The Embarrassing Second Amendment
by
Sanford Levinson
From The Yale Law Journal, Volume 99
- FORWARD -
I am a Charles Tilford McCormick Professor of Law at the
University of Texas Law School. This essay was initially prepared
for delivery at a symposium on Interpretation and the Bill of
Rights at Williams College on November 4, 1988. I am grateful for
the thought and effort put into that conference by its organizer,
Professor Mark Taylor. It was he who arranged for Wendy Brown,
then a member of the Williams Department of Political Science, to
deliver the excellent response that can be found following this
article. A timely letter from Linda Kerber contributed to the
reorganization of this article. Two long-distance friends and
colleagues, Akhil Reed Amar and Stephen Siegel, contributed
special and deeply appreciated insights and encouragement.
Finally, as always, I took full advantage of several of my
University of Texas Law School colleagues, including Jack Balkin,
Douglas Laycock, and Lucas Powe.
I should note that I wrote (and titled) this article before
reading Nelson Lund's The Second Amendment, Political Liberty,
and the Right to Self-Preservation, 39 Ala. L. REV. 103 (1987),
which begins, "The Second Amendment to the United States
Constitution has become the most embarrassing provision of the
Bill of Rights." I did hear Lund deliver a talk on the Second
Amendment at the University of Texas Law School during the winter
of 1987, which may have penetrated my consciousness more than I
realized while drafting the article.
Sanford Levinson
-=-=-=-=-=-=-
One of the best known pieces of American popular art in this
century is the New Yorker cover by Saul Steinberg presenting a
map of the United States as seen by a New Yorker. As most readers
can no doubt recall, Manhattan dominates the map; everything west
of the Hudson is more or less collapsed together and minimally
displayed to the viewer. Steinberg's great cover depends for its
force on the reality of what social psychologists call "cognitive
maps." If one asks inhabitants ostensibly of the same cities to
draw maps of that city, one will quickly discover that the images
carried around in people's minds will vary by race, social class,
and the like. What is true of maps of places--that they differ
according to the perspectives of the mapmakers--is certainly true
of all conceptual maps.
To continue the map analogy, consider in this context the
Bill of Rights: Is there an agreed upon "projection" of the
concept? Is there even a canonical text of the Bill of Rights?
Does it include the first eight, nine, or ten Amendments to the
Constitution?[1] Imagine two individuals who are asked to draw a
"map" of the Bill of Rights. One is a (stereo-) typical member of
the American Civil Liberties Union (of which I am a cardcarrying
member); the other is an equally (stereo-) typical member of the
"New Right." The first, I suggest, would feature the First
Amendment [2] as Main Street, dominating the map, though more,
one suspects, in its role as protector of speech and prohibitor
of established religion than as guardian of the rights of
religious believers. The other principal avenues would be the
criminal procedure aspects of the Constitution drawn from the
Fourth, [3] Fifth, [4] Sixth, [5] and Eighth [6] Amendments. Also
depicted prominently would be the Ninth Amendment, [7] although
perhaps as in the process of construction. I am confident that
the ACLU map would exclude any display of the just compensation
clause of the Fifth Amendment [8] or of the Tenth Amendment.[9]
The second map, drawn by the New Rightist, would highlight
the free exercise clause of the First Amendment, [10] the just
compensation clause of the Fifth Amendment, [11] and the Tenth
Amendment.[12] Perhaps the most notable difference between the
two maps, though, would be in regard to the Second Amendment: "A
well regulated Militia being necessary to the security of a free
State, the right of the people to keep and bear Arms shall not be
infringed." What would be at most only a blind alley for the ACLU
mapmaker would, I am confident, be a major boulevard in the map
drawn by the New Right adherent. It is this last anomaly that I
want to explore in this essay.
I. THE POLITICS OF INTERPRETING THE SECOND AMENDMENT
To put it mildly, the Second Amendment is not at the
forefront of constitutional discussion, at least as registered in
what the academy regards as the venues for such discussion--law
reviews, [13] casebooks, [14] and other scholarly legal
publications. As Professor LaRue has recently written, "the
second amendment is not taken seriously by most scholars."[15]
Both Laurence Tribe [16] and the Illinois team of Nowak,
Rotunda, and Young [17] at least acknowledge the existence of the
Second Amendment in their respective treatises on constitutional
law, perhaps because the treatise genre demands more encyclopedic
coverage than does the casebook. Neither, however, pays it the
compliment of extended analysis. Both marginalize the Amendment
by relegating it to footnotes; it becomes what a
deconstructionist might call a "supplement" to the ostensibly
"real" Constitution that is privileged by discussion in the
text.[18] Professor Tribe's footnote appears as part of a general
discussion of congressional power. He asserts that the history of
the Amendment "indicate[s] that the central concern of [its]
framers was to prevent such federal interferences with the state
militia as would permit the establishment of a standing national
army and the consequent destruction of local autonomy."[19] He
does note, however, that "the debates surrounding congressional
approval of the second amendment do contain references to
individual self-protection as well as to states' rights," but he
argues that the presence of the preamble to the Amendment, as
well as the qualifying phrase "'well regulated' makes any
invocation of the amendment as a restriction on state or local
gun control measures extremely problematic."[20] Nowak, Rotunda,
and Young mention the Amendment in the context of the
incorporation controversy, though they discuss its meaning at
slightly greater length.[21] They state that "[t]he Supreme Court
has not determined, at least not with any clarity, whether the
amendment protects only a right of state governments against
federal interference with state militia and police forces . . .
or a right of individuals against the federal and state
government[s]."[22]
Clearly the Second Amendment is not the only ignored patch
of text in our constitutional conversations. One will find
extraordinarily little discussion about another one of the
initial Bill of Rights, the Third Amendment: "No Soldier shall,
in time of peace be quartered in any house, without the consent
of the Owner, nor in time of war, but in a manner to be
prescribed by law." Nor does one hear much about letters of
marque and reprisal [23] or the granting of titles of
nobility.[24] There are, however, some differences that are worth
noting.
The Third Amendment, to take the easiest case, is ignored
because it is in fact of no current importance whatsoever
(although it did, for obvious reasons, have importance at the
time of the founding). It has never, for a single instant, been
viewed by any body of modern lawyers or groups of laity as highly
relevant to their legal or political concerns. For this reason,
there is almost no case law on the Amendment.[25] I suspect that
few among even the highly sophisticated readers of this Journal
can summon up the Amendment without the aid of the text.
The Second Amendment, though, is radically different from
these other pieces of constitutional text just mentioned, which
all share the attribute of being basically irrelevant to any
ongoing political struggles. To grasp the difference, one might
simply begin by noting that it is not at all unusual for the
Second Amendment to show up in letters to the editors of
newspapers and magazines.[26] That judges and academic lawyers,
including the ones who write casebooks, ignore it is most
certainly not evidence for the proposition that no one cares
about it. The National Rifle Association, to name the most
obvious example, cares deeply about the Amendment, and an
apparently serious Senator of the United States averred that the
right to keep and bear arms is the "right most valued by free
men."[27] Campaigns for Congress in both political parties, and
even presidential campaigns, may turn on the apparent commitment
of the candidates to a particular view of the Second Amendment.
This reality of the political process reflects the fact that
millions of Americans, even if (or perhaps especially if) they
are not academics, can quote the Amendment and would disdain any
presentation of the Bill of Rights that did not give it a place
of pride.
I cannot help but suspect that the best explanation for the
absence of the Second Amendment from the legal consciousness of
the elite bar, including that component found in the legal
academy, [28] is derived from a mixture of sheer opposition to
the idea of private ownership of guns and the perhaps
subconscious fear that altogether plausible, perhaps even
"winning," interpretations of the Second Amendment would present
real hurdles to those of us supporting prohibitory regulation.
Thus the title of this essay--The Embarrassing Second Amendment--
for I want to suggest that the Amendment may be profoundly
embarrassing to many who both support such regulation and view
themselves as committed to zealous adherence to the Bill of
Rights (such as most members of the ACLU). Indeed, one sometimes
discovers members of the NRA who are equally committed members of
the ACLU, differing with the latter only on the issue of the
Second Amendment but otherwise genuinely sharing the libertarian
viewpoint of the ACLU.
