Newsgroups: talk.politics.guns
From: [l v c] at [cbnews.cb.att.com] (Larry Cipriani)
Subject: Re: Gun advocates LONELY without their 2nd Amendment...
Date: Sun, 10 Apr 1994 15:10:21 GMT
The EMBARRASSING SECOND AMENDMENT
Sanford Levinson
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?
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 Amendment2 as Main Street, dominating
the map, though more, one suspects, in its role as protector of speech
and prohibitor of established religion than as guardian of the rights
of religious believers. The other principal avenues would be the
criminal procedures aspects of the Constitution drawn from the
Fourth,3 Fifth,4 Sixth,5 and Eighth6 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
Amendment8 or of the Tenth Amendment.9
The second map, drawn by the New Rightist, would highlight the
free exercise clause of the First Amendment,10 the just compensation
clause of the Fifth Amendment,11 and the Tenth Amendment.12 Perhaps the
most notable difference between the two maps, though, would be in
regard to the Second Amendment: "A well regulated militia being
necessary to the security of a free State, the right of the people to
keep and bear Arms shall not be infringed." What would be at most a
blind alley for the ACLU mapmaker would, I am confident, be a major
boulevard in the map drawn by the New Right adherent. It is this last
anomaly that I want to explore in this essay.
I. The Politics Of Interpreting The Second Amendment
To put it mildly, the Second Amendment is not at the forefront of
constitutional discussion, at least as registered in what the academy
regards as the venues for such discussion --law reviews,13
casebooks,14 and other scholarly legal publications. As Professor Larue
has recently written, "the second amendment is not taken seriously by
most scholars."15
Both Laurence Tribe16 and the Illinois team of Nowak, Rotunda,
and Young17 at least acknowledge the existence of the Second Amendment
in their respective treatises on constitutional law, perhaps because
the treatise genre demands more encyclopedic coverage than does the
casebook. Neither, however, pays it the compliment of extended
analysis. Both marginalize the Amendment by relegating it to footnotes;
it becomes what a deconstructionist might call a "supplement" to the
ostensibly "real" Constitution that is privileged by discussion in the
text.18 Professor Tribe's footnote appears as part of a general
discussion of congressional power. He asserts that the history of the
Amendment "indicate[s] that the central concern of [its] framers was to
prevent such federal interferences with the state militia as would
permit the establishment of a standing national army and the consequent
destruction of local autonomy."19 He does note, how ever, that "the
debates surrounding congressional approval of the second amendment do
contain references to individual self-protection as well as to states'
rights," but he argues that the qualifying phrase "'well regulated"
makes any invocation of the Amendment as a restriction on state or
local gun control measures extremely problematic."20 Nowak, Rotunda,
and Young mention the Amendment in the context of the incorporation
controversy, though they discuss its meaning at slightly greater
length.21 They state that "[t]he Supreme Court has not determined, at
least not with any clarity, whether the amendment protects only a right
of state governments against federal interference with state militia
and police forces.. .or a right of individuals against the federal and
state government[s]."22
Clearly the Second Amendment is not the only ignored patch of
text in our constitutional conversations. One will find extraordinarily
little discussion about another one of the initial Bill of Rights, the
Third Amendment: "No Soldier shall, in time of peace be quartered in
any house, without the consent of the Owner, nor in time of war, but in
a manner to be prescribed by law." Nor does one hear much about
letters of marque and reprisal23 or the granting of titles of nobility.
24 There are, however, some differences that are worth noting.
The Third Amendment, to take the easiest case, is ignored
because it is in fact of no current importance whatsoever
(although it did, for obvious reasons, have importance at the time of
the founding). It has never, for a single instant, been viewed by any
body of modern lawyers or groups of laity as highly relevant to their
legal or political concerns. For this reason, there is almost no case
law on the Amendment.25 I suspect that few among even the highly
sophisticated readers of the Journal can summon up the Amendment
without the aid of the text.
The Second Amendment, though, is radically different from these
other pieces of constitutional text just mentioned, which all share the
attribute of being basically irrelevant to any ongoing political
struggles. To grasp the difference, one might simply begin by noting
that it is not at all unusual for the Second Amendment to show up in
letters to the editors of newspapers and magazines.26 That judges and
academic lawyers, including the ones that write casebooks, ignore it is
most certainly not evidence for the proposition that no one else cares
about it. The National Rifle Association, to name the most obvious
example, cares deeply about the Amendment, and an apparently serious
Senator of the United States averred that the right to keep and bear
arms is the "right most valued by free men."27 Campaigns for Congress
in both political parties, and even presidential campaigns, may turn on
the apparent commitment of the candidates to a particular view of the
Second Amendment. This reality of the political process reflects the
fact that millions of Americans, even if (or perhaps especially if)
they are not academics, can quote the Amendment and would disdain any
presentation of the Bill of Rights that did not give it a place of
pride.
I cannot help but suspect that the best explanation for the
absence of the Second Amendment from the legal consciousness of the
elite bar, including that component found in the legal academy,
28 is derived from a mixture of sheer opposition to the idea of private
ownership of guns and the perhaps subconscious fear that altogether
plausible, perhaps even "winning," interpretations of the Second
Amendment would present real hurdles to those of us supporting
prohibitory regulation. Thus the title of this essay --The Embarrassing
Second Amendment -- for I want to suggest that the Amendment may be
profoundly embarrassing to many who both support such regulation and
view themselves as committed to zealous adherence to the Bill of Rights
(such as most members of the ACLU). Indeed, one sometimes discovers
members of the NRA who are equally committed members of the ACLU,
differing with the latter only on the issue of the Second Amendment but
otherwise genuinely sharing the libertarian viewpoint of the ACLU.
It is not my style to offer "correct" or "incorrect"
interpretations of the Constitution.29 My major interest is in
delineating the rhetorical structures of American constitutional
argument and elaborating what is sometimes called the "politics of
interpretation," that is, the factors that explain why one or another
approach will appeal to certain analysts at certain times, while other
analysts, or times, will favor quite different approaches. Thus my
general tendency to regard as wholly untenable any approach to the
Constitution that describes itself as obviously correct and condemns
its opposition as simply wrong holds for the Second Amendment as well.
In some contexts, this would lead me to label as tendentious the
certainty of NRA advocates that the Amendment means precisely what they
assert it does. In this particular context--i.e., the pages of a
journal whose audience is much more likely to be drawn from an elite,
liberal portion of the public--I will instead be suggesting that the
skepticism should run in the other direction, That is, we might
consider the possibility that "our" views of the Amendment, perhaps
best reflected in Professor Tribe's offhand treatment of it, might
themselves be equally deserving of the "tendentious" label.
