“Textualist” Judge Amy Coney Barrett and the Second Amendment
“Pro-Life” Judge Amy Coney Barrett seems to have no problem putting guns in the hands of individual Americans who want to buy them — every Tom, Dick, and Kyle. She reportedly takes “an expansive view” of the Second Amendment, writing in her only ruling on gun regulation that it should not be considered “a second-class amendment.”
A number of groups advocating gun control/safety, including Everytown for Gun Safety, Moms Demand Action, and the Brady Campaign Against Gun Violence, expressed their deep concerns with Barrett’s nomination in a recent letter sent to leading members of Congress.
The 2008 Supreme Court ruling in District of Columbia v. Heller expanded the meaning of the Second Amendment far beyond militias — regulated or not. And that 5-4 majority opinion was written by Barrett’s mentor, Justice Antonin Scalia.
It might be useful to look back on that ruling to take another look at the “textualist” approach to reading statutes and the “originalist” approach to reading constitutional questions and what one might then expect of a Justice Barrett.
There are a number of things one might find admirable about Judge Barrett. She was a seriously engaged student at all levels of her education, taking an English degree at Rhodes College and graduating at the top of her law school class at Notre Dame. She’s a mother (of seven) who manages to work in a demanding career. At her gym, she’s apparently known for her commitment to doing pull-ups, for gosh sakes.
Barrett is also a self-proclaimed textualist/originalist when she looks at statutes or the Constitution. In rendering decisions as a judge, she says she believes in adhering to precedent but also in closely reading the text of an enacted statute or the Constitution seeking the reasonable meaning of that text, in the context of what most people at the time the text was written would consider it to be.
In speaking to Senator Joni Ernst during the confirmation hearings, Barrett put it this way: “My own approach to it would be textualism. The intent of a statute is best expressed through the words — so, looking at what the words would communicate to a skilled user of the language.”
Barrett works both as a textualist and as a particular kind of “originalist,” one that focuses on the original meaning, not the intent, of the founders, taking the same approach most recently popularized by Scalia, for whom she clerked in 1998–1999. (Apparently, the “intent” approach had been discredited in the 1990s, so conservative judges moved on to a seemingly paradoxical “new-originalist” approach of looking for original meaning.)
As an example of how this can work, a look at the language of the Second Amendment is instructive, followed by a brief discussion of the Heller decision resulting from Scalia’s divining of the text of the framers as ratified by Congress as part of the Bill of Rights in 1789.
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.
As we all know, that’s it — 27 words with some oddly placed commas and capitalized terms (odd for us, but not for that era; look, you are newly on your way to being a new-originalist!).
Given that Barrett has a bachelor’s in English, from Rhodes College in Memphis, it seems fair to turn to a well-regarded reference here. According to Fowler’s Modern English Usage, there should be, in this case, no comma after “Militia” because what we see in the amendment is an instance of something called “absolute construction.” Fowler defines it in this way:
Defined by the OED [Oxford English Dictionary] as ‘standing out of the usual grammatical relation or syntactical construction with other words’, it consists in English of a noun or pronoun that is not the subject or object of any verb or the object of any preposition but is attached to a participle or an infinitive, e.g., The play being over, we went home./Let us toss for it, loser to pay.
Now, that might be a bit dizzying, but being both an English literature major and a textualist, Barrett’s avoiding misinterpretation here would seem a piece of cake.
To me (and to many others, including a number of Supreme Court justices), the obvious sense here is “In that a well-regulated Militia is necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.” The latter thing, the right, is contingent on the former thing, the well-regulated militia and the need for such.
The original Congress that passed the Bill of Rights might have chosen to turn it around, as in “The right of the people to keep and bear Arms shall not be infringed because a well-regulated Militia is necessary to the security of a free State” (and it was in that order in an original draft by Madison), but they chose to emphasize the “well-regulated Militia being necessary” clause, which in effect makes it a conditional clause — if this is true, then this other thing follows.
