Reprinted from the Yale Law Journal, Volume 99, pp. 637-659
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 card-carrying 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 procedures
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 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.
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,
how ever, 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 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 what 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 the 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 that write casebooks, ignore
it is most certainly not evidence for the proposition that no one else 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.
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:
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 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]
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 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 the 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 states'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 protection
only the right of "maintaining an effective state militia...[T]he individual's
right to keep a nd 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 the 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.
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 use 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 terms "the people" in the First, Fourth, Ninth, and Tenth
Amendments.
Consider that the Fourth Amendment protects "[t]he right of he 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 legislators to meet and pass a remonstrance directed to Congress
or the President against some government act. The Tenth Amendment is trickier, though
it does explicitly differentiate between "state" 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 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 the 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. Shallhope 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 half a 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
into the argument that "changing circumstances," including 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 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 the school's most important writers, of course, was James Harrington, who
not only was in 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 would also
bear arms. As Professor Morgan puts it, "[T]hese independent yeoman, 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 all 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 Letters 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 unlimited "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
risk 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 posses s 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 by 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 of
both 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 the 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.
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 [Roger] Taney's egregious opinion in
Dred Scott, [71] where he suggested that an uncontroversial
attribute of citizenship, in addition to the right migrate from one state to another,
was the right to possess arms. The logic of Taney's argument at the 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 the 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 power of the states over their own citizens; indeed, this
has been one of the great themes of American constitutional history, as the nationalism
of the Bill of Rights has been deemed necessary in order to protect popular liberty
against state depredation.
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. Cruickshank, [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 Cruickshank 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 Cruickshank 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 right s
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, could
Cruickshank 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 the "new-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
ha d 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 constitution 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.
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 up to the fifth category, prudentialism, or
an attentiveness to the practical consequences, which is clearly of great importance
in any debate 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. [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 notation 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
cost 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
of even 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 counter-productive, 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, l et 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 common citizen 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 us 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 Tiananmen Square. It should not surprise us that some
NRA sympathizers have presented that situation as an abject 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 47's 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 ill, to suppress popular demonstrations
and uprisings than one that must calculate the possibilities of its soldiers and
officials being injured or killed. [96]
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 meant 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
parts 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
arguments that dismiss as almost crass and vulgar any insistence that times might
have changed and made too "expensive" the continued adherence to a 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. Here 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 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?
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 farmers. The second prohibited any pay
raise voted by the 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 442n.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 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 of the right
of the people to peaceably to assemble, and to petition the Government for a redress
of grievances." U.S. Const. Amend. I
3. "The right of the people to be secured 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, a nd 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 of indictment of a Grand Jury,
except in cases arising in the land or naval forces, or in the Militia, when in
actual services in the time of War or public danger; nor shall any person be subject
for the same offense to be twice put in jeopardy of life and 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
previously ascertained by la w, 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. V.
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. I.
11. See supra note 8.
12. See supra note 9.
13. There are several law review articles discussing
the Amendment. See, e.g. Lund, infra note 96, and the articles cited in Dowlut &
Knoop, State Constitutions and the Right to Keep and Bear Arms, 7 Okla. 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 Shallhope,
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 the 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 reconsiderations 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 Bernard Goetz case, also suggests
that Second Amendment analysis 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 and S. Levinson, Processes
of Constitutional Decisionmaking (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. 19860.
18. For a brilliant and playful meditation on the way
the legal world treats footnotes and other marginal phenomena, see Balking, The
Footnote, 83 Nw. U. L. Rev. 275, 276-81 (1989).
19. Tribe, supra note 16 at 299 n6.
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 316n.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 Sec. 10
24. U.S. Const. art. I sec. 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 (1 893): "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
with our ideas, that further comment is unnecessary." Cf. Engblom v. Carey,
724 F.2d 2 8 (2d Cir. 1983), affg 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-residence...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 right 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. 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. Fee 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)[thereinafter 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. Bobbit, Constitutional Fate (1982).
31. Id. at 25-38.
32. Id. at 9-24.
33. Id. at 75-92.
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 gun
ownership. Nonetheless, I would claim that no one unpersuaded by any of the arguments
derived from the first five models 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 Sec. 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 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, infra note 96, at 117.
44. Shallhope, 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 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. Elliott, Debates in the General State Conventions
425 (3d ed. 1937)(statement of George Mason, June 14, 1788), reprinted in Kates,
supra note 13, at 261 n. 51.
49. Letters from the Federal Farmer to the Republican
123 (W. Bennett e.1978)(ascribed to Richard Henry Lee), reprinted in Kates, supra
note 13 at 261 n. 51.
50. Michelman, The Supreme Court 1985 Term -- Forward:
Traces of Self Government, 100 Harvard 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. Shallhope, 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 the "reality" accompanying them.
Id. at 160-65.
55. Blasi, The Checking Value in First Amendment Theory,
1977 A. B. Found. Res. J. 521.
56. See Lund, infra note 96, at 111-116.
57. Shallhope, supra note 44, at 603 (quoting 1755
edition of Cato's Letters). Shallhope 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 o f 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 Sec. 1890 (1833) quoted
in 5 The Founders' Constitution 214 (P. Kurland & R. Lerner eds. 1987).
62. Id.
63. Id. Lawrence Cress, despite his forceful of Shallhope's
individualists rendering of the Second Amendment, nonetheless himself notes "[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 defense, and to form and drill military organizations
in defense of the State, may not b e 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. Schroder, 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 modem 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
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 and Individual
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 NRA 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 b e 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
that 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): "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 the stand idly by while
their meeting places were invaded or their wives and children assaulted. The were
determined , as Albert Parsons [a leader of the anarchist movement in Chicago] expressed
it, to defend both 'their persons and their rights.'"
79. 166 U.S. 226 (1897) (protecting rights of property
owners by requiring compensation for takings of property).
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 "[i]t 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 official state churches."
Abington School District 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
Appeal s 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 barrelled shotguns are commonly used as military weapons."
Lund, infra note 96, 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 96, 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
A11. 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 in 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 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 a 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, The Second Amendment, Political Liberty,
and the Right to Self-Preservation, 39 Ala. L. Rev. 103 (1987) 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
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 explained 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." I should note that I wrote (and titled) this article before reading
Lund's article, which begins, "The Second Amendment to the United States Constitution
h as 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 this article.
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 Association, 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 Editor, Austin America-Statesman,
July 8, 1989, at A19, col. 4.
100. See Minow, The Supreme Court 1986 Term -- Foreword:
Justice Engendered 101 Harv. L. Rev. 1074-90 (1987). "We need settings in which
to engage in the clash of realities that breaks us out of settled and complacent
meanings and create s 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 and accompanying text.
Transcribed by
Lorain County Firearms Defense Association, Ohio Constitution Defense Council
bb063@Cleveland.Freenet.Edu Chris Crobaugh - (216)-327-6655 (V)
"Those who would sacrifice essential liberties for a little temporary safety
deserve neither liberty nor safety." B. Franklin