II. The Rhetorical Structures of the Right to Bear Arms
My colleague Philip Bobbitt has, in his book Constitutional
Fate,30 spelled out six approaches -- or "modalities," as he terms them
-- of constitutional argument. These approaches, he argues, comprise
what might be termed our legal grammar. They are the rhetorical
structures within which "law-talk" as a recognizable form of
conversation is carried on. The six are as follows:
1) textual argument -- appeals to the unadorned language of the
text;31
2) historical argument -- appeals to the historical background of the
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;32
3) structural argument -- analyses inferred from the particular
structures established by the Constitution, including the tripartite
division of the national government; the separate existence of both
state and nation as political entities; and the structured role of
citizens within the political order;33
4) doctrinal argument -- emphasis on the implications of prior cases
decided by the Supreme Court;34
5) prudential argument -- emphasis on the consequences of adopting a
proferred decision in any given case;35
6) ethical argument -- reliance on the overall "ethos" of limited
government as centrally constituting American political
culture.36
I want to frame my consideration of the Second Amendment within
the first five of Bobbitt's categories; they are all richly present in
consideration of the Amendment might mean. The sixth, which emphasizes
the ethos of limited government, doe s not play a significant role in
the debate of the Second Amendment.37
A. Text
I begin with the appeal to text. Recall the Second Amendment:
"A well regulated Militia being necessary to the security of a free
State, the right of the people to keep and bear Arms shall not be
infringed." No one has ever described the Constitution as a marvel of
clarity, and the Second Amendment is perhaps one of the worst drafted
of all its provisions. What is special about the Amendment is the
inclusion of an opening clause -- a preamble, if you will -- that seems
to set out its purpose. No similar clause is part of any other
Amendment,38 though that does not, of course, mean that we do not
ascribe purposes to them. It would be impossible to make sense of the
Constitution if we did not engage in the ascription of purpose.
Indeed, the major debates about The First Amendment arise precisely
when one tries to discern a purpose, given that "literalism" is a
hopelessly failing approach to interpreting it. We usually do not even
recognize punishment of fraud -- a classic speech act -- as a free
speech problem because we so sensibly assume that the purpose of the
First Amendment could not have been, for example, to protect the
circulation of patently deceptive information to potential investors in
commercial enterprises. The sharp differences that distinguish those
who would limit the reach of the First Amendment to "political" speech
from those who would extend it much further, encompassing non-deceptive
commercial speech, are all derived from different readings of the
purpose that underlies the raw text.39
A standard move of those legal analysts who wish to limit the
Second Amendment's force is to focus on its "preamble" as setting out a
restrictive purpose. Recall Laurence Tribe's assertion that the purpose
was to allow the states to keep their militias and to protect them
against the possibility that the new national government will use its
power to establish a powerful standing army and eliminate the state
militias. This purposive reading quickly disposes of any notion that
there is an "individual" right to keep and bear arms. The right, if
such it be, is only a states's right. The consequence of this reading
is obvious: the national government has the power to regulate--to the
point of prohibition--private ownership of guns, since that has, by
stipulation, nothing to do with preserving state militias. This is,
indeed, the position of the ACLU, which reads the Amendment as
protection only the right of "maintaining an effective state
militia...[T]he individual's right to keep a nd bear arms applies only
to the preservation or efficiency of a well-regulated [state] militia.
Except for lawful police and military purposes, the possession of
weapons by individuals is not constitutionally
protected."40
This is not a wholly implausible reading, but one might ask why
the Framers did not simply say something like "Congress shall have no
power to prohibit state-organized and directed militias." Perhaps they
in fact meant to do something else. Moreover, we might ask if ordinary
readers of the late 18th Century legal prose would have interpreted it
as meaning something else. The text at best provides only a starting
point for a conversation. In this specific instance, it does not come
close to resolving the questions posed by federal regulation of arms.
Even if we accept the preamble as significant, we must still try to
figure out what might be suggested by guaranteeing to "the people the
right to keep and bear arms;" moreover, as we shall see presently, even
the preamble presents unexpected difficulties in interpretation.
B. History
One might argue (and some have) that the substantive right is
one pertaining to a collective body -- "the people"-- rather than to
individuals. Professor Cress, for example, argues that state
constitutions regularly use the words "man" or "person" in regard to
"individual rights such as freedom of conscience," whereas the use in
those constitutions of the term "the people" in regard to a right to
bear arms is intended to refer to the "sovereign citizenry"
collectively organized.41 Such an argument founders, however, upon
examination of the text of the federal Bill of Rights itself and the
usage there of terms "the people" in the First, Fourth, Ninth, and
Tenth Amendments.
Consider that the Fourth Amendment protects "[t]he right of he
people to be secure in their persons," or that the First Amendment
refers to the "right of the people peaceably to assemble, and to
petition the Government for a redress of grievances." It is difficult
to know how one might plausibly read the Fourth Amendment as other than
a protection of individual rights, and it would approach the frivolous
to read the assembly and petition clause as referring only to the right
of state legislators to meet and pass a remonstrance directed to
Congress or the President against some government act. The Tenth
Amendment is trickier, though it does explicitly differentiate between
"state" and "the people" in terms of retained rights.42 Concededly, it
would be possible to read the Tenth Amendment as suggesting only an
ultimate right revolution by the collective people should the "states"
stray too far from their designated role of protecting the rights of
the people. This reading follows directly from the social contract
theory of the state.( But, of course, many of these rights are held by
individuals.)
Although the record is suitably complicated, it seems
tendentious to reject out of hand the argument that the one purpose of
the Amendment was to recognize an individual's right to engage in armed
self-defense against criminal conduct.43 Historian Robert E. Shallhope
supports this view, arguing in his article The Ideological Origins of
the Second Amendment44 that the Amendment guarantees individuals the
right "to possess arms for their own personal defense." 45 It would be
especially unsurprising if this were the case, given the fact that the
development of a professional police force (even within large American
cities) was still at least half a century away at the end of the
colonial period .46 I shall return later in this essay to this
individualist notion of the Amendment, particularly in regard into the
argument that "changing circumstances," including plausibility. But I
want now to explore a second possible purpose of the Amendment, which
as a sometime political theorist I find considerably more interesting.
Assume, as Professor Cress has argued, that the Second
Amendment refers to a communitarian, rather than an individual
right.47 We are still left the task of defining the relationship
between the community and the state apparatus. It is this fascinating
problem to which I now turn.
Consider once more the preamble and its reference to the
importance of a well-regulated militia. Is the meaning of the term
obvious? Perhaps we should make some effort to find out what the term
"militia" meant to 18th century readers and writers, rather than assume
that it refers only to Dan Quayle's Indiana National Guard and the
like. By no means am I arguing that the discovery of that meaning is
dispositive as to the general meaning of the Constitution for us today.
But it seems foolhardy to be entirely uninterested in the historical
philology behind the Second Amendment.
I, for one, have been persuaded that the term "militia" did not
have the limited reference that Professor Cress and many modern legal
analysts assign to it. There is strong evidence that "militia" refers
to all of the people, or least all of those treated as full citizens of
the community. Consider, for example, the question asked by George
Mason, one of the Virginians who refused to sign the Constitution
because of its lack of a Bill of Rights: "Who are the militia? They
consist now of the whole people."48 Similarly, the Federal Farmer, one
of the most important Anti-Federalist opponents of the Constitution,
referred to a "militia, when properly formed, [as] in fact the people
themselves."49 We have, of course, moved now from text to history.
And this history is most interesting, especially when we look at the
development of notions of popular sovereignty. It has become almost a
cliche of contemporary American historiography to link the development
of American political thought, including its constitutional aspects, to
republican thought in England, the "country" critique of the powerful
"court" centered in London.
