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November 3, 2011

"The Right Not to Keep or Bear Arms"

The title of this post is the title of this terrifically-interesting new paper on SSRN by Professor Joseph Blocher.  Here is the abstract:

Sometimes a constitutional right to do a particular thing is accompanied by a right not to do that thing. The First Amendment, for example, guarantees both the right to speak and the right not to speak.  This Article asks whether the Second Amendment should likewise be read to encompass both the right to keep or bear arms for self-defense and the inverse right to protect oneself by avoiding them, and what practical implications, if any, the latter right would have.

The Article concludes -- albeit with some important qualifications -- that a right not to keep or bear arms is implied by what the Supreme Court has called the “core” and “central component” of the Second Amendment: self-defense, especially in the home.  Recognizing such a right might call into question the constitutionality of the growing number of “antigun control” laws that make it difficult or illegal for private individuals to avoid having guns in their actual or constructive possession.

November 3, 2011 at 09:22 AM | Permalink


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By definition a right is optional to the person who possesses it. If it is not optional it is an obligation. That's the difference between the two words.

I honestly had never heard of mandatory possession laws before. Obviously they are unconstitutional.

For me that ends the discussion and the article was page upon page of irrelevances.

Posted by: Daniel | Nov 3, 2011 4:24:22 PM

Actually I would say that mandatory weapons possession laws would be entirely constitutional, just flowing from the congressional power to arm and discipline the militia rather than the 2A. It would be extremely difficult to argue that the 2A somehow encompasses a right not to bear arms, especially given that exactly such language was struck from the text as the proposal worked its way through congress. The original text Madison submitted was:

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country
but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

Combining the removal of the scruples language with the broad grant of power over the militia given to Congress I just don't see such a right not to bear arms. As I understand it, the exemptions we do have are matters of statutory law rather than of constitutional dimension.

And at least one state (Virginia which required possession and regular muster until Reconstruction), and I'm not sure if others did as well. I know Virginia provided monetary assistance to those who were otherwise unable to meet the militia requirements, though I don't know whether they did have a religious exemption available.

Posted by: Soronel Haetir | Nov 3, 2011 6:32:17 PM

Soronel that's just a bizarre comment. The text you quoted doesn't force people to bear arms. The text that was struck merely seeks to exempt people from militarily /service/.

If a person is in the military I'd agree they can be constitutionally forced to bear arms. And even if you had states at the founding that required all able bodied men to be in the militia you still don't get a rule that applies to all civilians.

Now, Congress could get around this issue if they so desire by (a) instituting a draft that applied to everyone and (b) requiring them to bear arms. But the mandatory carry laws under discussion do no such thing. First, they are not laws passed by Congress. Second, they apply to everyone, militia or no.

My point was simply that there is no basis in the 2A for the laws described in the article. Not that somebody somewhere somehow could not force people to bear arms.

Posted by: Daniel | Nov 3, 2011 11:46:44 PM

Thanks for the comments! Since I'm still working on the paper and appreciate any feedback I can get, I hope you don't mind if I follow up with a few questions:

Daniel, how would you classify the 8th Amendment's bar on cruel and unusual punishment, or the 13th Amendment's bar on slavery? I think of those as "rights" rather than "obligations," but obviously the persons who possess them have no option - one cannot consent to a cruel and unusual punishment, nor to slavery. Unwaiveable criminal procedure rights might fall into a similar category - one has no "option" of a non-public trial, for example. I hate to recommend more "page[s] upon page[s] of irrelevance," but I try to work through some of these problems in another forthcoming piece called "Rights To and Not To" (California L. Rev 2012, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1926235), and would appreciate your thoughts on it.

Soronel, does your argument apply just to federal laws, given that the Article I provisions you cite apply only to Congress? (For what it's worth, all of the examples I discuss in the paper are state or local rules.) Also, do you think that your view squares with Heller itself, which puts the self-defense rationale front-and-center?

