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L.A. Powe, Jr.[*]
In the aftermath of the Oklahoma City bombings, Linda Thompson, the self-appointed Acting Adjutant General of the Unorganized Militia of the United States, proclaimed that the Second Amendment "isn't about hunting ducks; it's about hunting politicians."[1] She might as well have added that we ought to shoot a few politicians right now as a message to the rest to wake up and stop stealing our rights.[2]
Thompson's statement represents the interesting, and not infrequent, constitutional blend of a First Amendment exercise to promote Second Amendment rights. She readily can be distinguished (p.1312)from mainstream constitutional law scholars both by profession and by example. Civil libertarians with strong First Amendment affinities traditionally have had even less use for the Second Amendment than gun advocates have had for the civil liberties of others.[3] In general, First Amendment scholars view the rights protected by the Second Amendment as deserving less protection than does thought.[4] They agree with the prevailing constitutional interpretation, which holds that the First Amendment guarantees strong individual rights to freedom of expression while the Second Amendment guarantees no individual rights at all, only a collective right to have a very well regulated militia.[5] In the words of the American Civil Liberties Union (ACLU), "[e]xcept for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected."[6]
A small but growing, yet increasingly frustrated, group of constitutional scholars is arguing that the Second Amendment offers strong protection for an individual right to possess guns.[7] Wishing parity with the First Amendment, they often place a nice wistful sentence or two about the First Amendment in their (p.1313)articles.[8] Their "conversion" rate, however, is incremental and slow--one person at a time every so often. In the meantime, most scholars reject the individual rights claim without seriously considering the merits of the scholarship on both sides of the issue. One reason is that the Supreme Court supposedly settled the issue, rejecting an individual rights claim, more than fifty years ago.[9] Another reason may be that the new Second Amendment scholarship conflicts with the hoped-for converts' political views.[10] Yet another reason may be that it analyzes the amendment in terms of text and history.[11] The former is unconvincing (save for those who wish to be convinced), while the latter rests on a claim that the dead hand of the past should rule the present. The debate, on its present terms, seems stagnant because it has become repetitious and stylized.
Neither First Amendment nor Second Amendment scholars, nor any other constitutional law experts, have ever suggested that it might be enlightening to combine the two amendments and explore their interpretation not as a pair, but jointly nevertheless.[12] Putting the two amendments through the various modes of constitutional interpretation yields some interesting insights about both constitutional interpretation and preferences for certain rights. This Article explores these insights, after first placing Thompson's comments in the context of modern constitutional doctrine.(p.1314)
If both Linda Thompson's comments and my hypothetical extension of them were placed on a Constitutional Law exam, professors would have no difficulty flunking any student who did not recognize that Thompson's speech was protected fully by the current positive law of the First Amendment. Most professors probably would approve of this result. In the first place, she was at most advocating assassination, and generalized advocacy of violence receives full protection.[13] Only when advocacy merges into incitement would the speaker lose constitutional protection.[14] Second, "right now" is ambiguous as to time. Brandenburg v. Ohio[15] as well as Hess v. Indiana[16] mandate an immediacy of action that Thompson's words, issued over broadcast television, lack. Third, there may be no basis for finding, as also required by Brandenburg, that the prospect of attendant assassination is high.[17] Thus, like Robert Watts,[18] Thompson was just letting off steam, an important safeguard provided by a system of freedom of expression.[19]
There was a time, however, when such utterances, as a matter of positive law, would have justified a jail sentence. As recently as 1927, the Court held that the government could criminalize a speech if it could have reasonably believed that the (p.1315)speech might cause harm.[20] It is hardly unreasonable for a legislature to believe that speech advocating political assassination, even if it is merely hyperbolic, raises the probability that killings would occur.[21] Therefore, the government could prohibit such speech. This, however, was a long time ago, during the First Amendment Dark Ages of Schenck,[22] Debs,[23] Abrams,[24] Gitlow,[25] and Whitney.[26]
A clever answer might note that the laws were aimed at preventing death, injury, and the destruction of property--surely a compelling state interest. They were narrowly tailored to ban the statements that implicated the interest, and no less restrictive alternative seemed likely to work because the laws against seditious conduct did not appear to deter all such conduct.[27] There certainly is no reason, though, to believe that such an argument would gain assent from the current Supreme Court, nor does it have much academic support.
