The Second Amendment as a Case Study in Constitutional Interpretation

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by  Akhil Reed Amar

Yale Law School
Yale Law School Legal Scholarship Repository
Faculty Scholarship Series Yale Law School Faculty Scholarship
1-1-2001
The Second Amendment as a Case Study in
Constitutional Interpretation
Akhil Reed Amar
Yale Law School
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The Second Amendment: A Case Study in Constitutional
Interpretation
AkhilReedAmar*
TheRockyMountainWestis guncountryinpopularfolklore andprobably
also in fact. Reliable numbers are hard to come by, but in one recent survey
estimating the percentage ofhouseholds with handguns, the Mountain states
ranked well above the national average-and this in a nation with one ofthe
highest per capita gun ownership rates in the world.' Earlier this year, the
NationalRifleAssociation(NRA) announcedthatitwouldholdits2007 annual
conventionhereinSaltLakeCity,inparttorewardUtah'sgun-friendlylawsand
lawmakers.2 I suspectthat a highpercentage ofUtahns couldrecite the Second
Amendmentbyheart.
Oratleastpartofthe SecondAmendment-andthere's the rub. Manygun
fans stress the Amendment's "right of the people to keep and bear Arms"
languagewhileslightingotherwordsintheAmendment,suchas"wellregulated"
and"Militia."Eventhephrase "bearArms" andthe words "thepeople" didnot
quite mean the same thing to the Founders as they do to today's NRA. To
understand the Second Amendment, we must widen our interpretive field of
vision. Forstarters,wemustseetheAmendmentas asyntacticalwhole,andnote
the distinctive grammatical linkage between its opening ode and its closing
command. But even this is far too narrow a lens. We must consider the
Amendment alongside its companion amendments-the First and Third in
particularandthe Bill ofRights more generally. Forexample, wemustseehow
the Second Amendment resembles the Fifth, Sixth, and Seventh Amendments,
and even the Tenth Amendment. More broadly still, we must read the Second
Amendment alongside similarly worded provisions ofstate constitutions, and
againstthebackdropofearlierEnglishchartersoflibertysuchastheEnglishBill
ofRights of1689.Perhapsmostimportant,wemustconfrontlaterconstitutional
'SouthmaydProfessorofLaw,YaleLawSchool.Thisessayderives fromtheLearyLecture
delivered at the UniversityofUtah College ofLaw on October25,2001. Someportions ofthe
LecturefirstappearedinanarticleoriginallypublishedinTHENEWREpUBUC,July 12,1999and
reprintedin65LAW& CONTEMP.PROBS. (2001).
IwouldliketodedicatethisLearyLecturetomyboyhoodscoutmasterandfriend, Mr. Ken
HarmonofBoise,Idaho,withthanksforallthathetaughtmeaboutguns,andaboutlife.Mythanks
alsotoMichaelMcConnellfor allhishospitalityandgenerosity.
·Conversationwith criminologistGaryKleck, Aug. 2, 2001 (summarizingdatathat, inthe
mountainWest,about28.6%ofhouseholdshavehandguns,comparedtoanationalrateof22.7%;
overallgunpossessionrates areestimatedat43.7%intheMountainWestand41.8%nationally).
2See Dawn House, Gun-Friendly Utah isNRA Hostfor 2007, SALTLAKETRm., May 17,
2001,atC1.
889
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890 UTAH LAW REVIEW [2001: 889
amendments, such as the Fourteenth and even the Nineteenth Amendment, and
considerhow these latertexts place the earlier one in a different light.
Theresultsofthisholisticstudymaysurprisefolks onbothsidesoftheaisle.
