Second to None?

How should we understand the famous (and mysterious) words of the U.S. Constitution’s Second Amendment that “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”? For decades, most legal scholars and judges treated the amendment as something of an unwanted stepchild, disregarding the “right” it sets forth as a potential menace to gun control. In recent years, however, a number of mainstream and politically liberal legal scholars (including, I should note, myself, in addition to Akhil Reed Amar of the Yale Law School, Duke Law School Professor William Van Alstyne, and, probably most significantly, Harvard’s Laurence Tribe) have offered “revisionist” readings of the Amendment. This revisionism consists in effect of taking seriously some of the arguments linked with the National Rifle Association, which emphasize an individual “right to bear arms.” Whereas opponents of the NRA emphasize a so-called “collective” interpretation by which the right protected by the Amendment is that of a state to organize a state militia (leaving both national and state governments free to limit–indeed, to prohibit–the possession of arms by anyone not in an organized state militia), I and other “revisionists” would say that such an interpretation misreads the term “militia” and too quickly dismisses the amendment’s second clause. In guaranteeing a right of “the people,” we have argued, the amendment refers not to a state but to the citizenry.

The Second Amendment in Law and History is a somewhat shortened version of a symposium published in the Chicago-Kent Law Review, whose purpose is quite forthrightly to criticize (indeed, ideally to demolish) the arguments of the revisionists, who are, however, absent except as described by their decidedly unsympathetic critics. The organizers of the symposium made no effort to bring the revisionists and their critics face to face. To fully understand the arguments of the revisionists, one will have to look elsewhere, such as a 1994 volume edited by Robert J. Cottrol, Gun Control and the Constitution: Sources and Explorations on the Second Amendment. Still, this symposium offers worthy examinations of various legal and historical arguments surrounding the Second Amendment, even if it is by no means the last word on the subject.

Fully half of the 10 essays (and considerably more than half of the 345 pages) address aspects of 17th- and 18th-century English and American history and maintain that a correct understanding of that history disproves the revisionists’ arguments. One might, though, believe that the historical debates, for all of their intrinsic interest, have little practical importance. Thus an excellent essay by Minnesota law professor Daniel Farber, “Disarmed by Time: The Second Amendment and the Failure of Originalism,” argues, altogether correctly I believe, that the present meaning of the Second Amend-ment, whatever it might be, ought not in the least be determined by what it probably meant in 1789. According to Farber, “originalism,” the view that the Constitution’s meaning is best understood by reference to past understandings, is in fact a bankrupt theory of constitutional interpretation. Columbia law professor Michael Dorf would certainly agree, and his concluding essay, “What Does the Second Amendment Mean Today?” reviews a plethora of contemporary judicial opinions that cut against the revisionist, “individualist” interpretation of the Amendment and in favor of the far more limited “collectivist” one.

There is certainly insufficient space to examine here all of the arguments raised by these scholars. I personally found the richest article to be that by historians H. Richard Uviller and William G. Merkel, which examines at length the complexities of so-called “civic-republican” political ideology, derived in part from the thought of Machiavelli and English political theorists like James Harrington. Adherents of “civic-republicanism,” who certainly included many major American thinkers of the time, were almost paranoically fearful of governmental corruption, seen most strikingly, according to Americans at least, in the British government of George III overthrown by the revolutionaries. An important aspect of civic-republicanism was an emphasis on citizen-militias as a potential check on a corrupt and untrustworthy government. Indeed, a primary debate among academics concerns the meaning of the Amendment’s introductory clause, with its emphasis on a “well regulated Militia.” Who was the “Militia”? Many Americans, including civic-republicans, defined the “Militia” as consisting of all well-behaved citizens; they distinguished between the general militia and a “select” militia that was indeed organized by the state. Uviller and Merkel do not really disagree; instead, they conclude that “the concept of the militia embedded in the Second Amendment has so radically changed over the centuries since its adoption that the right to arms, constructed to serve it, is fundamentally deactivated…. [T]he word ‘militia’ as written in the Second Amendment has no referent and hence no application in the United States today.”

Of course, contemporary members of “militia” movements, justifiably feared by political liberals, would beg to disagree, claiming that the contemporary state is already teetering on the edge of, if not falling into, the kind of corruption that justified armed revolt in 1775. I have no desire to defend these latter-day militia members, though Carl Bogus, in his introductory chapter reviewing the revisionist literature, describes me as an “insurrectionist” inasmuch as I have indeed suggested that the best way to understand the original political impulses behind the Amendment is indeed as a “tip of the hat” to the possibility of armed overthrow of corrupt government. One need not support latter-day militia movements to concede that they are drawing on what even Uviller and Merkel agree is a strong thread of American thought.

Many participants in the debates about guns could not care less about the kinds of questions examined by most of the constitutional law scholars on either side of the issue; these scholars, including myself, only minimally discuss the issues of public policy that are raised by attempts to regulate guns or the more crass political implications of one or another position on gun control. (For what it is worth, insofar as I have publicly expressed some doubts about “gun control” legislation, my reasons have far more to do with the potential impact on the prospects of Democratic candidates for office than for any need to be faithful to the views of our constitutional forebearers.)

