The 5th Circuit’s holding in US v. Texas this spring has some interesting implications regarding some common (but poor) counterarguments to the obvious, plain text reading of the 2nd Amendment. The case was about Texas Senate Bill 4, a law which Texas enacted to give itself power to police its border with Mexico and to deport illegal immigrants under their own authority. I am sure the Supreme Court will ultimately weigh in on the question in US v. Texas but I find the lower courts’ interpretations on the balance between state and federal roles in national security interesting.
“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.”
The 2nd Amendment contains two main clauses. The prefatory clause is the first bit that makes reference to the idea of a “well-regulated militia” being necessary for the purposes of the “security of a free State.” The operative clause is the second bit and states that the “the right of the people to keep and bear arms, shall not be infringed.” Putting aside all prior jurisprudence, we can read the plain text and conclude that this statement contains three ideas:
- the Militia
- the State
- the People
As this is but one provision contained in the entire document that makes up the US Constitution, we can also read this statement in the context of the entirety of the Constitution.
There are some among us, some of those that might self-identify as “scholars” that point to the prefatory clause and reach some narrow conclusion on the right to keep and bear arms. The “scholars” might claim that, in complete contradiction to the plain text of the operative clause, the 2nd Amendment works to preserve the right of the several States of the United States to maintain their own organized militias and the 2nd Amendment is therefore a States’ rights issue to provide for their own security. To be clear, the Supreme Court has held that prefatory clauses do not expand, restrain or in any way define the scope of a right contained in an operative clause. Therefore, this is ultimately a legal nonstarter. But since it comes up somewhat frequently, let’s explore even if this is more an exercise in political science than a legal analysis for a court case.
States’s Rights regarding War Powers
This is a relatively straightforward analysis. The completely twisted interpretation of the 2nd Amendment that argues that the purpose of the right is to preserve the ability of the several states to raise, arm, and muster their own militias flies in complete contradiction to the text of the Constitution itself. Article I of the Constitution gives the Congress broad authority to both raise armies and declare war. It also completely narrows the role of the States with regards to War Powers. Clause 3 of Article I, Section 10 of the Constitution is known as the State of War Clause and reads as follows:
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”
This clause makes clear that States have essentially no war powers whatsoever in the modern context. The circumstances under which a U.S. State can unilaterally engage in direct military action is when they are “actually invaded” or when the threat of a foreign power presents “such imminent danger” that the Federal Government would not have time to react. In the modern era, the US federal government maintains an almost constant readiness for national defense and the response time of the federal government to a foreign threat would be measured in hours and minutes (we maintain military bases throughout the US, the US Navy and Coast Guard maintain a constant patrol of our coastal waters, the Air Force and the Navy maintain a constant presence in the skies above and a national missile defense network including nuclear weapons). There is almost no scenario under which the Several States could react faster to a foreign threat than the Federal Government could…. Unless the Federal Government simply refused to take action in the face of an imminent threat or invasion.
Which is exactly the position the State of Texas took in US v Texas in their attempt to restore the enforcement of SB 4. Texas argues, in part, that the immigration crisis at the southern boarder represents an actual invasion and that the Federal government has refused to act so therefore under the State of War Clause, they invoked their right as a state to self-defense. When the government sued, the District Court granted a preliminary injunction halting the implementation of SB4 (and while there were some procedural theatrics going all the way to the Supreme Court regarding an administrative stay on the district court’s decision), the 5th Circuit ultimately agreed with the District Court and upheld the preliminary injunction. The opinion of the 5th Circuit turns on the notion of preemption (i.e. does the State of War Clause allow a state to preempt federal law on topics like border security and immigration which have broad foreign policy implications and intertwine with a web of treaties the US has entered into). The Government argued, and the 5th Circuit agreed, that the right of self-defense invoked in Article 1, Section 10 does not work to preempt federal law (including international law made through treaties).
Now, states clearly did have a right to maintain their own organized militias under the Constitution. In our earlier history, when the United States was more fragile, the idea of States defending themselves before a federal response could be mounted was perhaps more real and the States then did have a right to use militias for their defense in that gap period between the time when the invasion or an imminent threat of invasion occurred and Congressional action. But the “supremacy” of federal law remains intact, even in those gap periods, as the 5th Circuit articulated in US v Texas.