Posted by: JB | Nov 4, 2011 7:15:05 AM

sorenel: "It would be extremely difficult to argue that the 2A somehow encompasses a right not to bear arms"

me: however, the First Amendment undoubtably does does through the Free Exercise clause encompass a right to not bear arms

Posted by: virginia | Nov 4, 2011 10:05:08 AM

@JB "I think of those as "rights" rather than "obligations,"

And I think that's where your thinking goes astray. It's true that we refer to the first 10 amendments as "The Bill of Rights" but that's just linguistic shorthand, not a literal truth. The Constitution (any constitution actually) can impose obligations as well as grant rights, it's not forced to do one or the other. The 8A doesn't include the word "right" in it's text at all. In fact, the distinction in the 9A and 10A between "rights" and "powers" clearly illustrates that Founders did not perceive the Constitution solely as a rights-granting document. Properly understood the 8A doesn't grant any rights to the people at all; it imposes an obligation on the government to not use its powers do something. I suppose one can think of the 8A in a backhanded way as granting the people a 'negative right' but I think that type of thinking obfuscates more than it clarifies.

I recognize that people define the res of a "right" differently. While I respect the work you put into your paper and did not intended to demean in any way, to my way of thinking a right is by definition an option granted to a person or a society. And an option by definition means the right to do something as well as not do it. So the discussion ends with the plain language of the 2A which clearly contains the word "right" in it.

Sorenel's point that the various rights, powers, and obligations in the Constitution often interact with each other in interesting ways does not change this analysis. I'd argue that the issues surrounding the militia are simply exceptions to the general right to bear or not to bear arms. I take this to be true both as a matter of history in regards to The Bill of Rights but also as a matter of political theory. But that's too much to get into here.

As for Ginny's point I don't agree totally. I take it as a fundamental truth that no part of the Constitution has the power to overrule another part of the Constitution unless it has done so (a) at a later date and (b) overrides that prior language explicitly. Otherwise the best it can do is modify it. So I'd argue that there must be some narrow set of circumstances where Congress can compel people to bear arms, the 1A and 2A not withstanding. But I see that as a academic point in this discussion because none of the laws outlined in your paper were passed by Congress.

Posted by: Daniel | Nov 4, 2011 5:03:25 PM

I would say that state and local laws requiring arms ownership would come very close to the prohibition on the states keeping arms without the consent of Congress (although such permission could of course be granted). I think it would be a much closer question whether the states could use a reconstituted federally disciplined militia for their own purposes when not in actual federal service. Although again, historical practice would bear out that the states would be free to do so for at least resisting invasion or insurrection (the examples I can come up with on this would mostly be slave uprisings).

Since my argument rests on the Congressional militia powers of Art 1, Section 8, I don't think Heller is at all relevant. The second amendment embodies a private right that exists in addition to whatever duty of arms Congress chooses to impose. Modern practice is that Congress has not imposed any such general duty, but that is certainly not the historical practice. And since the constitutional power still exists Congress is constitutionally unconstrained from returning to it (politically is likely a completely different matter). I think it would be a tough argument to make that the first amendment somehow impliedly repealed or amendment the militia power to provide an exemption of constitutional significance.I would say that state and local laws requiring arms ownership would come very close to the prohibition on the states keeping arms without the consent of Congress (although such permission could of course be granted).

I do actually think the bar on the states keeping troops would be your best bet if you are looking for an affirmative right to not bear arms, at least if the law is a local one and Congress has not passed enabling legislation. I don't think the second amendment would be any help at all in finding such a right if Congress were to pass such enabling legislation. I would agree that there would be a very strong argument if the religious objector language had survived from the draft.

Posted by: Soronel Haetir | Nov 4, 2011 8:14:09 PM

Professor Blocher.

I've taken the time to glance through your forthcoming paper mentioned above. I'd make two points. First, I'm definitely in the camp that views the bilateralism of rights as axiomatic. That's just a more academic way of repeating my view that a right is an option by definition. It's the reason why I disagree with Soronel that the second amendment "wouldn't be any help at all." I don't believe the 2A is dispositive but it does help because it is evidence of clear intent to limit the scope of Art 1, Section 8.

