“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.
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.”