The Dormant Second Amendment?A review of
The Militia and the Right to Arms, or,
How the Second Amendment Fell Silent by H. Richard Uviller and William G. Merkel
By Daniel C. Palm
Posted February 8, 2005
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.
The Second AmendmentOpposition to privately owned arms is one of the hallmarks of modern American liberalism, but the standard arguments against gun ownership are in serious disarray. In The Militia and the Right to Arms or, How the Second Amendment Fell Silent, Columbia University law professor H. Richard Uviller and William G. Merkel, an Oxford doctoral candidate in history, set out to rehabilitate them, despite the authors' professed indifference to gun control. Their core argument is that the Second Amendment cannot be read apart from the concept of the militia, and whatever any supporter of an individual right to keep and bear arms may say about it, the militia concept as understood at the founding is "history."
As the authors acknowledge, they are committing original intent on the Second Amendmentthough one wonders whether they do so in all areas of constitutional interpretation. If they are correct, ironically, they will have proved the individual-rights crowd to be unwitting advocates for a living constitution. In any case, their book represents the most rigorous and systematic attempt to deconstruct the Second Amendment yet, and should be welcomed to the fray, because this particular theatre of the culture war has at times seemed one-sided of late.
Consider that in 1995, liberals woke up to find that the individual rights view of firearms ownershipsupported by a steadily growing body of legal scholarshipwas now known as "the standard model" in academic and legal journals. Then came the ill-fated publication in 2000 of historian Michael Bellesiles's Arming America: The Origins of a National Gun Culture. That bookcontending that firearms ownership was rare in early Americawas judged "unprofessional and misleading" by a panel of American historians, a pronouncement that came inconveniently after the book had been awarded Columbia University's prestigious Bancroft Prize.
Alongside this, practical arguments have favored private firearms ownership, reflected in a clear move in state capitols toward allowing law-abiding citizens to apply for a concealed carry permit (with no increase in crime rates or accidental shootings to show for it). The multiple lawsuits directed against gun manufacturers have been repeatedly thrown out of court, followed last September by a Center for Disease Control report finding no clear evidence that firearms laws are effective in reducing deaths and injury. And culturally speaking, in post-9/11 America, guns are definitely back in style: the Harvard Law School Target Shooting Club now boasts 140 members.
Looming in the background, two federal Second Amendment cases have been decided with contrary results. Emerson v. U.S., which the authors include in their discussion, was decided in October 2001 by the Fifth Circuit, with dicta favoring the individual rights interpretation. Another case, Silveira v. Lockyer, decided in December 2002 by the Ninth Circuit, favors the collective rights view. With polar opposite positions having been staked out at the Circuit Court level, it is not impossible that the U.S. Supreme Court in the next few years will find occasion to address the question.
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Uviller and Merkel believe they can pull the constitutional rug out from under gun owners by making a right to keep and bear arms conditional on the militia. Focusing on English history and the American colonial era, they argue that militias were always understood as collective bodies, and the arms held by individuals were always understood to be in the service of the political community. The language of the Second Amendment at its ratification, they write, was "clearly intended (according to the overwhelming weight of evidence, contextually read and understood) to convey a militia-dependent right." The question in our time is, "what happened to the right to arms when the militia, on which that right depended, went out of business." That right, they conclude "closed up shop as well."
But what of "the people"? Does it make sense that the Amendment's framers would use the word so differently, in one amendment referring to individuals and in the next to a collective body? The authors' more strained explanation here is that it was only by political accident that the collective right to arms was included alongside the legitimate individual rights that grew out of natural rights theory at the American founding. The right to arms was "too wedded to the ancient, mixed, and balanced Constitution, too steeped in English political history to make an easy transition into a universal 'rights' framework. It did not readily lend itself to Locke's rational and enlightened discourse about the nature of man and the entitlements appurtenant thereto
. The right to arms differs from its now individualistic companions also because it never escaped its heritage as a corporate entitlement belonging to individuals only because they were members of a group."
Happily stealing thunder from their opponents, Uviller and Merkel bolster their case with quotations from the early republic, demonstrating that the right to arms was often clearly linked to an organized militia. For example, Justice Joseph Story's oft-cited gloss on the Second Amendment that, "The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic . . ." is followed later by Story's lament that "among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations."
The question of the militia and a standing army figures prominently at several points in the Federalist, and the authors attend to its appearance there, taking note especially of Hamilton and Madison's differing views about the danger of a standing army, and the militia's utility in countering it. Hamiltonlike Washington a pronounced skeptic of the militia after the Revolutionargues that, "The steady operations of war against a regular and disciplined army can only be successfully conducted by a force of the same kind." Madison, appears more confident about militias, arguing that Americans need not fear a federal army because even if that army should become a threat, "the state governments with the people on their side would be able to repel the danger
[forming]a militia amounting to near half a million of citizens with arms in their hands."