Like the 8A the 13A is not a right granting amendment at all. It doesn't grant the people the right to be free of slavery, it simply prohibits it's existence. Thus it is a direct expression of government power. Thus there is no right to be a slave because there is no right to be free of slavery. I must admit to a certain befuddlment as to why you insist that certain amendments to the Constitution are rights-granting when the plain text of amendment doesn't include the word "right" in it at all.

More broadly I think your reliance of the fact that courts have refused to recognize certain rights "not to" until a particular point in time is also misplaced. While the idea that the bialateralism of rights is a formalist position the law obviously does not move in a formalist way but only until someone complains. The fact is that SCOTUS has not recognized the biliateralism of certain rights /yet/ cannot be used as evidence either SCOTUS never will or that bilateralism is wrong. Nor do all the footnotes actually support your point. For example, “[A] defendant cannot convert his right to a speedy trial into a right to compel an indefinite postponement ….” is undoubtedly true because the opposite of a speedy trial is a slow trial not an "indefinite postponement" of one.

Still more broadly I think Gannett Co., Inc. v. DePasquale is instructive. "While the Sixth Amendment guarantees to a defendant in a criminal case the right to a public trial, it does not guarantee the right to compel a private trial.” I believe the key word there is "compel". In that case the objection to the private trial was filed by a newspaper which implicated the 1A. So I think it is quite the intellectual leap to say that the language you quote embraces a rejection of the bilateralism of rights. A fairer reading of that language is that the court is simply embracing the concept I outlined in my post above: the balancing of competing rights.

I don't think SCOTUS has ever rejected the notion that rights are bilateral. What it has done is recognized case-by-case that that the rights, powers, and obligations in the US Constitution often compete with one another. Balancing that mix is no easy task and one on which people can and do disagree. So I can't agree that "determining whether a particular 'right to' should be accompanied by a “right not to” is fundamentally an inquiry into the principles or values associated with the right". I don't think the basis for the inquiry is intra-right but inter-right.

Posted by: Daniel | Nov 5, 2011 6:37:55 PM

Daniel: Thanks for glancing through the other paper! I really appreciate your comments on it. I’m still not sure why you think that everything that’s called a right encompasses an option, though. You’re correct, of course, that the Eight Amendment doesn’t use the word “right” and doesn’t give an option. But the free speech clause of the First Amendment doesn’t use the word “right,” either, and yet clearly does give an option to speak or not. (As a side note, you express "befuddlement" about my insistence on calling certain guarantees rights even though their Amendments don't use that word. But surely you'd call free speech a right, wouldn't you?)

I'm glad you found Gannett instructive, but I have to confess that I don't see the "intellectual leap" in my reading of the Sixth Amendment. The Amendment refers to “the right to a speedy and public trial,” but does not give the rightsholder an option - the government can give you a speedy or public trial even if you don’t want one. So again, as a doctrinal matter, at least, isn’t it true that use of the word “right” isn’t enough to say whether there’s an option? That of course doesn’t foreclose the argument - which I take you to be making — that all rights perhaps *should* include options. But I don’t think it’s enough to say, at least as a descriptive matter, that “a right is by definition an option granted to a person or a society.” At the very least, we have to look to more than the text of the Amendments to know that, right? I'm also interested in the division you posit between rights-held-by-individuals as opposed to (and distinct from) limitations on government power. What do you think of the Hohfeldian rights/duties structure?

Maybe you and I just don't see eye-to-eye on the labels, but do agree on the results - that some constitutional guarantees include options, and some don't. I get there by calling many of them rights (including the 8th and 13th Amendments and the crim pro guarantees) and figuring out how to sort them. You do the sorting at the initial phase by labeling some as limitations on government power and others as rights, and concluding that the latter are inevitably bilateral. But if I'm correct that the text alone doesn't get you there, how do you decide what to call a "right"?