It is not my style to offer "correct" or "incorrect"
interpretations of the Constitution.[29] My major interest is in
delineating the rhetorical structures of American constitutional
argument and elaborating what is sometimes called the "politics
of interpretation," that is, the factors that explain why one or
another approach will appeal to certain analysts at certain
times, while other analysts, or times, will favor quite different
approaches. Thus my general tendency to regard as wholly
untenable any approach to the Constitution that describes itself
as obviously correct and condemns its opposition as simply wrong
holds for the Second Amendment as well. In some contexts, this
would lead me to label as tendentious the certainty of NRA
advocates that the Amendment means precisely what they assert it
does. In this particular context--i.e., the pages of a journal
whose audience is much more likely to be drawn from an elite,
liberal portion of the public--I will instead be suggesting that
the skepticism should run in the other direction. That is, we
might consider the possibility that "our" views of the Amendment,
perhaps best reflected in Professor Tribe's offhand treatment of
it, might themselves be equally deserving of the "tendentious"
label.
II. THE RHETORICAL STRUCTURES OF THE RIGHT TO BEAR ARMS
My colleague Philip Bobbitt has, in his book Constitutional
Fate, [30] spelled out six approaches--or "modalities," as he
terms them--of constitutional argument. These approaches, he
argues, comprise what might be termed our legal grammar. They are
the rhetorical structures within which "law-talk" as a
recognizable form of conversation is carried on. The six are as
follows:
1) textual argument--appeals to the unadorned
language of the text;[31]
2) historical argument--appeals to the historical
background of the provision being considered,
whether the history considered be general, such as
background but clearly crucial events (such as the
American Revolution), or specific appeals to the
so-called intentions of the framers;[32]
3) structural argument--analyses inferred from the
particular structures established by the
Constitution, including the tripartite division of
the national government; the separate existence of
both state and nation as political entities; and
the structured role of citizens within the
political order;[33]
4) doctrinal argument--emphasis on the implications
of prior cases decided by the Supreme Court;[34]
5) prudential argument--emphasis on the consequences
of adopting a proffered decision in any given
case;[35] and, finally,
6) ethical argument--reliance on the overall "ethos"
of limited government as centrally constituting
American political culture.[36]
I want to frame my consideration of the Second Amendment
within the first five of Bobbitt's categories; they are all
richly present in consideration of what the Amendment might mean.
The sixth, which emphasizes the ethos of limited government, does
not play a significant role in the debate of the Second
Amendment.[37]
A. TEXT
I begin with the appeal to text. Recall the Second
Amendment: "A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and
bear Arms, shall not be infringed." No one has ever described the
Constitution as a marvel of clarity, and the Second Amendment is
perhaps one of the worst drafted of all its provisions. What is
special about the Amendment is the inclusion of an opening
clause--a preamble, if you will--that seems to set out its
purpose. No similar clause is a part of any other Amendment,[38]
though that does not, of course, mean that we do not ascribe
purposes to them. It would be impossible to make sense of the
Constitution if we did not engage in the ascription of purpose.
Indeed, the major debates about the First Amendment arise
precisely when one tries to discern a purpose, given that
"literalism" is a hopelessly failing approach to interpreting it.
We usually do not even recognize punishment of fraud--a classic
speech act--as a free speech problem because we so sensibly
assume that the purpose of the First Amendment could not have
been, for example, to protect the circulation of patently
deceptive information to potential investors in commercial
enterprises. The sharp differences that distinguish those who
would limit the reach of the First Amendment to "political"
speech from those who would extend it much further, encompassing
non-deceptive commercial speech, are all derived from different
readings of the purpose that underlies the raw text.[39]
A standard move of those legal analysts who wish to limit
the Second Amendment's force is to focus on its "preamble" as
setting out a restrictive purpose. Recall Laurence Tribe's
assertion that that purpose was to allow the states to keep their
militias and to protect them against the possibility that the new
national government will use its power to establish a powerful
standing army and eliminate the state militias. This purposive
reading quickly disposes of any notion that there is an
"individual" right to keep and bear arms. The right, if such it
be, is only a state's right. The consequence of this reading is
obvious: the national government has the power to regulate--to
the point of prohibition--private ownership of guns, since that
has, by stipulation, nothing to do with preserving state
militias. This is, indeed, the position of the ACLU, which reads
the Amendment as protecting only the right of "maintaining an
effective state militia.... [T]he individual's right to bear arms
applies only to the preservation or efficiency of a well-
regulated [state] militia. Except for lawful police and military
purposes, the possession of weapons by individuals is not
constitutionally protected."[40]
This is not a wholly implausible reading, but one might ask
why the Framers did not simply say something like "Congress shall
have no power to prohibit state-organized and directed militias."
Perhaps they in fact meant to do something else. Moreover, we
might ask if ordinary readers of late 18th Century legal prose
would have interpreted it as meaning something else. The text at
best provides only a starting point for a conversation. In this
specific instance, it does not come close to resolving the
questions posed by federal regulation of arms. Even if we accept
the preamble as significant, we must still try to figure out what
might be suggested by guaranteeing to "the people the right to
keep and bear arms;" moreover, as we shall see presently, even
the preamble presents unexpected difficulties in interpretation.
B. HISTORY
One might argue (and some have) that the substantive right
is one pertaining to a collective body--"the people"--rather than
to individuals. Professor Cress, for example, argues that state
constitutions regularly used the words "man" or "person" in
regard to "individual rights such as freedom of conscience,"
whereas the use in those constitutions of the term "the people"
in regard to a right to bear arms is intended to refer to the
"sovereign citizenry" collectively organized.[41] Such an
argument founders, however, upon examination of the text of the
federal Bill of Rights itself and the usage there of the term
"the people" in the First, Fourth, Ninth, and Tenth Amendments.
Consider that the Fourth Amendment protects " [t]he right of
the people to be secure in their persons," or that the First
Amendment refers to the "right of the people peaceably to
assemble, and to petition the Government for a redress of
grievances." It is difficult to know how one might plausibly read
the Fourth Amendment as other than a protection of individual
rights, and it would approach the frivolous to read the assembly
and petition clause as referring only to the right of state
legislatures to meet and pass a remonstrance directed to Congress
or the President against some governmental act. The Tenth
Amendment is trickier, though it does explicitly differentiate
between "states" and "the people" in terms of retained
rights.[42] Concededly, it would be possible to read the Tenth
Amendment as suggesting only an ultimate right of revolution by
the collective people should the "states" stray too far from
their designated role of protecting the rights of the people.
This reading follows directly from the social contract theory of
the state. (But, of course, many of these rights are held by
individuals.)
Although the record is suitably complicated, it seems
tendentious to reject out of hand the argument that one purpose
of the Amendment was to recognize an individual's right to engage
in armed self-defense against criminal conduct.[43] Historian
Robert E. Shalhope supports this view, arguing in his article The
Ideological Origins of the Second Amendment [44] that the
Amendment guarantees individuals the right "to possess arms for
their own personal defense."[45] It would be especially
unsurprising if this were the case, given the fact that the
development of a professional police force (even within large
American cities) was still at least a half century away at the
end of the colonial period.[46] I shall return later in this
essay to this individualist notion of the Amendment, particularly
in regard to the argument that "changing circumstances,"
including the development of a professional police force, have
deprived it of any continuing plausibility. But I want now to
explore a second possible purpose of the Amendment, which as a
sometime political theorist I find considerably more interesting.
Assume, as Professor Cress has argued, that the Second
Amendment refers to a communitarian, rather than an individual,
right.[47] We are still left the task of defining the
relationship between the community and the state apparatus. It is
this fascinating problem to which I now turn.
Consider once more the preamble and its reference to the
importance of a well-regulated militia. Is the meaning of the
term obvious? Perhaps we should make some effort to find out what
the term "militia" meant to 18th century readers and writers,
rather than assume that it refers only to Dan Quayle's Indiana
National Guard and the like. By no means am I arguing that the
discovery of that meaning is dispositive as to the general
meaning of the Constitution for us today. But it seems foolhardy
to be entirely uninterested in the historical philology behind
the Second Amendment.