Policy aside, the following are several questions that participants in the scholarly debate over the Second Amend-ment should be asking:

I. Was there a consensus view of firearms in the 18th century?

One of the casualties of the Civil Rights Movement and the Vietnam War was the so-called “consensus” approach to American history, as increased emphasis was placed on the presence of conflicting traditions of American thought. Moreover, as American historians turned to the often closely textured study of social groups, it became increasingly difficult to credit any generalizations about the American past. Not only were farmers different from urban dwellers, but Scotch-Irish farmers in the South were also considerably different from Scandinavian farmers in the North. Indeed, one had to distinguish between Swedes and Norwegians or German Catholics and Lutherans. And so on.

I thus have little hesitation in accepting the attacks of very fine historians like Jack Rakove (who won a richly deserved Pulitzer Prize for his book on the framing of the Constitution, Original Meanings) or Paul Finkelman on the naïve notion that American thought of the 18th century was unified around a positive view of firearms as a way of maintaining political liberty. They bring together strong evidence that many Americans, including those who were members of the Congress that drafted the Amendment, had only disdain for the “general militia” and, consequently, had no desire at all to protect an individual right to possess firearms. But, of course, this does not begin to establish the proposition that there was a consensus on behalf of that position. All one can confidently say is that Americans differed in their views. It may be, for example, that revisionists (including myself) have overemphasized the prevalence of the civic-republicanism described above. It is scarcely the case, though, that that strain of thought did not exist or have significant influence. If the symposiasts are ultimately simply offering sets of counter-examples designed to forestall the assertion of any confident generalizations about the historical issues surrounding firearms, then I have no real argument with them. If, on the other hand, they are insisting that we currently possess enough knowledge about the past to establish a real “truth” about what Americans in general believed about firearms, then I remain unconvinced.

II. What role did ideology play in conceiving the Amendment?

Perhaps at the heart of the debate is what set of interpretive constructs–what one might call the “guiding pictures in one’s head” that give form to understanding the surrounding world–were used by Anti-Federalist critics of the Constitution of 1787 who insisted, among other things, on the addition to the original text of some kind of right to keep and bear arms. As noted, I (and others) have emphasized the importance of civic-republicanism in constructing such pictures. Consider, for example, the statue of the Minuteman in Lexington, Massachusetts that celebrates, in Ralph Waldo Emerson’s words, the “poor farmers who came up that day [in April 1775] to defend their native soil” against the British interlopers. This image of a citizen-militia, organized and operating against the wishes of the (legitimate) British-controlled government of Massachusetts, is central to the civic republican understanding of the Revolution and indeed of America herself.

Michael Bellesiles, author of Arming America, the controversial book on the origins of America’s “gun culture” published last summer, contributes an interesting chapter detailing state and national gun policies in the early years of the Republic, following the ratification of the Second Amendment; he argues, basically, that the amendment was regarded as irrelevant to the various kinds of gun policies (including “control”), not least because of the historical inaccuracy of the image purveyed by the statue and by Emerson. Bellesiles is certainly not the first to do so: Yale history professor Edmund Morgan, for example, has written “that the armed yeomanry was neither effective as a fighting force nor particularly protective of popular liberty.”

Yet a central question to be answered is how important these facts are to understanding the political and ideological underpinnings of the Second Amendment. Rakove, for example, makes them central to his own analysis, and he is very critical of me specifically for suggesting that “reality” might be less important than the ideas in people’s heads, which included, for many, the (presumably false) “fact” that citizen-militias were very important. At one level I certainly agree that there is a complex dialectical relationship between “experience” and the ideological pictures that people carry in their heads. On the other hand, I think it is ultimately these pictures that help to define an “experience” in the first place.

I have no difficulty agreeing with Rakove that many Americans thought differently about citizen-militias in 1789, when the Second Amendment was proposed, than they did in 1776, and Rakove rightly criticizes many previous writers, including myself, for being less attentive to that shift than we might have been. That being said, he admits that other forms of thought remained part of the American “legacy”; surely those ideas influenced the way many Americans interpreted the events of the Revolution and thereafter.

III. Who “proposed” the Second Amendment? (And is James Madison a ‘trickster’ who gulled an easily fooled American public?)

Rakove emphasizes that it was “the Federalist majority who proposed the Second Amendment.” This refers, presumably, to the fact that the proponents of the Constitution dominated the first Congress, which considered and then proposed what we today know as the Bill of Rights. We should, he argues, pay far more attention to their views than to those articulated outside the halls of Congress by anti-Federalists and others, who had, after all, missed the train carrying history forward. (As a literal matter, it is obviously true that “the Federalist majority” proposed the Amendment and that, moreover, James Madison played a particularly important role in the proceedings of the first Congress. That being said, one cannot possibly overlook the fact that this majority, including Madison, probably would never have felt any need to propose any such amendments, had that not in effect been the price of gaining assent from moderate anti-Federalists and others who were unenthusiastic about an unamended Constitution.) According to Rakove, what was debated, both at the convention and then in the first Congress with regard to the Amendment, was the respective competence and authority of the national and state governments. At no time, he argues, was it a debate about a truly individual rights to possess arms.

