Introducing the Bill of Rights before Congress in June of 1789, James Madison was careful to cast the exercise in which he was engaged as an act of political hygiene. Reflecting upon the Constitution, which had been ratified the previous year, Madison informed the House of Representatives that while he had personally believed that the structure of the document was sufficient to guarantee liberty in America, he was aware that a considerable number of his countrymen disagreed.
“The great mass of the people who opposed it,” Madison recalled, “disliked it because it did not contain effectual provisions against encroachments on particular rights.” By amending the charter to incorporate such provisions, Madison hoped that the new government would “extinguish from the bosom of every member of the community, any apprehensions that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled.” He was, to borrow a more modern phrase, tidying up the loose ends.
As is abundantly clear from his speech, the debate that he was starting was not one of substance, but of form. Unlike today, in neither the Colonial nor post-Revolutionary eras was there much public disagreement as to the value of due process, the freedom of speech, the right to keep and bear arms, and so forth. Indeed, among others, these liberties were regarded by 18th-century Americans as part of their unalienable birthright as heirs to the British settlement. Instead, Madison was addressing a question of structure; specifically, “Did a government that had never been granted certain powers need to be explicitly stripped of those powers?”
The details, give or take, were broadly agreed upon—a fact that Madison made sure to note aloud. Before outlining his proposed additions, he assured the House that he had included only those “rights, against which I believe no serious objection has been made by any class of our constituents.”
It is worth revisiting this history from time to time, if only to gain a crucial apprehension of just how deeply cherished were the ideals that are enshrined in the first 10 amendments. What Madison was beginning with his introduction was not a fractious debate over the optimal top rate of tax, or the correct zoning formula for businesses that work with molten steel, but a communal effort toward the securing of the national bedrock. There is, in consequence, no fluff in the ensemble. The work was straightforward and it was crucial, quite different in tone than the quotidian politics of the era. There is neither fat nor pork on the Bill of Rights.
It is worth revisiting this history from time to time, if only to gain a crucial apprehension of just how deeply cherished were the ideals that are enshrined in the first 10 amendments.
This matters, for a host of reasons—not the least of which is that it should remind us that there are no “unimportant” or “second-class” provisions therein. Taken together, the Bill of Rights contains the cream of the crop—the individual freedoms and the structural dogmas that, had they been left unprotected, would have left hundreds of thousands fearing for “the liberty for which they valiantly fought and honorably bled.” To Madison and those whose anxieties he was hoping to assuage, it would have been unthinkable for a government or a court to set these rights on a scale, favoring some more than others, or making the possession of one conditional upon the abnegation of another. As the recent war had shown, liberty was held to be indivisible.
Can we say this today? I am not sure that we can. For years now, Justice Clarence Thomas has lamented the unwillingness of our courts to show the Second Amendment the same deference and attention as many of the other parts have received. “The Framers,” Thomas wrote recently, “made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right.”
Thomas, of course, is correct: Too often, our courts abdicate their role the moment that firearms are mentioned in the brief. But more interesting, perhaps, is his hinting at a parallel problem—that too many among us have come to see the Constitution not as a set of equally applicable parts, but as an à la carte menu to which we might apply our modern political preferences, and from which we might pick and choose at will. “Remember,” Thomas seems to be saying, “our job is to apply the law as it is written. No more, no less.”
The problem that Thomas has highlighted manifests itself in a number of ways. Most common is that a state or municipality passes a law that clearly violates the original public meaning of the Second Amendment, and then the courts either find a way to uphold it, or they simply ignore the transgression. This approach has been written about a great deal, including by myself, and I will not address it here. Rather, I want to highlight a less frequently noted—but, alas, increasingly common—trend in our jurisprudence: The use of other parts of the Bill of Rights to undermine the Second Amendment.
Consider, if you will, a recent 4th Circuit case, U.S. v. Robinson, in which the majority ruled that the police may legally frisk an individual whom the authorities suspect is carrying a gun—solely because he is suspected of carrying a gun. “The danger justifying a protective frisk,” the court ruled, “arises from the combination of a forced police encounter and the presence of a weapon, not from any illegality of the weapon’s possession.” Or, put another way, the court ruled that to exercise the Second Amendment is itself to provide the state with “reasonable” suspicion. Never mind that you may have a permit—or, indeed, that you may live in a state in which permits have been abolished—merely to carry a firearm upon your person is to be stripped of your sacred defense “against unreasonable searches and seizures.” From the majority’s peculiar angle, there’s now an asterisk after the word “infringed.”
