The Volokh Conspiracy

The first federal statutes governing the Militia of the United States were enacted in 1792.  There were some revisions in 1795. During the Civil War, an amendment removed the language that had restricted federal militia membership to free whites.

The old militia statutes were repealed and replaced by the Militia Act of 1903, 32 Stat. 775, commonly known as the ‘‘Dick Act’’ for its sponsor Representative Charles W.F. Dick, a Major General in the Ohio National Guard.

The Dick Act gave formal federal recognition—and financial support—to the National Guard, which had begun as a volunteer state-based civic organization after the Civil War. According to the Dick Act, the ‘‘organized militia’’ of the United States is the National Guard, plus Naval Militias maintained by some states. 10 U.S.C. §311(b)(1).

The Dick Act also defines the ‘‘unorganized militia.’’ The unorganized militia is all able-bodied men between 17 and 44 years of age who are United States citizens (or ‘‘have made a declaration of intention to become
citizens’’), and who do not belong to the organized militia. 10 U.S.C. §311(a), (b)(2). They are subject to call-up by the federal government in order to ‘‘execute the Laws of the Union, suppress Insurrections [or] repel Invasions,’’ under the Constitution’s Militia Clauses. (Clause 15 of Article I, sect. 8 is the “Calling Forth” clause. Clause 16 grants Congress the power to organize, arm, and discipline the militia.)

The best book on the early history of the National Guard, including the Dick Act, is Jerry M. Cooper, The Rise of the National Guard: The Evolution of the American Militia, 1865-1920 (2002). During the late 19th and early 20th century, the National Guard and the National Rifle Association were very closely intertwined.

The Dick Act has long been a part of the Second Amendment debate in the United States, since the Act plainly shows that Militia is not solely the National Guard.

These days, however, a ridiculous email is being circulated, which claims that the Dick Act absolutely prohibits any form of gun control for men 17-44. Further, the email asserts, preposterously, that the Dick Act is unrepealable, because repeal would violate the Bill of Attainder and Ex Post Facto clauses. David Hardy deconstructs this email over at his excellent blog, Of Arms and the Law. Hardy’s blog is mandatory reading for anyone with a serious interest in firearms law and policy.

Grotesquely wrong emails such as this are, objectively speaking, helpful to gun prohibitionists. To the extent that pro-rights activists mistakenly rely on the email, and use it as the basis for arguments that they send to elected officials in opposition to proposed anti-gun laws, the activists are wasting their time with arguments that are plainly incorrect, and therefore will not be persuasive to elected officials. Further, some readers who fall for this email hoax may imagine themselves immune from vast array of repressive laws which are being pushed in Congress and the state legislatures, some which have already been enacted in New York. As a result, these readers may sit on the sidelines politically, failing to get involved at a time when citizen activism is essential.

In state elections, the most important vote this November will be in Louisiana. A referendum there would significantly strengthen protection of the right to keep and bear arms in the state, and would set a very significant national precedent.

Before the Civil War, the Louisiana Constitution did not mention a right to arms. The Louisiana Supreme Courts, however, viewed the federal Second Amendment as directly applicable to state government. So in State v. Chandler (1850), the court held that the Second Amendment protected a general right to carry arms, but that a legislature could ban concealed carry.

A new state constitution, adopted in 1879, provided: “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 abridged. This shall not prevent the passage of laws to punish those who carry weapons concealed.” La. Const., art. 3. The first sentence is, of course, nearly verbatim from the Second Amendment.

A century later, firearms prohibitionists had convinced some courts to reinterpret the Second Amendment so as to make it practical nullity. Supposedly, the Second Amendment right was not an individual right, but instead a “state’s right” or “collective right”–which meant that individual gun ownership could be entirely outlawed. Because the Louisiana Constitution’s language so closely paralleled the Second Amendment, there was a danger that a Louisiana court could interpret the state constitutional language to protect nothing at all. Indeed, some courts in other states had already done so, regarding state law language that copied the Second Amendment.

So in 1974, the Louisiana constitutional right was strengthened, with new language: “The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of concealed weapons.” La. Const., art. I, sect. 11. The new language made it indisputable that the state constitution’s right to arms was an individual right, belonging to each citizen.