ContrarytoNRAideology,theFounders' SecondAmendment,byitself,provides
onlyslendersupportforarobustindividualrightto ownallmannerofguns. Later
constitutional developments-in particular, the words and deeds of the
Fourteenth Amendment-do in fact, when read in conjunction with the Second
Amendment, support an individual right to have a gun in one's home for se1f
protection; but later developments also support other readings ofthe Second
Amendment on topics far removed from the gun control debate. For example,
when read in the light of our entire constitutional structure, including post
Founding amendments, the Second Amendment has some rather remarkable
implications for issues such as women in combat and gays in the military. And
so,tobothconservativeswhonowlovetheSecondAmendmentandliberalswho
now loathe it, I say, think again: the Amendment may not quite mean what you
thought.
In short, I seekto provoke second thoughts about the Second Amendment
byreadingitinabroaderconstitutionalcontext.Ishallbeginbysketchingoutmy
substantive reading ofthe Amendment, and shall conclude with some thoughts
on general issues ofinterpretive method raisedby my reading.
1. READINGTHECONSTITUTION: SUBSTANCE
So what does the Second Amendment mean? A lot, says the NRA. Not
much, say gun-control groups. Until recently, it didn't much matter who was
right. Onall butthe mildest ofmeasures, the NRA had the votes (and the cash),
and that was that. Then came the tragedy at Columbine, here in the Mountain
West. Now proposals for serious federal gun controls are in the air, though not
quiteonthecongressionalfloor. Someproposalsaimtolimittheamountandtype
ofammunition thatmaybepurchased; others seekto restrictthenumberofguns
apersoncanbuyinagivenweek; andstillotherswouldrequire licensingallnew
guns (andperhaps oldones as well?) on the model ofautomobilelicensing, with
gun owners obliged to pass both a written gun safetytest and a practical safety
and competence exam. If adopted, would such measures violate the Federal
Constitution?
Let's begin with the words of the Amendment itself: "A well regulated
Militia, beingnecessary to the security ofa free State, the right ofthe people to
keep andbearArms, shall not be infringed." This curious syntax has perplexed
mostmodemreaders: Howdothetwo mainclauseswithdifferentsubject-nouns
fittogether?Dothesewordsguaranteearightofmilitias,asthefirstclauseseems
to suggest, oraright ofpeople, as the secondclause seemsto say?Inone comer,
gun controllers embrace a narrow, statistreading, insistingthatthe Amendment
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No.4] THE SECOND AMENDMENT 891
merelyconfersarightonstategovernmentstoestablishprofessionalstatemilitias
like the National Guard. On this view, no ordinary citizen is covered by the
Amendment. In the other comer, gun groups read the Amendment in a broad,
libertarianway, arguing that itprotects a right ofevery individual to have guns
forself-protection,forhunting,andevenforsport.Virtuallynothinghavingtodo
with personalweaponry is outside the Amendment onthis view. Bothreadings
are wrong.
The statistreading sidesteps the obvious fact that the Amendment's actual
command language-"shall not be infringed"-appears in its second clause,
which speaks of"the people" and not "the States." A quick look at the Tenth
Amendment, which draws a sharp distinction between "the States" and "the
people," makes clear that these two phrases are not identical and that the
Founders knew how to say "States" when they meant states.3 What's more, the
eighteenth-century"Militia"referredtobythefIrst clausewas notremotelylike
today's National Guard. It encompassedvirtually all voters-like today's Swiss
militia-ratherthan a small group ofpaid, semi-professionalvolunteers.
Butthe libertarianreadingmustcontendwithtextualembarrassmentsofits
own. The Amendmentspeaks ofa right of"thepeople" collectivelyratherthan
of"persons" individually. Andituses a distinctlymilitaryphrase: "bearArms."