I, for one, have been persuaded that the term "militia" did
not have the limited reference that Professor Cress and many
modern legal analysts assign to it. There is strong evidence that
"militia" refers to all of the people, or at least all of those
treated as full citizens of the community. Consider, for example,
the question asked by George Mason, one of the Virginians who
refused to sign the Constitution because of its lack of a Bill of
Rights: "Who are the Militia? They consist now of the whole
people."[48] Similarly, the Federal Farmer, one of the most
important Anti-Federalist opponents of the Constitution, referred
to a "militia, when properly formed, [as] in fact the people
themselves."[49] We have, of course, moved now from text to
history. And this history is most interesting, especially when we
look at the development of notions of popular sovereignty. It has
become almost a cliche of contemporary American historiography to
link the development of American political thought, including its
constitutional aspects, to republican thought in England, the
"country" critique of the powerful "court" centered in London.
One of this school's important writers, of course, was James
Harrington, who not only was influential at the time but also has
recently been given a certain pride of place by one of the most
prominent of contemporary "neo-republicans," Professor Frank
Michelman.[50] One historian describes Harrington as having made
"the most significant contribution to English libertarian
attitudes toward arms, the individual, and society."[51] He was a
central figure in the development of the ideas of popular
sovereignty and republicanism.[52] For Harrington, preservation
of republican liberty requires independence, which rests
primarily on possession of adequate property to make men free
from coercion by employers or landlords. But widespread ownership
of land is not sufficient. These independent yeoman should also
bear arms. As Professor Morgan puts it, "[T]hese independent
yeomen, armed and embodied in a militia, are also a popular
government's best protection against its enemies, whether they be
aggressive foreign monarchs or scheming demagogues within the
nation itself."[53]
A central fear of Harrington and of all future republicans
was a standing army, composed of professional soldiers.
Harrington and his fellow republicans viewed a standing army as a
threat to freedom, to be avoided at almost all costs. Thus, says
Morgan, "A militia is the only safe form of military power that a
popular government can employ; and because it is composed of the
armed yeomanry, it will prevail over the mercenary professionals
who man the armies of neighboring monarchs."[54]
Scholars of the First Amendment have made us aware of the
importance of John Trenchard and Thomas Gordon, whose Cato's
Letter's were central to the formation of the American notion of
freedom of the press. That notion includes what Vincent Blasi
would come to call the "checking value" of a free press, which
stands as a sturdy exposer of governmental misdeeds.[55] Consider
the possibility, though, that the ultimate "checking value" in a
republican polity is the ability of an armed populace,
presumptively motivated by a shared commitment to the common
good, to resist governmental tyranny.[56] Indeed, one of Cato's
letters refers to "the Exercise of despotick Power [as] the
unrelenting War of an armed Tyrant upon his unarmed
Subjects...."[57]
Cress persuasively shows that no one defended universal
possession of arms. New Hampshire had no objection to disarming
those who "are or have been in actual rebellion," just as Samuel
Adams stressed that only "peaceable citizens" should be protected
in their right of "keeping their own arms."[58] All these points
can be conceded, however, without conceding as well that
Congress--or, for that matter, the States--had the power to
disarm these "peaceable citizens."
Surely one of the foundations of American political thought
of the period was the well-justified concern about political
corruption and consequent governmental tyranny. Even the
Federalists, fending off their opponents who accused them of
foisting an oppressive new scheme upon the American people, were
careful to acknowledge the risks of tyranny. James Madison, for
example, speaks in Federalist Number Forty-Six of "the advantage
of being armed, which the Americans possess over the people of
almost every other nation."[59] The advantage in question was not
merely the defense of American borders; a standing army might
well accomplish that. Rather, an armed public was advantageous in
protecting political liberty. It is therefore no surprise that
the Federal Farmer, the nom de plume of an anti-federalist critic
of the new Constitution and its absence of a Bill of Rights,
could write that "to preserve liberty, it is essential that the
whole body of the people always possess arms, and be taught
alike, especially when young, how to use them...."[60] On this
matter, at least, there was no cleavage between the pro-
ratification Madison and his opponent.
In his influential Commentaries on the Constitution, Joseph
Story, certainly no friend of Anti-Federalism, emphasized the
"importance" of the Second Amendment.[61] He went on to describe
the militia as "the natural defence of a free country" not only
"against sudden foreign invasions" and "domestic insurrections,"
with which one might well expect a Federalist to be concerned,
but also against "domestic usurpations of power by rulers."[62]
"The right of the citizens to keep and bear arms has justly been
considered," Story wrote, "as the palladium of the liberties of a
republic; since it offers a strong moral check against the
usurpation and arbitrary power of rulers; and will generally,
even if these are successful in the first instance, enable the
people to resist and triumph over them."[63]
We also see this blending of individualist and collective
accounts of the right to bear arms in remarks by Judge Thomas
Cooley, one of the most influential 19th century constitutional
commentators. Noting that the state might call into its official
militia only "a small number" of the eligible citizenry, Cooley
wrote that "if the right [to keep and bear arms] were limited to
those enrolled, the purpose of this guaranty might be defeated
altogether by the action or neglect to act of the government it
was meant to hold in check."[64] Finally, it is worth noting the
remarks of Theodore Schroeder, one of the most important
developers of the theory of freedom of speech early in this
century.[65] "[T]he obvious import [of the constitutional
guarantee to carry arms]," he argues, "is to promote a state of
preparedness for self-defense even against the invasions of
government, because only governments have ever disarmed any
considerable class of people as a means toward their
enslavement."[66]
Such analyses provide the basis for Edward Abbey's revision
of a common bumper sticker, "If guns are outlawed, only the
government will have guns."[67] One of the things this slogan has
helped me to understand is the political tilt contained within
the Weberian definition of the state--i.e., the repository of a
monopoly of the legitimate means of violence [68]--that is so
commonly used by political scientists. It is a profoundly statist
definition, the product of a specifically German tradition of the
(strong) state rather than of a strikingly different American
political tradition that is fundamentally mistrustful of state
power and vigilant about maintaining ultimate power, including
the power of arms, in the populace.
We thus see what I think is one of the most interesting
points in regard to the new historiography of the Second
Amendment--its linkage to conceptions of republican political
order. Contemporary admirers of republican theory use it as a
source both of critiques of more individualist liberal theory and
of positive insight into the way we today might reorder our
political lives.[69] One point of emphasis for neo-republicans is
the value of participation in government, as contrasted to mere
representation by a distant leadership, even if formally elected.
But the implications of republicanism might push us in
unexpected, even embarrassing, directions: just as ordinary
citizens should participate actively in governmental decision
making through offering their own deliberative insights, rather
than be confined to casting ballots once every two or four years
for those very few individuals who will actually make decisions,
so should ordinary citizens participate in the process of law
enforcement and defense of liberty rather than rely on
professionalized peacekeepers, whether we call them standing
armies or police.
C. Structure
We have also passed imperceptibly into a form of structural
argument, for we see that one aspect of the structure of checks
and balances within the purview of 18th century thought was the
armed citizen. That is, those who would limit the meaning of the
Second Amendment to the constitutional protection of state-
controlled militias agree that such protection rests on the
perception that militarily competent states were viewed as a
potential protection against a tyrannical national government.
Indeed, in 1801 several governors threatened to call out state
militias if the Federalists in Congress refused to elect Thomas
Jefferson president.[70] But this argument assumes that there are
only two basic components in the vertical structure of the
American polity--the national government and the states. It
ignores the implication that might be drawn from the Second,
Ninth, and Tenth Amendments: the citizenry itself can be viewed
as an important third component of republican governance insofar
as it stands ready to defend republican liberty against the
depredations of the other two structures, however futile that
might appear as a practical matter.
One implication of this republican rationale for the Second
Amendment is that it calls into question the ability of a state
to disarm its citizenry. That is, the strongest version of the
republican argument would hold it to be a"privilege and immunity
of United States citizenship"--of membership in a liberty-
enhancing political order--to keep arms that could be taken up
against tyranny wherever found, including, obviously, state
government. Ironically, the principal citation supporting this
argument is to Chief Justice Taney's egregious opinion in Dred
Scott, [71] where he suggested that an uncontroversial attribute
of citizenship, in addition to the right to migrate from one
state to another, was the right to possess arms. The logic of
Taney's argument at this point seems to be that, because it was
inconceivable that the Framers could have genuinely imagined
blacks having the right to possess arms, it follows that they
could not have envisioned them as being citizens, since
citizenship entailed that right. Taney's seeming recognition of a
right to arms is much relied on by opponents of gun control.[72]
Indeed, recall Madison's critique, in Federalist Numbers Ten and
Fourteen, of republicanism's traditional emphasis on the
desirability of small states as preservers of republican liberty.
