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 what whatsoever (although it did, for obvious
reasons, have importance at the time of the founding). It has never, for a
single instant, been viewed by any body of modern lawyers or groups of laity as
highly relevant to their legal or political concerns. For this reason, there is
almost no case law on the Amendment.25 I suspect that few among even the highly
sophisticated readers of the Journal can summon up the Amendment without the aid
of the text.
The Second Amendment, though, is radically different from these other pieces
of constitutional text just mentioned, which all share the attribute of being
basically irrelevant to any ongoing political struggles. To grasp the
difference, one might simply begin by noting that it is not at all unusual for
the Second Amendment to show up in letters to the editors of newspapers and
magazines.26 That judges and academic lawyers, including the ones that write
casebooks, ignore it is most certainly not evidence for the proposition that no
one else cares about it. The National Rifle Association, to name the most
obvious example, cares deeply about the Amendment, and an apparently serious
Senator of the United States averred that the right to keep and bear arms is the
'right most valued by free men.'27 Campaigns for Congress in both political
parties, and even presidential campaigns, may turn on the apparent commitment of
the candidates to a particular view of the Second Amendment. This reality of the
political process reflects the fact that millions of Americans, even if (or
perhaps especially if) they are not academics, can quote the Amendment and would
disdain any presentation of the Bill of Rights that did not give it a place of
pride.
I cannot help but suspect that the best explanation for the absence of the
Second Amendment from the legal consciousness of the elite bar, including that
component found in the legal academy, 28 is derived from a mixture of sheer
opposition to the idea of private ownership of guns and the perhaps subconscious
fear that altogether plausible, perhaps even 'winning,' interpretations of the
Second Amendment would present real hurdles to those of us supporting
prohibitory regulation. Thus the title of this essay --The Embarrassing Second
Amendment -- for I want to suggest that the Amendment may be profoundly
embarrassing to many who both support such regulation and view themselves as
committed to zealous adherence to the Bill of Rights (such as most members of
the ACLU). Indeed, one sometimes discovers members of the NRA who are equally
committed members of the ACLU, differing with the latter only on the issue of
the Second Amendment but otherwise genuinely sharing the libertarian viewpoint
of the ACLU.
It is not my style to offer 'correct' or 'incorrect' interpretations of the
Constitution.29 My major interest is in delineating the rhetorical structures of
American constitutional argument and elaborating what is sometimes called the
'politics of interpretation,' that is, the factors that explain why one or
another approach will appeal to certain analysts at certain times, while other
analysts, or times, will favor quite different approaches. Thus my general
tendency to regard as wholly untenable any approach to the Constitution that
describes itself as obviously correct and condemns its opposition as simply
wrong holds for the Second Amendment as well. In some contexts, this would lead
me to label as tendentious the certainty of NRA advocates that the Amendment
means precisely what they assert it does. In this particular context--i.e., the
pages of a journal whose audience is much more likely to be drawn from an elite,
liberal portion of the public--I will instead be suggesting that the skepticism
should run in the other direction, That is, we might consider the possibility
that 'our' views of the Amendment, perhaps best reflected in Professor Tribe's
offhand treatment of it, might themselves be equally deserving of the
'tendentious' label.
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:
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' 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 and 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 cliché of contemporary
American historiography to link the development of American political thought,
including its constitutional aspects, to republican thought in England, the
'country' critique of the powerful 'court' centered in London.
One of the school's most important writers, of course, was James Harrington,
who not only was in influential at the time but also has recently been given a
certain pride of place by one of the most prominent of contemporary
'neo-republicans,' Professor Frank Michelman.50 One historian describes
Harrington as having made 'the most significant contribution to English
libertarian attitudes toward arms, the individual, and society.'51 He was a
central figure in the development of the ideas of popular sovereignty and
republicanism.52 For Harrington, preservation of republican liberty requires
independence, which rests primarily on possession of adequate property to make
men free from coercion by employers or landlords. But widespread ownership of
land is not sufficient. These independent yeoman would also bear arms. As
Professor Morgan puts it, '[T]hese independent yeoman, armed and embodied in a
militia, are also a popular government's best protection against its enemies,
whether they be aggressive foreign monarchs or scheming demagogues within the
nation itself.'53
A central fear of Harrington and of all future republicans was a standing
army, composed of professional soldiers. Harrington and his fellow republicans
viewed a standing army as a threat to freedom, to be avoided at all almost all
costs. Thus, says Morgan, 'A militia is the only safe form of military power
that a popular government can employ; and because it is composed of the armed
yeomanry, it will prevail over the mercenary professionals who man the armies of
neighboring monarchs.'54
Scholars of the First Amendment have made us aware of the importance of John
Trenchard and Thomas Gordon, whose Cato's Letters were central to the formation
of the American notion of freedom of the press. That notion includes what
Vincent Blasi would come to call the 'checking value' of a free press, which
stands as a sturdy exposer of governmental misdeeds.55 Consider the possibility,
though, that the unlimited 'checking value' in a republican polity is the
ability of an armed populace, presumptively motivated by a shared commitment to
the common good, to resist governmental tyranny.56 Indeed, one of Cato's letters
refers to 'the Exercise of despotick Power [as] the unrelenting War of an armed
Tyrant upon his unarmed subjects...'57
Cress persuasively shows that no one defended universal possession of arms.
