Robert J. Spitzer is Distinguished Service Professor of Political Science at the State University of New York, College at Cortland.
Jul 11 2002
Editor's Note: Copyright © 2000 The Second Amendment in Law and History: Historians and Constitutional Scholars on the Right to Bear Arms. Ed. Carl T. Bogus. Reprinted by permission of The New Press.
This excerpt from The Second Amendment in Law and
History: Historians and Constitutional Scholars on the Right to Bear Arms is
the fourth in a series, called "Trigger Issue," taken from New Press
books on guns in America. Click
here for the first excerpt, click
here for the second excerpt, and click
here for the third excerpt, each from Making a Killing: The
Business of Handguns in America. Future excerpts will also come from Every
Handgun is Aimed at You. To order these and other books, visit The
New Press, a non-profit publishing house in the public interest.
Few parts of the Constitution are so often invoked, yet so misunderstood, as the Second Amendment. Polemic aside, the meaning of the Second Amendment is relatively clear. As the text itself says, "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." Supreme Court Chief Justice Warren Burger wrote that the Second Amendment "must be read as though the word 'because' was the opening word," as in "[Because] a well regulated Militia [is] necessary to the security of a free State."
As debate concerning the Second Amendment preceding and during the First Congress made clear, the amendment was added to allay the concerns of anti-Federalists and others who feared that state sovereignty, and more specifically the ability of states to meet military emergencies on their own, would be impinged or neglected by the new federal government, which had been given vast new powers, particularly and alarmingly over the use of military force.
In other words, the inclusion of the Second Amendment embodied the Federalist assurance that the state miltias would be allowed to continue as a viable military and political supplement to the national army at a time when military tensions within and between the states ran high, suspicions of a national standing army ran even higher, and military takeovers were the norm in world affairs. Debate concerning what became the Second Amendment during the First Congress dealt with the narrow military questions of the need to maintain civilian government control over the military; the military unreliability of militias as compared with professional armies; possible threats to liberties from armies versus militias; and whether to codify the right of conscientious objectors to opt out of military service (an early version of the amendment included such language).
As four Supreme Court cases and more than 20 lower federal court rulings have made clear, the Second Amendment pertains only to citizen service in a government-organized and regulated militia (remembering that militiamen were expected to bring their own firearms), the regulation of which specifically appertains to Congress in Article I, section 8. The abysmal performance of civilian (also referred to as unorganized or general) militias in the War of 1812 essentially ended the government's use of such forces to meet military emergencies. Millett and Maslowski noted that "After the War Of 1812 military planners realized that no matter how often politicians glorified citizen soldiers ... reliance on the common militia to reinforce the regular Army was chimerical." As Ehnnan and Henigan observed, the "history of the state militias between 1800 and the 1870s is one of total abandonment, disorganization, and degeneration." Instead, the government came to rely on professional military forces that were expanded in times of emergency by the military draft. The select or volunteer militias used in the Civil War (which also date to colonial times) were institutionalized and brought under federal military authority as the National Guard early in the twentieth century.
The Second Amendment provides no protection for personal weapons use, including hunting, sporting, collecting, or even personal self-protection.
Further, even if the Second Amendment did pertain to personal weapons ownership or use outside of militia service, the court has refused to incorporate it via the Fourteenth Amendment, unlike most of the rest of the Bill of Rights, thereby limiting its relevance only to federal action. In any case, the Second Amendment provides no protection for personal weapons use, including hunting, sporting, collecting, or even personal self-protection (this latter is covered under criminal law and the common law tradition).
Despite the definitive nature of constitutional reading, historical lessons, and court rulings, some legal writers, publishing primarily in law journals, have sought to spin out other interpretations of the Second Amendment. These authors have succeeded via these journals in finding legitimacy for a variety of erroneous and even nonsensical arguments concerning the meaning of the Second Amendment. Arguments advanced in these publications have, in turn, seeped into the public press. When this happens, it may easily magnify what might otherwise be a minor distortion.