Unfortunately, Louisiana’s Supreme Court, like some other courts of the late 1970s, was hostile to the right to arms. According to a 1977 Louisiana Supreme Court decision, “The right to keep and bear arms, like other rights guaranteed by our state constitution, is not absolute. We have recognized that such rights may be regulated in order to protect the public health, safety, morals or general welfare so long as that regulation is a reasonable one.” State v. Amos 343 So.2d 166, 168 (La. 1977).

It was unexceptional for the court to observe that the right to arms is no more “absolute” than any other right. But the court went much further, and essentially stripped the Louisiana arms right of any meaningful judicial protection. According to the Amos court, any form of gun control was constitutional, as long as it was “reasonable.”

In 2001, the Louisiana Supreme Court affirmed a lower court ruling that held: “The right to bear arms is established by the Second Amendment to the United States Constitution and Article I, § 11 of the Louisiana Constitution. The State of Louisiana is entitled to restrict that right for legitimate state purposes, such as public health and safety.” State v. Blanchard, 776 So.2d 1165 (La. 2001). The Blanchard court cited Louisiana state and federal cases from 1986 through 1999 for this proposition.

So Blanchard adopted an even weaker standard of right to arms protection than had Amos. Under Blanchard, any restriction is alright so long as the government has a “legitimate” purpose.  Blanchard‘s legitimate purpose test copies one prong of the weakest standard of judicial review, the “rational basis” test, which was originally created for Fourteenth Amendment Equal Protection cases. Under this test, every law is constitutional so long as the government has a “legitimate” purpose, and the law has a “rational” connection to that purpose.

Fortunately, gun control has not been politically popular in Louisiana in recent decades. So even though the state’s courts have essentially nullified the constitutional right to arms, Louisiana’s firearms statutes are not, in general, oppressive.

In the November 2012 referendum, Louisiana citizens will be given the opportunity to remedy the wrong decisions in Blanchard and Amos. Voters can adopt new constitutional language: “The right of each citizen to keep and bear arms is fundamental and shall not be infringed.  Any restriction on this right shall be subject to strict scrutiny.”

If adopted, the referendum would make two direct changes:

1. For the first time in Louisiana, concealed carry would be constitutionally protected. This makes sense, because in the 21st century (unlike in the 19th), concealed carry is most common way that Louisiana citizens exercise their right to carry handguns for lawful protection. Like most other states, Louisiana has a statutory system by which concealed carry permits are issued under fair and objective standards.

2. The judicially-imposed “legitimate purposes” test (the weakest test) of judicial review would be replaced by the strongest test: strict scrutiny. Under “strict scrutiny,” the burden of proof is reversed; the government bears the burden of proving that a gun control law is constitutional. To pass strict scrutiny, a law must be proven to serve a “compelling state interest” (not merely a “legitimate purpose”). Even if the law does advance a compelling state interest, the law is constitutional only if the government additionally proves that the law is “narrowly tailored” and is the “least restrictive means” to advance the compelling state interest.

Louisiana would be the first state to write the “strict scrutiny” standard into its constitution. This would become the model in other states for significantly strengthening protection of their own constitutional right to arms. So it is unsurprising that the proposed amendment is strongly supported by the National Rifle Association, the Louisiana Shooting Association, and Gov. Bobby Jindal, who is the most pro-right to arms Governor in Louisiana history, and a national leader on the issue.

Surprisingly, some people in Louisiana are opposing the Amendment on the grounds that it supposedly promotes anti-gun laws. For example, at this website, the author remains invincibly ignorant, even when the facts are patiently explained an attorney from the Louisiana Shooting Association. The website author wants to live in a world of absolute rights. Be that as it may, Louisiana today is not a state of absolute rights; it is a state where the right to arms essentially does not exist, as a matter of state constitutional law, as mis-interpreted by state courts. The amendment would remedy the misinterpretation, and make it drastically harder for future courts to uphold anti-gun laws.

A victory for the Louisiana referendum will profoundly strengthen the right to arms in Louisiana, and have significant positive effects nationally. A defeat would validate the actions of previously Louisiana judges in recent decades who deigned that the right to arms was unworthy of judicial protection.

