By: Jack N. Rakove
ALTHOUGH no case involving the Second Amendment has reached the Supreme Court since Hitler invaded Poland, its twenty-seven words are now among the most familiar passages of the Constitution. “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 familiarity of this text is, perhaps perversely, a function of the fact that the justices, in their wisdom or discretion, have not revisited their holding in the strange case of United States v. Miller, in which two gangsters unsuccessfully invoked the Second Amendment in order to avoid prosecution for illegal possession of a sawed-off shotgun.1 Those Americans who now believe that ongoing efforts to regulate firearms in the interest of public health mask an insidious design to confiscate private weapons in the pursuit of future tyranny are eager to see the Miller decision reviewed and reversed. That belief underlies the work of such legal writers as Randy Barnett, Stephen Halbrook, Don Kates, Nelson Lund, and Glenn Harlan Reynolds. If the issue were to be reopened, they all argue, historical evidence would demonstrate that the adopters of the Second Amendment, as well as many early commentators, believed that “the people” of the main clause of the amendment meant all individuals or persons and that the “militia” of the preamble similarly identified the entire adult, free, male population, rather than a select group of citizens formally enrolled in units organized and regulated by state and federal law.2 | 1 |
The controversy over the interpretation of the Second Amendment is distinctive in several respects. First, the amendment is one of only two provisions of the Constitution that contains its own preamble, and this raises a question of the extent to which this statement of purpose should guide the interpretation of the substantive declaration of the final clause.3 Second, it would be difficult to identify any clause of the Constitution more open to the common sense objection that its modern interpretation should not be rooted in the concept of “original intent” or “original understanding,” simply because firearms are now far more devastating than anyone in the eighteenth century could have plausibly imagined. Yet scholarly discussions of the amendment invariably take a pronounced originalist form.4 Third, the polemical tone of Second Amendment studies seems unlike any other realm of constitutional discourse–including even abortion. Where else does one encounter the self-congratulatory claim that one school has so dominated the field that it can justify calling itself the “Standard Model”?5 | 2 |
The furor over Michael Bellesiles’s Arming America: The Origins of a National Gun Culture bears out the last point. Some significant chunk of the reaction the book has sparked must reflect its perceived implications for the interpretation of the Amendment and the ongoing debate over firearms regulation. It thus comes as something of a surprise to realize that Bellesiles devotes only a few pages (208–18) to exploring the general context for the adoption of the amendment–and these arguably more workmanlike and summative than sparkling and deeply analytical. Only half of the relevant section, headed “The Constitution and Guns,” addresses the constitutional debates of 1787–1789, while the drafting of the amendment proper consumes a half-paragraph of two sentences. Bellesiles never tackles such vexed subjects as the significance of the Senate’s decision to delete the key qualifying phrase “composed of the body of the people” that followed the mention of “militia” in the House version of the amendment or whether the usage of the word “people” in the Constitution is always tantamount to the aggregate of all individuals.6 | 3 |
Why, then, should Arming America be perceived as having potent implications for the Second Amendment debate? Its implicit relevance lies in understanding the challenge that Bellesiles poses by adopting what might best be called a “behavioral approach” to the actual role of firearms and the militia in American society. The Second Amendment controversy has been primarily a debate about the meaning of words, the political and legislative history of the amendment, including comparable provisions in other contemporaneous documents, and the content and legacy of political ideology. By focusing on behavior–the ownership of firearms, their use in daily life, and perhaps most important in this context, the function and operations of the militia–Bellesiles casts the constitutional debate in a new light. What difference would it make to our understanding of the Second Amendment if we found that ownership was far less widespread than previously assumed, that firearms had little value for either self-protection or the slaughter of succulent mammals, and that the militia was typically a moribund joke in time of peace and of little military value in time of war? | 4 |
One answer is that all these findings, if corroborated, would still be irrelevant to the task of constitutional interpretation. As the well-known constitutional scholar Sanford Levinson observed in his own provocative contribution to the debate, “the ideological perceptions” of the right to bear arms “are surely more important than the ‘reality’ accompanying them.”7 In this view, it is the structure of belief, as articulated in legislative and public debate, that gives meaning to law. If the adopters of the amendment believed that an arms-bearing populace, whether embodied in an institutional militia or simply existing as the latent force of the community, was essential to liberty, it would not matter that their weapons were highly inaccurate and difficult to maintain, as Bellesiles alleges, or that training days were occasions for revelry and displays of military ineptitude, as he and other historians have long asserted. | 5 |