He transformed this debate by arguing that the states would be
less likely to preserve liberty because they could so easily fall
under the sway of a local dominant faction, whereas an extended
republic would guard against this danger. Anyone who accepts the
Madisonian argument could scarcely be happy enhancing the powers
of the states over their own citizens; indeed, this has been one
of the great themes of American constitutional history, as the
nationalization of the Bill of Rights has been deemed necessary
in order to protect popular liberty against state depredation.
D. Doctrine
Inevitably one must at least mention, even though there is
not space to discuss fully, the so-called incorporation
controversy regarding the application of the Bill of Rights to
the states through the Fourteenth Amendment. It should be no
surprise that the opponents of gun control appear to take a "full
incorporationist" view of that Amendment.[73] They view the
privileges and immunities clause, which was eviscerated in the
Slaughterhouse Cases,[74] as designed to require the states to
honor the rights that had been held, by Justice Marshall in
Barron v. Baltimore in 1833,[75] to restrict only the national
government. In 1875 the Court stated, in United States v.
Cruikshank,[76] that the Second Amendment, insofar as it grants
any right at all, "means no more than that it shall not be
infringed by Congress. This is one of the amendments that has no
other effect than to restrict the powers of the national
government. . ." Lest there be any remaining doubt on this point,
the Court specifically cited the Cruikshank language eleven years
later in Presser v. Illinois, [77] in rejecting the claim that
the Second Amendment served to invalidate an Illinois statute
that prohibited "any body of men whatever, other than the regular
organized volunteer militia of this State, and the troops of the
United States. . .to drill or parade with arms in any city, or
town, of this State, without the license of the Governor
thereof...."[78]
The first "incorporation decision," Chicago, B. & Q. R. Co.
v. Chicago, [79] was not delivered until eleven years after
Presser; one therefore cannot know if the judges in Cruikshank
and Presser were willing to concede that any of the amendments
comprising the Bill of Rights were anything more than limitations
on congressional or other national power. The obvious question,
given the modern legal reality of the incorporation of almost all
of the rights protected by the First, Fourth, Fifth, Sixth, and
Eighth Amendments, is what exactly justifies treating the Second
Amendment as the great exception. Why, that is, should Cruikshank
and Presser be regarded as binding precedent any more than any of
the other "pre-incorporation" decisions refusing to apply given
aspects of the Bill of Rights against the states?
If one agrees with Professor Tribe that the Amendment is
simply a federalist protection of state rights, then presumably
there is nothing to incorporate.[80] If, however, one accepts the
Amendment as a serious substantive limitation on the ability of
the national government to regulate the private possession of
arms based on either the "individualist" or "neo-republican"
theories sketched above, then why not follow the
"incorporationist" logic applied to other amendments and limit
the states as well in their powers to regulate (and especially to
prohibit) such possession? The Supreme Court has almost
shamelessly refused to discuss the issue, [81] but that need not
stop the rest of us.
Returning, though, to the question of Congress' power to
regulate the keeping and bearing of arms, one notes that there
is, basically, only one modern case that discusses the issue,
United States v. Miller, [82] decided in 1939. Jack Miller was
charged with moving a sawed-off shotgun in interstate commerce in
violation of the National Firearms Act of 1934. Among other
things, Miller and a compatriot had not registered the firearm,
as required by the Act. The court below had dismissed the charge,
accepting Miller's argument that the Act violated the Second
Amendment.
The Supreme Court reversed unanimously, with the arch-
conservative Justice McReynolds writing the opinion. [83]
Interestingly enough, he emphasized that there was no evidence
showing that a sawed-off shotgun "at this time has some
reasonable relationship to the preservation or efficiency of a
well regulated militia."[84] And "[c]ertainly it is not within
judicial notice that this weapon is any part of the ordinary
military equipment or that its use could contribute to the common
defense."[85] Miller might have had a tenable argument had he
been able to show that he was keeping or bearing a weapon that
clearly had a potential military use.[86]
Justice McReynolds went on to describe the purpose of the
Second Amendment as "assur[ing] the continuation and render[ing]
possible the effectiveness of [the Militia]."[87] He contrasted
the Militia with troops of a standing army, which the
Constitution indeed forbade the states to keep without the
explicit consent of Congress. "The sentiment of the time strongly
disfavored standing armies; the common view was that adequate
defense of country and laws could be secured through the Militia-
-civilians primarily, soldiers on occasion."[88] McReynolds noted
further that "the debates in the Convention, the history and
legislation of Colonies and States, and the writings of approved
commentators [all] [s]how plainly enough that the Militia
comprised all males physically capable of acting in concert for
the common defense."[89]
It is difficult to read Miller as rendering the Second
Amendment meaningless as a control on Congress. Ironically,
Miller can be read to support some of the most extreme anti-gun
control arguments, e.g., that the individual citizen has a right
to keep and bear bazookas, rocket launchers, and other armaments
that are clearly relevant to modern warfare, including, of
course, assault weapons. Arguments about the constitutional
legitimacy of a prohibition by Congress of private ownership of
handguns or, what is much more likely, assault rifles, might turn
on the usefulness of such guns in military settings.
E. Prudentialism
We have looked at four of Bobbitt's categories--text,
history, structure, and case law doctrine--and have seen, at the
very least, that the arguments on behalf of a "strong" Second
Amendment are stronger than many of us might wish were the case.
This, then, brings us to the fifth category, prudentialism, or an
attentiveness to practical consequences, which is clearly of
great importance in any debates about gun control. The standard
argument in favor of strict control and, ultimately, prohibition
of private ownership focuses on the extensive social costs of
widespread distribution of firearms. Consider, for example, a
recent speech given by former Justice Lewis Powell to the
American Bar Association. He noted that over 40,000 murders were
committed in the United States in 1986 and 1987, and that fully
sixty percent of them were committed with firearms. England and
Wales, however, saw only 662 homicides in 1986, less than eight
percent of which were committed with firearms.[90] Justice Powell
indicated that, "[w]ith respect to handguns," in contrast "to
sporting rifles and shotguns[,] it is not easy to understand why
the Second Amendment, or the notion of liberty, should be viewed
as creating a right to own and carry a weapon that contributes so
directly to the shocking number of murders in our society."[91]
It is hard to disagree with Justice Powell; it appears
almost crazy to protect as a constitutional right something that
so clearly results in extraordinary social costs with little, if
any, compensating social advantage. Indeed, since Justice
Powell's talk, the subject of assault rifles has become a staple
of national discussion, and the opponents of regulation of such
weapons have deservedly drawn the censure even of conservative
leaders like William Bennett. It is almost impossible to imagine
that the judiciary would strike down a determination by Congress
that the possession of assault weapons should be denied to
private citizens.
Even if one accepts the historical plausibility of the
arguments advanced above, the overriding temptation is to say
that times and circumstances have changed and that there is
simply no reason to continue enforcing an outmoded, and indeed
dangerous, understanding of private rights against public order.
This criticism is clearest in regard to the so-called
individualist argument, for one can argue that the rise of a
professional police force to enforce the law has made irrelevant,
and perhaps even counterproductive, the continuation of a strong
notion of self-help as the remedy for crime.[92]
I am not unsympathetic to such arguments. It is no purpose
of this essay to solicit membership for the National Rifle
Association or to express any sympathy for what even Don Kates, a
strong critic of the conventional dismissal of the Second
Amendment, describes as "the gun lobby's obnoxious habit of
assailing all forms of regulation on 2nd Amendment grounds."[93]
And yet ....
Circumstances may well have changed in regard to individual
defense, although we ignore at our political peril the good-faith
belief of many Americans that they cannot rely on the police for
protection against a variety of criminals. Still, let us assume
that the individualist reading of the Amendment has been vitiated
by changing circumstances. Are we quite so confident that
circumstances are equally different in regard to the republican
rationale outlined earlier?