For my co-authored textbook Firearms Law and the Second Amendment, I’ve been doing a series of podcasts on each chapter. Now available is the podcast for Chapter 4, which covers the Philadelphia Convention, the ratification debates, the creation of Bill of Rights, and St. George Tucker’s contemporaneous exposition of the original meaning of the Second Amendment.  The podcast is 45 minutes. Here are the links for Aspen Publishers web page for the textbook, and the Amazon page. It’s also available from BN.com (Barnes & Noble).

In a column from 2000, I examined what military historians suggest might have happened if the D-Day landings had been repulsed. Or what if they had taken place in 1943 instead of 1944? The short answers are that if D-Day had failed, Stalin would have ended up occupying almost all of German, which would have significantly changed the balance of power in the Cold War. Had the Allies invaded France in 1943, rather than invading Sicily, they probably would have made faster progress than they did in 1944. VE Day would have come a year earlier, with the Allies capturing most of Germany.

In 1994, Dan Gifford and I wrote that “D-Day was almost a German holiday.” That is, in the darkest days of the war, defending U.S. coastal areas was a crucial concern. Fortunately, the states were able to call forth their self-armed citizen militias for coastal defense, while the U.S. Army and National Guard were busy elsewhere.

The first law school textbook on the Second Amendment is now available from Aspen Publishers. The co-author are Nick Johnson (Fordham), Michael O’Shea (Oklahoma City), George Mocsary (Connecticut), and me. Here’s the publisher’s page for the textbook, from which professors can request a free review copy. The book is also available for civilian purchase from Amazon.

We also have our own website for the book. There, you can read the detailed Table of Contents, and the Preface. The website is in an early stage of development; eventually, it will include detailed research guides and topic suggestions for students who are writing seminar papers. If you a professor and one of your students writes a seminar paper which makes a genuine contribution to knowledge about a topic, we invite you to send the us paper for publication on the website.

The textbook will have an accompanying Teacher’s Manual. We are currently finishing that up, and aim to have it available before the Fourth of July. (It’s free for professors who get a review copy, and forbidden for anyone else.)

Besides the 11 chapters in 1,008 pages of the printed book, there will also be four more on-line only chapters, available to purchasers of the printed book. These chapters will be: 12, Social science about firearms policy. 13, International law. 14, Comparative law. 15, A detailed explanation of firearms and their function. (Chapter 1 of the printed book provides a brief explanation of firearms and their function; the on-line chapter will go into much greater detail [e.g., what is a lever action gun?], and will have illustrations and photos.)

Finally, Firearms Law is the first law school textbook to be the subject of a podcast series. The published podcasts are: Chapter 3, The Colonies and the Revolution. Chapter 2, Antecedents of the Second Amendment: From Confucius to the British Whigs. Chapter 1, An introduction to firearms laws and firearms function. As the summer progresses, we will be adding more, and some chapters may have more than one. Thus far, all the podcasts are interviews of me, but as we make our way through the book, other co-authors will also appear in the podcasts.

I posted a draft of this article a few months ago, and I thank VC readers for some helpful comments in improving it. The final version has been published by the Charleston Law Review, and is available on SSRN. Here’s the abstract:

This Article chronologically reviews the British gun control which precipitated the American Revolution: the 1774 import ban on firearms and gun powder; the 1774-75 confiscations of firearms and gun powder, from individuals and from local governments; and the use of violence to effectuate the confiscations. It was these events which changed a situation of rising political tension into a shooting war. Each of these British abuses provides insights into the scope of the modern Second Amendment.

From the events of 1774-75, we can discern that import restrictions or bans on firearms or ammunition are constitutionally suspect — at least if their purpose is to disarm the public, rather than for the normal purposes of import controls (e.g., raising tax revenue, or protecting domestic industry). We can discern that broad attempts to disarm the people of a town, or to render them defenseless, are anathema to the Second Amendment; such disarmament is what the British tried to impose, and what the Americans fought a war to ensure could never again happen in America. Similarly, gun licensing laws which have the purpose or effect of only allowing a minority of the people to keep and bear arms would be unconstitutional. Finally, we see that government violence, which should always be carefully constrained and controlled, should be especially discouraged when it is used to take firearms away from peaceable citizens. Use of the military for law enforcement is particularly odious to the principles upon which the American Revolution was based.