But a textualist/originalist looks not at what the text reasonably means to people today but to the people at the time the provision or statute was enacted. The argument is that by doing so, they are honoring the enacted law, as explained in a 2019 article on The Federalist Society blog:
…the bottom-line principle of textualism is that the enacted text of a law is to be given supreme deference as the ultimate repository of the law’s purpose. Because the object of textualist interpretation is enacted text, many mainstream textualists reject the use of legislative history — history that has never been enacted into law.
Hold that thought, because when the text is considered to be not as clear as it needs to be, the textualist then is able to hunt for more information — in history, traditions, and, if things are still murky, in more esoteric areas, say, sea shanties. (Okay, likely not sea shanties, unless the statute has to do with, say, whaling or piracy. Then, maybe so.)
Speaking of militias, the Militia Act of 1903, also known (somewhat hilariously) as the Dick Act, for Ohio Congressman Charles Dick, was passed after militia groups sent by states proved untrained and disorderly and generally lacking standards (e.g., different uniforms) during the Spanish-American War. Unfortunately, the act mentioned the creation of both an “organized” and an “unorganized” militia, and thereby confused the issue.
The organized militia became the National Guard; what was meant by the “unorganized militia” was simply a reserve of all men 17 to 45 years of age who might be called into service, if needed. It certainly did not mean a rag-tag militia that gathers together for regular gun-fondling sessions or, say, to plot to kidnap, “try,” and execute a governor. (You know, for tyranny.)
The “Dick Act” works on a few levels, then — it’s all male, and it’s a bit confused, like many men (I include myself). And although that particular Dick served long ago, it seems we still have a slew of Dicks in Congress purposely drawing up vaguely worded legislation, the very bane of a textualist.
Muscle-bound pony-tailed oldsters riding around on choppers and those odd bug-like three-wheeled motorbikes (“motortrikes for aging tykes”?) as “militia” members often claim that the Dick Act gives them an absolute right to amass a personal armory as part of an unorganized militia. But, again, that is not what was meant.
By the way, The Southern Poverty Law Center (SPLC) estimates there are at least 300 private militia groups in the United States, nearly all far-right so-called patriot groups.
According to the SPLC blog “Hatewatch,” far-right militia member Ryan Balch, who was photographed walking with Kyle Rittenhouse before Rittenhouse killed two protesters in Kenosha, Wisconsin, in August, said they were not part of a well-regulated militia:
“There was not a whole lot of communication [that night], and that was even within the protesters themselves,” Balch told Hatewatch. Asked what he would need to call a militia well-regulated, Balch said, “There would have to be some organization.”
That last bit is worth repeating: “There would have to be some organization.”
The Scalia-led Heller decision took gun ownership beyond even the contested context of a well-regulated militia, extending it to personal ownership of handguns in defending “hearth and home.” Further, it dispensed with the part of the law in DC that called for guns in the home to be locked up or otherwise secured when not in use.
Soon after Heller, states began to pass laws allowing citizens to carry guns nearly anywhere they desired. Walmart? City Hall? Church? Sure, why not? God, Guns, and Country, as they say, with “country” coming up in the rear.
Despite Scalia’s free-wheeling textualist reading of the Second Amendment, ownership outside the context of service in that annoyingly modified militia was never mentioned in the Constitution or in Madison’s drafts preparing for the convention. According to author Michael Waldman,
Many are startled to learn that the U.S. Supreme Court didn’t rule that the Second Amendment guarantees an individual’s right to own a gun until 2008, when District of Columbia v. Heller struck down the capital’s law effectively banning handguns in the home. In fact, every other time the court had ruled previously, it had ruled otherwise.
It’s also worth repeating that last line: In fact, every other time the court had ruled previously, it had ruled otherwise.
