The Embarrassing Second Amendment
University of Texas at Austin School of Law
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,
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.
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.
I. The Politics Of Interpreting The Second Amendment
To put it mildly, the Second Amendment is not at the forefront of
constitutional discussion, at least as registered in what the academy regards as
the venues for such discussion — law reviews,
14 and other scholarly legal
publications. As Professor Larue has recently written, "the second
amendment is not taken seriously by most scholars."
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
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
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
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
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"
II. The Rhetorical Structures of the Right to Bear Arms
My colleague Philip Bobbitt has, in his book Constitutional Fate,
30 spelled out six approaches —
or "modalities," as he terms them — of constitutional argument.
These approaches, he argues, comprise what might be termed our legal grammar.
They are the rhetorical structures within which "law-talk" as a
recognizable form of conversation is carried on. The six are as follows:
textual argument — appeals to the unadorned language of the text;
historical argument — appeals to the historical background of the
vision being considered, whether the history considered be general, such as
background but clearly crucial events (such as the American Revolution). or
specific appeals to the so-called intentions of framers;
structural argument — analyses inferred from the particular structures
established by the Constitution, including the tripartite division of the
national government; the separate existence of both state and nation as
political entities; and the structured role of citizens within the political
doctrinal argument — emphasis on the implications of prior cases
decided by the Supreme Court;
prudential argument — emphasis on the consequences of adopting a
proferred decision in any given case;
ethical argument — reliance on the overall "ethos" of
limited government as centrally constituting American political culture.
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
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
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.
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."
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
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
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
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
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
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."
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."
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..."
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
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
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
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."
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."
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
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
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..."
The first "incorporation decision," Chicago, B & Q.R.Co. v.
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
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.
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."
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
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.
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.
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.
III. Taking the Second Amendment Seriously
There is one further problem of no small import; if one does accept the
plausibility of any of the arguments on behalf of a strong reading of the Second
Amendment, but, nevertheless, rejects them in the name of social prudence and
the present -day consequences produced by finicky adherence to earlier
understandings, why do we not apply such consequentialist criteria to each and
every part of the Bill of Rights?
97 As Ronald Dworkin has
argued, what it 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
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
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
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, and particularly describing the place
to be searched, and the persons or things to be seized." U.S. Const. Amend.
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
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
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. See Subcommittee on the Constitution of
the Comm. on the Judiciary, the Right to Keep and
Bear Arms, 97th Cong., 2d Sess. viii (1982)(preface by Senator Orrin
Hatch)[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
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"
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
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).
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 be very important in
this country, but it is significant as having been reserved by the people as a
possible and necessary resort for the protection of self-government against
usurpation, and against any attempt on the part of those who may for the time be
in possession of State authority or resources to set aside the constitution and
substitute their own rule for that of the people. Should the contingency ever
arise when it would be necessary for the people to make use of the arms in their
hands for the protection of constitutional liberty, the proceeding, so far from
being revolutionary, would be in strict accord with popular right and duty.
Cooley advanced this same idea in The Abnegation of Self- Government, 12
Princeton Rev. 213-14 (1883).
65. See Rabban, The First Amendment in Its
Forgotten Years, 90 Yale L.J. 514, 560 (1981) ("[P]rodigious
theoretical writings of Theodore Schroeder... were the most extensive and
libertarian treatments of freedom of speech in the prewar period"); see
Transforming Free Speech (forthcoming 1990)(manuscript at 4-12; on file
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.)
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 Appeals upheld a local ordinance in Morton Grove,
Illinois, prohibiting the possession of handguns within its borders.
82. 307 U.S. 174 (1939.
83. Justice Douglas, however, did not
participate in the case.
84. Miller, 307 U.S. at 178.
85. Id. at 178 (citation omitted).
86. Lund notes that "commentators have
since demonstrated that sawed- off or short barrelled shotguns are commonly used
as military weapons." Lund, infra note 96, at 109.
87. 307 U.S. at 178.
88. Id. at 179.
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
Id. One of the first such arguments in regard to the events in Tiananmen
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
102. See supra note and accompanying