One of the school's most important writers, of course, was
James Harrington, who not only was influential at the time but also
has recently been given a certain pride of place by one of the most
prominent of contemporary "neo-republicans," Professor Frank
Michelman.50 One historian describes Harrington as having made "the
most significant contribution to English libertarian attitudes toward
arms, the individual, and society."51 He was a central figure in the
development of the ideas of popular sovereignty and
republicanism.52 For Harrington, preservation of republican liberty
requires independence, which rests primarily on possession of adequate
property to make men free from coercion by employers or landlords.
But widespread ownership of land is not sufficient. These independent
yeoman would also bear arms. As Professor Morgan puts it, "[T]hese
independent yeoman, armed and embodied in a militia, are also a
popular government's best protection against its enemies, whether they
be aggressive foreign monarchs or scheming demagogues within the
nation itself."53
A central fear of Harrington and of all future republicans was
a standing army, composed of professional soldiers. Harrington and his
fellow republicans viewed a standing army as a threat to freedom, to be
avoided at all almost all costs. Thus, says Morgan, "A militia is the
only safe form of military power that a popular government can employ;
and because it is composed of the armed yeomanry, it will prevail over
the mercenary professionals who man the armies of neighboring
monarchs."54
Scholars of the First Amendment have made us aware of the
importance of John Trenchard and Thomas Gordon, whose Cato's
Letters were central to the formation of the American notion of freedom
of the press. That notion includes what Vincent Blasi would come to
call the "checking value" of a free press, which stands as a sturdy
exposer of governmental misdeeds.55 Consider the possibility, though,
that the unlimited "checking value" in a republican polity is the
ability of an armed populace, presumptively motivated by a shared
commitment to the common good, to resist governmental tyranny.56
Indeed, one of Cato's letters refers to "the Exercise of despotick
Power [as] the unrelenting War of an armed Tyrant upon his unarmed
subjects..."57
Cress persuasively shows that no one defended universal
possession of arms. New Hampshire had no objection to disarming those
who "are or have been in actual rebellion," just as Samuel Adams
stressed that only "peaceable citizens" should be protected in their
right of "keeping their own arms."58 All these points can be conceded,
however, without conceding as well that Congress -- or, for that
matter, the States, -- had the power to disarm these "peaceable
citizens."
Surely one of the foundations of American political thought of
the period was the well-justified concern about political corruption
and consequent governmental tyranny. Even the Federalists, fending off
their opponents who accused them of foisting an oppressive new scheme
upon the American people, were careful to acknowledge the risk of
tyranny. James Madison, for example, speaks in Federalist Number Forty-
Six of "the advantage of being armed, which the Americans possess over
the people of almost every other nation."59 The advantage in question
was not merely the defense of American borders; a standing army might
well accomplish that. Rather, an armed public was advantageous in
protecting political liberty. It is therefore no surprise that the
Federal Farmer, the nom de plume of an anti-federalist critic of the
new Constitution and its absence of a Bill of Rights, could write that
"to preserve liberty, it is essential that the whole body of the people
always possess arms, and be taught alike, especially when young, how
to use them..."60 On this matter, at least, there was no cleavage
between the pro-ratification Madison and his opponent.
In his influential Commentaries on the Constitution, Joseph
Story, certainly no friend of Anti-Federalism, emphasized the
"importance" of the Second Amendment.61 He went on to describe the
militia as the "natural defence of a free country" not only "against
sudden foreign invasions" and "domestic insurrections," with which one
might well expect a Federalist to be concerned, but also against
"domestic usurpations of power by rulers."62 "The right of the
citizens to keep and bear arms has justly been considered," Story
wrote, "as the palladium of the liberties of a republic; since it
offers a strong moral check against the usurpation and arbitrary power
by rulers; and will generally, even if these are successful in the
first instance, enable the people to resist and triumph over
them."63
We also see this blending of individualist and collective
accounts of the right to bear arms in remarks by Judge Thomas Cooley,
one of the most influential 19th century constitutional commentators.
Noting that the state might call into its official militia only "a
small number" of the eligible citizenry, Cooley wrote that "if the
right [to keep and bear arms] were limited to those enrolled, the
purpose of this guaranty might be defeated altogether by the action or
neglect to act of the government it was meant to hold in
check."64 Finally, it is worth noting the remarks of Theodore
Schroeder, one of the most important developers of the theory of
freedom of speech early in this century.65 "[T]he obvious import [of
the constitutional guarantee to carry arms]," he argues, "is to promote
a state of preparedness for self-defense even against the invasions of
government, because only governments have ever disarmed any
considerable class of people as a means toward their
enslavement."66
Such analyses provide the basis for Edward Abbey's revision of
a common bumper sticker, "If guns are outlawed, only the government
will have guns."67 One of the things this slogan has helped me to
understand is the political tilt contained within the Weberian
definition of the state -- i.e., the repository of a monopoly of the
legitimate means of violence 68 -- that is so commonly used by
political scientists. It is a profoundly statist definition, the
product of a specifically German tradition of the (strong) state
rather than of a strikingly different American political tradition
that is fundamentally mistrustful of state power and vigilant about
maintaining ultimate power, including the power of arms, in the
populace.
We thus see what I think is one of the most interesting points
in regard to the new historiography of the Second Amendment -- its
linkage to conceptions of republican political order. Contemporary
admirers of republican theory use it as a source of both critiques of
more individualist liberal theory and of positive insight into the way
we today might reorder our political lives.69 One point of emphasis
for neo-republicans is the value of participation in government, as
contrasted to mere representation by a distant leadership, even if
formally elected. But the implications of republicanism might push us
in unexpected, even embarrassing, directions; just as ordinary citizens
should participate actively in governmental decision-making, through
offering their own deliberative insights, rather than be confined to
casting ballots once every two or four years for those very few
individuals who will actually make the decisions, so should ordinary
citizens participate in the process of law enforcement and defense of
liberty rather than rely on professionalized peacekeepers, whether we
call them standing armies or police.
D. Structure
We have also passed imperceptibly into a form of structural
argument, for we see that one aspect of the structure of checks and
balances within the purview of 18th century thought was the armed
citizen. That is, those who would limit the meaning of the Second
Amendment to the constitutional protection of state-controlled militias
agree that such protection rests on the perception that militarily
competent states were viewed as a potential protection against a
tyrannical national government. Indeed, in 1801 several governors
threatened to call out state militias if the Federalists in Congress
refused to elect Thomas Jefferson president.70 But this argument
assumes that there are only two basic components in the vertical
structure of the American polity--the national government and the
states. It ignores the implication that might be drawn from the Second,
Ninth, and Tenth Amendments; the citizenry itself can be viewed as an
important third component of republican governance insofar as it stands
ready to defend republican liberty against the depredations of the
other two structures, however futile that might appear as a practical
matter.
One implication of this republican rationale for the Second
Amendment is that it calls into question the ability of a state to
disarm its citizenry. That is, the strongest version of the republican
argument would hold it to be a "privilege and immunity of United States
citizenship"--of membership in a liberty-enhancing political order --
to keep arms that could be taken up against tyranny wherever found,
including, obviously, state government. Ironically, the principal
citation supporting this argument is to Chief Justice [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.