The 2nd Amendment, however, is a fundamental right that restrains the federal government and if this were a States’ Rights issue and the several States had a fundamental right to provide for their “security” under the 2nd Amendment by arming their own organized militias, that would in times of war, upend federal preemption and the Supremacy Clause (Article VI, Clause 2 states that the US Constitution, federal laws made under it, and treaties made under Constitutional authority are the supreme law of the land). If the prefatory clause to the 2nd Amendment had any substantive meaning or force AND referenced a state’s right to maintain militias for their security, it would undermine the clear division of power on these issues.
The National Right to Self-Defense and Sovereignty
We should maybe start by asking some more fundamental questions. What is the point of creating a law that gives a right to a “state” to defend itself? Isn’t that an obvious right and responsibility of any nation-state? It seems an odd thing that we would have to create a law to create government authority to repel an invasion or address an imminent foreign threat. The Anglo-Saxons didn’t invoke some legal authority to defend themselves against the Norman conquest at the Battle of Hastings in 1066. No monarch or ruler in history has ever felt the need to point to legal authority for national defense to repel an invasion. In the context of our Constitution, this whole idea behind the State of War Clause has to do with the broad concept of sovereignty and federalism itself. Put simply, States in the United States essentially are agreeing to waive their right to sovereignty to preserve the Republic. So where does the idea of national sovereignty as an international law concept even come from? That whole idea in its entirety only really came into existence roughly a century before the US Constitution was ratified.
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To understand the legal concept of Sovereignty, we must go slightly back in time to the Thirty Years War. Let me pause here and say, if I could reinvent myself to be a history teacher and could specialize in any area of history and teach just that, it would be the Holy Roman Empire (“HRE”) and the Thirty Years War specifically. Why, you ask? Because funny words. The origin of the Thirty Years War lies in the Diet of Worms in 1521 (funny words #1) which was a calling of the member states of the Holy Roman Empire (a Diet is like a convention of the member states of the HRE) where they declared that Martin Luther, the founder of Protestantism, was a heretic. Protestantism was growing in popularity in certain Holy Roman Empire states that occupied what is now modern Germany, Austria, Prague. That lead to growing tension between Catholic and Protestant HRE member states over the following century which then culminates in the 3rd Defenestration of Prague in 1618 (funny words #2: we had to create a fancy word for when an angry mob literally throws some religious figure out of an actual window because it happened somewhat frequently) and that act officially starts the Thirty Years War, a regional religious conflict that escalated into all out war across Europe and one of the bloodiest conflicts in human history, with high estimates suggesting 12 million people died. But what began as a religious war ended with nations that were Catholic and Protestant as allies (no religious lines whatsoever). In the end, the Thirty Years War had more to do with a State’s right to self-determination than it did to do with Catholicism versus Protestantism. The Thirty Years War officially ended with the Peace of Westphalia in 1648 (more funny words, and you guessed it, thirty years after the war started). That multilateral treaty in 1648 is what created an international law right to national sovereignty, that an independent State has a right to self-determination and should remain free from external interference on domestic matters. In fact “Westphalian Sovereignty” still exists as a concept in international law today where multilateral treaties and security agreements protect the right of independent states to non-interference and self-determination, referencing the 1648 treaty.
The legal notion of Sovereignty exists to preserve the framework of international law as a means of diplomacy and provide some mechanism for the peaceful resolution of conflicts to avoid the bloody consequences of total war. States, however, under the US Constitution have no true sovereignty vis-à-vis each other and the Federal Government. The Constitution provides that states cannot prevent the travel of US citizens from one state to the other and they cannot impose trade restrictions between each other (they have no enforceable borders between the states and goods, money and people can flow freely from one state to the next). States have no ability to enter in to treaties with foreign powers and the realm of foreign policy and the general war powers of the nation rest solely with the Federal Government. The states, by virtue of ratifying the Constitution, are essentially waiving their claim to political autonomy and sovereignty under international law principles that were evolving at the time and as the Supreme Court held in 1869 in Texas v. White, the bond between states in the federal system is perpetual and cannot be dissolved unilaterally. The State of War Clause in Article 1, Section 10 of the Constitution provides the narrowest of exceptions to this federal system in the realm of foreign policy and national defense.