Unless the constitutional law professor were asking an interpretive question about undiscussed constitutional provisions, analysis of the Second Amendment would not matter because, with a single limited exception,[28] no Constitutional Law (p.1316)casebooks cover the Second Amendment.[29] Our hypothetical professor quickly could note that Thompson fails as a constitutional interpreter because the Second Amendment is not about political assassination--no constitution could be that stupid. "Only madmen ... can suppose that militias have a constitutional right to levy war against the United States, which is treason by constitutional definition."[30] Instead, by its very terms, the Amendment is addressed to the militia and military.[31] Therefore, it is not about duck hunting either; as John Ely has noted: "[T]he framers and ratifiers apparently opted against leaving to the future the attribution of purposes, choosing instead explicitly to legislate the goal in terms of which the provision was to be interpreted."[32]
Hence for all practical purposes, the Second Amendment is a dead letter, deader indeed than the Third Amendment, which still could be violated at least theoretically.[33] Former Harvard Law School Dean and Solicitor General Erwin Griswold summed (p.1317)it up tersely: "[T]hat the Second Amendment poses no barrier to strong gun laws is perhaps the most well-settled proposition in American constitutional law."[34] When someone of Griswold's stature can issue such a blanket statement, it indicates that there are others supporting this viewpoint.[35]
If someone knew nothing about the amendments, she might think it strange that the first of the amendments in the Bill of Rights enjoys a robust existence, but the very next is so stunted that it may be deemed dormant. If she knew something about legal scholarship, she would not even have to be cynical to wonder if the reason the First Amendment flourishes and the Second Amendment withers is that legal elites the one, but not the other. If that explanation should prove true, is such bias a legitimate way to interpret a constitution?[36]
There is no little irony in the dominant approaches to the first two amendments. The First Amendment has been construed to guarantee a right to advocate revolution, and almost all scholars applaud this construction.[37] Those same First Amendment scholars, however, would believe it absurd to construe the Second Amendment to have anything to do with revolution or, for that matter, any individual right. Yet among those who have written articles, as opposed to a sentence or a paragraph, on the Second Amendment in the last fifteen years, little credibility is given to categorically rejecting any connection between the Amendment and individual rights.[38] A substantial body of (p.1318)scholarship, including work by Sanford Levinson,[39] Ahkil Amar,[40] and William Van Alstyne,[41] has been synthesized by Glenn Reynolds into what he calls the "Standard Model" of the Second Amendment,[42] and this model concludes that the Amendment is precisely about revolution and individual rights.[43] The Second Amendment guarantees an individual right to bear arms because the Second Amendment is about fear of tyranny.[44] Yet the Standard Model thus far remains hermetically sealed from federal judicial interpretation.
Because this growing literature has framed the Second Amendment debate over whether there is a guarantee of an individual right to bear arms, I shall treat the debate, as addressed by the literature, on its own terms and assume that the dichotomy is between an individual right and a generic collective right that guarantees guns only in the context of a regulated state militia. It should be noted, however, that adherents to the collective right theory are split over the issue of who has the authority to regulate the militia. The dominant view is that the authority initially rests with the states, but is ultimately subject to federal control.[45] Under this view, neither an individual nor a state could control access to weapons; the Second Amendment is rendered nugatory.[46] A potential, but untested view, is that the ultimate control rests with the states.[47] This view sits uneasily (p.1319)with the outcome of the Civil War, and the use of the National Guard to integrate schools in Little Rock a century later.[48] The third collective rights position is similar to the individual rights view in that it eschews a role for government. According to this theory, the Second Amendment rests collectively with the people, who may choose to become an aroused populace to defend their liberty if it is endangered. This, indeed, is the claim of a right to revolution;[49] it looks much like the Standard Model, but is wedded to civic republicanism, and therefore would not constitutionally protect gun ownership for self-defense or as a hobby. This Article treats separately these greatly differing collective theories only where necessary.
The Standard Model literature typically makes some passing references to the First Amendment. Second Amendment literature in general, however, is so wedded to the implicit assumption that originalism is the decisive mode for constitutional interpretation that the authors have not perceived or explored the interpretive interrelation of the two amendments. In hoping to further the Second Amendment debate, my goal is modest. I am interested only in the question of whether the Second Amendment has meaning today--not in what that meaning might be in any particular case. In determining whether the Second Amendment has meaning, one first must determine which of the two views, individual rights or collective rights, is more correct. If the collective rights theory is correct, the Second Amendment is, for all practical purposes, a dead letter. Thus any regulation of guns is allowable without regard to constitutional limitation, as (p.1320)Dean Griswold believed.[50] If the individual rights theory is correct, however, then the Second Amendment must be considered, as at least a potential constitutional barrier, in the context of regulatory efforts. I am concerned wholly with these questions.
What I propose to do is view the two amendments together, not as part of a general theory of constitutional law--for that would yield only the theory's preordained result--but instead from the perspective of a constitutional lawyer. That is, I propose to look at the two amendments in the context of doing constitutional law. As Philip Bobbitt's seminal work teaches, we do constitutional law by constructing and analyzing arguments based on those accepted ways that we have chosen to interpret our Constitution:[51] by its text, by its history, by the structure of the institutions the Constitution creates or recognizes, by the decisions of the Supreme Court, by the collective traditions of the American people, by the consequences of the decision, and possibly by moral philosophy or natural law.[52] By doing constitutional law in this manner, the First Amendment, which is by far the more familiar,[53] perhaps can help us understand and illuminate the Second.
Any rational approach to constitutional interpretation begins with text. Because, however, one side of the debate contends that the issues under consideration have been resolved authoritatively by the Supreme Court, I will begin with the Court's decisions.(p.1321)
There is little reason to belabor First Amendment doctrine and precedent. In the humble beginnings of Supreme Court interpretation during the first quarter of the twentieth century, the Court appeared incapable of believing that the First Amendment had any meaning in addition to the protections that the common law would offer. From Patterson[54] to Whitney,[55] the Court concluded that the speech in question might have a harmful effect and therefore could be suppressed.
Beginning with Near[56] and Stromberg[57] in 1931, and interrupted only by the anticommunist crusade, the Supreme Court made the First Amendment a bastion of individual liberty, a process culminating in Justice Harlan's powerful opinion in Cohen v. California.[58] This powerful protection for speech continues to the present as witnessed by decisions striking down bans on pornography,[59] indecency,[60] hate speech,[61] and flag (p.1322)burning.[62] Beyond protecting the right to offend, the Court has, contrary to the World War I cases, enshrined a right to advocate revolution.[63] Over the years, First Amendment jurisprudence has been so thoroughly doctrinalized that jargon dominates the opinions:[64] viewpoint-neutrality and content-neutrality,[65] time, place and manner,[66] secondary effects,[67] compelling interest,[68] least restrictive alternative,[69] substantial government interest,[70] and four-part tests.[71] As with any other mature doctrinal area, neither the text nor its surrounding history is perceived as (p.1323)being relevant to the disposition of the litigation,[72] with one possible exception.