One would, of course, like to believe that the state,
whether at the local or national level, presents no threat to
important political values, including liberty. But our propensity
to believe that this is the case may be little more than a sign
of how truly different we are from our radical forbearers. I do
not want to argue that the state is necessarily tyrannical; I am
not an anarchist. But it seems foolhardy to assume that the armed
state will necessarily be benevolent. The American political
tradition is, for good or ill, based in large measure on a
healthy mistrust of the state. The development of widespread
suffrage and greater majoritarianism in our polity is itself no
sure protection, at least within republican theory. The
republican theory is predicated on the stark contrast between
mere democracy, where people are motivated by selfish personal
interest, and a republic, where civic virtue, both in citizens
and leadership, tames selfishness on behalf of the common good.
In any event, it is hard for me to see how one can argue that
circumstances have so changed as to make mass disarmament
constitutionally unproblematic.[94]
Indeed, only in recent months have we seen the brutal
suppression of the Chinese student demonstrations in Tianamen
Square. It should not surprise us that some N.R.A. sympathizers
have presented that situation as an object lesson to those who
unthinkingly support the prohibition of private gun ownership.
"[I]f all Chinese citizens kept arms, their rulers would hardly
have dared to massacre the demonstrators .... The private keeping
of hand-held personal firearms is within the constitutional
design for a counter to government run amok .... As the Tianamen
Square tragedy showed so graphically, AK-47s fall into that
category of weapons, and that is why they are protected by the
Second Amendment."[95] It is simply silly to respond that small
arms are irrelevant against nuclear-armed states: Witness
contemporary Northern Ireland and the territories occupied by
Israel, where the sophisticated weaponry of Great Britain and
Israel have proved almost totally beside the point. The fact that
these may not be pleasant examples does not affect the principal
point, that a state facing a totally disarmed population is in a
far better position, for good or for ill, to suppress popular
demonstrations and uprisings than one that must calculate the
possibilities of its soldiers and officials being injured or
killed.'[96]
III. TAKING THE SECOND AMENDMENT SERIOUSLY
There is one further problem of no small import: If one does
accept the plausibility of any of the arguments on behalf of a
strong reading of the Second Amendment, but, nevertheless,
rejects them in the name of social prudence and the present-day
consequences produced by finicky adherence to earlier
understandings, why do we not apply such consequentialist
criteria to each and every part of the Bill of Rights?[97] As
Ronald Dworkin has argued, what it means to take rights seriously
is that one will honor them even when there is significant social
cost in doing so. If protecting freedom of speech, the rights of
criminal defendants, or any other part of the Bill of Rights were
always (or even most of the time) clearly cost less to the
society as a whole, it would truly be impossible to understand
why they would be as controversial as they are. The very fact
that there are often significant costs--criminals going free,
oppressed groups having to hear viciously racist speech and so
on--helps to account for the observed fact that those who view
themselves as defenders of the Bill of Rights are generally
antagonistic to prudential arguments. Most often, one finds them
embracing versions of textual, historical, or doctrinal argument
that dismiss as almost crass and vulgar any insistence that times
might have changed and made too "expensive" the continued
adherence to given view. "Cost-benefit" analysis, rightly or
wrongly, has come to be viewed as a "conservative" weapon to
attack liberal rights.[98] Yet one finds that the tables are
strikingly turned when the Second Amendment comes into play. ere
it is "conservatives" who argue in effect that social costs are
irrelevant and "liberals" who argue for a notion of the "living
Constitution" and "changed circumstances" that would have the
practical consequence of removing any real bite from the Second
Amendment.
As Fred Donaldson of Austin, Texas wrote, commenting on
those who defended the Supreme Court's decision upholding flag-
burning as compelled by a proper (and decidedly non-prudential)
understanding of the First Amendment, "[I]t seems inconsistent
for [defenders of the decision] to scream so loudly" at the
prospect of limiting the protection given expression "while you
smile complacently at the Second torn and bleeding. If the Second
Amendment is not worth the paper it is written on, what price the
First?"[99] The fact that Mr. Donaldson is an ordinary citizen
rather than an eminent law professor does not make his question
any less pointed or its answer less difficult.
For too long, most members of the legal academy have treated
the Second Amendment as the equivalent of an embarrassing
relative, whose mention brings a quick change of subject to
other, more respectable, family members. That will no longer do.
It is time for the Second Amendment to enter full scale into the
consciousness of the legal academy. Those of us who agree with
Martha Minow's emphasis on the desirability of encouraging
different "voices" in the legal conversation [100] should be
especially aware of the importance of recognizing the attempts of
Mr. Donaldson and his millions of colleagues to join the
conversation. To be sure, it is unlikely that Professor Minow had
those too often peremptorily dismissed as "gun nuts" in mind as
possible providers of "insight and growth," but surely the call
for sensitivity to different or excluded voices cannot extend
only to those groups "we" already, perhaps "complacent[ly],"
believe have a lot to tell "us."[101] I am not so naive as to
believe that conversation will overcome the chasm that now
separates the sensibility of, say, Senator Hatch and myself as to
what constitutes the "right[s] most valued by free men [and
women]."[102] It is important to remember that one will still
need to join up sides and engage in vigorous political struggle.
But it might at least help to make the political sides appear
more human to one another. Perhaps "we" might be led to stop
referring casually to "gun nuts" just as, maybe, members of the
NRA could be brought to understand the real fear that the
currently almost uncontrolled system of gun ownership sparks in
the minds of many whom they casually dismiss as "bleeding-heart
liberals." Is not, after all, the possibility of serious, engaged
discussion about political issues at the heart of what is most
attractive in both liberal and republican versions of politics?
-= APPENDIX =-
1. It is not irrelevant that the Bill of Rights submitted to
the states in 1789 included not only what are now the first
ten Amendments, but also two others. Indeed, what we call
the First Amendment was only the third one of the list
submitted to the states. The initial "first amendment" in
fact concerned the future size of the House of
Representatives, a topic of no small importance to the Anti-
Federalists, who were appalled by the smallness of the House
seemingly envisioned by the Philadelphia framers. The second
prohibited any pay raise voted by members of Congress to
themselves from taking effect until an election "shall have
intervened." See J. GOEBEL, 1 THE OLIVER WENDELL HOLMES
DEVISE HISTORY OF THE SUPREME COURT OF THE UNITED STATES:
ANTECEDENTS AND BEGINNINGS TO 1801, at 442 n.162 (1971). Had
all of the initial twelve proposals been ratified, we would,
it is possible, have a dramatically different cognitive map
of the Bill of Rights. At the very least, one would neither
hear defenses of the "preferred" status of freedom of speech
framed in terms of the "firstness" of (what we know as) the
First Amendment, nor the wholly invalid inference drawn from
that "firstness" of some special intention of the Framers to
safeguard the particular rights laid out there.
2. "Congress shall make no law respecting an establishment of
religion . . . or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and
to petition the Government for a redress of grievances."
U.S. CONST. amend. 1.
3. "The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated; and no Warrants shall
issue but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized." U.S.
CONST. amend. IV.
4. "No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in the
land or naval forces, or in the Militia, when in actual
service in time of War or public danger; nor shall any
person be subject for the same offense to be twice put in
jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process
of law ...." U.S. CONST. amend. V.
5. "In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of
the State and district wherein the crime shall have been
committed, which district shall have been previously
ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining
witnesses in his favor, and to have the Assistance of
Counsel for his defense." U.S. CONST. amend VI.
6. "Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted." U.S.
CONST. amend. VIII.
7. "The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained
by the people." U.S. CONST. amend. IX.
8. "[N]or shall private property be taken for public use,
without just compensation." U.S. CONST. amend. IV.
9. "The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people." U.S.
CONST. amend. X.
10. "Congress shall make no law ... prohibiting the free
exercise thereof [religion]...." U.S CONST. amend 1.