To take one example, an article in The Wall Street Journal reported late in 1999 that one of the key factors leading to new academic interest in the Second Amendment was "a recently unearthed series of clues to the Framers' intentions." Two examples are cited in the article. One is an allegedly recently discovered "early draft" of the Second Amendment authored by James Madison, where "he made 'The right of the people' the first clause [of the Second Amendment] ... " The second is a letter written by Thomas Jefferson to an English scholar, named John Cartwright, in which "Jefferson wrote that 'the constitutions of most of our states assert, that all power is inherent in the people; ... that it is their right and duty to be at all times armed." No citations or attributions are provided in the article as to who made these "discoveries" or who claimed that they are new or significant.
In fact, despite the article's claim to the contrary, neither of these quotes is "recently unearthed" nor are they "clues" to the meaning of the Second Amendment. The first of these quotes has been known to scholars of the Constitution for decades, as it was part of Madison's original Bill of Rights resolution, offered in the House of Representatives on June 7, 1789, and has been a part of publicly available congressional records from that day to this. It has also been cited in past writings on the Second Amendment and the Bill of Rights. It is thus no new discovery, nor does it alter what is already known about the Second Amendment.
The Jefferson letter to Cartwright was reprinted in The Writings of Thomas Jefferson, published in 1904. Leaving aside the facts that Jefferson did not attend the Constitutional Convention of 1787, was not a member of the First Congress, and penned the letter in question in 1824, the full quotation from which the brief excerpt above was drawn makes clear what Jefferson was writing about.
The constitutions of most of our States assert, that all power is inherent in the people; that they may exercise it by themselves, in all cases to which they think themselves competent (as in electing functionaries executive and legislative, and deciding by a jury of themselves, in all judiciary cases in which any fact is involved,) or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed; that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of the press.
Jefferson was referring to state constitutions, and offering a seat-of-the-pants listing of Bill of Rights freedoms, therefore including the reference to being armed as a right and duty (remembering that federal and state laws then required men of militia age to be so armed for militia service). Nothing Jefferson said in this letter amounts to a new contribution to the understanding of the Second Amendment, nor does it contradict existing meaning. Yet a reader of The Wall Street Journal might reasonably conclude that these so-called new clues to the Second Amendment are both, when in fact they are neither. Liberal, Liberal, Liberal
Two particular claims have surfaced with increasing regularity in the media pertaining to new interpretations of the Second Amendment in what is generally described as the "individualist" view. One is the claim, offered with considerable rhetorical flourish, that the individualist view has been embraced recently by liberals. Thus, for example, The New York Times noted with much ballyhoo that "the influential liberal constitutional law expert" Laurence Tribe now believed that the Second Amendment might protect an individual right to own firearms. Columnist William Safire also noted that some liberals seemed to be shifting positions on the issue, an observation made as well by newspaper columnist Walter Shapiro and writer Daniel Lazare. A recent headline in The Wall Street Journal summed up this alleged tidal shift in liberal thought this way: "Liberals Have Second Thoughts On the Second Amendment."
The effort to assert that the individualist view (as well as generalized opposition to gun control) is not limited to political conservatives is not a new phenomenon, as it has percolated up from the arguments of several legal and academic writers who oppose stronger gun laws. But the personal ideological leanings of those who write on the Second Amendment offer no insight into the debate itself.
This recent debate over whether some liberals have now agreed upon the individualist view is a red herring, precisely because the focus on ideological pedigree becomes a substitute for a substantive debate of the actual merits of the individualist claims. Indeed, the merits of the claims concerning the meaning of the Second Amendment are not even raised in most of the press articles just cited.
If the debate over this, or any, legal or public policy issue comes to be about the ideological pedigree of those on each side rather than about the facts of the case, then the facts of the case become irrelevant. As a political tactic, there may be some gain in trying to legitimate an argument by extolling the people who hold it, or by noting that the position is held by people of multiple ideological stripes (assuming, of course, that one can accept such claims at face value). Such claims are, at best, an irrelevant distraction to determining what the Second Amendment actually means; at worst, they represent a shoddy effort to offer legitimacy to an argument that cannot stand well purely on its merits. "We Win"
The second rhetorical device raised in recent media accounts -- one that also percolates up from academic writings -- is the unilateral declaration that the individualist view represents a new academic consensus. So, for example, Lazare asserts that the debate over the Second Amendment is simply at an end: "The amendment does confer an individual right to bear arms...." Historian Joyce Lee Malcolm is quoted as saying that "[i]t is very hard ... to find a historian who now believes that it is only a collective right ... [t]here is no one for me to argue against anymore." USA Today reports that "Most constitutional scholars agree with" the individualist view.