Prior restraints doctrine is that exception. No one disputes that the First Amendment was designed to preclude all prior restraints.[73] The fact that current doctrine would allow any prior restraints makes press advocates very uneasy.[74] These enthusiasts typically become originalists,[75] and like most originalists, they believe that any move from originalism is unjustified.
The current doctrine on prior restraints suggests that it is very difficult, but not impossible, to get judicial approval for one. The "core" of the originalist conception therefore may be preserved--depending on whether the core is deemed a total ban on prior restraints or just a ban on most restraints. This point is worth making because it introduces the possibility that the "core" of the Second Amendment similarly could be protected by just a single decision of the Supreme Court.
Second Amendment doctrine is barely embryonic. There are only three relevant cases: Cruikshank,[76] Presser,[77] and Miller.[78] Cruikshank has no comparison in First Amendment doctrine, (p.1324)but Presser may be compared to Patterson[79] and Miller is analogous to Schenck.[80]
Cruikshank involved the federal convictions arising from the Colfax Massacre in Louisiana, "the bloodiest single act of carnage in all of Reconstruction," in which an armed band of the Ku Klux Klan killed more than one hundred blacks.[81] In part, indictments charged the defendants with denying the victims their federally protected rights to peaceably assemble and to bear arms.[82] Chief Justice Waite concluded that those rights existed prior to the Constitution and therefore were not created by it; the rights solely limited actions of the federal government, not those of private citizens.[83] Accordingly, the defendants had violated no federal rights.[84] Cruikshank and the other defendants only could be tried in the state courts for ordinary state law crimes, such as murder.[85]
Presser flowed directly from Cruikshank. In Presser, the Court upheld an Illinois statute prohibiting parading with arms except when done by the organized militia.[86] The statute had been enacted after Chicago's railroad strike of 1877, a controversy that left both sides arming themselves for the possibility of another strike.[87] Presser led a group of German union members who had formed an armed, uniformed company for purposes of self-defense.[88] The Court rejected Presser's Second Amendment claim, as it did all Bill of Rights claims against the states during that era, because the Fourteenth Amendment was not deemed to apply the Second Amendment to state government actions.[89] Although that conclusion would have been sufficient to decide the case, the Court also noted that to deny the states the power to (p.1325)regulate, as Illinois had, would preclude an exercise of power "necessary to the public peace, safety and good order."[90]
Two decades later, Patterson applied a similar approach to a First Amendment argument.[91] After being found in constructive contempt for his editorials about the state supreme court, Patterson claimed First Amendment protection for his publications.[92] The Court did not decide expressly whether the First Amendment was a limitation solely against the Federal Government.[93] Justice Holmes, however, noted, in dicta, that even if the First Amendment did apply to the states, its function was limited to prohibiting prior restraints.[94] Because Patterson was being punished only for what he already had written, he therefore would lose, regardless of whether the First Amendment applied to the states.[95]
Schenck breezily assumed that Patterson's dictum that the First Amendment was limited to prohibiting prior restraints was incorrect.[96] The Court stated this new conclusion, however, in a passing phrase.[97] The Schenck opinion did not cite the text of the First Amendment nor did it mention any history or rationale for the inclusion of a free speech guarantee in the Bill of Rights.[98] Following the classically Holmesian approach, Schenck just got on with it.
Schenck was convicted of conspiring to obstruct the draft by circulating 15,000 copies of an antiwar diatribe to men eligible for the draft.[99] Finding the requisite mens rea for the criminal conviction was easy: "the document would not have been sent unless it had been intended to have some effect, and we do not see what effect it could be expected to have upon persons subject (p.1326)to the draft except to influence them to obstruct the carrying of it out."[100] Schenck's intent also sufficed for the Court to reject his First Amendment claim, because if the tendency of speech is to bring about a harm, then the speech may be punished.[101] "If the act, (speaking or circulating a paper), its tendency and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime."[102]
Schenck discussed the limitations on speech necessary "[w]hen a nation is at war."[103] Gitlow expanded Schenck to include times of peace, allowing the government to suppress speech if that speech had any chance of undermining the government.[104] The time for debating the war's origins and rationale was either prior to the war or after peace resumed, but not during the war.[105] Government had the power to suppress speech that could cause harm when government believed that to do so was appropriate.[106] Speech was no more protected by the First Amendment than it was protected by the political process or the common law had there been no First Amendment. In this sense Patterson, not its slight revision in Schenck, was correct because under Schenck, the only real effect of the First Amendment was to prohibit prior restraints.
Miller, the Court's only twentieth century Second Amendment case, involved a Congressional response to violence in the news and movies by outlawing specific weapons identified with "the gangster and the desperado":[107] submachine guns and sawed-off (p.1327)shotguns.[108] Jack Miller and Frank Layton successfully challenged their indictments for possession of an unregistered sawed-off shotgun when the district judge held that the relevant section of the National Firearms Act of 1934[109] violated the Second Amendment.[110] On direct appeal, the Supreme Court unanimously reversed.[111]
One can distill three separate conclusions from Miller. First, the Second Amendment does not protect firearms that have no "reasonable relationship to the preservation or efficiency of a well regulated militia."[112] Second, the Amendment's purpose is "to assure the continuation and render possible the effectiveness of [the militia]."[113] Third, the militia is comprised of all adult males.[114] What Miller does not do is speak with clarity to the question constitutional law scholars now ask: What, if anything, does the Second Amendment protect?