D. Doctrine
Inevitably one must at least mention, even though there is not space
to discuss fully, the so-called incorporation controversy regarding the
application of the Bill of Rights to the states through the Fourteenth
Amendment. It should be no surprise that the opponents of gun control
appear to take a "full incorporationist" view of that
Amendment.73 They view the privileges and immunities clause, which was
eviscerated in the Slaughterhouse Cases,74 as designed to require the
states to honor the rights that had been held, by Justice Marshall in
Barron v. Baltimore in 1833,75 to restrict only the national
government. In 1875 the Court stated, in United States v.
Cruickshank,76 that the Second Amendment, insofar as it grants any
right at all, "means no more than that it shall not be infringed by
Congress. This is one of the amendments that has no other effect than
to restrict the powers of the national government..." Lest there be any
remaining doubt on this point, the Court specifically cited the
Cruickshank language eleven years later in Presser v.
Illinois,77 in rejecting the claim that the Second Amendment served to
invalidate an Illinois statute that prohibited "any body of men
whatever, other than the regular organized volunteer militia of this
State, and the troops of the United States....to drill or parade with
arms in any city, or town, of this State, without the license of the
Governor thereof..."78
The first "incorporation decision," Chicago, B & Q.R.Co. v.
Chicago,79 was not delivered until eleven years after
Presser; one therefore cannot know if the judges in Cruickshank and
Presser were willing to concede that any of the amendments comprising
the Bill of Rights were anything more than limitations on
congressional or other national power. The obvious question, given the
modern legal reality of the incorporation of almost all of the right s
protected by the First, Fourth, Fifth, Sixth, and Eighth Amendments, is
what exactly justifies treating the Second Amendment as the great
exception. Why, that is, could Cruickshank and Presser be regarded as
binding precedent any more than any of the other "pre-incorporation"
decisions refusing to apply given aspects of the BIll of Rights against
the states?
If one agrees with Professor Tribe that the Amendment is simply
a federalist protection of state rights, then presumably there is
nothing to incorporate.80 If, however, one accepts the Amendment as a
serious substantive limitation on the ability of the national
government to regulate the private possession of arms based on either
the "individualist" or the "new-republican" theories sketched above,
then why not follow the "incorporationist" logic applied to other
amendments a nd limit the states as well in their powers to regulate
(and especially to prohibit) such possession? The Supreme Court has
almost shamelessly refused to discuss the issue,81 but that need not
stop the rest of us.
Returning, though, to the question of Congress' power to
regulate the keeping and bearing of arms, one notes that there is,
basically, only one modern case that discusses the issue, United States
v. Miller,82 decided in 1939 . Jack Miller was charged with moving a
sawed-off shotgun in interstate commerce in violation of the National
Firearms Act of 1934. Among other things, Miller and a compatriot had
not registered the firearm, as required by the Act. The court below had
dismissed the charge, accepting Miller's argument that the Act
violated the Second Amendment.
The Supreme Court reversed unanimously, with the arch-
conservative Justice McReynolds writing the opinion.83 Interestingly
enough, he emphasized that there was no evidence showing that a sawed-
off shotgun "at this time has some reasonable relationship to the
preservation or efficiency of a well regulated militia."84 And
"[c]ertainly it is not within judicial notice that this weapon is any
part of the ordinary military equipment or that its use could
contribute t o the common defense."85 Miller might have had a tenable
argument had he been able to show that he was keeping or bearing a
weapon that clearly had a potential military use.86
Justice McReynolds went on to describe the purpose of the
Second Amendment as "assur[ing] the constitution and render[ing]
possible the effectiveness of [the militia].87 He contrasted the
Militia with troops of a standing army, which the Constitution indeed
forbade the states to keep without the explicit consent of Congress.
The sentiment of the time strongly disfavored standing armies; the
common view was that adequate defense of country and laws could be
secured through the Militia -- civilians primarily, soldiers on
occasion."88 McReynolds noted further that "the debates in the
Convention, the history and legislation of Colonies and States, and the
writings of approved commentators [all] [s]how plainly enough that the
Militia comprised all males physically capable of acting in concert for
the common defense."89
It is difficult to read Miller as rendering the Second
Amendment meaningless as a control on Congress. Ironically,
MIller can be read to support some of the most extreme anti-gun control
arguments, e.g., that the individual citizen has a right to keep and
bear bazookas, rocket launchers, and other armaments that are clearly
relevant to modern warfare, including, of course, assault weapons.
Arguments about the constitutional legitimacy of a prohibition by
Congress of private ownership of handguns or, what is much more likely,
assault rifles, might turn on the usefulness of such guns in military
settings.
E. Prudentialism
WE have looked at four of Bobbitt's categories -- text,
history, structure, and case law doctrine -- and have seen, at the very
least, that the arguments on behalf of a "strong" Second Amendment are
stronger than many of us might wish were the case. This, then, brings
us up to the fifth category, prudentialism, or an attentiveness to the
practical consequences, which is clearly of great importance in any
debate about gun control. The standard argument in favor of strict
control and, ultimately, prohibition of private ownership focuses on
the extensive social costs of widespread distribution of firearms.
Consider, for example, a recent speech given by former Justice Lewis
Powell to the American Bar Association.He noted that over 40, 000
murders were committed in the United States in 1986 and 1987, and that
fully sixty percent of them were committed with firearms.90 Justice
Powell indicated that "[w]ith respect to handguns," in contrast "to
sporting rifles and shotguns [,] it is not easy to understand why the
Second Amendment, or the notation of liberty, should be viewed as
creating a right to own and carry a weapon that contributes so directly
to the shocking number of murders in our society."91
It is hard to disagree with Justice Powell; it appears almost
crazy to protect as a constitutional right something that so clearly
results in extraordinary social cost with little, if any, compensating
social advantage. Indeed, since Justice Powell's talk, the subject of
assault rifles has become a staple of national discussion, and the
opponents of regulation of such weapons have deservedly drawn the
censure of even conservative leaders like William Bennett. It is almost
impossible to imagine that the judiciary would strike down a
determination by Congress that the possession of assault weapons should
be denied to private citizens.
Even if one accepts the historical plausibility of the
arguments advanced above, the overriding temptation is to say that
times and circumstances have changed and that there is simply no reason
to continue enforcing an outmoded, and indeed, dangerous, understanding
of private rights against public order. This criticism is clearest in
regard to the so-called individualist argument, for one can argue that
the rise of a professional police force to enforce the law has made
irrelevant, and perhaps even counter-productive, the continuation of a
strong notion of self-help as the remedy for crime.92
I am not unsympathetic to such arguments. It is no purpose of
this essay to solicit membership for the National Rifle Association or
to express any sympathy for what even Don Kates, a strong critic of the
conventional dismissal of the Second Amendment, describes as "the gun
lobby's obnoxious habit of assailing all forms of regulation on 2nd
Amendment grounds."93 And yet...
Circumstances may well have changed in regard to individual
defense, although we ignore at our political peril the good faith
belief of many Americans that they cannot rely on the police for
protection against a variety of criminals. Still, let us assume that
the individualist reading of the Amendment has been vitiated by
changing circumstances. Are we quite so confident that circumstances
are equally different in regard to the republican rationale outlined
earlier?