As you will see, somehow, Scalia’s originalist reading dispensed with the idea of a militia. The prefatory clause (“A well-regulated Militia, being necessary…”) was reduced to a mere example of why Americans need to keep and bear arms:
“The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.”
Once you take that leap, well, you can go anywhere you like. Scalia was likely humming the “Theme of the Fast Carriers” from Victory At Sea when he got over that hump. The justice looked to history and tradition, to philosophy and English law and “natural law” in justifying his decision to divorce the meaning of the right from the idea of a militia. He invokes an “ancient right of individuals to keep and bear arms” and notes that most state constitutions allowed gun ownership. And while all of that may be true, none of it resides in the enacted text.
He might have just gone ahead and adopted the NRA’s concept of gun ownership as a “God-given right.”
Speaking of that, a 2019 paper on the NRA and Religious Nationalism published in Nature notes:
Over the last 40 years, the NRA has deliberately pivoted to protecting the Second Amendment, not as something merely important but as something sacred to be defended at all costs from the profane hands of the government. The NRA has done this by deliberately using religious imagery, language, and icons such as Charlton Heston, that map onto the largely Protestant religious beliefs and religious nationalism tracing back to the founding of the nation.
Judge Barrett piously promises she is not going to make law from the bench, that she will mostly be guided by precedent. But if textualism/originalism got us to a unprecedented precedent that has resulted in people brandishing guns in schools, churches, and city halls, how much stock should we reasonably put into this technique? Whose right to life, liberty, and the pursuit of happiness obtains here — the gun fetishist or the family of the murdered child, the family of the teen whose suicide was made perfectly efficient by the presence of a handgun in the home?
Conservative Chief Justice Warren Burger, a Nixon appointee, famously wrote that the NRA had promulgated fraud about the meaning of the Second Amendment:
The Second Amendment of the U.S. Constitution guarantees a “right of the people to keep and bear arms.” However, the meaning of this clause cannot be understood apart from the purpose, the setting, and the objectives of the draftsmen. At the time of the Bill of Rights, people were apprehensive about the new national government presented to them, and this helps explain the language and purpose of the Second Amendment. It guarantees, “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 need for a State militia was the predicate of the “right” guarantee, so as to protect the security of the State. Today, of course, the State militia serves a different purpose. A huge national defense establishment has assumed the role of the militia of 200 years ago.
In an 2018 opinion piece published in response to the student-led nationwide March for Our Lives, retired Supreme Court Justice John Paul Stevens wrote that the original fears of a national standing army creating problems for states was no longer a legitimate concern. Stevens called the Second Amendment “a relic of the 18th century” and advocated that it should be repealed.
And even the NRA itself has tacitly admitted what the opening clause means for the rest of the statement. According to Waldman, who writes of the takeover of NRA leadership by gun-rights radicals in 1977, the NRA dropped that portion of the Second Amendment at their headquarters in Fairfax, Virginia, posting only the latter part in large letters in the lobby, as if there were no contingency: … the right of the people to keep and bear arms, shall not be infringed.
Nice trick, that, just removing the offending clause — as Scalia did in essence. The Second Amendment’s “well regulated” may be the most willfully ignored modifier in history. The Heller decision also ensured that no one had to store guns at home with safety in mind.
In his American Dialogue: The Founders and Us, historian Joseph Ellis, a Pulitzer Prize winner, criticized Scalia’s Heller decision as a kind of parlor trick used to push a political agenda:
If Heller reads like a prolonged exercise in legalistic legerdemain…that is because Scalia’s preordained outcome forced him to perform three challenging tasks: to show that the words of the Second Amendment do not mean what they say; to ignore the historical conditions his originalist doctrine purportedly required him to emphasize; and to obscure the radical implications of rejecting completely the accumulated wisdom of his predecessors on the court.
