The Hawaii Supreme Court handed down a unanimous opinion on Wednesday declaring that its state constitution grants individuals absolutely no right to keep and bear arms outside the context of military service. Its decision rejected the U.S. Supreme Court’s interpretation of the Second Amendment, refusing to interpolate SCOTUS’ shoddy historical analysis into Hawaii law. Dahlia Lithwick and Mark Joseph Stern discussed the ruling on this week’s Slate Plus segment of Amicus; their conversation has been edited and condensed for clarity.
As written, the right belongs to ‘the people’. That’s everyone. It can’t be infringed because that would interfere with their ability to form a well regulated militia, which is necessary to secure freedom.
English is hard sometimes, but not that hard if you try.
If it were so simple, there would be no reason to preface the statement with the clause about a well-regulated militia. No other amendment includes functionless explanatory language. Every amendment was looked over and debated with considerable care, and the language used was deliberately chosen with purpose. The clause was included for a reason, and was not removed for a reason.
No good-faith reading of the language can conclude that the drafters would have phrased it that way if they did not intend for “a well-regulated militia” to be functionally relevant to the interpretation. If they had intended the amendment to mean, simply, “The right of the people to keep and bear arms shall not be infringed” then that would have comprised the entirety of the text. Legal language is hard sometimes, but not that hard if you try.
to be functionally relevant to the interpretation
Yes. It’s relevant in that it’s an explanation.
Another source of power in government is a military force. But this, to be efficient, must be superior to any force that exists among the people, or which they can command: for otherwise this force would be annihilated, on the first exercise of acts of oppression. Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive. In spite of all the nominal powers, vested in Congress by the constitution, were the system once adopted in its fullest latitude, still the actual exercise of them would be frequently interrupted by popular jealousy. I am bold to say, that ten just and constitutional measures would be resisted, where one unjust or oppressive law would be enforced. The powers vested in Congress are little more than nominal; nay real power cannot be vested in them nor in any body, but in the people. The source of power is in the people of this country, and cannot for ages, and probably never will, be removed.
Noah Webster
Explanation is not function. No other amendment includes an explanation or justification for its functional text. They all simply state, in purely functional language, the right being affirmed.
I reiterate, if it was the intention of the drafters to affirm broadly that “The right of the people to keep and bear arms shall not be infringed” then they would have written that. The opinion of any individual is their own, the legislation as drafted is the legal consensus. As drafted, the consensus necessitated the insertion of the clause, or it would not have been so inserted.
If every amendment had been prefaced with an explanation, you’d have a point. But they weren’t. The entirety of the language used was specific and functional, so the only good faith reading of the second is that the entirety of the language is specific and functional. Explanation is not function.
Before 2003 the law agreed with me. It was Anthony Scalia who made the baseless assertion that they were two separate concepts.
That’s 230 years of history and legal basis on my side, countless judges and lawmakers, and one corrupt, greedy bastard 21 years ago on yours.
And those pesky federalist papers that explicitly clarified the intent significantly closer to the context of the period.