One would, of course, like to believe that the state, whether
at the local or national level, presents no threat to important
political values, including liberty. But our propensity to believe that
this is the case may be little more than a sign of how truly different
we are from our radical forbearers. I do not want to argue that the
state is necessarily tyrannical; I am not an anarchist. But it seems
foolhardy to assume that the armed state will necessarily be
benevolent. The American political tradition is, for good or ill, based
in large measure on a healthy mistrust of the state. The development of
widespread suffrage and greater majoritarianism in our polity is itself
no sure protection, at least within republican theory. The republican
theory is predicated on the stark contrast between mere democracy,
where people are motivated by selfish personal interest, and a
republic, where civic virtue, both in common citizen and leadership,
tames selfishness on behalf of the common good. In any event, it is
hard for me to see how one can argue that circumstances have so changed
us as to make mass disarmament constitutionally
unproblematic.94
Indeed, only in recent months have we seen the brutal
suppression of the Chinese student demonstrations in Tiananmen Square.
It should not surprise us that some NRA sympathizers have presented
that situation as an abject lesson to those who unthinkingly support
the prohibition of private gun ownership. "[I]f all Chinese citizens
kept arms, their rulers would hardly have dared to massacre the
demonstrators... The private keeping of hand-held personal firearms is
within the constitutional design for a counter to government run
amok... As the Tianamen Square tragedy showed so graphically, AK 47's
fall into that category of weapons, and that is why they are protected
by the Second Amendment."95 It is simply silly to respond that small
arms are irrelevant against nuclear armed states; Witness contemporary
Northern Ireland and the territories occupied by Israel, where the
sophisticated weaponry of Great Britain and Israel have proved almost
totally beside the point. The fact that these may not be pleasant
examples does not affect the principal point, that a state facing a
totally disarmed population is in a far better position, for good or
ill, to suppress popular demonstrations and uprisings than one that
must calculate the possibilities of its soldiers and officials being
injured or killed.96
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
liberal rights.98 Yet one finds that the tables are strikingly turned
when the Second Amendment comes into play. Here it is "conservatives"
who argue in effect that social costs are irrelevant and "liberals" who
argue for a notion of the "living Constitution" and "changed
circumstances" that would have the practical consequence of removing
any real bite from the Second Amendment.
As Fred Donaldson of Austin, Texas wrote, commenting on those
who defended the Supreme Court's decision upholding flag-burning as
compelled by a proper (and decidedly non-prudential) understanding of
the First Amendment, "[I]t seems inconsistent for [defenders of the
decision] to scream so loudly" at the prospect of limiting the
protection given expression "while you smile complacently at the Second
torn and bleeding. If the Second Amendment is not worth the paper it is
written on, what price the First?"99 The fact that Mr. Donaldson is
an ordinary citizen rather than an eminent law professor does not make
his question any less pointed or its answer less difficult.
For too long, most members of the legal academy have treated
the Second Amendment as the equivalent of an embarrassing relative,
whose mention brings a quick change of subject to other, more
respectable, family members. That will no longer do. It is time for
the Second Amendment to enter full scale into the consciousness of the
legal academy. Those of us who agree with Martha Minow's emphasis on
the desirability of encouraging different "voices" in the legal
conversation100 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?
FOOTNOTES
1. It is not irrelevant that the Bill of Rights submitted to the
states in 1789 included not only what are now the first ten Amendments,
but also two others, Indeed, what we call the First Amendment was only
the third one of the list submitted to the states. The initial "first
amendment" in fact concerned the future size of the House of
Representatives, a topic of no small importance to the Anti-
Federalists, who were appalled by the smallness of the House seemingly
envisioned by the Philadelphia farmers. The second prohibited any pay
raise voted by the members of Congress to themselves from taking effect
until an election "shall have intervened." See J. Goebel, 1 The Oliver
Wendell Holmes Devise History Of the Supreme Court OF the United
States: antecedents and beginnings to 1801, at 442n.162 (1971). Had all
of the initial twelve proposals been ratified, we would, it is
possible, have a dramatically different cognitive map of the Bill of
Rights. At the very least, one would neither hear defenses of the
"preferred status" of freedom of speech framed in terms of the
"firstness" of some special intention of the Framers to safeguard the
particular rights laid out there.
2. "Congress shall make no law respecting an establishment of
religion...or abridging the freedom of speech, or of the press; or of
the right of the people to peaceably to assemble, and to petition the
Government for a redress of grievances." U.S. Const. Amend. I
3. "The right of the people to be secured in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated; and no Warrants shall issue but upon
probable cause, supported by Oath or affirmation, a nd particularly
describing the place to be searched, and the persons or things to be
seized." U.S. Const. Amend. IV.
4. "No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment of indictment of a Grand Jury,
except in cases arising in the land or naval forces, or in the
Militia, when in actual services in the time of War or public danger;
nor shall any person be subject for the same offense to be twice put
in jeopardy of life and limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be deprived of life,
liberty, or property, without due process of law..." U.S. Const.
Amend. V
5. "In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the State
and district wherein the crime shall have been committed, which
district shall have previously ascertained by la w, and to be informed
of the nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the Assistance of Counsel for his
defense." U.S. Const. Amend. VI.
6. "Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted." U.S. Const.
Amend. VIII.
7. "The enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by the people."
U.S. Const. Amend.IX.
8. "[N]or shall private property be taken for public use, without
just compensation." U.S. Const. Amend. V.
9. "The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people." U.S. Const. Amend. X.
10. "Congress shall make no law...prohibiting the free exercise thereof
[religion]..." U.S. Const. Amend. I.
11. See supra note 8.
12. See supra note 9.
13. There are several law review articles discussing the Amendment.
See, e.g. Lund, infra note 96, and the articles cited in Dowlut &
Knoop, State Constitutions and the Right to Keep and Bear Arms, 7 Okla.
U.L. Rev. 177, 178 n.3 (1982). See also the valuable symposium on Gun
Control, edited by Don Kates, in 49 Law & Contemp. Probs. 1-267 (1986),
including articles by Shallhope, The Armed Citizen in the Early
Republic, at 125; Kates, The Second Amendment: A Dialogue, at 143;
Halbrook, What the Framers Intended: A Linguistic Analysis of the Right
to "Bear Arms," at 151. The symposium also includes a valuable
bibliography of the published materials on gun control, including
Second Amendment considerations, at 251-67. The most important single
article is almost undoubtedly Kates, Handgun Prohibition and the
Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204 (1983).
Not the least significant aspect of Kates' article is that it is
basically the only one to have appeared in an "elite" law review.
However, like many of the authors of other Second Amendment pieces,
Kates is a practicing lawyer rather than a legal academic. I think it
is accurate to say that no one recognized by the legal academy as a
"major" writer on constitutional law has deigned to turn his or her
talents to a full consideration of the Amendment. But see Larue,
Constitutional Law and Constitutional History, 36 Buffalo L.Rev. 373,
375-78 (1988)(briefly discussing Second Amendment). Akhil Reed Amar's
reconsiderations of the foundations of the Constitution also promises
to delve more deeply into the implications of the Amendment. See Amar,
Of Sovereignty and Federalism, 96 Yale L.J. 1425, 1495-1500 (1987).