Even if one accepts this view, what precisely follows for the interpretation of the Amendment? For example, if one understands the purpose of the Amendment as being to authorize states to maintain militias, does the national government retain control over state militias, including an all-important limitation of the right to keep and bear arms only to those deemed fit by Congress to do so? Any such reading turns Madison into a kind of “trickster,” an illusionist who, seemingly responding to the concerns of those anti-Federalists who insisted on the Second Amendment, actually provided them nothing. Or does the amendment grant exclusive power to the states over the crucial issues of membership and control of the conditions of access to firearms themselves? The problem with this reading, from a contemporary perspective, is that this would seemingly acknowledge, at least as a matter of original understanding, far too strong a limit on national power. It would, for example, make questionable attempts by the national government to ban possession of any weapon that is legal in the possessor’s state (though of course, given contemporary understandings of the Commerce Clause, Congress at the very least could ban the interstate shipment of guns).

IV. How important is 1787-91 anyway? What about 1868?

The historians’ critique of the revisionist model argues, in effect, that its adherents (including myself) are deficient in our understanding of the complexities and nuances of 18th-century thought and politics. What the “anti-revisionists” insufficiently recognize, though, is that the debate about the “right to keep and bear arms” is about far more than the Second Amendment, whatever its importance may be. Many states at the time included in their state constitutions some kind of right to bear arms without making any reference to militias at all. Or consider the fact that the notorious Dred Scott case, in which the Supreme Court deprived blacks of the very possibility of being citizens of the United States, included as part of the analysis the assertion that the “privileges and immunities of citizens” included the right “to keep and carry arms wherever they went.” Thus Chief Justice Taney apparently viewed the right as a personal one, attaching to all citizens regardless of their membership in an official militia. The unthinkability of blacks enjoying that particular constitutional right, which necessarily attaches to the status of citizen, helps to explain, according to Taney, why they cannot e
joy that status.

By 1866, when Congress proposed the Fourteenth Amendment granting citizenship to all persons born or naturalized in the United States and including protection of the “privileges or immunities” of such citizenship, the right to bear arms seems to have been understood as a right of a citizen, protected against oppressive regulation by both national and state governments. (It was, that is, one of the Bill of Rights now “incorporated” as a limit on state, as well as national, power.) Yale’s Akhil Reed Amar has identified no fewer than 13 additional “Reconstruction Republicans” who offered “odes to arms in speeches in the Thirty-ninth Congress.” The analysis of the “right to bear arms” was profoundly individualistic, not least because the advocates of Reconstruction were rightly aware that state governments could no longer necessarily be trusted to engage in acceptably impartial, nondiscriminatory regulation, especially where the rights of newly freed former black slaves and their white sympathizers were concerned. For them, the right to bear arms was no theoretical claim; the actual possession of arms was all too necessary to defend themselves against the nascent Ku Klux Klan and other agents of white terror.

Such broad constructions of the Second Amendment ultimately fell victim to the compromises that resulted in the end of Reconstruction. Thus in 1875 the Court in United States v. Cruikshank stated that the Second Amendment was simply “one of the amendments that has no other effect than to restrict the powers of the national government.” As University of Texas-Dallas scholar Pamela Brandwein has well argued, the United States Supreme Court adopted de facto the position that the legal consequences of the Fourteenth Amendment were in fact quite minimal, keeping basically in place the division of powers between national and state governments that had been present prior to the great conflict.

The debate about the Second Amendment is scarcely only of “academic” importance. Recently, for example, in the Emerson case, the Fifth Circuit, though reversing a district court decision that ruled unconstitutional a federal statute limiting the possession of guns by persons under court orders to refrain from domestic violence, nonetheless explicitly adopted the “individualist” reading of the Amendment. This suggests that the courts might be receptive to using the Amendment as a shield against federal (or state) regulation of firearms in an appropriate case. Judge Garwood, in his majority opinion, cited some of the revisionist writings. As several of the authors to the collection under review would undoubtedly emphasize, the Fifth Circuit’s opinion is something of an “outlier.” For better or worse, though, it might be a harbinger of the future, especially if George W. Bush is successful in packing the Supreme Court with suitably conservative judges who agree, for example, not only with the Fifth Circuit but also with even stronger views expressed by Attorney General John Ashcroft.

As already noted, there is no logical connection between one’s views as to proper gun policy or even how the Constitution should be interpreted today and one’s conclusions about the answers to certain historical questions about the likely meanings of the Second Amendment in either 1789 or 1868. For better and worse, though, both sides in the firearms debate seem to believe that it is important to establish that the Founding Generation(s) would have been on their sides, which is why most of the authors represented in The Second Amendment in Law and History exhibit such passion in their critique of revisionists.

Sanford Levinson holds the W. St. John Garwood Chair in law at the University of Texas Law School. He is the author of Written in Stone: Public Monuments in Changing Societies.

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Published at 12:00 am CST