Readers interested in more detail on the role of gun rights and gun control in period leading up to the Revolution, and in the remainder of 18th century America, are encouraged to read Stephen Halbrook’s excellent book The Founders’ Second Amendment, which is the result of decades of work by Halbrook in finding primary sources of the period, including newspapers, correspondence, and diaries.

On a related topic, some readers might also be interested in my 2005 article The Religious Roots of the American Revolution and the Right to Keep and Bear Arms, detailing the role of Congregationalist and other ministers in inciting the Revolution, by explaining collective self-defense of natural and civil rights as a moral and religious obligation.

Regarding Eugene Volokh’s post below about an NYU L. Rev. article, “The People” of the Second Amendment: Citizenship and the Right To Bear Arms. I just scanned the article, and there appears to be only a single footnote which directly cites any state statutes from before 1800. Note 125, accurately cites standard statutory compilations from Massachusetts and Connecticut for laws against selling firearms to Indians. Although the author is apparently unaware that by 1661 (Connecticut) and 1688 (Massachusetts) the laws were changed to allow gun sales (and even gun carrying in towns) by friendly Indians. The article suffers very severely from its near-exclusive reliance on secondary sources for the pre-1800 period, especially since some of those sources are highly tendentious.

To summarize the information from Chapter 3 of my forthcoming textbook Firearms Law and the Second Amendment: Regulation, Rights, and Policy (Aspen Publishers, available in late Jan. 2012) regarding American law pre-1800:

Women: No restrictions. Of course they did not serve in the militia. Laws requiring “householders” (whether or not they were in the militia) to have arms were common, and these usually included a woman who was the head of the house (e.g., a widow).

Free blacks: Some states had no restrictions, some states had bans on their owning guns. Free blacks served in some state militia, not in some other states, and in some states policies changed depending on military necessity. They were excluded from the federal militia by the Second Militia Act of 1792.

Slaves: Several states banned gun ownership, or allowed ownership only with the master’s permission.

Poor whites: To claim that they were excluded from gun ownership or from militia service is absurd. There were absolutely no property or wealth restrictions on gun ownership, nor on service in the militia. To the contrary, many states had programs to supply poor people with guns (“public arms”) for militia service, if they could not afford their own. Further, the laws requiring householders to be armed often required that the household provide arms to adult male servants. State laws also required that when an indentured servant finished his or her term of service, the master must provide the former servant with “freedom dues” so that the servant could begin independent life. The freedom dues were specified set of goods; in Maryland, Virginia, and North Carolina, freedom dues for male servants included a firearm. In short, the state laws of the 17th and 18th centuries in America were generally prescriptive about gun ownership by poor people, and the prescriptions were to put guns into the hands of the poor.

The author of the NYU article asserts that “arms bearing was considered congruent to voting, holding public office, or serving on juries.” That’s incorrect for “bearing” in the sense of carrying a gun for personal use, since there were no wealth, sex, age, or citizenship restrictions on carrying. And the claim is even more incorrect if “bearing” is meant in the restrictive sense of “bearing for militia service.” Militia laws always mandated service by all males (except, sometimes Blacks or Indians) in a certain age range. Period. The only exemptions were for specified professions (e.g., clergy). Militia duty was generally required starting at age 16 or 18 (which was before voting eligibility). Indeed, during the end of the 18th century and the early 19th century, one of the standard,successful, arguments for broadening the franchise by eliminating the property requirement for voting was that anyone who served in the militia deserved to vote. E.g., “Let every man who fights or pays, exercise his just and equal right in their election.” Thomas Jefferson letter to Samuel Kercheval, July 12, 1816.

Catholics: In Maryland, temporarily barred from gun ownership during the French & Indian War.

Dissenters: During the Revolution, there were plenty of instances of confiscating guns (sometimes with compensation) for militia use from people who would not take a loyalty oath to the new nation, or who would not serve in the militia (this included plenty of religious pacifists in Pennsylvania). During the early theocratic days in Massachusetts, 75 supporters of the religious dissident Anne Hutchinson were disarmed.

The author’s thesis is that illegal aliens and legal non-resident aliens should be allowed to own guns. Part of his argument is to construct and then criticize the supposedly historical “gendered,and class-stratified understanding of persons permitted to own guns.” The author could have made a stronger historical argument for his position if he had accurately described the gun laws of 17th and 18th century America.