Finally, there is one book that provides more in depth treatment of the
Second Amendment: S. Halbrook, That Every Man Be Armed, The Evolution
of a Constitutional Right (1984). George Fletcher, in his study of the
Bernard Goetz case, also suggests that Second Amendment analysis not
frivolous, though he does not elaborate the point. G. Fletcher, A Crime
of Self-Defense 156-58, 210-11 (1988). One might well find this overt
reference to "elite" law reviews and "major" writers objectionable, but
it is foolish to believe that these distinctions do not exist within
the academy, or more importantly, that we cannot learn about the
sociology of academic discourse through taking them into account. No
one can plausibly believe that the debates that define particular
periods of academic discourse are a simple reflection of "natural"
interest in the topic. Nothing helps an issue so much as its being
taken up as an obsession by a distinguished professor from, say Harvard
or Yale.
14. One will search the "leading" casebooks in vain for any mention of
the Second Amendment. Other than its being included in the text of the
Constitution that all of the casebooks reprint, a reader would have no
reason to believe that the Amendment exists or could possibly be of
interest to the constitutional analyst. I must include, alas, P. Brest
and S. Levinson, Processes of Constitutional Decisionmaking (2d ed.
1983), within this critique, though I have every reason to believe that
this will not be true of the forthcoming third edition.
15. Larue, supra note 13, at 375.
16. L. Tribe, American Constitutional Law (2d ed. 1988).
17. J. Nowak, R. Rotunda,& J. Young, Constitutional Law (3d ed. 19860.
18. For a brilliant and playful meditation on the way the legal world
treats footnotes and other marginal phenomena, see Balking,
The Footnote, 83 Nw. U. L. Rev. 275, 276-81 (1989).
19. Tribe, supra note 16 at 299 n6.
20. Id.; see also J. Ely, Democracy and Distrust 95 (1980) ("[T]he
framers and ratifiers...opted against leaving to the future the
attribution of [other] purposes, choosing instead explicitly to
legislate the goal in terms of which the provision was to be
interpreted.") As shall be seen below, see infra text accompanying note
38, the preamble may be less plain in its meaning than Tribe's (and
Ely's) confident argument suggests.
21. J. Nowak, R. Rotunda & J. Young supra note 17, at 316n.4. They do
go on to cite a spate of articles by scholars who have debated the
issue.
22. Id, at 316 n. 4.
23. U.S. Const. art. I Sec. 10
24. U.S. Const. art. I sec. 9, cl. 8.
25. See, e.g., Legislative Reference Serv., Library of Congress, the
Constitution of the United States of America; Analysis and
Interpretation 923 (1964), which quotes the Amendment and then a
comment from Miller, The Constitution 646 (1 893): "This amendment
seems to have been thought necessary. It does not appear to have been
the subject of judicial exposition; and it is so thoroughly with our
ideas, that further comment is unnecessary." Cf. Engblom v. Carey, 724
F.2d 2 8 (2d Cir. 1983), affg 572 F. Supp. 44 (S.D.N.Y. 1983).
Engblom grew out of a "statewide strike of correction officers, when
they were evicted from their facility-residence...and members of the
National Guard were housed in their residences without their consent."
The district court had initially granted summary judgment for the
defendants in a suit brought by the officers claiming a deprivation of
their right under the Third Amendment. The Second Circuit, however,
reversed on the ground that it could not "say that as a matter of law
appellants were not entitled to the protection of the Third Amendment,"
Engblom v. Carey, 677 F.2d 957, 964 (2d Cir. 1982). The District Court
on remand held that, as the Third Amendment rights had not been clearly
established at the time of the strike, the defendants were protected by
a qualified immunity, and it is this opinion that was upheld by the
Second Circuit. I am grateful to Mark Tushnet for bringing this case to
my attention.
26. See, e.g. The Firearms the Second Amendment Protects, N.Y. Times,
June 9, 1988, at A22, col 2 (three letters); Second Amendment and Gun
Control, L.A. Times, March 11, 1989, Part II, at 9 col 1. 1 (nine
letters) ; What 'Right to Bear Arms'?, N.Y. Times, July 20, 1989, at
A23, col 1(national ed.)(op. ed. essay by Daniel Abrams); see also We
Rebelled to Protect Our Gun Rights, Washington Times, July 20, 1989, at
F2 col. 4.
27. Fee Subcommittee on the Constitution of the Comm. on the Judiciary,
the Right to Keep and Bear Arms, 97th Cong., 2d Sess. viii
(1982)(preface by Senator Orrin Hatch)[thereinafter The Right to
Keep and Bear Arms].
28. See supra notes 13-14.
29. See Levinson, Constitutional Rhetoric and the Ninth Amendment, 64
Chi-Kent L.Rev. 131 (1988).
30. P. Bobbit, Constitutional Fate (1982).
31. Id. at 25-38.
32. Id. at 9-24.
33. Id. at 75-92.
34. Id. at 39-58
35. Id. at 59-73.
36. Id. at 93-119.
37. For the record, I should note that Bobbitt disagrees with this
statement, making an eloquent appeal (in conversation) on behalf of
the classic American value of self-reliance for the defense of oneself
and, perhaps more importantly, one's family. I certainly do not doubt
the possibility of constructing an "ethical" rationale for limiting
the state's power to prohibit gun ownership. Nonetheless, I would
claim that no one unpersuaded by any of the arguments derived from the
first five models would suddenly change his or her mind upon being
presented with an "ethical" argument.
38. Cf., e.g. the patents and copyrights clause, which sets out the
power of Congress "[t]o promote the progress of Science and useful
Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries." U.S.
Const. art. I Sec. 8.
39.For examples of this, see F. Schauer, Freedom of Speech: A
Philosophical Enquiry (1982); Levinson, First Amendment, Freedom of
Speech, Freedom of Expression: Does it Matter What We Call It? 80 Nw.
U.L.Rev. 767 (1985)(reviewing M. Redish, Freedom of Expression: A
Critical Analysis (1984)).
40. ACLU Policy #47. I am grateful to Joan Mahoney, a member of the
national board of the ACLU, for providing me with a text of the
ACLU's current policy on gun control.
41. Cress, An Armed Community: The Origins and Meaning of the Right to
Bear Arms, 71 J. Am. Hist. 22, 31 (1984).
42. See U.S. Const. Amend. X.
43. For a full articulation of the individualist view of the Second
Amendment, see Kates Handgun Prohibition and the Original Meaning of
the Second Amendment, 82 Mich. L. Rev. 204(1983). One can also find an
efficient presentation of this view in Lund, infra note 96, at 117.
44. Shallhope, The Ideological Origins of the Second
Amendment, 69 J. Am. Hist. 599 (1982).
45. Id. at 614.
46. See Daniel Boorstin's laconic comment that "the requirements for
self-defense and food-gathering had put firearms in the hands of nearly
everyone" in colonial America. D. Boorstin -- the Colonial Experience
353 (1958). The beginnings of a professional police force in Boston are
traced in R. Lane, Policing the City: Boston 1822-1855 (1967). Lane
argues that as of the earlier of his two dates, "all the major eastern
cities...had several kinds of officials serving various police
functions, all of them haphazardly inherited from the British and
colonial past. These agents were gradually drawn into better defined
and more coherent organizations." Id. at 1. However, as Oscar Handlin
points out in his introduction to the book, "to bring into being a
professional police force was to create precisely the kind of hireling
body considered dangerous by conventional political theory," Id. at
vii.
47. See Cress, supra note 41.
48. 3 J. Elliott, Debates in the General State Conventions 425 (3d ed.
1937)(statement of George Mason, June 14, 1788), reprinted in
Kates, supra note 13, at 261 n. 51.