On a larger level, a number of the founders — Madison and Jefferson in particular — saw the Constitution as a living document. Jefferson wrote, “laws and institutions must go hand in hand with the progress of the human mind.” In a review of Ellis’s book for the New York Times, Jeff Shesol writes:
It would never have occurred to Madison…that the Constitution should dictate every answer or foreclose all debate, no matter what is said at meetings of the Federalist Society or in Supreme Court confirmation hearings. As Ellis argues, the prevailing conservative doctrine of “originalism” is a pose that rests on a fiction: the idea that there is a “single source of constitutional truth back there at the founding,” easily discovered by any judge who cares to see it.
Another American historian, Heather Cox Richardson, covering the confirmation hearings for her “Letters from an American” newsletter, addressed Barrett and the real purpose of originalism, which is to serve “a radical capitalism”:
The originalism of scholars like Barrett is an answer to the judges who, in the years after World War Two, interpreted the law to make American democracy live up to its principles, making all Americans equal before the law. With the New Deal in the 1930s, the Democrats under Franklin Delano Roosevelt had set out to level the economic playing field between the wealthy and ordinary Americans. They regulated business, provided a basic social safety net, and promoted infrastructure….Their desire to roll back the changes of the modern era serves traditional concepts of society and evangelical religion, of course, but it also serves a radical capitalism. If the government is as limited as they say, it cannot protect the rights of minorities or women. But it also cannot regulate business. It cannot provide a social safety net, or promote infrastructure, things that cost tax dollars and, in the case of infrastructure, take lucrative opportunities from private businesses. In short, under the theory of originalism, the government cannot do anything to rein in corporations or the very wealthy.
If I were to try to play “textualist” myself, I would find it notable that the framers capitalized “Militia” in the amendment. Though they were also a bit “cap-happy” in those days, the fact that they capitalized the word is an intriguing clue as to what they intended. To me, that “A well regulated Militia” reads as one entity — something perhaps in existence in all 13 states, but one to be organized into a whole in defense of one nation — not at all the bunch of little “militias,” heavily armed and running amok in their QAnon T-shirts, as we desparingly see today.
“A well regulated Militia,” not “Well regulated militias…”
Judge Barrett is smarter than I am. And I have no doubt she can do more pull-ups, both physically and linguistically. But I’ll stand on the side of a multitude of other very intelligent people who read the right to bear arms as constituting a right only when, and if, it is done as part of a well-regulated militia. And we have that — the National Guard. You want to play with people-killing weapons? Join the Guard. Otherwise, grab a rifle or shotgun and go hunting, if that’s your thing.
If you read anything else into that while claiming to be an originalist, you are perpetrating a very solemn-sounding con on the American public and likely should wear a tricorn hat when out in publick. You know, so we can see you coming.
Conservatives naturally want to keep the founders alive and the Constitution dead. Unless it serves a purpose for them; then with originalism they perform a kind of séance to bring the document back to a sort of sham life — and if the words themselves are a burden, they blithely look to English common law, philosophy, and elsewhere for guidance.
I myself have cherry picked some quotes for this piece. It’s human nature — and I’m trying to keep this from becoming an overly lengthy article. We may all be textualists now, as Justice Elena Kagan put it in her 2015 Scalia Lecture at Harvard (to the glee of The Federalist Society and some of her conservative colleagues), but we are also human — sometimes we see what we want to see. Or as Paul Simon put it, “A man hears what he wants to hear and disregards the rest.”
What will a Justice Barrett find in the words of the founders to help her rule on challenges to the Affordable Care Act, or Medicare, or the environmental regulations so critical in addressing climate change?
The way I read it, if Judge Barrett were to be faithful in her reading of the amendment, she would stand less on the recent precedents funded by The Cato Institute and NRA — precedents that have caused unending misery and grief and have made our society much less safe — and actually begin to curtail the so-called rights of gun owners.
In that last sentence, Barrett and other textualists might note that I purposively use the subjunctive. It is a mood that is already disappearing from the language, but in my time it was often used for contrary-to-fact statements.
[A version of this piece later appeared in Salon.]