I am partial to the implications of Bellesiles’s behaviorism, however, because it parallels my own approach to resolving puzzles about the original meaning of ambiguous provisions of the Constitution. As I have argued elsewhere, when one has to look beyond the immediate evidence of contemporaneous debates, there are two sets of “contextual sources” to be examined: intellectual legacies, by which I mean the received wisdom of prior authorities, and what I like to call “lessons of experience,” or inferences and attitudes that participants might have drawn and derived from their own involvement in events.8 By far the more familiar (and easier) mode of analysis involves looking at received wisdom, a method that typically requires tracing the influence that such authorities as Hobbes, Locke, Montesquieu, Blackstone, or Trenchard and Gordon exerted on the American revolutionaries and constitutionalists of the 1770s and 1780s. By contrast, to interpolate how that generation thought about particular issues on the basis of experience involves immersing oneself in the same concerns and disputes about public policy that they respectively shared or in which they joined. That is a more laborious task, and not one to which interlopers in particular quests of this nature are likely to cotton. | 6 |
Notwithstanding the scant interest Bellesiles shows in the actual drafting of the Second Amendment, his account bears directly on its interpretation in just this way. The key point is not the one that has attracted the greatest criticism: the evidence about the extent of gun ownership based on probate records and other sources. Two other points loom larger. First, Bellesiles goes to some lengths to explain why firearms were unwieldy to use, inaccurate, difficult to maintain, and of little practical value in daily life. Even if a substantial portion or even majority of households possessed guns, genuine questions about their use would still remain. Not the least of these questions would be whether ordinary citizens had the skill to use firearms effectively. Doubts on this score would in turn support the second respect in which Arming America sheds light on the meaning of the Second Amendment. However hallowed a place the image of a citizens’ militia occupied in American political ideology, Bellesiles argues, prosaic reality never corroborated normative expectations. In peace, the militia quickly atrophied (if it had any vigor at all); in war, its shortcomings became embarrassingly evident. | 7 |
Why does this matter? Because one striking gap in the individual right interpretation of the Second Amendment is its silent avoidance of two key topics: the experience of the militia during the Revolutionary War and the discussion of the militia clauses at the Federal Convention of 1787. The reasons for this omission are hardly surprising (from a rhetorical, if not a scholarly point of view). In the decade after 1776, the crucible of experience led those most likely to be Federalists to be openly skeptical of the received wisdom about the militia. The image of a citizen militia as a “bulwark” of liberty retained a modicum of ideological allure, but not enough to offset the realization that an effective militia was one that would have to be organized, armed, and disciplined from the top down. That also entailed abandoning the illusion that it was practical or desirable to treat the whole free adult male population as a reservoir of manpower. That might remain true in the abstract–in the sense that every citizen should have an obligation to serve if called–but it did not offer a sensible way to prepare the militia for whatever real external and internal dangers it faced.9 If the states were left responsible for maintaining the militia, Federalists believed, they would not provide the resources required to maintain readiness. And these resources extended to the provision of firearms. It comes as something of a revelation to a modern reader to realize that when the ratifiers of the Constitution occasionally contemplated how the militia might be disarmed, they did not envision jack-booted federal thugs confiscating weapons from hardy householders, but rather worried that the federal government would decline to provide either the states or the militia with the weapons they would not obtain on their own.10 That concern, which was expressed by such leading Anti-Federalists as Patrick Henry and George Mason, is exactly what Bellesiles makes plausible. | 8 |
The deeper normative question here extends to the problem of originalism itself: that is, to the theory of constitutional interpretation that places priority on fidelity to the original meanings, intentions, and understandings of 1787–1791. From a strictly jurisprudential point of view, one might well argue, as Levinson implies, that evidence of behavior can be deemed irrelevant to the interpretation of a text. The aspiration to preserve a citizen militia that the Second Amendment clearly expressed could outweigh the mundane evidence of how far short of that ideal Americans had already slipped. Indeed, if the aspiration could be conclusively explained as a response to that very problem, its authority would presumably be all the greater. | 9 |