49. Letters from the Federal Farmer to the Republican 123 (W. Bennett
e.1978)(ascribed to Richard Henry Lee), reprinted in Kates, supra
note 13 at 261 n. 51.
50. Michelman, The Supreme Court 1985 Term -- Forward: Traces of Self
Government, 100 Harvard L. Rev. 4, 39 (1986)(Harrington is "pivotal
figure in the history of the 'Atlantic' branch of republicanism
that would find its way to America").
51. Shallhope, supra note 44, at 602.
52. Edmund Morgan discusses Harrington in his recent book, Inventing
the People 85-87 (1988)(analyzing notion of popular sovereignty in
American thought).
53. Id. at 156.
54. Id. at 157. Morgan argues incidentally, that the armed yeomanry was
neither effective as a fighting force nor particularly protective of
popular liberty, but that is another matter. For our purposes, the
ideological perceptions are surely more important the "reality"
accompanying them. Id. at 160-65.
55. Blasi, The Checking Value in First Amendment Theory, 1977 A. B.
Found. Res. J. 521.
56. See Lund, infra note 96, at 111-116.
57. Shallhope, supra note 44, at 603 (quoting 1755 edition of
Cato's Letters). Shallhope also quotes from James Burgh, another
English writer well known to American revolutionaries: "The possession
of arms is the distinction between a freeman and a slave. He, who has
nothing, and who himself belongs to another, must be defended by him
whose property he is, and needs no arms. But he, who thinks he is his
own master, and has what he can call his own, ought to have arms to
defend himself, and what he possesses; else he lives precariously; and
at discretion." Id at 604. To be sure, Burgh also wrote that only men
of property should in fact comprise the militia: "A militia consisting
of any others than the men of property in a country, is no militia; but
a mungrel army." Cress, supra note 41, at 27 (emphasis in
original)(quoting J. Burgh, 2 Political Disquisitions: or An Enquiry
Into Public Errors, Defects, and Abuses (1774-75)). Presumably,
though, the widespread distribution o f property would bring with it
equally widespread access to arms and membership in the militia.
58. See Cress, supra note 41, at 34.
59. The Federalist No. 46 at 299 (J. Madison)(C. Rossiter ed. 1961).
60. Letters from the Federal Farmer to the Republican 124 (W. Bennett
ed. 1978).
61. 3 J. Story, Commentaries Sec. 1890 (1833) quoted in 5 The Founders'
Constitution 214 (P. Kurland & R. Lerner eds. 1987).
62. Id.
63. Id. Lawrence Cress, despite his forceful of Shallhope's
individualists rendering of the Second Amendment, nonetheless himself
notes "[t]he danger posed by manipulating demagogues, ambitious rulers,
and foreign invaders to free institutions required the vigilance of
citizen-soldiers cognizant of the common good." Cress, supra note 41,
at 41 (emphasis added).
64. T. Cooley, The General Principles of Constitutional Law in The
United States of America 298 (3d ed. 1898): "The Right of the People to
bear arms in their own defense, and to form and drill military
organizations in defense of the State, may not b e very important in
this country, but it is significant as having been reserved by the
people as a possible and necessary resort for the protection of self-
government against usurpation, and against any attempt on the part of
those who may for the time be in possession of State authority or
resources to set aside the constitution and substitute their own rule
for that of the people. Should the contingency ever arise when it would
be necessary for the people to make use of the arms in their hands for
the protection of constitutional liberty, the proceeding, so far from
being revolutionary, would be in strict accord with popular right and
duty. Cooley advanced this same idea in The Abnegation of Self-
Government, 12 Princeton Rev. 213-14 (1883).
65. See Rabban, The First Amendment in Its Forgotten Years, 90 Yale
L.J. 514, 560 (1981) ("[P]rodigious theoretical writings of Theodore
Schroeder...were the most extensive and libertarian treatments of
freedom of speech in the prewar period"); see also Graber, Transforming
Free Speech (forthcoming 1990)(manuscript at 4-12; on file with
author).
66. T. Schroder, Free Speech for Radicals 104 (reprint ed. 1969).
67. Shalhope, supra note 44, at 45.
68. See M. Weber, The Theory of Social and Economic Organization 156
(T. Parsons ed. 1947), where he lists among "[t]he primary formal
characteristics of the modem state" the fact that: "to-day, the use of
force is regarded as legitimate only so far as it is either permitted
by the state or prescribed by it... The claim of the modern state to
monopolize the use of force is as essential to it as its character of
compulsory jurisdiction and continuous organization."
69. See, e.g., Symposium: The Republican Civil Tradition, 97 Yale L.J.
1493-1723 (1988).
70. See D. Malone, 4 Jefferson and His Times: Jefferson the President:
First Term, 1801-1805, AT 7-11 (1970)(republican leaders ready to use
state militias to resist should lame duck Congress attempt to violate
clear dictates of Article II by designating someone other than Thomas
Jefferson as President in 1801).
71. Scott v. Sanford 60 U.S. (19 How.) 393,417 (1857).
72. See, e.g., Featherstone, Gardiner & Dowlut, The Second Amendment to
the United States Constitution Guarantees and Individual Right to
Keep and Bear Arms, supra note 27, at 100.
73. See, e.g..., Halbrook, The Fourteenth Amendment and the Right to
Keep and Bear Arms: The Intent of the Framers, in The Right to Keep and
Bear Arms, supra note 27, at 79. Not the least of the ironies observed
in the debate about the Second Amendment is that NRA conservatives like
Senator Hatch could scarcely have been happy with the wholesale attack
leveled by former Attorney General Meese on the incorporation doctrine,
for here is one area where some "conservatives" may in fact be more
zealous adherents of that doctrine than are most liberals, who, at
least where the Second Amendment is concerned, have a considerably more
selective view of incorporation.
74. 83 U.S. 36 (1873).
75. 32 U.S. (7 Pet.)243 (1833).
76. 92 U.S. 542, 553 (1875).
77. 116 U.S. 252, 267 (1886). For a fascinating discussion of
Presser, see Larue, supra note 13, at 386-90.
78. 116 U.S. at 253. There is good reason to believe that this statute,
passed by the Illinois legislature in 1879, was part of an effort to
control (and indeed, suppress) widespread labor unrest linked to the
economic troubles of the time. For the background of the Illinois
statute, see P. Avrich, The Haymarket Tragedy 45 (1984): "As early as
1875, a small group of Chicago socialists, most of them German
immigrants, had formed an armed club to protect the workers against
police and military assaults, as well as against physical intimidation
at the polls. In the eyes of its supporters...the need for such a group
was amply demonstrated by the behavior of the police and [state-
controlled] militia during the Great Strike of 1877, a national protest
by labor triggered by a ten percent cut in wages by the Baltimore and
Ohio Railroad, which included the breaking up of workers' meetings, the
arrest of socialist leaders, [and] the use of club, pistol and bayonet
against strikers and their supporters...Workers...were resolved never
again to be shot and beaten without resistance. Nor would the stand
idly by while their meeting places were invaded or their wives and
children assaulted. The were determined , as Albert Parsons [a leader
of the anarchist movement in Chicago] expressed it, to defend both
'their persons and their rights.'"
79. 166 U.S. 226 (1897) (protecting rights of property owners by
requiring compensation for takings of property).