11. See supra note 8.
12. See supra note 9.
13. There are several law review articles discussing the
Amendment. See, e.g., Lund, supra note *, and the articles
cited in Dowlut & Knoop, State Constitutions and the Right
to Keep and Bear Arms, 7 OKLA. CITY U.L. REV. 177, 178 n.3
(1982). See also the valuable symposium on Gun Control,
edited by Don Kates, in 49 LAW & CONTEMP. PROBS. 1-267
(1986), including articles by Shalhope, The Armed Citizen in
the Early Republic, at 125; Kates, The Second Amendment: A
Dialogue, at 143; Halbrook, What the Framers Intended: A
Linguistic Analysis of the Right to "Bear Arms," at 151. The
symposium also includes a valuable bibliography of published
materials on gun control, including Second Amendment
considerations, at 251-67. The most important single article
is almost undoubtedly Kates, Handgun Prohibition and the
Original Meaning of the Second Amendment, 82 MICH. L. REV.
204 (1983). Not the least significant aspect of Kates'
article is that it is basically the only one to have
appeared in an "elite" law review. However, like many of the
authors of other Second Amendment pieces, Kates is a
practicing lawyer rather than a legal academic. I think It
is accurate to say that no one recognized by the legal
academy as a "major" writer on constitutional law has
deigned to turn his or her talents to a full consideration
of the Amendment. But see LaRue, Constitutional Law and
Constitutional History, 36 BUFFALO L. REV. 373, 375-78
(1988) (briefly discussing Second Amendment). Akhil Reed
Amar's reconsideration of the foundations of the
Constitution also promises to delve more deeply into the
implications of the Amendment. See Amar, Of Sovereignty and
Federalism, 96 YALE L.J. 1425, 1495-1500 (1987). Finally,
there is one book that provides more in-depth treatment of
the Second Amendment: S. HALBROOK, THAT EVERY MAN BE ARMED,
THE EVOLUTION OF A CONSTITUTIONAL RIGHT (1984).
George Fletcher, in his study of the Berhard Goetz case,
also suggests that Second Amendment analysis is not frivolous,
though he does not elaborate the point. G. FLETCHER, A CRIME OF
SELF-DEFENSE 156-58, 210-11 (1988).
One might well find this overt reference to "elite" law
reviews and "major" writers objectionable, but it is foolish to
believe that these distinctions do not exist within the academy
or, more importantly, that we cannot learn about the sociology of
academic discourse through taking them into account. No one can
plausibly believe that the debates that define particular periods
of academic discourse are a simple reflection of "natural"
interest in the topic. Nothing helps an issue so much as its
being taken up as an obsession by a distinguished professor from,
say, Harvard or Yale.
14. One will search the "leading" casebooks in vain for any
mention of the Second Amendment. Other than its being
included in the text of the Constitution that all of the
casebooks reprint, a reader would have no reason to believe
that the Amendment exists or could possibly be of interest
to the constitutional analyst. I must include, alas, P.
BREST & S. LEVINSON, PROCESSES OF CONSTITUTIONAL DECISION
MAKING (2d ed. 1983), within this critique, though I have
every reason to believe that this will not be true of the
forthcoming third edition.
15. LaRue, supra note 13, at 375.
16. L. TRIBE, AMERICAN CONSTITUTIONAL LAW (2d ed. 1988).
17. J. NOWAK, R. ROTUNDA & J. YOUNG, CONSTITUTIONAL LAW (3d ed.
1986).
18. For a brilliant and playful meditation on the way the legal
world treats footnotes and other marginal phenomena, see
Balkin, The Footnote, 83 NW. U.L. REV. 275, 276-81 (1989).
19. TRIBE, supra note 16, at 299 n. 6.
20 Id.; see also J. ELY, DEMOCRACY AND DISTRUST 95 (1980)
("[T]he framers and ratifiers . . . opted against leaving to
the future the attribution Of [other] purposes, choosing
instead explicitly to legislate the goal in terms of which
the provision was to be interpreted."). As shall be seen
below, see infra text accompanying note 38, the preamble may
be less plain in its meaning than Tribe's (and Ely's)
confident argument suggests.
21. J. NOWAK, R. ROTUNDA & J. YOUNG, supra note 17, at 316 n.4.
They do go on to cite a spate of articles by scholars who
have debated the issue.
22. Id. at 316 n. 4.
23. U.S. CONST. art. I, 10.
24. U.S. CONST. art. I, 9, cl. 8.
25. See, e.g., LEGISLATIVE REFERENCE SERV., LIBRARY OF CONGRESS,
THE CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS
AND INTERPRETATION 923 (1964), which quotes the Amendment
and then a comment from MILLER, THE CONSTITUTION 646 (1893):
"This amendment seems to have been thought necessary. It
does not appear to have been the subject of judicial
exposition; and it is so thoroughly in accord with our
ideas, that further comment is unnecessary." Cf. Engblom v.
Carey, 724 F.2d 28 (2d Cir. 1983), aff'g 572 F. Supp. 44
(S.D.N.Y. 1983). Engblom grew out of a "statewide strike of
correction officers, when they were evicted from their
facility-residences . . . and members of the National Guard
were housed in their residences without their consent." The
district court had initially granted summary judgment for
the defendants in a suit brought by the officers claiming a
deprivation of their rights under the Third Amendment. The
Second Circuit, however, reversed on the ground that it
could not "say that as a matter of law appellants were not
entitled to the protection of the Third Amendment." Engblom
v. Carey, 677 F.2d 957, 964 (2d (Cir. 1982). The District
Court on remand held that, as the Third Amendment rights had
not been clearly established at the time of the strike, the
defendants were protected by a qualified immunity, and it is
this opinion that was upheld by the Second Circuit. I am
grateful to Mark Tushnet for bringing this case to my
attention.
26. See, e.g., The Firearms The Second Amendment Protects, N.Y.
Times, June 9, 1988, at A22, col. 2 (three letters); Second
Amendment and Gun Control, L.A. Times, March 11, 1989, Part
II, at 9 col. 1 (nine letters); What 'Right to Bear Arms'?,
N.Y. Times, July 20, 1989, at A23, col. 1 (national ed.)
(op. ed. essay by Daniel Abrams); see also We Rebelled To
Protect Our Gun Rights, Washington Times, July 20, 1989, at
F2, col. 4.
27. See SUBCOMMITTEE ON THE CONSTITUTION OF THE COMM. ON THE
JUDICIARY, THE RIGHT TO KEEP AND BEAR ARMS, 97th Cong., 2d
Sess. viii (1982) (preface by Senator Orrin Hatch)
[hereinafter THE RIGHT TO KEEP AND BEAR ARMS].
28. See supra notes 13-14.
29. See Levinson, Constitutional Rhetoric and the Ninth
Amendment, 64 CHI.-KENT L. REV. 131 (1988).
30. P. BOBBITT, CONSTITUTIONAL FATE (1982).
31. Id. at 25-38.
32. Id. at 9-24.
33. Id. at 74-92.
34. Id. at 39-58.
35. Id. at 59-73.
36. Id. at 93-119.
37. For the record, I should note that Bobbitt disagrees with
this statement, making an eloquent appeal (in conversation)
on behalf of the classic American value of self-reliance for
the defense of oneself and, perhaps more importantly, one's
family. I certainly do not doubt the possibility of
constructing an "ethical" rationale for limiting the state's
power to prohibit private gun ownership. Nonetheless, I
would claim that no one unpersuaded by any of the arguments
derived from the first five modes would suddenly change his
or her mind upon being presented with an "ethical" argument.
38. Cf., e.g., the patents and copyrights clause, which sets out
the power of Congress "[t]o promote the Progress of Science
and useful Arts, by securing for limited Times to Authors
and Inventors the exclusive Right to their respective
Writings and Discoveries." U.S. CONST. art. I., 8.
39. For examples of this, see F. SCHAUER, FREEDOM OF SPEECH: A
PHILOSOPHICAL ENQUIRY (1982); Levinson, First Amendment,
Freedom of Speech, Freedom of Expression: Does It Matter
What We Call It? 80 NW. U.L. REV. 767 (1985) (reviewing M.
REDISH, FREEDOM OF EXPRESSION: A CRITICAL ANALYSIS (1984)).
40. ACLU Policy #47. I am grateful to Joan Mahoney, a member of
the national board of the ACLU, for providing me with a text
of the ACLU's current policy on gun control.