But originalism rests on the theory that later generations remain legally beholden to the collective decisions of a prior generation: their understandings trump our preferences. That theory is problematic enough on democratic grounds, for reasons Thomas Jefferson well identified (even if he did not resolve) when he reflected on the right of one generation to bind another. It becomes all the more troubling when subjected to two further tests. One involves the set of methodological problems in recovering original intent that I have explored in other writings. That approach, applied to the specific problem of ascertaining the best rendition of the original meaning of the Second Amendment, produces conclusions consistent with Michael Bellesiles’s description of both the use of firearms and the saga of the militia. But the behaviorist approach adopted by Bellesiles poses a second challenge, distinct though not unrelated. If the ideology of an armed citizenry and the bulwark of the militia were more honored in the breach than in the observance during the era surrounding the adoption of the Second Amendment, what obligation to defer to the presumed aspirations of that generation should those of us walking the earth in these latter days still feel? | 10 |
Jack Rakove is Coe Professor of History and American Studies and Professor of Political Science at Stanford University. Notes1 U. S. v. Miller, 307 U.S. 174 (1939).2 Many of the leading articles supporting the individual right interpretation of the Second Amendment can be found in Robert J. Cottrol, ed., Gun Control and the Constitution: Sources and Explorations on the Second Amendment (New York, 1994). The contrary view, known in the trade as the “collective right interpretation,” holds that the Second Amendment essentially affirms only the right of states to maintain their militia, not an individual’s right to possess firearms free from the regulatory restrictions of both state and national governments. A group of scholars favoring the latter viewpoint recently published their findings in a “Symposium on the Second Amendment: Fresh Looks,” Chicago-Kent Law Review, 76, No. 1 (2000), reprinted with some revisions in Carl T. Bogus, ed., The Second Amendment in Law and History: Historians and Constitutional Scholars on the Right to Bear Arms (New York, 2001).3 The other is the copyright and patent clause of Article I, section 8, the purpose of which is “To promote the progress of Science and the useful Arts.”4 For my own thoughts on the matter, see Jack N. Rakove, “The Second Amendment: The Highest Stage of Originalism,” Chicago-Kent Law Review, 76, No. 1 (2000), 103–66.5 Reynolds, “A Critical Guide to the Second Amendment,” Tennessee Law Review, 62 (1995), 461–572. For two noteworthy examples of scholarly hyperbole, see Andrew D. Herz, “Gun Crazy: Constitutional False Consciousness and Dereliction of Dialogic Responsibility,” Boston University Law Review, 75 (1995), 57–153, and Barnett and Kates, “Under Fire: The New Consensus on the Second Amendment,” Emory Law Journal, 45 (1996), 1139–1259, which repeatedly refers to Herz as “Gun Crazy.”6 Bellesiles, Arming America: The Origins of a National Gun Culture (New York, 2000), 74–75, does approach this question somewhat indirectly when he briefly alludes to the restrictions on access to firearms that colonial legislatures imposed on disadvantaged groups. Colonial “legislatures followed the English example in denying the right to own guns to potentially dangerous groups: slaves, free blacks, Indians, propertyless whites, non-Protestants, and heterodox Protestants.” (References to the book are in parentheses in this article.) Most of the legislative acts he cites in behalf of this position, however, appear to emanate from the 17th century, so that the salience of this point to the prevailing understanding of the late 18th century may be questionable. One could still adopt an expansive reading of who qualifies for inclusion in “the people” that would not be restricted to formal or active membership in the militia, yet still exclude some categories or classes of the population whose loyalty to the state would be suspect. On these grounds, the exclusion of slaves and Indians would be unproblematic. Each could be said to exist in a state of nature (actual or latent) relative to the European population. Both might well enjoy a natural right of preservation to obtain and use firearms as best they could, but that would not constitute a right that the colonists would be obliged to respect or protect through positive law. The denial of access to firearms to free African Americans or indentured servants would seem slightly more problematic, but unsurprising nevertheless. The same could be said for restrictions imposed on loyalists during the Revolution. On the last point, see Saul Cornell, “Commonplace or Anachronism: The Standard Model, the Second Amendment, and the Problem of History in Contemporary Constitutional Theory,” Constitutional Commentary, 16 (Summer 1999), 228–29. The analytical problem would be to identify the threshold at which an individual or group could be said to have become part of “the people.”7 Levinson, “The Embarrassing Second Amendment,” Yale Law Journal, 99 (1989), 648 n. 54 (commenting on Edmund Morgan’s observation that the armed yeomanry of the revolutionary era were “neither effective as a fighting force nor particularly protective of popular liberty”).8 Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York, 1996), 12–22.9 The issue is pursued at greater length in Don Higginbotham, “The Federalized Militia Debate: A Neglected Aspect of Second Amendment Scholarship,” William and Mary Quarterly, 3d Ser., 55 (1998), 39–58. The ideological dimension of the question was first surveyed by Robert E. Shalhope, “The Ideological Origins of the Second Amendment,” Journal of American History, 69 (1982), 599, and Lawrence Delbert Cress, “An Armed Community: The Origins and Meaning of the Right to Bear Arms,” ibid., 71 (1984), 22–42.10 For further discussion, see Rakove, “Second Amendment,” 126–41, and sources cited therein. |
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