Adeerhunterortargetshootercarriesagunbutdoesnot,properlyspeaking,bear
arms.4Themilitaryconnotationwas evenmoreobvious inan earlierdraftofthe
Amendment, which contained additional language that "no one religiously
scrupulous of bearing arms, shall be compelled to render military service in
person."sEveninthefInal version, notehowthe militaryphrase "bearArms" is
sandwiched between a clause that talks about the "Militia" and a clause (the
ThirdAmendment) thatregulates the quartering of"soldiers" in times of"war"
and"peace.,,6Likewise,stateconstitutionsonthebooksin1789consistentlyused
the phrase "bearArms" in military contexts andno other.7
Bynow it shouldbe evidentthatwe needto understand how all the words
ofthe AmendmentfIt together, andhowthey, intum, meshwith otherwords in
the Constitution. The Amendment's syntax seems odd only because modem
3U.S.CONST.amend.X("ThepowersnotdelegatedtotheUnitedStatesbytheConstitution,
norprohibitedbyittotheStatesarereservedtotheStates,respectively, ortothepeople.").
41nAymette v. State, 21 Tenn. (2 Hum.) 154, 161 (1840), the Tennessee Supreme Court
declaredthatthe"bearArms"phrasehad"amilitarysense,andno other....Amaninthepursuit
ofdeer, elkandbuffaloes,mightcarryhisrifleeveryday, forfortyyears, and,yet, itwouldnever
besaidofhim, thathehadbornearms."
sTHECOMPLETEBILLOFRIGHTS, 169-73 (NeilH. Coganed., 1997).
6U.S. CONST. amend. III ("No Soldier shall, in time ofpeace be quartered in any house,
withouttheconsentoftheOwner,norintimeofwar,butinamannertobeprescribedbylaw.").
SeeTHECOMPLETEBILLOFRIGHTS,supranote5,at183-85;AKH1LREEDAMAR,THEBILL
7
OFRIGHTS: CREATIONANDRECONSTRUCTION60-61, 332n.33 (1998).
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readers persistently misread the words "Militia" and "people," imposing
twentieth-century assumptions on an eighteenth-century text. The key subject
nouns were simplydifferentways ofsayingthe samething: attheFounding,the
militia were the people and the people were the militia. Indeed, the earlierdraft
ofthe Amendmentlinked the two clauseswithlinchpinlanguage speakingof"a
well regulated militia, composed of the body of the people."g This unstylish
linchpin was later pulled out, but the very syntax ofthe final Amendment as a
whole equates the "Militia" ofthe first clause with "the people" ofthe second.
In a sound republic, the "people" and the "militia" are one and the same: those
who vote serve in the militaryand those who serve in the military vote.
Underlying these words was a certain skepticism about a permanent,
hierarchical standing army that might not truly look like America but could
instead embodya dangerous culturewithina culture, aproto-military-industrial
complex threatening republican equality and civilian supremacy. The root idea
is not so much guns perse, norhunting, nortargetshooting. Ratherthe key idea
concernsthe linkbetweendemocracyandthemilitary: WethePeoplemustrule,
and must assure Ourselves that Ourmilitarywill do Our biddingrather than its
own. According to the Amendment, the best way to guarantee this is to have a
militarythatrepresentsandembodiesUs-thepeople,thevoters,thedemocratic
rulers ofa "free state." Rather than placing full confidence in a standing army
filled with aliens, convicts, vagrants, and mercenaries-who do not truly
represent the electorate, and who may pursue their own agendas-a sound
republic should rely on its own armed citizens-a"militia" of"the people."