41. Cress, An Armed Community: The Origins and Meaning of the
Right to Bear Arms, 71 J. AM. HIST. 22, 31 (1984).
42. See U.S. CONST. amend. X.
43. For a full articulation of the the [sic] individualist view
of the Second Amendment, see Kates, Handgun Prohibition and
the Original Meaning of the Second Amendment, 82 MICH. L.
REV. 204 (1983). One can also find an efficient presentation
of this view in Lund, supra note *, at 117.
44. Shalhope, The Ideological Origins of the Second Amendment,
69 J. AM. HIST. 599 (1982).
45. Id. at 614.
46. See Daniel Boorstin's laconic comment that "the requirements
for self-defense and food gathering had put firearms in the
hands of nearly everyone" in colonial America. D. BOORSTIN,
THE AMERICANS--THE COLONIAL EXPERIENCE 353 (1958). The
beginnings of a professional police force in Boston are
traced in R. LANE, POLICING THE CITY: BOSTON 1822-1855
(1967). Lane argues that as of the earlier of his two dates,
"all the major eastern cities . . . had several kinds of
officials serving various police functions, all of them
haphazardly inherited from the British and colonial past.
These agents were gradually drawn into better defined and
more coherent organizations." Id. at 1. However, as Oscar
Handlin points out in his introduction to the book, "to
bring into being a professional police force was to create
precisely the kind of hireling body considered dangerous by
conventional political theory." Id. at vii.
47. See Cress, supra note 41.
48. 3 J. ELLIOT, DEBATES IN THE GENERAL STATE CONVENTIONS 425
(3d ed. 1937) (statement of George Mason, June 14, 1788),
reprinted in Kates, supra note 13, at 216 n.51.
49. LETTERS FROM THE FEDERAL FARMER TO THE REPUBLICAN 123 (W.
Bennett ed. 1978) (ascribed to Richard Henry Lee), reprinted
in Kates, supra note 13, at 216 n. 51.
50. Michelman, The Supreme Court 1985 Term--Foreword: Traces of
Self-Government, 100 HARV. L. REV. 4, 39 (1986) (Harrington
is "pivotal figure in the history of the 'Atlantic' branch
of republicanism that would find its way to America").
51. Shalhope, supra note 44, at 602.
52. Edmund Morgan discusses Harrington in his recent book,
INVENTING THE PEOPLE 85-87 (1988) (analyzing notion of
popular sovereignty in American thought).
53. Id. at 156.
54. Id. at 157. Morgan argues, incidentally, that the armed
yeomanry was neither effective as a fighting force nor
particularly protective of popular liberty, but that is
another matter. For our purposes, the ideological
perceptions are surely more important than the "reality"
accompanying them. Id. at 160-65.
55. Blasi, The Checking Value in First Amendment Theory, 1977
AM. B. FOUND. RES. J. 521.
56. See Lund, supra note *, at 111-16.
57. Shalhope, supra note 44, at 603 (quoting 1755 edition of
Cato's Letters). Shalhope also quotes from James Burgh,
another English writer well known to American
revolutionaries: The possession of arms is the distinction
between a freeman and a slave. He, who has nothing, and who
himself belongs to another, must be defended by him, whose
property he is, and needs no arms. But he, who thinks he is
his own master, and has what he can call his own, ought to
have arms to defend himself, and what he possesses; else he
lives precariously, and at discretion.
Id. at 604. To be sure, Burgh also wrote that only men of
property should in fact comprise the militia: "A militia
consisting of any others than the men of *property* in a country,
is no militia; but a mungrel army." Cress, supra note 41, at 27
(emphasis in original) (quoting J. BURGH, 2 POLITICAL
DISQUISITIONS: OR, AN ENQUIRY INTO PUBLIC ERRORS, DEFECTS, AND
ABUSES (1774-75). Presumably, though, the widespread distribution
of property would bring with it equally widespread access to arms
and membership in the militia.
58. See Cress, supra note 41, at 34.
59. THE FEDERALIST NO. 46, at 299 (J. Madison) (C. Rossiter ed.
1961).
60. LETTERS FROM THE FEDERAL FARMER TO THE REPUBLICAN 124 (W.
Bennett ed. 1978).
61. 3 J. STORY, COMMENTARIES 1890 (1833), quoted in 5 THE
FOUNDERS' CONSTITUTION 214 (P. Kurland & R. Lerner eds.
1987).
62. Id.
63. Id. Lawrence Cress, despite his forceful critique of
Shalhope's individualist rendering of the Second Amendment,
nonetheless himself notes that "[t]he danger posed by
manipulating demagogues, *ambitious rulers*, and foreign
invaders to free institutions required the vigilance of
citizen-soldiers cognizant of the common good." Cress, supra
note 41, at 41 (emphasis added).
64. T. COOLEY, THE GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN
THE UNITED STATES OF AMERICA 298 (3d ed. 1898): The right of
the people to bear arms in their own defence, and to form
and drill military organizations in defence of the State,
may not be very important in this country, but it is
significant as having been reserved by the people as a
possible and necessary resort for the protection of self-
government against usurpation, and against any attempt on
the part of those who may for the time be in possession of
State authority or resources to set aside the constitution
and substitute their own rule for that of the people. Should
the contingency ever arise when it would be necessary for
the people to make use of the arms in their hands for the
protection of constitutional liberty, the proceeding, so far
from being revolutionary, would be in strict accord with
popular right and duty. Cooley advanced this same idea in
The Abnegation of Self-Government, 12 PRINCETON REV. 213-14
(1883).
65. See Rabban, The First Amendment in Its Forgotten Years, 90
YALE L.J. 514, 560 (1981) ("[P]rodigious theoretical
writings of Theodore Schroeder . . . were the most extensive
and libertarian treatments of freedom of speech in the
prewar period"); see also GRABER, TRANSFORMING FREE SPEECH
(forthcoming 1990) (manuscript at 4-12; on file with
author).
66. T. SCHROEDER, FREE SPEECH FOR RADICALS 104 (reprint ed.
1969).
67. Shalhope, supra note 44, at 45.
68. See M. WEBER, THE THEORY OF SOCIAL AND ECONOMIC ORGANIZATION
156 (T. Parsons ed. 1947), where he lists among "[t]he
primary formal characteristics of the modern state" the fact
that: to-day, the use of force is regarded as legitimate
only so far as it is either permitted by the state or
prescribed by it .... The claim of the modern state to
monopolize the use of force is as essential to it as its
character of compulsory jurisdiction and of continuous
organization.
69. See, e.g., Symposium: The Republican Civil Tradition, 97
YALE L.J. 1493-1723 (1988).
70. See D. MALONE, 4 JEFFERSON AND HIS TIMES: JEFFERSON THE
PRESIDENT: FIRST TERM, 1801-1805, at 7-11 (1970) (republican
leaders ready to use state militias to resist should lame
duck Congress attempt to violate clear dictates of Article
II by designating someone other than Thomas Jefferson as
President in 1801).
71. Scott v. Sanford, 60 U.S. (19 How.) 393, 417 (1857).
72. See, e.g., Featherstone, Gardiner & Dowlut, The Second
Amendment to the United States Constitution Guarantees an
Individual Right to Keep and Bear Arms, in THE RIGHT TO KEEP
AND BEAR ARMS, supra note 27, at 100.
73. See, e.g., Halbrook, The Fourteenth Amendment and the Right
to Keep and Bear Arms: The Intent of the Framers, in THE
RIGHT TO KEEP AND BEAR ARMS, supra note 27, at 79. Not the
least of the ironies observed in the debate about the Second
Amendment is that N.R.A.-oriented conservatives like Senator
Hatch could scarcely have been happy with the wholesale
attack leveled by former Attorney General Meese on the
incorporation doctrine, for here is one area where some
"conservatives" may in fact be more zealous adherents of
that doctrine than are most liberals, who, at least where
the Second Amendment is concerned, have a considerably more
selective view of incorporation.
74. 83 U.S. 36 (1873).
75. 32 U.S. (7 Pet.) 243 (1833).
76. 92 U.S. 542, 553 (1875).
77. 116 U.S. 252, 267 (1886). For a fascinating discussion of
Presser, see Larue, supra note 13, at 386-90.