Soronel: I think I misunderstood your original post. I took you to be arguing that the Second Amendment should be interpreted in light of the omitted phrase “but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.” And the reason I asked about Heller was because, as you probably know, supporters of the militia-based reading of the Second Amendment have pointed to such language as evidence that the Amendment was designed to protect state militias from federal disarmament, rather than an individual right to self-defense. Since the Court rejected that militia-based reading (and its reliance on the omitted language you cite), I wondered what you thought of the Court’s reasoning.

If your argument is that, notwithstanding any self-defense-based right to bear arms (or not), Congress can still compel armed military service, I agree and say as much in the paper. But the rest of the laws I discuss aren’t predicated on any kind of actual or even potential military service. Do you think those laws are constitutional as well, even though they’re not passed by Congress and don’t have anything to do with military service?

Posted by: JB | Nov 6, 2011 7:54:23 AM

Whether such local laws are unconstitutional is a gray enough area that I'm not particularly comfortable giving a straight yes or no answer. I will say that I think any problems that do exist could be remedied by Congress (either as a matter of the militia powers, or giving the states a limited power to keep troops or both), so whatever protection does exist is also fairly weak.

I am not particularly convinced by the majority's reasoning in Heller, even though I am very much in agreement with the ultimate outcome of DC being required to issue the permit unless they could come up with a non-arbitrary, non-capricious reason for doing so. Partly it is that they included so many limitations in a case that really did not require them and partly it is how the majority analyzed just about every word and phrase except the very last, the one that actually says what is to happen -- "shall not be infringed". The majority did not examine at all the difference between infringement and abridgement, for example, and I do think that different word choice is instructive. I am also highly unimpressed by at least one significant error of history propounded by both the majority and dissent (that being that Miller was actually convicted at the trial level, he was not).

My personal view, in light of privately owned warships of the time and land based cannon, is that the arms of the second amendment include every implement of war, not just those that are man or even crew portable. This includes nuclear and biological weapons. I would also, however, be perfectly happy with an amendment that would alter this meaning, at least if it were to go no further than limiting it to man portable arms. I doubt I would endorse changing arms to what is legal under current law.

Posted by: Soronel Haetir | Nov 7, 2011 10:57:21 AM

"But the free speech clause of the First Amendment doesn’t use the word “right,” either, and yet clearly does give an option to speak or not. (As a side note, you express "befuddlement" about my insistence on calling certain guarantees rights even though their Amendments don't use that word. But surely you'd call free speech a right, wouldn't you?)"

The 1A contains the words "law", "freedom", and "right". As a matter of political theory there is a difference between a "right" and a "freedom". The difference being who grants it. Freedoms are seen as broader and are akin to what some theorists would term "natural rights" or "God Given Rights" whereas a right proper is something that is bestowed by man on man.

"The Amendment refers to “the right to a speedy and public trial,” but does not give the right sholder an option - the government can give you a speedy or public trial even if you don’t want one."

I don't know of any case that stands for that proposition. Gannett Co. certainly does not. Gannett Co. only stands for the proposition that, as I have stated before, that every part of the Constitutional has to be balanced against every other part of the Constitution. People can disagree with where to strike that balance but such a disagreement doesn't turn a right into an obligation.

"But if I'm correct that the text alone doesn't get you there, how do you decide what to call a "right"?"

My starting place is always the text of the document itself. There are no rights in the Constitution expect those explicitly labeled as rights. As a matter of practice we tend to treat freedoms /as if/ they were rights because as a matter of practical implementation that's what they turn into because judges are men and not gods, after all.

Posted by: Daniel | Nov 7, 2011 4:36:35 PM

The Constitution does not protect us, nor does the Bill of Rights give us our rights. That magnificent document was meant to be the Crown Jewel of all world governments, it is a reminder of our rights given to us by our Creator, not the government and it means that we have to fight, if necessary to also remind a corrupt dictatorship that they work for us.
So in essence, the Constitution of the United States of America is a document for all people of the world to remind them to WAKE UP and remember who they are!!

Posted by: James Freeman | Jan 8, 2013 1:37:51 PM

I am a law student

Posted by: James Freeman | Jan 8, 2013 1:40:40 PM

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