Call this the small-r republican reading as opposed to the statist and
libertarian readings that dominate modern discourse. Statists anachronistically
read the "Militia" to mean the government (the paid professional officialdom)
rather than the people (the ordinary citizenry). Equally anachronistically,
libertariansread"thepeople"to meanatomizedprivatepersons, eachhunting in
hisownprivateIdaho, ratherthanthecitizenryactingcollectively.But,whenthe
Constitution speaks of "the people" rather than "persons," the collective
connotation is primary. In the Preamble, "We the People ... do ordain and
establishthisConstitution"aspubliccitizensmeetingtogetherinconventionsand
actinginconcert,notasprivateindividualspursuingourrespectivehobbies. The
only other reference to "the people" in the Philadelphia Constitution of 1787
8THECOMPLETEBILLOFRIGHTS,supranote5,at 170-73.Cf3DEBATESONTHEADOPTION
OFTHE FEDERALCONSTITUTION425 (Jonathan Ellioted., AYERCo., 1987) (1836) (remarks of
GeorgeMasonatVirginiaRatifying Convention)("Who arethemilitia?Theyconsistnowofthe
wholepeople....");id at112(remarksofFrancisCorbinatVirginiaRatifYingConvention)("Who
arethemilitia?Arewenotmilitia?");XVIIILettersfromTheFederalFarmerin2THECOMPLETE
ANTI-FEDERALISTS341 (HerbertJ.Storinged., 1981)("Amilitia,whenproperlyformed,areinfact
thepeoplethemselves.... and include ... allmen capableofbearingarms ...").
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No.4] THE SECOND AMENDMENT 893
appearsasentenceawayfromthePreamble, andhere,too,themeaningispublic
andpolitical,notprivateandindividualistic: everytwoyears,"thePeople"-that
is, the voters-electthe House.9 To see the key distinction another way, recall
thatwomenin 1787hadtherights of"persons"(suchasfreedomtoworship and
protections ofprivacyintheirhomes) butdidnot directlyparticipateinthe acts
of "the people"-they did not vote in constitutional conventions nor for
Congress, nor were they part ofthe militia/people at the heart ofthe Second
Amendment.
The restoftheBill ofRights confirms this republicanreading. The core of
the First Amendment's Assembly Clause, which textually abuts the Second
Amendment, is the right of"thepeople"-in essence, voters-to "assemble" in
constitutional conventions and other political conc1aves.lO Likewise, the core
rightsretainedandreservedto"thepeople"intheNinthandTenthAmendments
wererightsofthepeoplecollectivelytogovernthemselvesdemocratically. The
II
Fourth Amendment is trickier: "The right ofthe people to be secure in their
persons,houses,papers,andeffects,againstunreasonablesearchesandseizures,
shallnotbeviolated ...."12Here, the collective"people" wording is pairedwith
moreindividualisticlanguageof"persons."Andthesewords obviouslyfocus on
theprivatedomain,protectingindividualsintheirprivatehomesmorethaninthe
public square. Why, then, did the Fourth use the words "the people" at all?
Probablytohighlighttherolethatjurors-actingcollectivelyandrepresentingthe
electorate-would play in deciding which searches were reasonable and how
much to punish government officials who searched or seized improperly. An
earlydraftofJamesMadison'samendmentprotectingjuryrightshelpsmakethis
linkageobviousandalsoresonateswiththelanguageoftheSecondAmendment:
"[T]hetrialbyjury,as oneofthebestsecuritiestotherights ofthepeople, ought
to remain inviolate."13 Note the obvious echoes here-"security" (Second
Amendment),"secure"(FourthAmendment),and"securities"(draftamendment);
"shallnotbeinfringed,""shallnotbeviolated,"and"oughttoremaininviolate";
and, ofcourse, "theright ofthepeople" in all three places.
9U.S.CONST.art.I,§2,cl.1("TheHouseofRepresentativesshallbecomposedofMembers
choseneverysecondYearbythePeopleoftheseveralStates ").
IOU.S.CONST.amend.I ("Congressshallmakenolaw abridging..therightofthepeople
peaceablytoassemble....").Formoresupportformyreadingofthecorerightimplicatedhere,see
AMAR,supranote7,at26-32.
IIu.S.CONST.amend. IX("TheenumerationintheConstitutionofcertainrightsshallnotbe
construedto denyordisparageothersretainedbythepeople."); id. amend. X, quotedsupranote
3. Formore support for mypopulistreading ofthese Amendments, see AMAR, supranote 7, at
119-22.
12U.S.CONST.amend. IV.