It is possible to read this latter quotation, as the authors do, to mean "arms" provided by state governments in organized and regularly mustered militias. It is more difficult to do so with the sentences that follow, which the authors neglect, namely, Madison's reference to "the advantage of being armed, which the Americans possess over the people of almost every other nation," and the contrast with "the several kingdoms of Europe [in which] the governments are afraid to trust the people with arms."
If the founding era is replete, as the authors claim, with references to arms wielded by organized militia, there is also ample support for individual ownership, indeed the manufacture, of small arms. Thomas Paine, for example, in a 1775 tract directed to religious pacifists wrote, "The supposed quietude of a good man allures the ruffian; while on the other hand, arms like laws discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property. The balance of power is the scale of peace. The same balance would be preserved were all the world destitute of arms, for all would be alike; but since some will not, others dare not lay them aside. . . . Horrid mischief would ensue were one half the world deprived of the use of them; for while avarice and ambition have a place in the heart of man, the weak will become prey to the strong." Similarly, Federalist Noah Webster's 1787 gloss on the Constitution: "Before a standing army or a tyrannical government can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular (or professional) troops that can be, on any pretense, raised in the United States." If these are references to arms borne by militias the connection isn't clear.
Moreover, while their subject is indeed the Constitution's Second Amendment, and they give extensive attention to the Bill of Rights's ratification debates, surely their argument also requires attention to the right to arms guaranteed in several state constitutions. Mentioned only in passing is Pennsylvania's state constitutional provision of 1776 guaranteeing "That the people have a right to bear arms for the defence of themselves and the state." But identical or similar language appears in the constitutions of Vermont (1777), Kentucky (1792), Ohio (1802), Indiana (1816), Mississippi (1817), Connecticut (1818), Alabama (1819), Missouri (1820), and Michigan (1835).
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Besides, isn't their discussion respecting the militia as a means of national defense a bit limiting? Might not the militia in the founding era have had some other function beyond national defense? After all Justice Story, that "the right of the citizens to keep and bear arms . . . offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist, and triumph over them." Is it not possible that the framers understood an implied personal right to arms as a means for the people to defend against tyranny?
Indeed, an individual right to arms makes perfect sense if the Second Amendment is read in light of the Declaration. Individuals are endowed with certain unalienable rights, and government's task is simply "to secure these rights." But government, like any human institution, might become corrupt, failing in its duty to secure rights: When "any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it." If faced with "absolute despotism"surely to be distinguished from poor policies or misinformed leadership"it is their right, it is their duty to throw off such government" and institute "new Guards" to secure their rights. If rights belong to the people, and government exists to secure those rights, privately held arms logically stand as the people's final means to protect their liberties, and the means for restoring rightful government. In fact, privately owned arms stand as a deterrent to the imposition of tyranny in the first place.
But this the authors are quite unwilling to admit. In a section devoted to Sanford Levinson's 1991 essay, "The Embarrassing Second Amendment," Uviller and Merkel briefly entertain what they label "insurrectionist" theory with respect to the militia, but only provided the right class of people carry out the insurrection. The Earl of Shaftesbury, Locke, Sidney, Adams, Franklin, and Jefferson were justified in their acts of rebellion because they were "the most educated and forward looking public servants of their times. They spoke for substantial bodies of thoughtful, public-spirited people committed to the rule of law
." By contrast, they write, "today's bigoted, gun-hoarding insurrectionists' claim to have better title to determine policy . . . cannot be justified by implausible analogy to historical principles long since forsaken." We are also assured by the authors that the American Constitution was so perfectly built as to have made impossible any form of tyranny. "The moment of Lockean reversion to first principles need never, and (from the perspective of constitutional legitimacy) can never, come."
For Uviller and Merkel, then, it's impermissible to read the Second Amendment in the light of the Declarationits light is abruptly switched off with ratification of the Constitution. And despite their protestations that despotism can never happen here, gun owners are consistent with the Declaration in saying, "Thanks all the same, but I'll be keeping my firearms just in case." Nor do the authors persuasively engage the case of those petty despotscriminalswhom privately owned firearms "keep in awe" every day.
If in the end it doesn't persuade, this book turns out to be an interesting example of what happens when historians use original intent in the service of a progressive objective like gun control. But for most Americans the utility of that exercise will be lost. A right to arms wholly limited to organized militias makes no more theoretical or practical sense now than it would have two centuries ago.
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