The dispositive paragraph in the Miller opinion speaks of the absence of any evidence that a sawed-off shotgun has "some reasonable relationship to the preservation or efficiency of a well regulated militia" and the Court's inability to supply that evidence by judicial notice.[115] A reasonable reading of the paragraph is that if there were evidence of such a relationship, then Miller might well prevail; or perhaps, by analogy to Schenck, if there were such evidence, then the Second Amendment would have been implicated. The Court then would have been called upon to explain whether the Second Amendment encompassed more than a common law privilege and, if so, under what circumstances that privilege could be defeated.[116](p.1328)
The problem with interpreting this portion of Miller as possibly protecting private possession of military weapons lies in the remainder of the opinion. The next paragraph of the opinion sets the tone by noting that the Constitution granted Congress power to regulate the militia.[117] The Second Amendment was intended "to assure the continuation and render possible the effectiveness" of the militia.[118] Therefore, "[i]t must be interpreted and applied with that end in view."[119] The Court follows this conclusion with an extended discussion of the militia during the period between independence and ratification.[120] In its conclusion, the opinion notes that "[m]ost if not all" states have a constitutional protection for bearing arms, but none would support Miller's claim.[121] Accordingly, the Court reversed and remanded the case.[122]
It is reasonable to read the second part of Miller as concluding that the Second Amendment is about the militia and nothing else.[123] All Second Amendment claims therefore must be measured by how well they effectuate a militia.[124] An individual right to bear arms, accordingly, might well not exist.[125] Alternatively, if it does exist, it would be limited to a right to bear arms to effectuate militia purposes.[126]
The standard academic reading of Miller, illustrated by John Ely, Laurence Tribe, and Michael Dorf, is the former.[127] It is this reading that underscores Dean Griswold's confident assertion that the Second Amendment addresses the militia, not guns.[128] Glenn Reynolds and Don Kates, by contrast, claimed that "the Court believed that the Second Amendment protects (p.1329)some sort of individual right to keep and bear arms."[129] Both authors saw Miller as holding that "evidentiary hearings were required" on remand to determine whether a sawed-off shotgun was a militia weapon.[130] Although that is plausible, an alternative reading of Miller is equally plausible. Reynolds and Kates assumed that the "further proceedings" mentioned in the Miller holding[131] are the evidentiary hearing on the nature of the weapon. This conclusion is not necessarily true, because even if the Second Amendment guarantees no individual right, further proceedings would have been required to dispose of the now-reinstated indictment. Miller and Layton had prevailed on a demurrer; there was no trial and therefore no finding that they in fact possessed an unregistered sawed-off shotgun.[132] Every accused must either negotiate a plea or receive some form of trial before his case is deemed to be complete.
Reynolds has admitted that "the opinion is simply not very clear."[133] He still concluded that Miller may protect individual possession of militia weapons because the opinion cited the famous Tennessee case, Aymette v. State.[134] Aymette, like Miller, rejected a claim that individual possession of all weapons was protected, explaining that citizens do not need "the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin.... The right to keep and bear them is not, therefore, secured by the [Tennessee C]onstitution."[135] After finding that the Tennessee Constitution operated like the Second Amendment,[136] Aymette held that if a weapon were a militia weapon, then the Tennessee Constitution guaranteed an individual right (p.1330)to keep and bear it.[137] Reynolds said he believes that the Miller holding also extended the Second Amendment's protections to individuals.[138]
In contrast with the Aymette analysis, a different conclusion emerges when one compares the Miller opinion with the brief submitted by the United States. Such a comparison suggests that Reynolds may have overread Miller because, although the opinion did not use the examples from the government's brief, it did relate directly to the government's arguments.
The government's brief offered three reasons for reversal.[139] The last, and the one that the Court most clearly relied on, was that the Second Amendment protects only "those weapons which are ordinarily used for military or public defense purposes and does not relate to those weapons which are commonly used by criminals."[140] Reynolds said he believes that this statement embodies the complete holding of Miller and that the case was remanded to determine whether the sawed-off shotgun was such a weapon.[141]
Yet a second government argument, taken from Cruikshank, posited that the Second Amendment guaranteed no rights at all.[142] This argument looked to preexisting common law and noted that "it cannot be doubted that at least the carrying of weapons without lawful occasion or excuse was always a crime under the common law of England."[143] If Miller's hearing on the nature of the shotgun had concluded that it was a military weapon, then the government's argument that the Second Amendment just incorporated the common law would bring the appropriateness of the regulatory requirements to the fore. By analogy to Schenck's equation of the First Amendment and the common law,[144] it is conceivable that Miller could prevail on (p.1331)the claim that a shotgun was a militia weapon and still lose on the merits of his Second Amendment claim. The opposite also may be true, however. Perhaps in choosing its disposition, the Court implicitly was rejecting this government argument without even addressing it. If so, Reynolds could be correct and the opinion was tracking Aymette perfectly, finding a protected right, but only when the defendant possesses a militia weapon.[145]
The final government argument addressed the principle of collective rights.[146] Only if individuals were "members of the state militia or other similar military organization provided for by law"[147] could possession of weapons be justified, because the Second Amendment "did not permit the keeping of arms for purposes of private defense."[148] The Court did not mention this theory, but if the Court had not been concerned with collective rights, the Miller opinion's discussion of the militia would have been irrelevant.