13THECOMPLETEBILLOFRIGHTS,supranote5,at493-94.
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Ifwewantanimageofthepeople'smilitiaattheFounding,weshouldbegin
by envisioning the militia's first cousin, thejury. Whereas the SecondAmend
menthighlightsthemilitia,theFifth,Sixth,andSeventhAmendments,alongwith
the Fourth, feature thejury. (TheFifthprotects grandjuries; the Sixth, criminal
juries; andthe Seventh, civiljuriesI4 Likethemilitia, thejurywas a localbody
).
counteringimperialpower-summonedbythe governmentbutstandingoutside
it, representing the people, collectively. Likejury service, militia participation
was botharightandadutyofqualifiedvoters, who wereregularlysummonedto
discharge theirpublic obligations. (Nonvoters-women, children, aliens-were
in general excludedfrom boththejuryandthemilitia.) Like thejury, the militia
wascomposedofamateursarrayedagainst,anddesignedtocheck,permanentand
professionalgovernmentofficials Gudgesandprosecutorsinthecaseofthejury;
a standing army in the case ofthe militia). Like thejury, the militia embodied
collective political action rather than private pursuits.
Foundinghistoryconfirms this. The Framers picturedMinutemen bearing
guns, not Daniel Boone gunning bears. When we turn to state constitutions, we
consistently find arms-bearing and militia clauses intertwined with rules
governing standing armies, troop-quartering, martial law, and civilian
supremacy.15 A similarpattern appears in the famous English Bill ofRights of
1689, where language concerning the right to arms immediately followed
languagecondemningunauthorizedstandingarmiesinpeacetime.16Libertarians
cannot explain this clear pattern that has everything to do with the military and
nothing to do with hunting. Conversely, statists also make a hash ofthese state
constitutionalprovisions,manyofwhichuselanguageverysimilartotheSecond
Amendment to affirm rights against state governments.
Keeping thejury-militia analogy in mind, we can see the kernel oftruth in
these competingaccounts and alsowhat's missingfrom each. Statists arerightto
seetheAmendmentas localistandtonotethatlawandgovernmenthelpbringthe
militia together. So too with the jury. Twelve private citizens who simply get
together on their own to announce the guilt ofa fellow citizen are not a lawful
jurybut a lynch mob. Similarly, private citizens who choose to own guns today
are not a well-regulated militia ofthe people; they are gun clubs. Butwhat the
statist reading misses is when the law summons the citizenry together, these
citizens, in an important sense, act as the people outside ofgovernment rather
14SeeU.S. CONST. amend. V ("No personshallbeheldto answerforacapital, orotherwise
infamouscrime,unlessonapresentmentorindictmentofaGrandJury....");id amend.VI("Inall
criminal prosecutions, the accused shall enjoy the right to ... an impartialjury ofthe State and
district....");idamend.VII("InSuitsatcommonlaw...therightoftrialbyjuryshallbepreserved
....").
15Seesourcescitedsupranote 7.
16TheEnglish BillofRights 1689, 1W. & M., c. 2 §§ 5-6 (Eng.).
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No.4] THE SECOND AMENDMENT 895
than as a professional and permanent government bureaucracy. Just as the
bureaucratic EPA is obviously not a true jury, so too the semi-professional
National Guard is not a general militia. Libertarians rightly recoil at the
authoritarianismoftheir opponents inthe debate, butwronglyprivatizewhat is
aninherentlycollectiveandpoliticalright. Itis as ifRoss Perotinsistedthatthe
FirstAmendment guaranteedhim the right to conducthis own poll and, on the
basis ofthis privatepoll, proclaimedhimselfpresident.
Butto see all this is to seewhatmakes the SecondAmendmentso slippery
today: thelegalandsocialstructureonwhichtheAmendmentwasbuiltnolonger
exists. TheFounders'juries-grand,petit, and civil-are still aroundtoday, but
theFounders'militiaisnot.AmericaisnotSwitzerland.Votersnolongermuster
formilitiapractice in the town square.