That’s the title of my new law review article, currently in the editing process at the Charleston Law Review. A draft is available at SSRN, and comments are welcome. The final part of the article suggests how the history might inform our modern understanding of Second Amendment rights.

My recent article for America’s 1st Freedom traces the rise and fall of the theory that the Second Amendment is not an individual right, but instead is a “collective right,” which, like “collective property” in a communist country, supposedly belongs to everyone collectively, but in fact belongs to no-one. The theory was created by a federal district judge in 1935, formally named by the New Jersey Supreme Court in 1968, and became popular among lower federal courts during the next quarter-century.

Historical and textual analysis made it increasingly clear that the theory was completely implausible, and it was unanimously rejected by the U.S. Supreme Court in the 2008 case District of Columbia v. Heller. In that case, all nine justices agreed that the Second Amendment right was individual, while they disagreed about its scope.

My DU colleague Thomas Russell, who used to teach at the University of Texas Law school, has a written a paper, available on SSRN, which urges the University of Texas Law School to rename Simkins Hall, a law and graduate male student dormitory named for William Stewart Simkins. Simkins taught equity, contracts, procedure, and related topics at UT for three decades in the early 20th century. He was also a founder of the Ku Klux Klan in Florida, and every year at UT he gave a formal speech extolling the Klan.

Most of Russell’s paper concentrates on Simkins’ career at UT, as well as the 1954 decision (five weeks after Brown v. Board was announced) to name the dormitory after him. I was curious to learn more about Simkins had actually done with the Florida Klan, so I read Michael Newtown’s book The Invisible Empire: The Ku Klux Klan in Florida.

Continue reading ‘The Bernardine Dohrn of the early 20th century: The terrorist professor at U of Texas law school’ »

Bill Clinton’s invocation of Timothy McVeigh in connection with the Tea Party movement caused me to recall my review of a book on the Waco massacre that was a motivation for McVeigh.  The book under review was Reavis, The Ashes of Waco, and it appeared in the Times Literary Supplement in 1995.  Re-reading it for the first time in many years, I was struck by this section:

[T]here is the post hoc justification for the use of CS tear-gas in the raid offered by the US Justice Department and senior Clinton administration officials. The public generally, and even the Congressional hearings, seem to have accepted that the children at Waco were gassed and then died as, in effect, “collateral damage” in the course of a raid aimed at their parents.

This is not quite the case, however, by the Clinton administration’s own admissions. CS gas was used at the compound, in order, as senior White House adviser George Stephanopoulos said, echoing senior Justice Department statements, to “try and pressure” those in the compound. It was hoped, he said, that as this “pressure was increased, the maternal instincts of the mothers might take over and they might try to leave with their kids” (Washington Times, April 23, 1995).

But the FBI knew beforehand that adults in the compound had gas masks; the gas therefore would not put pressure on them. On whom, then? If the FBI knew that the adults had gas masks, but went ahead with the gas attack anyway, it is plain that this “pressure” was brought directly against the children because, as the FBI knew, they could not fit into adult- size gas masks. “Maternal feelings”, the FBI hoped, would be unleashed in the mothers by watching their children choking, gasping and blistering from the gas.

The plan Reno approved and took to President Clinton for approval contemplated the children choking in the gas unprotected for forty-eight hours if necessary, to produce the requisite “maternal feelings”. By taking aim at the children with potentially lethal gas, their mothers would be compelled, according to the FBI plan repeatedly defended by the Clinton administration afterwards as “rational” planning, to flee with them into the arms of those trying to gas them. [Emphasis added.]

An independent report on Waco written by the Harvard Professor of Law and Psychiatry, Alan A. Stone, for the then Deputy Attorney General Philip Heymann, says it “is difficult to believe that the US government would deliberately plan to expose twenty-five children, most of them infants and toddlers, to CS gas for forty-eight hours”. Unfortunately, however, that appears to have been exactly the plan.

