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The original Second Amendment, its religious provision and modern originalism

Worth your time this week: a recent essay published by the Duke Center for Firearms Law on the original version of the Second Amendment and its potential implications as a conservative majority leans on what it characterizes as constitutional originalism.

The author, South Texas College of Law Houston Professor Dru Stevenson, examines the little discussed history of the original draft of the Second Amendment. It’s a history that’s more relevant than ever, he argues, given both some of the most recent gun-related rulings from the U.S. Supreme Court and the rulings that could be coming.

From the piece:

The Court’s originalist methodology seems to have evolved in the years since Heller, making it especially important to revisit a specific part of Second Amendment history – the original draft that the House debated and voted to adopt.  This version included a clause, omitted from the later Senate version, stating: “ . . . but no person religiously scrupulous, shall be compelled to bear arms.”  The House debated this clause extensively, and the version of the Amendment it adopted included it.  Then, for reasons lost to history, the clause dropped out when the Amendment moved through the Senate (the Senate lightly edited several of the Amendments in the proposed Bill of Rights, making them more concise).

Justice Scalia spent a section of the Heller opinion (at pp. 589-90) responding to an argument from Justice Stevens’ dissenting opinion about this “conscientious objector” clause, though both opinions in Heller quoted a later version that included some edits proposed in the House debates: “but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.”  Both the majority and the Stevens dissent in Heller called this the “conscientious objector clause,” though this phrase was not in use at the time.

After Bruen, the conscientious objector clause in the original Second Amendment deserves another look, and it could have relevance to firearms policy today.  Both Justice Scalia and Justice Stevens were partly mistaken in their comments in Heller – both about the Quakers and the clause in the original draft of the Amendment.  Justice Stevens overstated the case when he said the exemption proved the entire Amendment was about state militias versus federal standing armies, because the citizen-soldiers who comprised the militias were normally expected to bring the guns they owned when they reported for duty.  Having militias meant having guns, but also implied something about private property rights in guns: privately-held guns were, to some extent, held in a type of quasi-public trust.  Justice Stevens was right, however, that the clause itself, and the Congressional debates about the clause, reveal that the public at the time did not have a clear notion of individual civilian gun ownership that was completely and always distinct from armed military service.

The relevance of the (today) little discussed first version of the amendment has historical interest for those interested in the part Quakers, slavery and native people played in the earliest discussions of gun rights in America, Stevenson writes. But it also has implications for gun policy today.

From the piece:

In terms of relevance for modern gun policy, I have argued, as have Ian Ayres and Fred Vars, for states and/or the federal government to facilitate self-bans, a way for citizens to give up their right to own guns (either for personal safety or for conscientious reasons) and add themselves to the NICS background check databases so that they are unable to buy a gun, at least from sellers who conduct a background check.  Ayres and Vars also propose allowing (via multiparty contracts) gun-free business districts, and it is easy to imagine something similar for distinct residential communities, such as a homeowner’s association or a condominium association.  Joseph Blocher made similar arguments in his article The Right Not to Keep or Bear Arms.

Apart from the clause itself, the decision in Bruen warrants another look at the original Congressional debates about the Second Amendment, which centered around the conscientious objector clause, and specifically the issue of Quakers in the new Republic.  Quakers came up in the First Congress other times as well – when Congress debated the permanent location for the nation’s capital (concerns were expressed about locating it in a place dominated by Quakers), when they debated a militia bill, and when the sect petitioned Congress for the abolition of slavery, prompting explosive tirades by Representatives from southern states.  William Laughton Smith famously exclaimed, regarding the new republic, “We took each other with our mutual bad habits and respective evils, for better, for worse; the Northern states adopted us with our slaves; and we adopted them with their Quakers.”  Quakers even staged a sit-in at the building where Congress met, occupying the second-floor gallery overlooking the Congress as they debated the petition to abolish slavery; they turned out in full force in both New York and Philadelphia (wherever Congress was meeting) to lobby individual members of Congress about exempting them from serving in or supporting any military activities in any way, and about abolishing slavery.  They accosted representatives on the street, visited them in their offices, and so on.

Each time Congress discussed the Quakers, similar points were made by the same members.  When these other debates from the First Congress are read together with the debate about Quakers and the Second Amendment, it appears that the “right to bear arms” was intertwined with the slavery issue, Indian relations and westward expansion in the territories, taxation and the federal assumption of state war debts, and the supply and retail distribution of guns.  At the time, the Quakers were a large, close-knit, wealthy, and socially influential group, at least on certain issues, and the strong positions the Quakers took on each of these issues (militias, guns, slavery, Indians, taxes, westward migration, etc.) connected them together even more.

Read the entire piece here and more of Stevenson’s writing for the center here.

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The original Second Amendment, its religious provision and modern originalism