There is no other constitutional law case, having supposedly settled an issue, that is more appropriate for reconsideration or at least elaboration. First, the Miller decision was unanimous, often an indication that it was not carefully considered.[149] Second, Justice McReynolds competes favorably for the position of worst Justice of this century, suggesting that any surviving handiwork, lacking a modern consideration, might be suspect. Third, the Miller case was wholly one-sided, a detail realized only by Second Amendment scholars. After their indictment had been quashed, Miller and Layton were free to leave the jurisdiction and they apparently did, never to be heard from again.[150] (p.1332)No one entered an appearance for either at the Supreme Court.[151] The government appealed, filed its jurisdictional statement and brief, and then argued the case without opposition.[152] It's hard to lose under those circumstances. Fourth, while those who claim that the Second Amendment guarantees no individual right hasten to embrace Miller, they extrapolate too much from the opinion's holding of what the Second Amendment does not do and fail to address what it does do.[153]
That is the totality of the Court's Second Amendment jurisprudence: The Amendment does not apply to the states[154] and does not protect individual possession of weapons lacking militia use.[155] The former conclusion is a century old and not easily harmonized with mid-twentieth century cases on the incorporation of the Bill of Rights.[156] The latter is a half-century old and is a slim reed indeed for any larger proposition, such as the assertion that Congress could prohibit the individual possession of weapons having militia use, a category that includes most weapons proscribed by modern Congressional legislation. More recently, in both 1983[157] and 1995,[158] the Court denied certiorari in federal cases in which a Second Amendment incorporation claim had been raised and rejected.(p.1333)
What may seem surprising is how easily the analogy of Miller to Schenck may be replaced by a comparison of Miller to Near, the case in which the Supreme Court held that Minnesota's "Gag Law"[159] was an unconstitutional prior restraint.[160] The Gag Law violated the First Amendment's prohibition on prior restraints because it dealt with libel of public officials rather than obscenity or national security, which the Court treated as exceptions to the bar on prior restraints.[161] Near therefore protected most but not all speech against prior restraints.[162]
If Reynolds and Kates read Miller correctly--i.e., if the Court implicitly concluded that, if a sawed-off shotgun was a militia weapon, then registration could not be required as a condition of private possession[163] -- then Near rather than Schenck is the appropriate First Amendment analogy to the Second Amendment issues in Miller. Private possession of all militia arms would be protected by the Second Amendment and only nonmilitia weaponry could be regulated. Although I already have suggested that the Reynolds-Kates reading of Miller may be incorrect, that is not the point here. It would take little for a willing Court to read Miller as Reynolds and Kates do. If the Court were to adopt such an interpretation, that one minor shift would cause Second Amendment doctrine to fall into line with the core idea of Near, rather than Schenck's common law bad tendency test.
In retrospect, it seems strange that so much weight would be placed on three Supreme Court decisions, two of which are profoundly out of step with the jurisprudence of the last half century. Quite simply, these opinions cannot bear the weight that has been placed upon them. Dean Griswold was wrong; the issue has not been resolved authoritatively by the Court.[164] Indeed, to use another Miller analogy, it is as if someone read Miller v. California,[165] which permitted obscene publications to be (p.1334)banned, and concluded that there was no right to read Shakespeare's A Midsummer Night's Dream.
The Court eventually may hold that the Second Amendment guarantees no individual right to keep and bear arms, but the Court has yet to do so. The same cannot be said for the lower federal courts[166] that have "uniformly held that the Second Amendment preserves a collective, rather than individual, right."[167] Nevertheless, constitutional law scholars never have been in the habit of deferring to the random panels of lower courts on constitutional issues and there is no good reason why they should do so in this one area.
Text must be the starting point for any serious constitutional analysis, even if it necessarily serves only as a starting point. Justices Hugo Black and William O. Douglas, the two strongest judicial supporters of First Amendment rights, proclaimed that text was a stopping place as well. To these Justices, "no law"[168] really meant "no law."[169] Yet, as Sanford Levinson notes, "'literalism' is a hopelessly failing approach to interpreting [the First Amendment]."[170] Could anyone seriously believe that the words "no law" preclude all laws regulating speech? Perjury is (p.1335)speech; so is a misleading stock prospectus--are both therefore protected? What counts as speech? Pornography? Draft card or flag burning? Campaign contributions and expenditures? At best the Constitution's text provides a rhetorical tilt toward protection of speech and the press. Our traditions and the Court's doctrine, not the text, have created today's strong First Amendment.
Second Amendment interpreters offer a wide variety of readings of that Amendment's text. No other amendment has its own preface. Consequently, all interpreters must decide how to balance the preface, "[a] well regulated Militia, being necessary to the security of a free State," with the subsequent clause articulating a noninfringeable "right of the people to keep and bear Arms."[171] Levinson has noted that the Constitution was hardly a model of linguistic clarity, and "perhaps one of the worst drafted of all its provisions" was the Second Amendment.[172] Van Alstyne has observed that "[p]erhaps no provision in the Constitution causes one to stumble quite so much on a first reading, or second, or third reading" as does the Second Amendment.[173] Even Amar's apt conclusion, that the preface precludes an argument that a standing army is necessary to the security of a free State,[174] does not come instantly to the unaided reader.
If the drafters' goal was to create an individual right to bear arms, they hardly could improve on the statement that "the right of the people to keep and bear Arms, shall not be infringed."[175] Conversely, if the goal were to create instead a collective right, no amendment would have been necessary because existing traditions and the explicit text of the Constitution already recognized such a right.[176] The Framers apparently split the differences between these opposing positions in drafting the Second Amendment.(p.1336)
Nevertheless, to some, like the National Rifle Association, the preface bears so little relevance to the right that the preface might as well have been written in invisible ink.[177] A better view is that expressed by Reynolds and Van Alstyne, who limit the preface by arguing that it does not control: "[W]hatever the meaning of the Amendment's reference to a 'well-regulated militia,' that reference does not modify the right recognized by the Amendment."[178] Still, if Reynolds and Van Alstyne's conclusion is correct, then exactly what does the Second Amendment's preface do? The assertion that the preface does not modify what follows may be correct, especially because the preface, lacking a verb, cannot stand on its own; this is not, however, an unassailable reading of the text. No other clause in the Bill of Rights has its own statement of purpose,[179] and it is reasonable to conclude that the stated purpose has something to do with what follows.