The express right of national self-defense as an international law concept came into existence in 1948 with the creation of the UN Charter after World War II under Article 51 of the Charter which reads “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations”. The purpose of Article 51 is to provide an exception to the general requirement for the respect of national sovereignty and the prohibition on the use of force contained in Article 2 of the UN Charter. Article 51 has no purpose on its own but merely to provide an exception to another requirement contained elsewhere in a treaty or body of international law. There is no point to creating a law that allows nations to defend themselves when invaded and indeed Article 51 uses the term “inherent right.”
Reading the 2nd Amendment as a right of the several States to organize their own militias and arm the people they select for service in those militias to provide for their security would necessarily, if correct, be both an acknowledgment of sovereignty for the individual states (which they do not have) and act as an exception to federal preemption on national defense and foreign policy (which it clearly cannot be). Reading the State of War Clause in Article I makes sense because it is a similar exception to the broader requirement to leave war and national security to the federal government. It is a narrow exception. Reading the 2nd Amendment, a broad fundamental right, as a right for U.S. states to maintain organized militias makes no logical sense.
“The people” clearly have the right to bear arms as is made plain in the text (and we are all the “people”). But what is the “State”? The State clearly isn’t a reference to the Federal Government since Articles 1 and 2 of the Constitution lay out the powers of the Legislature and the Executive branch in declaring war, raising armies, and exercising war powers. Moreover, as said above, the Bill of Rights is a clear restraint on federal authority so the prefatory clause can’t be a reference to the “State” in a national/federal sense. The “State” in the context of the 2nd Amendment is also not a reference to the individual States and their rights to maintain militias because their narrow role in “security” is provided for in the State of War Clause and elsewhere in the main text of the Constitution and, as clarified in US v. Texas, does not work to preempt (or restrain) federal authority in those areas of security and foreign policy. These weren’t just vague political ideas the framers were drawing from at the Constitutional Convention. These features were specifically added to address the complete failure of the Articles of Confederation they had just experienced (the precursor to the US Constitution).
The “State” in the 2nd Amendment can therefore only refer to the general concept of the legitimate and proper political extension of the “people.” The main text of the Constitution provides for the common defense of the people living under the government that the Constitution creates and that authority is supreme to the laws of the individual and separate States in the Republic. The “security” of the “State” mentioned in the 2nd Amendment has nothing to do with the national defense of the United States formed under the Constitution. The right to keep and bear arms, as a means to provide for the security of the “State”, is the right to defend the legitimate will of the people against tyranny. It only indirectly has something to do with an individual right to self-defense (and it definitely has nothing to do with duck hunting). The context of the 2nd Amendment is primarily about rejecting tyranny, by force if necessary. We can, by law and reason, individually bear arms, spontaneously join together as the “militia” and defend that “free State” against the illegitimate rule of a tyrant. It is for those reasons that St. George Tucker called the right the “true palladium of liberty.” The right to life, the attending individual right to self-preservation (the “people” who are all of us) and the right to gather together (the spontaneous “militia”) to cast off old forms of government and provide new guards for our future security (the “free State” which is the true expression of the will of the people in place of a government in power that no longer represents the will of the people).
The plain text of the 2nd Amendment is clear regarding the right itself but so too is the prefatory clause that gives context and color to the right. It is drawn from the English law understanding of the right to bear arms which, as the Supreme Court observed in DC v. Heller, is directly related to “the natural right of resistance and self-preservation” citing Blackstone’s Commentary on the Laws of England, recognized by the Court in Heller as the preeminent authority on English law for the founding generation. The Court in Heller only cited an excerpt from Blackstone. The full quote: “The fifth and last auxiliary right of the subject [of England], that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is… indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” (William Blackstone, Commentaries 1:139, 1765)
In Part II to this article, I am going to explore the entire long history of the right to life, the right to self-preservation, how that evolved into a right to reject tyranny by force, and how the right to bear arms should now (and possibly does) exist as a recognized universal human right. Those are the ideas that were the clear inspiration for the 2nd Amendment and the prefatory clause..
