested an intent to abandon their native state and escape its jurisdiction. The only distinction absent from the Supreme Court’s analysis in Wong Kim Ark is that illegal aliens, by nature of their classification, cannot be said to be permanently domiciled here. It seems clear to me that is their intent, but obviously, the threat of deportation makes their status decidedly temporary.

What happens if the Supreme Court agrees with the administration that illegal aliens are not subject to complete jurisdiction within the meaning of the 14^th Amendment and Civil Rights Act?

The President will have gotten his wish. It is unlikely to affect any children already naturalized jus soli, but could effectively prevent the naturalization of infants born to illegal aliens going forward. How that would work is a lengthy and complicated discussion I’m simply not prepared for.

What happens if Trump issues an Executive Order and the Supreme Court finds against him?

The President will have two options. He can either (1) submit to the decision of the Court; or, (2) defy the Court and order his agencies not to grant the trappings of citizenship (such as social security numbers) to children born to parents who cannot themselves prove citizenship. The first way is the easiest, and most likely. The second scenario is possible, would result in a constitutional crisis many pundits have feared since the first time Trump compared himself favorably to Andrew Jackson, and would likely result in Trump’s victory. The Court has no means of enforcing its opinions, any action would have to be taken by Congress. In its current fractious state, it seems unlikely, to me, that they would be able to cobble together enough support in both houses to get anything done.

In conclusion, Trump may be able to legally end birthright citizenship for the children of illegal aliens if the Supreme Court accepts the argument that those children are not properly within the complete jurisdiction of the United States, because their parents are part of an excepted class. He may be able to end it anyway if he’s willing to spend the political capital, and Congress is unable to reach a consensus sufficient to enforce the law.

Edit: Obviously the political issue is more complex than the legal one, and I had decided not to address it. However, it may help some readers to understand why the Trump administration would embark on such a legally fraught course of action if they can appreciate what he stands to gain by losing. In case I wasn’t very clear, getting the Supreme Court, even with a newly minted conservative majority, to sign off on a massive change in the interpretation of the 14th Amendment is a bit of a stretch. It isn’t impossible, it happened in 2010 when the Court incorporated the 2nd Amendment, but it is unlikely. What this move does accomplish, even if it doesn’t abolish birthright citizenship for illegal aliens, is to energize Trump’s political base just days before the midterm elections. While the legal consequences are hazy, the political implications are crystal clear.

The Journey Begins

Thanks for joining me! It is my intention to produce one blog post a week, probably on Saturday mornings. My interests are primarily law, politics, religion, and history. I’ll try to post on relevant issues, and I will always provide sources. If you have a question with regard to any of the aforementioned areas of interest, or would like to see a post on one of those topics, let email me!

Good company in a journey makes the way seem shorter. — Izaak Walton