Don Kates, Robert Cottrol, and Raymond Diamond have imaginatively overcome the problem of reading the preface as a limitation by arguing instead that it is an amplification.[180] Thus, in addition to recognizing the individual right to keep and bear arms, the preface supports the right to collectively maintain a militia.[181] This conclusion seems to derive from their view that the text and its history are so clear about the existence of an individual right that the right must be taken as a given and therefore the preface, needing some meaning, necessarily becomes (p.1337)an amplification of the individual right.[182] This reasoning is a little too circular to persuade anyone but the already persuaded. Without arguing an amplification theory, Van Alstyne reached the same result more directly by defining the textual right as an unconditional one "to keep and bear arms," not as the right to join a militia.[183]
Other commentators, relying on the same text, have gone significantly farther in the other direction. Instead of suggesting that the preface has something to do with what follows, they have concluded that the purpose in the preface has everything to do with what follows. The ensuing right exists only to the extent that the preface authorized it.[184] Tribe and Dorf, following Ely's lead, concluded:
The only purpose it enacted is the one contained in its text, for only its words are law. And in modern circumstances, those words most plausibly may be read to preserve a power of the state militias against abolition by the federal government, not the asserted right of individuals to possess all manner of lethal weapons.[185]
This textual interpretation also can be bolstered by a common usage English language claim. No one has heard a hunter state that he is "going to bear arms and shoot ducks."[186]
There are two problems with this confident textualism that guarantees only a collective right via the militia, and thus excludes (p.1338)private possession of guns. The first is Madison's placement of the clause. When Madison introduced the amendments in Congress, he proposed interlineation with the Constitution.[187] Madison's proposed "Second Amendment," along with his press, speech, and religion guarantees, was to be placed in the grab bag of Article I, Section 9, after the prohibition against bills of attainder and ex post facto laws and before the limitation on direct taxation.[188] As he initially drafted it, the clause read: "The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person."[189]
If the collective rights theory were correct, then Madison should have placed his "Second Amendment" either in Article I Section 8, with the militia clauses,[190] or in Article IV, Section 4, the Guarantee Clause.[191] The conscientious objector provision does not resolve the problem, for Madison's arms-bearing clause was split from the religion clauses by the speech and press clause.[192] Furthermore, Madison's preparatory notes for his speech about the amendments state: "They relate Ist. to private rights."[193]
An even greater problem is the conscious parallelism of "the right of the people" in the Second Amendment with the identical language in the First and Fourth Amendments.[194] No one ever has claimed that "the right of the people" "peaceably to assemble, and to petition the Government"[195] and "to be secure in (p.1339)their persons, houses, papers, and effects"[196] creates only collective rights, not rights for individuals. To date, I am unaware of any constitutional scholar, including Tribe and Dorf, who has attempted to explain why "the right of the people" in the First and Fourth Amendments is an individual right, but "the right of the people" in the Second Amendment is not.[197]
Garry Wills, however, has taken exactly this position. Wills has written that "[e]very term in the Second Amendment, taken singly, has as its first and most obvious meaning a military meaning."[198] Wills's argument means "the people," too, must be interpreted in a military sense, and he is prepared to explain such an interpretation.[199] The people are the militia and this "was always the populous armadas, in the corporate sense .... The whole people is the corpus sanum, what Madison calls 'the people at large' ... [that] was often contrasted with the rulers (senatus populusque)."[200]
An appropriate response to Wills's Latin exegesis is that "we must never forget that it is a constitution we are expounding,"[201] and that Wills forgot this principle. Constitutional interpretation must be possible even for those who lack the classical education of the English aristocrat or his American pretender. Indeed, textual argument depends on this, because it claims to draw legitimacy from the tacit consent of contemporary citizens whose acquiescence hardly could be inferred if the text were recondite.
For those who rely on a purely textual argument to provide an authoritative interpretation of the Second Amendment, these anomalies--the Amendment's preface, the conscious parallelism of its terminology with other amendments, and Madison's intended placement of the Amendment--must be explained coherently. A possible synthesis would be that the citizen has a right to keep and bear arms, but only to the extent that possessing weapons makes the citizen available for militia service. Under (p.1340)this construction, an individual could own a military weapon, but the government could prevent its use for either hunting or self-defense. This interpretation splits the differences between the two polar viewpoints and probably would be unsatisfactory to both.[202]
Any outside interpreter, coming to the debate with an open mind, will unlikely be persuaded solely by textual argument. Other modes of interpretation are necessary for the text of the Constitution to come alive more than two centuries after its inception. Textual analysis, as the Second Amendment shows, is best for setting the range of possible solutions. Despite the confident textualism of Justices Black and Douglas, if textual answers were that clear there would be no litigation on the issue.[203] Because the Second Amendment's text asks more questions than it answers, those wishing a fuller interpretation naturally turn elsewhere. Here, again, the divergent interpretations show. Those whose interpretation favors an individual right turn to history to find answers to each relevant textual question, and then assume, either implicitly or explicitly, that the debate is finished. Those who favor a collective rights interpretation explicitly assert that the text has been interpreted authoritatively by the Supreme Court and therefore one need look no further.
Second Amendment scholars feel most comfortable discussing history. They claim that the Amendment's history is known and that it freezes the Amendment's meaning.[204] To the best of my (p.1341)knowledge, no First Amendment scholar believes that the First Amendment's history is dispositive of its meaning.