The effect of CS gas on an unprotected infant exposed for only two to three hours is discussed in the report; in that case report, dating from the early 1970s, the child’s symptoms during the first twenty-four hours were upper respiratory; but, within forty-eight hours his face showed evidence of first degree burns, and he was in severe respiratory distress typical of chemical pneumonia. The infant had cyanosis, required urgent positive pressure pulmonary care, and was hospitalized for twenty- eight days. Other signs of toxicity appeared, including an enlarged liver.

Professor Stone’s report is measured, careful and damning. It is hard to know whether Heymann’s courage in commissioning it was a reason for his subsequent departure from the Justice Department. In the mean time, questions about the performance of the Justice Department are treated by the Clinton administration not as serious allegations of criminal activity, but as little more than a below-the-belt salvo in the culture wars.

I was shocked to read in Stone’s report that the Justice Department had undertaken, and had defended in the press as such, activities which if conducted in wartime would constitute war crimes. Because exposing the children to CS gas was the point of the FBI exercise: no children exposed, no pressure.

Thus far, the argument among law professors over the constitutionality of Obamacare has been well represented by scholars who have made pro and con arguments over particular clauses in the constitution, such as the interstate commerce clause, or the tax power. In this post, I would like to examine an insight by Jonathan Turley, which points the way to strong, recent, and repeated precedent suggesting that Obamacare is unconstitutional.

Let’s begin by getting rid of the red herring that questioning the constitutionality of Obamacare requires denying the constitutionality of the New Deal and the Great Society. Orin asks:

In your view, which of the following federal programs or agencies are constitutional?

(a) Social Security
(b) The Federal Trade Commission
(c) Medicare/Medicaid
(d) The Securities and Exchange Commission
(e) The new Health Care mandate

In my view, (a), (b), (c), and (d), are constitutional, but (e) is not. My answer is based on using “constitutional” in the normal sense of the word as it appears in most modern public dialogue. That is, “Should a judge who accurately applies existing precedents, and other sources of legal authority, find the law to be constitutional?” This is the question that federal district judges and circuit court of appeal judges will have to answer, since they have no authority to reject Supreme Court precedent. The Supreme Court can change its own precedents, but for for purposes of argument, I am presuming that the Supreme Court would not overrule any precedents.

As Jack Balkin, Sandy Levinson, and others have ably pointed out, “constitutional” can be used in a different way, in that people express aspirations about what the Constitution should mean, even if that meaning is contrary to current precedents. For example, a person in 1946 might say “Discrimination against women is unconstitutional.” That person would not be describing the current state of the law, but would be making an argument that constitutional intepretation should be changed. Often, these aspirational statements do become constitutional law, especially when they win the hearts and minds of the public. Some of the 1930s decisions upholding parts of the New Deal or its state analogues are examples of the success of this aspirational constitutional rhetoric.  For example, the statement in 1890 that “mortgage relief laws are constitutional and do not violate the Contract Clause” would have been  incorrect in regard to Supreme Court precedent, and was utterly contrary to the original meaning of the Contract Clause. Nevertheless, the Supreme Court later changed its intepretation of the Contract Clause, so that the aspirational statement became an accurate description of the law.

People are free to argue all they want, on the basis of aspiration, original meaning, or anything else, that items (a) through (d) on Orin’s list are unconstitutional. If these people persuade enough of their fellow Americans, perhaps the Court might eventually narrow or overturn some of the precedents which uphold (a) through (d). However, my argument is based on the law as it actually exists today, and it presumes the continuing validity of all the New Deal and Great Society precedents.

Some parts of Obamacare, such as the calorie labeling requirement for restaurant chains, appear to be solidly within the scope of existing precedents. (At least based on the discussion I’ve heard thus far.)

In contrast, the individual mandate to purchase health insurance is not. It “is unprecedented in our jurisprudence.” Romer v. Evans (1996). It is possible to make arguments for extensions of cases such as Wickard, Raich, and Sonzinsky in support of the mandate. However, such arguments are a plea for extending those cases, not for merely applying them. For example, an application of Wickard/Raich might be a law against a person manufacturing her own medicine at home, rather than purchasing the medicine through the federally-controlled market.

No prior case stands for the proposition that Congress may use the interstate commerce power to order persons to buy a particular product, or may use the tax power to punish people for choosing not to purchase a particular product. I can imagine a judicial opinion that builds on the foundation of Wickard, Raich, and Sonzinsky, and extends those cases much further, in order to uphold the mandate. The Court might do so, but the Court would be doing much more than merely applying precedent.