Ofcourse, we are free todayto readthe SecondAmendmentmore broadly
ifwechoose.Thoughtfullegalscholarsofallstripes-fromSanfordLevinsonon
the Left to Eugene Volokh on the Right17-have reminded us that other
amendments have been read generously; why not the Second? But given that a
broadreading is a policychoiceratherthan a clearconstitutional command, we
areentitledto askourselveswhetheragivenbroadreadingmakes goodsenseas
a matter of principle and practice. And the mere fact that, say, the First
Amendment has been read expansivelyis not an automatic argument for equal
treatmentfor the Second. Forexample, violentfelons, evenwhile inprison and
especially after their release, obviously have a First Amendment right to print
their opinions in newspapers. Yet such felons have never had a Second
Amendmentrightto ownguns. EventheNRAacceptsthis doublestandard. But
whatunderliesit?Theobviouscommonsensicalideaisthatsticksandstonesand
guns in the hands ofdangerous felons can indeed hurt others in ways thattheir
words cannot.
Especially today's guns. At the Founding, single-fire muskets had certain
attractiveanddemocraticproperties.Apersonoftenhadtogetclosetoyoutokill
you,andingettingclose,heusuallyrenderedhimselfvulnerabletocounterattack.
Ittooktimetoreloadandsoonepersoncouldnottypicallymowdowndozens in
a few seconds. One person, one gun, one shot was not as perfect a system of
majorityrule as oneperson, onevote, butthesidewiththemostmenoftenwon;
and there was a rough proportionality ofcapacity to kill and be killed. What's
more, madmen were constrained by the strong social network of the well-
17SeeSanfordLevinson, TheEmbarrassingSecondAmendment, 99 YALEL.J. 637(1989);
EugeneVolokh, Gunsandthe Constitution, THEWALLST.J.,Apr. 12, 1999,atA23.
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896 UTAH LAW REVIEW [2001: 889
regulated militia. Today, technological and social strictures have loosened,
perhaps rendering madmen more dangerous.
18
Moreover, the Founders actedandwrote in aworldwhere democratic self
government had never truly existed on a continental scale. Then-conventional
wisdomassociated liberty and democracy with localism, and linked geographi
cally expansive regimes with empire and tyranny. Ifthe framers were slightly
paranoidaboutthepotentialevil ofacentralLeviathan,theyhadgoodreasonfor
this paranoia in light oftheir lived experience with the British empire and the
history ofthe worldbefore 1800. Butthe lasttwo centuries have shownthat the
federal governmentin general has redeemedthehopes ofitsfriends morethan it
has confirmedthefears ofits enemies. To rail againstcentraltyrannytoday is to
be considerably more paranoidthan were the Founders, given the general track
recordoftheUnited States since 1787. Putanotherway, becauseballots andthe
FirstAmendment have generally worked to prevent full-blown federal tyranny,
bullets andthe SecondAmendmentneednotbearasmuchweighttodayassome
pessimists anticipated two centuries ago.
Another point: regardless ofthe original meaning ofthe Second Amend
ment, today's interpreters must read this Amendment in light oflater constitu
tionalwordsanddeeds. AftertheexperienceoftheCivilWar,thestronglocalism
ofthe original Second Amendment seems more problematic. Constitutionally
speaking, the heroes ofthe Civil War fought for the Union army, not the rebel
militias. In the wake ofthis war and the Amendments it produced, we need to
rethink the vision ofUnion armies and state militias in our constitutional order.
Moreover, various post-Founding amendments have dramatically expanded
Americansuffrage.Howmighttheseconstitutionalredefinitionsoftheelectorate
affect our understanding of"the people" and the "Militia" at the heart ofthe
SecondAmendment?