The First and Second Amendments share the common history of the adoption of the Constitution, their inclusion in James Madison's proposed Bill of Rights, and their joint ratification.[205] When the Antifederalists read the work of the Philadelphia Convention, they saw too much centralized power built on broad grants of authority: the taxing power, the power to raise an army, and the elastic "necessary and proper" clause. The Antifederalists wanted to block the Constitution's adoption, and the best political route was its failure to include a bill of rights.[206]
The Federalists, especially Alexander Hamilton, saw the Antifederalist argument for what it was: a deal breaker.[207] Others, including Madison, eventually and reluctantly came to believe that a bill of rights was not inconsistent with the premises of the Constitution and indeed might improve it.[208] As Speaker of the House, Madison thus introduced and shepherded the Bill of Rights through the legislative process.[209] But the debates were not extensive in the House, unrecorded in the Senate, and sparse again in the States.[210] Interpreting the meaning of the provisions necessarily means going outside of their legislative history, with one primary exception. The purpose of the Bill of Rights was to limit what the federal government (p.1342)could do.[211] Any interpretation of a provision of the Bill of Rights as a grant of federal power is ipso facto wrong.[212]
The relevant history of the First Amendment was essentially the history following Parliament's abolition of licensing of publications in 1694-1695 and the subsequent seditious libel prosecutions from Zenger onward.[213] Because of William Blackstone's Commentaries and the end of licensing, it generally was accepted that the First Amendment barred prior restraints; seditious libel was the contested ground, and the debate was waged on both sides of the Atlantic.[214] The relevant history of the Second Amendment, by contrast, seems trapped in England prior to the Glorious Revolution and then modestly supplemented in North America by the rhetoric and fears surrounding the Constitution's ratification.[215]
The historical debate on the First Amendment can be framed succinctly. The central question is whether the Framers, when they guaranteed freedom of the press, intended to go beyond the scope of Blackstone's Commentaries, which defined the freedom as "laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published."[216] Leonard Levy's influential work answered the question negatively and argued that Blackstone represents the entirety of the law because, with a single aberrant exception that produced no following, no one claimed that seditious libel was included in guaranteed (p.1343)free speech.[217] Most other scholars have disagreed with Levy, arguing that he asked the wrong question and therefore ignored the meaning of his own excellent research.[218]
Levy's is a tight, historical thesis. If the First Amendment were repudiating Blackstone, surely there would be more evidence than the writing of an isolated author, questioning seditious libel, but not all libel.[219] Levy claims that there is no other evidence.[220]
The civic republican ideology of the English Country Whigs found fertile ground in North America, and works like John Trenchard and Thomas Gordon's Cato's Letters were read widely, reprinted, and quoted.[221] Americans agreed with Trenchard and Gordon that freedom of the press was one of the "great Bulwark[s] of Liberty,"[222] and Americans supported this principle in their state constitutions.[223] Nevertheless, although Trenchard and Gordon were skeptical about British uses of seditious libel, they never suggested its abolition;[224] nor did the great American innovation in Zenger.[225] Only when the Sedition Act crisis arose at the end of the century did a handful of prominent Jeffersonians, from Albert Gallatin and Madison in (p.1344)the political arena to St. George Tucker in writing the first American edition of Blackstone, claim that the First Amendment had transformed the common law.[226] That claim, according to Levy, arose circumstantially and did not reflect American thinking of a decade earlier.[227]
Levy noted that American printers during the Revolution acted as though the doctrine of seditious libel did not exist; there was "nearly [an] epidemic degree of seditious libel."[228] Levy found it mysterious "[t]hat so many courageous and irresponsible editors daily risked imprisonment [after 1776]."[229] Seditious libel, as Levy and others have documented, was rampant, though prosecutions for it were rare.[230] Levy's thesis precludes his believing that those in the trenches may have best understood what the law in action really was. The printers perhaps understood that the celebrations of the importance of freedom of the press meant that they had the freedom to write as they pleased.
After declaring independence from England, twelve states[231] drafted new constitutions, and ten of those included freedom of the press in their declarations of rights.[232] A majority of states proposing amendments to the federal constitution wanted freedom of the press added.[233] As David Anderson concluded, "[t]he revolutionary state constitutions, the ratifying conventions, and the First Congress produced numerous expressions [that] leave little doubt that press freedom was viewed as being closely related to the experiment of representative self-government."[234] Yet Levy suggested initially that all of this originated from a desire to prevent prior restraints.[235] That is an unlikely reality for (p.1345)two reasons. First, the rhetoric is disproportionate to such a narrow problem. Second, prior restraints were an English problem; they had not been an issue in America. Is it reasonable to assume that Americans were so passionate about settling a century-old English debate that had not affected them?
To be sure, in expressing the importance of liberty of the press, Americans did not define its scope and, with a single exception, did not claim that it repudiated Blackstone.[236] Blackstone's conception of freedom of the press was one of limiting the monarch in a system where parliament was now sovereign.[237] When the Sedition Act crisis came to the fore, Gallatin, Madison, and Tucker had no difficulty articulating that Blackstone's conception of sovereignty did not apply in America because sovereignty rested in the people, not the government, and that fact precluded the people's agents from limiting the people's debate.[238]
The debate over whether the First Amendment had a broader scope than that conceived of by Blackstone is a perfect historical debate. Only accuracy, not law, turns on its outcome. The Supreme Court cemented its individualist First Amendment jurisprudence in the decade following publication of Levy's original book.[239] Indeed, the Court's opinion in New York Times Co. v. Sullivan resurrected the Sedition Act 163 years after its statutory death in order to slay it properly; the historical debate over (p.1346)the First Amendment during this period did not influence the Court a whit.[240]
If Levy's initial theory that First Amendment protection was limited to preventing prior restraints was correct, then the Court's decisions cannot be squared with the Framers' views. If those who dissent from Levy's original thesis are correct, then historical justifications for broadly interpreting the First Amendment are fully available. In neither case, however, does history set the scope of the First Amendment. The Supreme Court's free expression jurisprudence rests on notions of individual liberty that gained prominence in the mid-twentieth century, strongly reinforced by its reading of our traditions. History offers a powerful rhetorical connection between the abuses of the past and those of the present. This is not originalism, however, for no one claims that without the examples from the Colonial Era to serve as modern reference points, the decisions of the present would be different.