At this stage in the debate, the only cited instance of Congress ever forcing people to buy particular products have come under the congressional exercise of the enumerated militia powers in Article I, section 8, clause 16, “To provide for organizing, arming, and disciplining, the Militia. . .” Here, the congressional power to mandate is provided in the text itself. Further, the original understanding of the militia was that the militiamen ”were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” United States v. Miller  (1939). The congressional power to provide for arming the militia straightforwardly includes the power to tell militiamen what kind of arms to bring to duty.

The federal militia powers come from the state militia powers, which (by enacting the Constitution) the People and the States chose to give (at least concurrently) to Congress. No one could possibly dispute that state militia powers included the power to require militiamen to bring certain types of arms to duty, and thus to require the purchase of such arms if necessary. The federal power to regulate commerce among the several states was likewise granted to Congress from the powers which were then possessed by the States and by the People. There was certainly no understanding in 1789 that state power to regulate interstate commerce (e.g., by inspecting goods at ports of entry) included the power to compel individuals to purchase goods in commerce.

So neither the Militia arming clause nor any cases provide precedent for the unprecedented mandate to purchase insurance. At best, the mandate is in a constitutional gray zone. To resolve the gray zone question, we are not limited to wondering whether to greatly extend some prior cases on the interstate commerce clause or the tax power. In addition, we can consider the structure of the Constitution itself.

As Jonathan Turley has written, allowing the individual mandate to stand “could amount to a ‘do not resuscitate’ order for federalism.” If judges find this argument (in the greatly eleborated form that will eventually be presented to the courts) to be persuasive, then the Supreme Court precedent is very clear. Several recent cases, including Seminole Tribe of Florida v. Florida (1996), Alden v. Maine (1999), City of Boerne v. Flores (1997), United States v. Morrison (2000), Board of Trustees of University of Alabama v. Garrett (2001), and Nevada Dept. of Human Resources v. Hibbs (2003)  have demonstrated the Court’s persistent determination to defend state sovereign immunity. Some of these cases involved the Eleventh Amendment, and some involved the Fourteenth (Cong. powers under sect. 5). In one case (Hibbs), the federal abrogation of sovereign immunity was upheld, partly because the federal law involved a state practice (sex discrimination) that was already unconstitutional.

These decisions have been heavily criticized by the academic Left, and the critics have pointed out that these decisions have much less to do with the constitutional text, or with original meaning of the text, than they do with the Court’s broad view of constitutional structure: the essential nature of state sovereignty, and one of the attributes of sovereignty, namely sovereign immunity.

According to the Court, a Congressional statute making it easier for states to be sued for patent infringement is such a serious violation of federalism that it must be held unconstitutional. Florida Prepaid Postsecondary Educ. Expense Board v. College Savings Bank (1999).  (Eugene Volokh’s article on the case is here.) In terms of the practical harm to state sovereignty, the congressional law on patent suits is to Obamacare as a house cat is to lion.

The extensive line of recent cases on state sovereignty is complemented by the Ninth Amendment. The Ninth Amendment may be read to create a presumption of liberty. Randy Barnett, Restoring the Lost Constitution: The Presumption of Liberty (2005). Or it may be read as requirement that enumerated federal powers be narrowly construed so that they do not violate the retained natural rights of the people, including the people’s right of self-government in the states. Kurt Lash,  The Lost History of the Ninth Amendment (2009).  Either reading raises further doubts about the constitutionality of the insurance mandate.

As the joint complaint of the 13 Attorneys General has argued, Obamacare constitutes an immense assault on federalism. If Obamacare is upheld, the states may be well on the way to becoming like the Roman Senate in 100 A.D.: formerly the an essential component of republican sovereignty, but now a hollowed remnant, possessing the forms of the old republic but really functioning as a mere puppet of the Leviathan.   

“[F]ederalism was the unique contribution of the Framers to political science and political theory,” wrote Justice Kennedy. United States v. Lopez (1995) (concurring). To declare Obamacare to be unconstitutional, the Court may take into account the importance of preserving the unique contribution of Our Federalism. In doing so, the Court need not overrule a single precedent, nor need the Court cast into doubt any of the creations of the New Deal or the Great Society. Instead, the Court may simply choose not to invent unprecedented extensions of the interstate commerce power and the tax power.