Ifwe seekbroad readings ofthe Amendment faithful to the core values of
theFoundingyetattentivetosubsequentlegalandfactual developments,hereare
a couple that the NRA hasn't proposed butthat are at least as plausible as their
preferred broad readings.
1. Take the "mil" out of the militia. In highly sophisticated scholarship
transcending the typical statist-versus-libertarian debate, Indiana law professor
David Williams has emphasized how the militia bound citizens together in a
common venture. Itplayed an important social function inthe communityand
19
ISItmaybecounteredthatthe federal governmenttodayisalso more dangerous, given vast
improvementsinmilitarytechnology. Trueenough,butforreasonsIshallsoonelaborate,today's
federal governmentis also less likelyto usethis militarytechnologyto tyrannize itscitizensthan
manyattheFoundingrealisticallyfeared.
19SeeDavidC.Williams,CivicRepublicanismandtheCitizenMilitia: TheTerrifyingSecond
Amendment, 101 YALEL.J. 551 (1991).
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No.4] THE SECOND AMENDMENT 897
embodieda democratic cultureinwhichrich andpoorcitizens from allwalks of
lifecametogetherasequals-aswiththejury.Withoutsomeformsofdemocratic
glue, our culture risks flying apart, especially in today's world of increasing
demographicdiversityandspecializationoflabor.Thus,abroadmodemreading
of the Amendment would call for compulsory or quasi-compulsory national
service, with both military and nonmilitary alternatives like VISTA or the
Civilian Conservation Corps. (Recall that an early version ofthe Amendment
provided for compulsory military service with an opt-out for conscientious
2o
objectors. And note that early militias also performed important nonmilitary
functions like disasterrelief.) Instead ofbowling alone, Americans wouldband
together, building a more solidbase ofsocial capital and civic virtue.
2. Create an Army that truly looks like America. At the Founding, a standing
armyinpeacetimewas viewedwithdreadandseenas The Other-mercenaries,
convicts, vagrants, and aliens, as opposedto ordinary citizens. Today, we view
ourprofessionalArmedForceswithpride.TheseforcesrepresentUs, notThem.
Thus, the Founders' militia has begun to morph into today's Army, Navy, Air
Force, andMarineCorps. Giventhis development,womenandgays shouldplay
as equal a role as possible in today's institutions ofcollective self-defense. The
militiacelebratedbytheSecondAmendmentshouldreflectthepeople,justasthe
jury should. To put the point another way, the Second Amendment says that
votersshouldbeararms andthatarms-bearersshouldvote: Thevotingelectorate
("the people") and the democratic military ("the Militia") should in republican
principle be one and the same. Since the Nineteenth Amendment has made
womenequalvoters,21 theSecondAmendmentdemandsthattheybegivenequal
status in arms. (Allowing women to buy guns at the local sporting goods store
mightmakethemequalinlibertariangun-toting,butitdoesnotmakethemequal
in republican arms-bearing; it fails to include them on equal terms in modem
America's militia-substitute.)
Andwhat'strueforwomenmayalsobetrueforgaymen: theArmedForces'
discriminationongroundsofsexualorientationis,formallyspeaking,discrimina
tion"onaccountofsex,"intensionwiththisNineteenthAmendmentideal.22 (If
LesliehasintimatephysicalrelationswithJohn,itisaformofsexdiscrimination
to treat Leslie one way ifshe is a woman and a different way ifhe is a man.)
Formal sex discriminations can be justified in some cases, but they should be
closelyinterrogated. For example, separatebathrooms formen andwomen are,
formally, a kind ofsex discrimination, but this arrangement is widely seen as
justifiedbylegitimateprivacyconcerns. So,too, certainsex-basedexclusionsin
20Seesupranote5andaccompanyingtext.
2IU.S.CONST. amend.XIX, § 1("TherightofcitizensoftheUnitedStatestovoteshallnot
bedeniedorabridgedbytheUnitedStatesorbyanyStateonaccountofsex.").
22Id.
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