While one of the purposes of this article is to examine the extent to which this claim is actually grounded in the academic literature, this unilateralist claim is, on its face, roughly akin to a participant in a contest who suddenly stops competing, declares victory, and leaves, in the hope that the declaration may become the fact. Media acceptance of this claim to victory for the individualist view belies the fact that this debate continues. This claim also draws attention away from the facts of the case. It is to those facts that we now turn. The Individualist Critique
The central critique of the collective or court view of the Second Amendment is that this amendment conferred an "individual" right to bear arms, aside or apart from any government-based militia activity. That is, some argue that the ownership of firearms is a constitutionally based protection that applies to all individuals, without any attachment to militias or the government, just as free speech and the right to counsel apply to all individuals. Although many variations of the individualist critique have been spun out, the core argument is usually supported by plucking key phrases from court cases and colonial or federal debate that refer to a right of Americans to own and carry guns.
This line of analysis has three problems. First, as a matter of constitutional law, the issue of the bearing of arms as it pertains to the Constitution and the Bill of Rights always comes back to service in a government-organized and regulated military unit and the balance of power between the states and the federal government, as reflected in the two most important historical sources: the records of the constitutional convention and those of the First Congress when the Bill of Rights was formulated. Gun ownership was undeniably an important component of colonial and early federal life, but practical necessity did and does not equal constitutional protection.
Moreover, as historian Michael Bellesiles has found, actual firearms ownership in America has been greatly exaggerated and mythologized. He reports that, from colonial times to 1850, gun ownership never exceeded 10 percent of the population, owing in large measure to the scarcity of guns, which were difficult and expensive to produce, and the considerable difficulty involved in maintaining in working condition those that existed. Even though state and federal laws required men of militia age to keep and maintain firearms, these laws were simply not followed or enforced.
"Universal" citizen militia service and the right to bear arms has never been a right enjoyed by all citizens, unlike other Bill of Rights protections.
Second, the definition of the citizen militias at the center of this debate has always been limited to men roughly between the ages of 18 and 45. That is, it has always excluded a majority of the country's adult citizens -- men over age 45, the infirm of all ages, and women (who of course did not enjoy political rights comparable to men's until the twentieth century). Even among those males who were eligible to serve, actual service in the militias was significantly less than universal. As historian John Shy notes, the composition and organization of American militias fluctuated according to military necessity of place and time, underscoring the fact that a militia's raison d'être was collective defense or internal security, and not individual protection (while understanding that individuals might, and surely did, obtain protection through militia action) or other private purposes. Moreover, those who actually served "were not the men who bore a military obligation as part of their freedom." That is, freedmen and property owners could and would opt out of militia service while vagrants, vagabonds, and the unemployed more often filled the ranks.
Even African Americans served in early militias, as in the case of the Yamasee War, waged in South Carolina from 1715-16, when a militia force of 600 white men and 400 black men defeated a force of Native Americans. By the 1730s, escalating fears of slave revolts ended the practice. Therefore, "universal" citizen militia service and the right to bear arms is not, and never has been, a right enjoyed by all citizens, unlike other Bill of Rights protections such as free speech, religious freedom, or right to counsel. This also puts to rest the idea that the phrase "the people" in the Second Amendment somehow means all of the people.
The third problem with the individualist argument is that the matter of personal or individual self-defense, whether from wild animals or modem-day predators, does not fall within, nor is it dependent on, the Second Amendment rubric. Nothing in the history, construction, or interpretation of the amendment applies or infers such a protection. Rather, legal protection for personal self-defense arises from the British common law tradition and modern criminal law, not from constitutional law. The "Right of Revolution"
Some take the individualist view even further by arguing that the Second Amendment does or should protect the ownership of arms for everyone because of an innate "right of revolution," or as a mechanism to keep the country's rulers responsive to the citizens. While this theory, whether emphasizing revolutionary overthrow of a regime or an "insurrectionist" use of violence to change personnel within a regime, poses interesting intellectual questions about natural law and the relationship between citizens and the state, it does not find support anywhere in the text, background, or court interpretation of the Second Amendment.