80. My colleague Douglas Laycock has reminded me that a similar
argument was made by some conservatives in regard to the establishment
clause of the First Amendment. Thus, Justice Brennan noted that "[i]t
has been suggested, with some support in history, that absorption of
the First Amendment's ban against congressional legislation 'respecting
an establishment of religion' is conceptually impossible because the
Framers meant the Establishment Clause also to foreclose any attempt by
Congress to disestablish the official state churches." Abington School
District v. Schempp, 374 U.S. 203, 254 (1963) (Brennan, J., concurring)
(emphasis added). According to this reading, it would be illogical to
apply the establishment clause against the states "because that clause
is not one of the provisions of the Bill of Rights which in terms
protects a 'freedom' of the individual," id. at 256, inasmuch as it is
only a federalist protection of states against a national establishment
(or disestablishment). "The fallacy in this contention," responds
Brennan, "is that it underestimates the role of the Establishment
Clause as a co-guarantor, with the Free Exercise Clause, of religious
liberty." Id. Whatever the sometimes bitter debates about the precise
meaning of "establishment," it is surely the case that Justice Brennan,
even as he almost cheerfully concedes that at one point in our history
the "states-right" reading of the establishment clause would have been
thoroughly plausible, expresses what has become the generally accepted
view as to the establishment clause being some kind of limitation on
the state as well as on the national government. One may wonder whether
the interpretive history of the establishment clause might have any
lessons for the interpretation of the Second Amendment.
81. It refused, for example, to review the most important modern gun
control case, Quilici v. Village of Morton Grove, 695 F. 2d 261 (7th
Cir. 1982), cert. denied, 464 U.S. 863 (1983), where the Seventh
Circuit Court of Appeal s upheld a local ordinance in Morton Grove,
Illinois, prohibiting the possession of handguns within its borders.
82. 307 U.S. 174 (1939.
83. Justice Douglas, however, did not participate in the case.
84. Miller, 307 U.S. at 178.
85. Id. at 178 (citation omitted).
86. Lund notes that "commentators have since demonstrated that sawed-
off or short barrelled shotguns are commonly used as military
weapons." Lund, infra note 96, at 109.
87. 307 U.S. at 178.
88. Id. at 179.
89. Id.
90. L. Powell, Capital Punishment, Remarks Delivered to the Criminal
Justice Section, ABA 10 (Aug 7, 1988).
91. Id. at 11.
92. This point is presumably demonstrated by the increasing public
opposition of police officials to private possession of handguns
(not to mention assault rifles).
93. D. Kates, Minimalist Interpretation of the Second Amendment 2
(draft Sept. 29, 1986) (unpublished manuscript available from
author).
94. See Lund, supra note 96, at 116.
95. Wimmershoff-Caplan, The Founders and the AK-47,
Washington Post, July 6, 1989, at A18, col. 4, reprinted as Price of
Gun Deaths Small Compared to Price of Liberty, Austin-American
Statesman, July 11, 1989, at A11. Ms. Wimmershoff-Caplan is identified
as a "lawyer in New York" who is "a member of the National Board of the
National Rifle Association." Id. One of the first such arguments in
regard to the events in Tianamen Square was made by William A. Black in
a letter, Citizens Without Guns, N.Y. Times, June 18, 1989, at D26,
col. 6. Though describing himself as "find[ing] no glory in guns [and]
a profound anti-hunter," he nonetheless "stand[s] with those who would
protect our right to keep and bear arms" and cited for support the fact
that "none [of the Chinese soldiers] feared bullets: the citizens of
China were long ago disarmed by the Communists." "Who knows," he asks,
"what the leaders and the military and the police of our America will
be up to at some point in the future? We need an armed citizenry to
protect our liberty." As one might expect, such arguments draw heated
responses. See Rudlin, The Founders and the AK-47 (Cont'd) Washington
Post, July 20, 1989 at A22, col 3. Jonathan Rudlin accused Ms.
Wimmershoff-Caplan of engaging in Swiftian satire, as no one could
"take such a brilliant burlesque seriously." Neal Knox, however,
endorsed her essay in full, adding the Holocaust to the list of
examples: "Could the Holocaust have occurred if Europe's Jews had owned
thousands of then-modern military Mauser bolt action rifles?" See also,
Washington Post, July 12, 1989, at A22, for other letters.
96. See Lund, The Second Amendment, Political Liberty, and the Right
to Self-Preservation, 39 Ala. L. Rev. 103 (1987) at 115: "The decision
to use military force is not determined solely by whether the
contemplated benefits can be successfully obtained through the use of
available forces, but rather determined by the ratio of those benefits
to the expected costs. It follows that any factor increasing the
anticipated cost of a military operation makes the conduct of that
operation incrementally more unlikely. This explained why a relatively
poorly armed nation with a small population recently prevailed in a war
against the United States, and it explains why governments bent on the
oppression of their people almost always disarm the civilian population
before undertaking more drastically oppressive measures." I should note
that I wrote (and titled) this article before reading Lund's article,
which begins, "The Second Amendment to the United States Constitution h
as become the most embarrassing provision of the Bill of Rights." I did
hear Lund deliver a talk on the Second Amendment at the University of
Texas Law School during the winter of 1987, which may have penetrated
my consciousness more than I realized while drafting this article.
97. See D. Kates, supra note 93, at 24-25 n. 13, for a discussion of
this point.
98. See, e.g., Justice Marshall's dissent, joined by Justice Brennan,
in Skinner v. Railway Labor Executive Association, 109 S. Ct. 1402,
(1989) upholding the government's right to require drug tests of
railroad employees following accidents. It begins with his chastising
the majority for "ignor[ing] the text and doctrinal history of the
Fourth Amendment, which require that highly intrusive searches of this
type be based on probable cause, not on the evanescent cost-benefit
calculations of agencies or judges," id. at 1423, and continues by
arguing that "[t]he majority's concern with the railroad safety
problems caused by drug and alcohol abuse is laudable; its cavalier
disregard for the Constitution is not. There is no drug exception to
the Constitution, any more than there is a communism exception or an
exception for other real or imagined sources of domestic unrest." Id.
at 1426.
99. Donaldson, Letter to Editor, Austin America-Statesman, July 8,
1989, at A19, col. 4.
100. See Minow, The Supreme Court 1986 Term -- Foreword: Justice
Engendered 101 Harv. L. Rev. 1074-90 (1987). "We need settings in
which to engage in the clash of realities that breaks us out of settled
and complacent meanings and create s opportunities for insight and
growth." Id. at 95; see also Getman, Voices, 66 Tex. L. Rev. 577
(1988).
101. And, perhaps more to the point, "you" who insufficiently listen to
"us" and to "our" favored groups.
102. See supra note and accompanying text.
Transcribed by
Chris Crobaugh
30460 Otten Rd.
N. Ridgeville, Ohio 44039
(216) 327-6655
Lorain County Firearms Defense Association
Ohio Constitution Defense Council
--
[bb 063] at [Cleveland.Freenet.Edu] Chris Crobaugh - (216) 327-6655 (V)
"Those who would sacrifice essential liberties for a little
temporary safety deserve neither liberty nor safety." B. Franklin
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Larry Cipriani [lawrence v cipriani] at [att.com] or attmail!lcipriani