Or, at least, there’s an arrow, which runs from the end of the Second Amendment into the rest of the Bill of Rights, and which then leaves the parchment altogether and rushes headlong into a Rube Goldberg machine of the 4th Circuit’s creation. Clarifying for the reader just what was going on in his courtroom, one of the assenting judges made sure to file his own, explanatory, opinion. “Individuals who elect to carry firearms,” wrote the concurring Judge James A. Wynn Jr., must “forego other constitutional rights, like the Fourth Amendment right to have law-enforcement officers ‘knock-and-announce’ before forcibly entering homes. Likewise, it is difficult to escape the conclusion that individuals who choose to carry firearms necessarily face greater restriction on their concurrent exercise of other constitutional rights, like those protected by the First Amendment.”
With due respect to Wynn, it is in fact extremely easy to escape this conclusion. And, indeed, it is necessary that we do so, for if his way is permitted to fester, it will eventually obviate the core purpose of the Bill of Rights, which is to enumerate certain unalienable liberties and to protect them from both majority opinion and judicial balancing games. In Britain, citizens who wish to own one of the handful of firearms that are still legally sold are required to renounce their other rights in order to enjoy the privilege. In consequence, gun owners in the U.K. are subject to unannounced, warrantless inspections of their homes, full acquiescence to which is the price of their securing a license.
Given that Britain has no codified constitution, such infringements are to be expected there, as they are expected in almost every other nation in the world. In America, though, they are extremely jarring. To the end of his assurance that he had selected only those “rights, against which I believe no serious objection has been made by any class of our constituents,” Madison added no veto to be wielded by assorted jurists in Richmond.
Lest we forget, the right to keep and bear arms is just that—a right, akin in kind and in solidity to the rights to speech, religion, assembly, due process, a jury trial and so forth. It is not a suggestion. It is not an outline. It is not a poem or inscription or couplet buried inside a time capsule. It is a right, enshrined in the law.
Moreover, it is equal to all of those that surround it. Conspicuously and deliberately missing from the Bill of Rights is any form of key or legend; notably absent is any recorded hierarchy with which to rank its contents; obviously omitted was a readers’ guide laying out the order in which its liberties were to be subordinated or curtailed. The First Amendment is not first because it is the most important, just as the 10th was not placed last because it is an afterthought, and the middle position of the Fifth and the Sixth in no way implies their mediocrity. On the contrary: The Bill of Rights is a complete work, the substance of which is non-negotiable from start to shining finish.
Lest we forget, the right to keep and bear arms is just that—a right, akin in kind and in solidity to the rights to speech, religion, assembly, due process, a jury trial and so forth.
As one would not propose that the end of a law’s text is less important than its beginning—or that one’s protection by one statute must by necessity diminish one’s protection by another—our courts must not treat the Constitution as a water balloon whose shape and contours change in breadth and depth when pressed by human hands. A particular government may favor or disfavor a given part of the national charter, but it is obliged to keep such determinations private. There are no caveats within our oath of office.
Should we relent on this point, the potential for corruption and shenanigans is obvious and immense. At present, our lower court judges are unable to rewrite the Second Amendment or to reverse Heller. If, however, we bestow a power to “balance” what have hitherto been equal rights, we will be conferring within their robes a key to the back door, which, if used with enough skill, could leave all of our recent victories in tatters. It is not difficult to imagine the circumstances in which anti-Second Amendment judges come to shift their ambitions, such that instead of frontally assaulting the right, they merely limit the occasions on which law-abiding Americans can “keep” and “bear” without fear.
Worse still, freed up by this doctrine of “contingent liberty,” a new generation of creative and cynical judges would strike at the core of the Second Amendment under the ostensible guise of upholding the others. Thus, by forcing conscientious gun owners to think twice before exercising their rights, would the fatal rot set in. Prudence dictates that a homeowner who knows that by law he can be killed without consequence will leave his weapon upstairs when answering that midnight knock at the door. Likewise, a carrier who is treated as a presumptive threat to safety and, therefore, undeserving of the right to free speech or to be free from unreasonable searches and seizures, will stop carrying a firearm for self-defense. Recalcitrant as a host of our states remain, Heller and McDonald together establish a minimum standard for the Second Amendment, to which even California and New Jersey are bound. How useful will that standard remain if its exercise becomes subordinated to the enjoyment of other rights?
And to what new lands will this modish standard soon roam? It is not only gun owners who should be wary of such a development, for there is nothing written in the stars that would restrict the practice’s application to the Second Amendment’s sphere. Indeed, one can only wonder in horror where the innovations would halt. Will speakers with certain viewpoints be less entitled to a trial? Will Americans who refuse to quarter troops in peacetime be more easily subject to the use of eminent domain? Might the religious among us be told that they are allowed to express their faith, but that doing so will diminish the protection of other parts of the law?
There is only one way to avoid the minefield that would be laid by such questions, and that is to avoid them entirely—to affirm, that is, that we will not play off the constituent parts of our settlement in the name of making it more whole.
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