From federal district court to the Supreme Court, the judges and justices who decide to leave constitutional doctrine exactly as it is today will decline to validate the unprecedented exercise of power in Obamacare. The last fourteen years of the Supreme Court determination to defend our precious constitutional system of dual sovereignty gives reason to hope that the courts will apply the existing law rather than make up new law, and that the insurance mandate will be declared unconstitutional.

And then: Over two thousand pages of laws certainly contain items (e.g., restaurant menu labeling, tanning taxes) that theoretically could have been enacted separately from the mandate, and might be considered severable. But the main provision of Obamacare–turning private insurance companies into ultra-regulated public utilities–makes no sense without the individual mandate; it would not have been enacted without the mandate, and it is not severable.

That’s that title of a forthcoming article in a Santa Clara Law Review symposium, by Clayton Cramer and me. We examine, in detail, scores of important cases, from Bliss v. Commonwealth in 1822 up to the present. We explain which cases can provide useful guidance to modern courts which must interpret the Second Amendment (and which cases use an approach is plainly inapplicable to Second Amendment analysis, post-Heller).

Our Article also addresses Adam Winkler’s influential and well-written 2007 Michigan Law Review article, which surveyed post-WW II state cases. Our article studies a broader range of cases, and gets into more depth on those csases, so it’s 93 pages long. It was even longer until the editors changed the typeface from Century Schoolbook to Times New Roman. Here’s the abstract:

Cases on the right to arms in state constitutions can provide useful guidance for courts addressing Second Amendment issues. Although some people have claimed that state courts always use a highly deferential version of “reasonableness,” this article shows that many courts have employed rigorous standards, including the tools of strict scrutiny, such as overbreadth, narrow tailoring, and less restrictive means. Courts have also used categoricalism (deciding whether something is inside or outside the right) and narrow construction (to prevent criminal laws from conflicting with the right to arms). Even when formally applying “reasonableness,” many courts have used reasonableness as a serious, non-deferential standard of review. District of Columbia v. Heller teaches that supine standards of review, such as deferring to the mere invocation of “police power,” are inappropriate in Second Amendment interpretation. This article surveys important state cases from the Early Republic to the present, and explains how they may be applied to the Second Amendment.

The article is founded on the tremendous research on state cases which Clayton conducted for his 1994 book For the Defense of Themselves and the State. That book was cited by the Washington Supreme Court in its new decision State v. Sieyes.

The Keystone of the Second Amendment: Quakers, the Pennsylvania Constitution, and the Questionable Scholarship of Nathan Kozuskanich, 19  Widener Law Journal (forthcoming 2010). By Clayton Cramer and me. Abstract:

Historian Nathan Kozuskanich claims that the Second Amendment-like the arms provision of the 1776 Pennsylvania Constitution-is only a guarantee of a right of individuals to participate in the militia, in defense of the polity. Kozuskanich’s claim about the Second Amendment is based on two articles he wrote about the original public meaning of the right to arms in Pennsylvania, including the 1776 and 1790 Pennsylvania constitutional arms guarantees.

Part I of this Article provides a straightforward legal history of the right to arms provisions in the 1776 Pennsylvania Constitution and of the 1790 Pennsylvania Constitution. We examine Kozuskanich’s claims about constitutional language and history.

Part II investigates Kozuskanich’s analysis of Quakers who objected to serving in the militia. According to Kozuskanich, the  Quaker’s protests against being forced to “bear arms” in the  militia demonstrate that “bear arms” is exclusively a military term; therefore the “right to keep and bear arms” is only about owning and carrying militia weapons.

But as it turns out, the Quakers were not as pro-gun as Kozuskanich acknowledges. Some Quakers refused to use firearms for personal defense, or even to carry arms ornamentally. Moreover, a review of Kozuskanich’s citations of writings by Quakers and other pacifists reveals that not a single one expressed any willingness to possess arms outside the militia. Several of the cited sources have nothing to do with pacifists’ arms.

Finally, Part III looks at some astonishing assertions made by Kozuskanich that cast doubts about the accuracy of his characterization of the work of other scholars.