The Constitution clearly and forcefully disdains anything resembling a right of revolution, as it gives Congress the powers "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions" in Article I, section 8; to suspend habeas corpus "in Cases of Rebellion or Invasion" in section 9; and to protect individual states "against domestic Violence" if requested to do so by a state legislature or governor in Article IV, section 4. Further, the Constitution defines treason in Article III, section 3, this way: "Treason against the United States, shall consist only in levying War against them [the United States was originally referred to in the plural], or in adhering to their Enemies." Finally, those suspected of treason may not avoid prosecution by fleeing to another state; the Constitution states in Article IV, section 2, that "A Person charged in any State with Treason ... and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up." In other words, the Constitution specifically and explicitly gives the government the power to forcefully suppress anything even vaguely resembling revolution. Such revolt or revolution is by constitutional definition an act of treason against the United States. The militias are thus to be used to suppress, not cause, revolution or insurrection.
These powers were further detailed and expanded in the Calling Forth Act Of 1792, which gave the president broad powers to use state militias to enforce both state and federal laws in instances where the law is ignored or in cases of open insurrection. This act was passed by the Second Congress shortly after the passage of the Bill of Rights. In current law, these powers are further elaborated in the U.S. Code sections on "Insurrection." As Roscoe Pound noted, a "legal right of the citizen to wage war on the government is something that cannot be admitted.... In the urban industrial society of today a general right to bear efficient arms so as to be enabled to resist oppression by the government would mean that gangs could exercise an extra-legal rule which would defeat the whole Bill of Rights." Donald Beschle observed: "History and logic do not permit one to take the right of armed revolution as a serious proposition of positive constitutional law. Only the legal revolutions provided by the political process are recognized by the Constitution."
One cannot carry out a right of revolution against a government while at the same time claiming protections within it.
Cornell elaborates on the relationship between the American revolution and subsequent American governance by noting that "Americans did accept a right of revolution. Such a right, however, was not a constitutional check, but a natural right that one could not exercise under a functional constitutional government." Any so-called right of insurrection or revolution is carried out against the government, which means against that government's constitution as well, including, in the United States, the Bill of Rights and the Second Amendment. One cannot carry out a right of revolution against a government while at the same time claiming protections within it.
One of the most startling qualities of the individualist law-review literature is the rapidity and enthusiasm with which some teachers of law embrace the virtues of armed American insurrection. Sanford Levinson, for example, states in a widely cited article published in the Yale Law Journal that "It is not my style to offer 'correct' or 'incorrect' interpretations of the Constitution." Yet he then proceeds to do just that, calling into question the conventional (court) understanding of the Second Amendment. In the process, he asserts that the Second Amendment is an expression of republicanism that does and should take citizen participation beyond peaceful, constitutional means:
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 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 [emphasis added].
In short, Levinson offers as a bona fide constitutional argument the proposition that vigilantism and citizen violence, including armed insurrection, against the government are legal, proper, and even beneficial activities within the Second Amendment umbrella. The idea that vigilantism and armed insurrection are as constitutionally sanctioned as voting is a proposition of such absurdity that one is struck more by its boldness than by its pretensions to seriousness. Yet it appears repeatedly in the individualist literature.
Finally, in none of this writing is there any substantive consideration of what real revolution entails. Groups and individuals in modern America who most closely adhere to a violence-based revolutionary ethos -- for instance, the Silver Shirts, the Branch Davidians, the Ku Klux Klan, Lee Harvey Oswald, rioters in Los Angeles -- win no admirers from the Second Amendment writers discussed here. As Carl Bogus aptly observes, "Timothy McVeigh understands insurrectionist theory." Academics who toy with any serious notions about revolutions would be well advised to consult the voluminous scholarly literature on the subject found in political science and related fields, which details and underscores the extent to which violence (especially including, but not limited to, the murder of top governmental leaders), societal dislocation, and disruption of a nation's economic, social, and political fabric make revolution or armed insurrection anything but a simple, reasoned, desirable, or commensurate alternative to peaceful methods of societal change. The great truism of the American political system has been precisely its ability to effect political change through nonviolent, routinized, and orderly means.