New Hampshire had no objection to disarming those who 'are or have been in
actual rebellion,' just as Samuel Adams stressed that only 'peaceable citizens'
should be protected in their right of 'keeping their own arms.'58 All these
points can be conceded, however, without conceding as well that Congress -- or,
for that matter, the States, -- had the power to disarm these 'peaceable
citizens.'
Surely one of the foundations of American political thought of the period was
the well-justified concern about political corruption and consequent
governmental tyranny. Even the Federalists, fending off their opponents who
accused them of foisting an oppressive new scheme upon the American people, were
careful to acknowledge the risk of tyranny. James Madison, for example, speaks
in Federalist Number Forty- Six of 'the advantage of being armed, which the
Americans possess over the people of almost every other nation.'59 The advantage
in question was not merely the defense of American borders; a standing army
might well accomplish that. Rather, an armed public was advantageous in
protecting political liberty. It is therefore no surprise that the Federal
Farmer, the nom de plume of an anti-federalist critic of the new Constitution
and its absence of a Bill of Rights, could write that 'to preserve liberty, it
is essential that the whole body of the people always posses s arms, and be
taught alike, especially when young, how to use them...'60 On this matter, at
least, there was no cleavage between the pro-ratification Madison and his
opponent.
In his influential Commentaries on the Constitution, Joseph Story, certainly
no friend of Anti-Federalism, emphasized the 'importance' of the Second
Amendment.61 He went on to describe the militia as the 'natural defence of a
free country' not only 'against sudden foreign invasions' and 'domestic
insurrections,' with which one might well expect a Federalist to be concerned,
but also against 'domestic usurpations of power by rulers.'62 'The right of the
citizens to keep and bear arms has justly been considered,' Story wrote, 'as the
palladium of the liberties of a republic; since it offers a strong moral check
against the usurpation and arbitrary power by rulers; and will generally, even
if these are successful in the first instance, enable the people to resist and
triumph over them.'63
We also see this blending of individualist and collective accounts of the
right to bear arms in remarks by Judge Thomas Cooley, one of the most
influential 19th century constitutional commentators. Noting that the state
might call into its official militia only 'a small number' of the eligible
citizenry, Cooley wrote that 'if the right [to keep and bear arms] were limited
to those enrolled, the purpose of this guaranty might be defeated altogether by
the action or neglect to act of the government it was meant to hold in check.'64
Finally, it is worth noting the remarks of Theodore Schroeder, one of the most
important developers of the theory of freedom of speech early in this century.65
'[T]he obvious import [of the constitutional guarantee to carry arms],' he
argues, 'is to promote a state of preparedness for self-defense even against the
invasions of government, because only governments have ever disarmed any
considerable class of people as a means toward their enslavement.'66
Such analyses provide the basis for Edward Abbey's revision of a common
bumper sticker, 'If guns are outlawed, only the government will have guns.'67
One of the things this slogan has helped me to understand is the political tilt
contained within the Weberian definition of the state -- i.e., the repository of
a monopoly of the legitimate means of violence 68 -- that is so commonly used by
political scientists. It is a profoundly statist definition, the product of a
specifically German tradition of the (strong) state rather than of a strikingly
different American political tradition that is fundamentally mistrustful of
state power and vigilant about maintaining ultimate power, including the power
of arms, in the populace.
We thus see what I think is one of the most interesting points in regard to
the new historiography of the Second Amendment -- its linkage to conceptions of
republican political order. Contemporary admirers of republican theory use it as
a source of both critiques of more individualist liberal theory and of positive
insight into the way we today might reorder our political lives.69 One point of
emphasis for neo-republicans is the value of participation in government, as
contrasted to mere representation by a distant leadership, even if formally
elected. But the implications of republicanism might push us in unexpected, even
embarrassing, directions; just as ordinary citizens should participate actively
in governmental decision-making, through offering their own deliberative
insights, rather than be confined to casting ballots once every two or four
years for those very few individuals who will actually make the decisions, so
should ordinary citizens participate in the process of law enforcement and
defense of liberty rather than rely on professionalized peacekeepers, whether we
call them standing armies or police.
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 and limit the states as well in their powers to regulate (and
especially to prohibit) such possession? The Supreme Court has almost
shamelessly refused to discuss the issue, 81 but that need not stop the rest of
us.
Returning, though, to the question of Congress' power to regulate the keeping
and bearing of arms, one notes that there is, basically, only one modern case
that discusses the issue, United States v. Miller,82 decided in 1939. Jack
Miller was charged with moving a sawed-off shotgun in interstate commerce in
violation of the National Firearms Act of 1934. Among other things, Miller and a
compatriot had not registered the firearm, as required by the Act. The court
below ha d dismissed the charge, accepting Miller's argument that the Act
violated the Second Amendment.
The Supreme Court reversed unanimously, with the arch- conservative Justice
McReynolds writing the opinion. 83 Interestingly enough, he emphasized that
there was no evidence showing that a sawed- off shotgun 'at this time has some
reasonable relationship to the preservation or efficiency of a well regulated
militia. '84 And '[c]ertainly it is not within judicial notice that this weapon
is any part of the ordinary military equipment or that its use could contribute
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 d o. 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?
Transcribed by:
Chris Crobaugh
30460 Otten Rd.
N. Ridgeville, Ohio 44039
(216) 327-6655
Lorain County Firearms Defense Association
Ohio Constitution Defense Council.
SOMEWHAT edited, for errors in English only, by MEG {SSRsi}
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