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Wolves and Bears and . . . Bears. Oh My.

By Jack M. Balkin

I was wrong. I predicted last week that despite the outpouring of scholarship and brief-writing in an originalist vein, none of the Justices' votes in Heller would be swayed, let alone determined, by evidence of original understandings (despite what their opinions might say). But I underestimated how Justice Kennedy -- perhaps the swing vote -- can in some cases come to embrace a particular origins narrative, which can determine how he approaches the case. (Alden v. Maine is a good example, where Justice Kennedy's views at oral argument and in his opinion were plainly based on his assumption that the States could not possibly have ceded certain of their sovereign immunity when "they" ratified the Constitution.) It appears that in the Heller case, too, Justice Kennedy's vote will be strongly influenced by his assumption that a certain original understanding is the key to interpreting the Second Amendment.

As has been widely reported, the Supreme Court is likely to hold that the Second Amendment protects a homeowner's right to possess at least some firearms, not only for potential service in an organized or effective militia, and not only to resist a possibly tyrannical central government, but also for purposes of self-defense against private threats.

For reasons basically captured by Eric Posner, I don't see any particular normative case for a constitutional right to use firearms for self-defense. And as I discussed in my previous post, I have been underwhelmed by the originalist case for a right to use firearms for self-defense, too -- at least without resort to the Fourteenth Amendment. Justice Kennedy, however, thinks otherwise: As Dahlia Lithwick so colorfully describes, at oral argument he appeared to be certain that the Second Amendment was ratified in order to protect "the right of people living in the wilderness [which apparently includes much of D.C.] to protect themselves" -- the right of "the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that."

Justice Kennedy's logic appeared to be (i) that settlers did use firearms to protect themselves on the frontier and (ii) (implicitly) that it would have been unthinkable for the state to have deigned to prevent them from doing so. Now, Justice Kennedy is certainly correct that a disarm-the-settlers statute would have been unthinkable at the time -- but not because there was a constitutional limitation on such enactments. Rather, there simply was no particular reason for the state to restrict the use of firearms on the frontier: The problems that confront the D.C. City Council today are just a bit different from those that legislatures considered in pre-revolutionary times.

What Justice Kennedy failed to identity -- and what all of the briefs in the case do not identify, as far as I can tell -- is any evidence that the Constitution was ratified in order to guarantee that such settlers would continue to be left free to shoot wolves in the event some legislature somewhere decided to impose limitations on such hunting. In other words, the fact that something was (for good reason) largely unregulated at the time of the Founding does not mean that anyone thought it could not be regulated, if and when a legislature found a good reason for doing so. Justice Scalia actually made this point quite nicely a few years back in response to an argument of Justice Thomas that anonymous speech must be constitutionally protected because there was so much of it at the Founding:

Anonymous electioneering was not prohibited by law in 1791 or in 1868. In fact, it was widely practiced at the earlier date, an understandable legacy of the revolutionary era in which political dissent could produce governmental reprisal. . . .But to prove that anonymous electioneering was used frequently is not to establish that it is a constitutional right. Quite obviously, not every restriction upon expression that did not exist in 1791 or in 1868 is ipso facto unconstitutional, or else modern election laws . . . would be prohibited, as would (to mention only a few other categories) modern anti noise regulation . . . and modern parade permitting regulation. . . . Evidence that anonymous electioneering was regarded as a constitutional right is sparse, and as far as I am aware evidence that it was generally regarded as such is nonexistent.

This still leaves the question of what it was that caused Justice Kennedy to be so fixated on settlers and wolves and grizzlies and Indian tribes in the first place. I think I figured out what it might have been: an amicus brief submitted by Virginia1774.org, which quoted the following excerpt from a 1632 Virginia colonial law: ". . . But it is thought convenient that any man be permitted to kill deare or other wild beasts or fowle in the common woods, forests, or rivers in regard that thereby the inhabitants may be trained in the use of theire armes the Indians kept from our plantations, and the wolves and other vermine destroyed . . . ?

Wolves, Indians, even "other wild beasts" (albeit no specific reference to the grizzlies . . . of Virginia): It's all there. Yet when I saw this quote, I was suspicious. Why did the amicus begin the quote with an ellipsis and the word "but"? Did the Virginia legislature really mean to be foreclosing any firearms regulation with respect to settlers and wild animals -- establishing a sort of unthinkable limitation that might be seen as a template for the Second Amendment?

Well, not quite. A quick Google search turned up this, Act 49 of the Virginia laws of 1632, which reads in full:

NOE man shall kill any wild swyne out of the forrest or woods, except in his [] or devident, without leave or lycense from the Governor. But it is thought convenient that any man be permitted to kill deare or other wild beasts or fowle in the common woods, forrests, or rivers in regard that thereby the inhabitants may be trained in the use of theire armes, the Indians kept from our plantations, and the wolves and other vermine destroyed. And for encouragement to destroy the wolves, it is thought that whosoever shall kill a wolfe, and bringe in his head to the commander, it shall be lawfull for such person or persons for every wolfe soe kild, to kill also one wild hogg and take the same for his owne use.

In other words, the statutory phrase quoted out of context by the amicus is an exception -- a wolf exception! -- or, more precisely, a contrasting authorization, to a general prohibition on killing "wild swyne" without a license from the Governor. Moreover, from all that appears, the Virginia license to kill wolves was not based on any notion of constitutional or fundamental right, but instead on the simple legislative finding that such killing was "thought convenient."

Thus, to the extent this 1632 Virginia law is to be an authoritative guide to the meaning of the Second Amendment (yes, I kid), I think the most it would demonstrate is that if a resident of D.C. brings the head of a wolf to Mayor Fenty, he has a constitutional right to a free ham.

Full post as published by Balkinization on March 23, 2008 (boomark / email).