78. 116 U.S. at 253. There is good reason to believe this
statute, passed by the Illinois legislature in 1879, was
part of an effort to control (and, indeed, suppress)
widespread labor unrest linked to the economic troubles of
the time. For the background of the Illinois statute, see P.
AVRICH, THE HAYMARKET TRAGEDY 45 (1984):
79. 166 U.S. 226 (1897) (protecting rights of property owners by
requiring compensation for takings of property).
As early as 1875, a small group of Chicago socialists, most
of them German immigrants, had formed an armed club to protect
the workers against police and military assaults, as well as
against physical intimidation at the polls. In the eyes of its
supporters . . . the need for such a group was amply demonstrated
by the behavior of the police and [state-controlled] militia
during the Great Strike of 1877, a national protest by labor
triggered by a ten percent cut in wages by the Baltimore and Ohio
Railroad, which included the breaking up of workers' meetings,
the arrest of socialist leaders, [and] the use of club, pistol,
and bayonet against strikers and their supporters .... Workers
... were resolved never again to be shot and beaten without
resistance. Nor would they stand idly by while their meeting
places were invaded or their wives and children assaulted. They
were determined, as Albert Parsons [a leader of the anarchist
movement in Chicago] expressed it, to defend both "their persons
and their rights."
80. My colleague Douglas Laycock has reminded me that a similar
argument was made by some conservatives in regard to the
establishment clause of the First Amendment. Thus, Justice
Brennan noted that "[it] has been suggested, with some
support in history, that absorption of the First Amendment's
ban against congressional legislation 'respecting an
establishment of religion' is conceptually impossible
because the Framers meant the Establishment Clause also to
foreclose any attempt by Congress to *disestablish* the
existing official state churches." Abington School Dist. v.
Schempp, 374 U.S. 203, 254 (1963) (Brennan, J., concurring)
(emphasis added). According to this reading, it would be
illogical to apply the establishment clause against the
states "because that clause is not one of the provisions of
the Bill of Rights which in terms protects a 'freedom' of
the individual," id. at 256, inasmuch as it is only a
federalist protection of states against a national
establishment (or disestablishment). "The fallacy in this
contention," responds Brennan, "is that it underestimates
the role of the Establishment Clause as a co-guarantor, with
the Free Exercise Clause, of religious liberty." Id.
Whatever the sometimes bitter debates about the precise
meaning of "establishment," it is surely the case that
Justice Brennan, even as he almost cheerfully concedes that
at one point in our history the "states-right" reading of
the establishment clause would have been thoroughly
plausible, expresses what has become the generally accepted
view as to the establishment clause being some kind of
limitation on the state as well as on the national
government. One may wonder whether the interpretive history
of the establishment clause might have any lessons for the
interpretation of the Second Amendment.
81. It refused, for example, to review the most important modern
gun control case, Quilici v. Village Of Morton Grove, 695
F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983),
where the Seventh Circuit Court of Appeals upheld a local
ordinance in Morton Grove, Illinois, prohibiting the
possession of handguns within its borders.
82. 307 U.S. 174 (1939).
83. Justice Douglas, however, did not participate in the case.
84. Miller, 307 U.S. at 178.
85. Id. at 178 (citation omitted).
86. Lund notes that "commentators have since demonstrated that
sawed-off or short-barreled shotguns are commonly used as
military weapons." Lund, supra note *, at 109.
87. 307 U.S. at 178.
88. Id. at 179.
89. Id.
90. L. Powell, Capital Punishment, Remarks Delivered to the
Criminal Justice Section, ABA 10 (Aug. 7, 1988).
91. Id . at 11.
92. This point is presumably demonstrated by the increasing
public opposition of police officials to private possession
of handguns (not to mention assault rifles).
93. D. Kates, Minimalist Interpretation of the Second Amendment
2 (draft Sept. 29, 1986) (unpublished manuscript available
from author).
94. See Lund, supra note *, at 116.
95. Wimmershoff-Caplan, The Founders and The AK-47, Washington
Post, July 6, 1989, at A18, col. 4, reprinted as Price of
Gun Deaths Small Compared to Price of Liberty, Austin
American-Statesman, July 11, 1989, at All. Ms. Wimmershoff-
Caplan is identified as a "lawyer in New York" who is "a
member of the National Board of the National Rifle
Association." Id. One of the first such arguments in regard
to the events at Tianamen Square was made by William A.
Black in a letter, Citizens Without Guns, N.Y. Times, June
18, 1989 at D26, col. 6. Though describing himself as
"find[ing] no glory in guns [and] a very profound anti-
hunter," he nonetheless "stand[s] with those who would
protect our right to keep and bear arms" and cited for
support the fact that "none [of the Chinese soldiers] feared
bullets: the citizens of China were long ago disarmed by the
Communists." "Who knows," he asks, "what the leaders and the
military and the police of our America will be up to at some
point in the future? We need an armed citizenry to protect
our liberty."
As one might expect, such arguments draw heated responses.
See Rudlin, The Founders and the AK-47 (Cont'd), Washington Post,
July 20, 1989, at A22, col. 3. Jonathan Rudlin accused Ms.
Wimmershoff-Caplan of engaging in Swiftian satire, as no one
could "take such brilliant burlesque seriously." Neal Knox,
however, endorsed her essay in full, adding the Holocaust to the
list of examples: "Could the Holocaust have occurred if Europe's
Jews had owned thousands of then-modern military Mauser bolt
action rifles?" See also Washington Post, July 12, 1989, at A22,
for other letters.
96. See Lund, supra note *, at 115: The decision to use military
force is not determined solely by whether the contemplated
benefits can be successfully obtained through the use of
available forces, but rather is determined by the ratio of
those benefits to the expected costs. It follows that any
factor increasing the anticipated cost of a military
operation makes the conduct of that operation incrementally
more unlikely. This explains why a relatively poorly armed
nation with a small population recently prevailed in a war
against the United States, and it explains why governments
bent on the oppression of their people almost always disarm
the civilian population before undertaking more drastically
oppressive measures.
97. See D. Kates, supra note 93, at 24-25 n.13, for a discussion
of this point.
98. See, e.g., Justice Marshall's dissent, joined by Justice
Brennan, in Skinner v. Railway Labor Executive Ass'n, 109 S.
Ct. 1402 (1989), upholding the government's right to require
drug tests of railroad employees following accidents. It
begins with his chastising the majority for "ignor[ing] the
text and doctrinal history of the Fourth Amendment, which
require that highly intrusive searches of this type be based
on probable cause, not on the evanescent cost-benefit
calculations of agencies or judges," id. at 1423, and
continues by arguing that "[t]he majority's concern with the
railroad safety problems caused by drug and alcohol abuse is
laudable; its cavalier disregard for the Constitution is
not. There is no drug exception to the Constitution, any
more than there is a communism exception or an exception for
other real or imagined sources of domestic unrest." Id. at
1426.
99. Donaldson, Letter to the Editor, Austin American-Statesman,
July 8, 1989, at A19, col. 4.
100. See Minow, The Supreme Court 1986 Term--Foreword: Justice
Engendered, 101 HARV. L. REV. 10, 74-90 (1987). "We need
settings in which to engage in the clash of realities that
breaks us out of settled and complacent meanings and creates
opportunities for insight and growth." Id. at 95; see also
Getman, Voices, 66 TEX. L. REV. 577 (1988).
101. And, perhaps more to the point, "you" who insufficiently
listen to "us" and to "our" favored groups.
102. See supra note 27 and accompanying text.
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Note from the Combat Arms BBS SysOp:
This concludes the article. Each of the references in the
appendix is noted within the text by brackets (such as [23]).
Reading this article, along with many others on the Combat Arms
BBS, should help you to better understand the Second Amendment
and be better skilled in arguing its support. Other articles are
also available for downloading that you should carefully read as
well. Lastly, if you do not already have a copy of "That Every
Man Be Armed" by Stephen P. Holbrook, get a copy. The cost is
$14.95. This book will provide you with a lot of background on
the Second Amendment. You are also invited to download a copy
of my master's thesis. The file is entitled BASH.ZIP and contains
a lot of research on the Second Amendment.
Richard Bash
Combat Arms BBS SysOp
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