The Implied Repeal of the Second Amendment by the Fourteenth: An Exercise in Intratextual Interpretation

1. The Implied Repeal of the Second Amendment by the Fourteenth: An Exercise in Intratextual Interpretation Jim Chen University of Minnesota Law School Gun Control: Old Problems, New Paradigms Stanford Criminal Justice Center September 17, 2005

2. Intratextualism • The constitutional equivalent of statutory interpretation’s “whole act” rule • As venerable as Marbury and McCulloch • Akhil Amar’s signature technique. See, e.g., Intratextualism, 112 Harv. L. Rev. 747 (1999) • Jury service as a right based on the franchise-expanding amendments (15, 19, 24, 26)? • Freedom of speech is informed by the speech or debate clause of art. I, § 6? • Cute, clever … and often absurd

3. The Second Amendment • “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.” • Cf. U.S. Const. amend. III (“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”) • The interpretive principle of meaningful variation (“Every word is precious; every word is great”) demands that “Militia” and “Soldier” – and “people” – bear distinct meanings

4. Congress’s Powers over “Land and Naval Forces,” a.k.a. “Soldiers” • U.S. Const. art. I, § 8, cl. 12-14 • To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; • To provide and maintain a Navy; • To make Rules for the Government and Regulation of the land and naval Forces …. • The two-year limit on land but not naval forces reinforces what we understand to have been the Framers’ fear and distrust of standing armies

5. Congress’s Powers over the “Militia” • U.S. Const. art. I, § 8, cl. 15-16 • To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; • To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress …. • These references to the “Militia” are connected to the second amendment. See United States v. Miller, 307 U.S. 174, 178 (1939).

6. A potentially unified armed force? • The President heads the Army, the Navy, and the Militia: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States ….” U.S. Const. art. II, § 2, cl. 1. • Compare also art. II, § 3 (instructing the President to “take Care that the Laws be faithfully executed”) with art. I, § 8, cl. 15 (authorizing Congress to “call[] forth the Militia to execute the Laws of the Union”)

7. The Four “Militia” Powers • To call forth the militia “to execute the Laws of the Union, suppress Insurrections, and repel Invasions.” • To organize, arm, and discipline the militia • To govern such part of the militia “as may be employed in the Service of the United States.” • To prescribe the discipline by which the states may exercise their reserved authority to train the militia. • See generally Perpich v. Department of Defense, 496 U.S. 334 (1990).

8. Consequences of congressional regulation of the “Militia” • The Fifth Amendment right to “presentment or indictment of a Grand Jury” does not apply to “cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.” • The Supreme Court has held that the Sixth Amendment right to jury trial is limited to “those persons who [are] subject to indictment or presentment in the fifth.” Ex parte Milligan, 71 U.S. (4 Wall.) 2, 123 (1866). • The interplay of Perpich and the militia clauses with Milligan and the Bill of Rights suggests a channel by which Printz v. United States, 521 U.S. 898 (1997) can and arguably should be overruled. • Ave Caesar, Plena Potentia. Ecco Ancilia Legibus.

9. The 14th Amendment’s Impact on the 2d Amendment’s Citizen-Militia • Amar and others argue over the purported incorporation of the Second Amendment through different portions of § 1 of the Fourteenth Amendment • This ahistorical obsession with § 1 of the Fourteenth Amendment ignores what that provision’s framers really cared about: sections 2, 3, and 4

10. The Fourteenth Amendment Punishes “Insurrection” • Section 2: “[W]hen the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, …, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced ….” • Section 3: “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” • Section 4: “[N]either the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States ….”

11. Sections 2, 3, and 4 Should Be Read as Though They Still Matter • Our Constitution creates “a covenant running from the first generation of Americans to us and then to future generations.” Planned Parenthood v. Casey, 505 U.S. 833, 901 (1992). • Our Constitution is “intended to endure for ages to come,” across “the various crises of human affairs.” MCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415 (1819). • Implied repeals are disfavored in constitutional law even more so than in statutory interpretation, but does anyone doubt that the Nineteenth Amendment implicitly repeals the reference in section 2 of the Fourteenth Amendment to a presumptively male electorate?

12. The Implied Repeal of the Second Amendment by the Fourteenth • The citizen-militia framework of the Second Amendment does not work within a Fourteenth Amendment that thrice punishes “rebellion” and/or “insurrection” • The Civil War and the adoption of the Fourteenth Amendment restore the Militia’s charge to “suppress Insurrections and repel Invasions,” art. I, § 8, cl. 15, over any contrary suggestion implicit in the Second Amendment’s right to bear arms • Among the lessons of the “constitutional moment” of the Civil War is a reversal of the founding era’s fear of standing armies. Heavily armed, insurrection-minded members of the “people” pose a more credible threat to the integrity of the United States • The upshot? The Grand Army of the Republic didn’t get wasted at Shiloh so that insurrection-minded rebels might once again bear arms against the people and government of the United States

13. Thank You • For further information on my views on the Second Amendment, see Gil Grantmore, The Phages of American Law, 36 U.C. Davis L. Rev. 455 (2003) (pseudonymous work) • Phages can be downloaded on SSRN at http://papers.ssrn.com/abstract=785524