With respect to the Second Amendment, however, the Standard Model claims that by adopting originalism the outcomes of the few relevant decisions would differ. Because the United States has not habitually disarmed citizens, the connection between the past and present in the Second Amendment is more attenuated than it has been in First Amendment opinions. Nevertheless, that past can inform the present.
The right to bear arms was not one of the ancient rights of Englishmen; it was a product of the tumultuous events from the English Civil War to the Glorious Revolution.[241] During the Interregnum, Oliver Cromwell's New Model Army made sporadic efforts to disarm Royalist and Catholic opponents of the regime.[242] With the Restoration, the British continued their fear of religious warfare and Catholicism, but also acquired "a rooted aversion to standing armies and an abiding dread of military rule."[243](p.1347)
King Charles II governed a country that, because of the Civil War, was well armed and contained numerous potential enemies.[244] He successfully created a "select militia" as a politically reliable voluntary army, gave it extensive training, and selectively disarmed those whom he distrusted.[245] The principal legal justification was the Game Act of 1671.[246] This Act abandoned the need to prove that guns or bows had been used illegally to hunt and instead simply listed them as prohibited weapons, essentially turning all but the gentry into potential criminals.[247] Although the law made possession of weapons illegal for most people, it was "enforced with a decided ambivalence."[248] Whatever Charles II had done, James II did more vigorously, and the latter's attempts to enforce disarmament through the Game Act resulted in stricter enforcement against Protestants, while simultaneously leaving Catholics armed.[249]
The Glorious Revolution swept away James II and his policy of disarming Protestants.[250] Included in the British Declaration of Rights is a recognition that at least some Protestants have the right to bear arms: "That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions, and as allowed by Law."[251] The lessons of the Civil War were reinforced: An unpopular government would attempt to achieve a monopoly on weapons and, if successful, such a monopoly would have untoward consequences only for those viewed as opponents of the regime.
Yet less than a decade later, after the Treaty of Ryswick, William III made clear that he wished to maintain a large standing (p.1348)army.[252] This launched John Trenchard on his successful career as a pamphleteer.[253] Like James Harrington's Oceana[254] during the Interregnum, Trenchard's civic republicanism saw an active and vital citizenry as essential to the preservation of liberty.[255] Trenchard claimed that the reason Englishmen alone remained free was that they relied on the citizen militia rather than a standing army:
And if we enquire how these unhappy nations have lost that precious jewel Liberty, and we as yet preserved it, we shall find their miseries and our happiness proceed from this, that their necessities or indiscretion have permitted a standing army to be kept amongst them, and our situation rather than our prudence, hath as yet defended us from it.[256]
Like liberty of the press, a citizen militia, not a "select militia," was essential to the preservation of freedom.[257]
The colonists devoured the republican ideology of the Country Whigs,[258] but hardly needed it to justify a militia any more than they needed Blackstone to know that they could be armed.[259] In the decade after the French and Indian War, colonists also did not need to be reminded that, as Englishmen, they did not like Thomas Gage's Redcoats,[260] although the Declaration (p.1349)of Independence proclaimed exactly that.[261] The untamed conditions of North America made local militias essential, and negated any need for restrictive game laws. Blackstone stated that bearing arms served "to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property."[262] Virtually all adult free white males in the colonies were required to be in the militia and to provide their own arms;[263] in some isolated areas the law even required a person to be armed whenever he was away from his home.[264]
Bernard Bailyn has detailed the colonists' embrace of the Country Whigs' civic republican ideology, for whom Trenchard and Thomas Gordon were successful advocates on the western side of the Atlantic.[265] Edmund Morgan's recent summary of militia ideology, although more succinct, is remarkably similar to Trenchard's.[266] "[T]hese independent yeomen, armed and embodied in a militia, are also a popular government's best protection against its enemies, whether they be aggressive foreign (p.1350)monarchs or scheming demagogues within the nation itself."[267]
Revolutionary constitutions spoke to Second Amendment concerns, especially the importance of a militia, but not with the consistency or clarity with which the constitutions addressed freedom of the press. Recall that ten of the twelve states that drafted new constitutions included a declaration of rights protecting freedom of the press.[268] By contrast, only eight states dealt with any aspect of the Second Amendment, and here there was considerable linguistic and possibly substantive diversity.[269] It is worth noting that only two mentioned freedom of speech.[270]
Delaware,[271] Maryland,[272] and Virginia[273] praised the militia as the natural defense of a free state, while they simultaneously condemned a standing army as a threat to liberty. New Hampshire[274] and Massachusetts[275] agreed with this logic, but also added that free men have a right of "enjoying and defending life and liberty."[276] Massachusetts also specifically referred to "a right to keep and to bear arms" in the context of "common defence."[277] A similar provision, granting people a (p.1351)right to bear arms for the "defence of the State," appears in the North Carolina constitution.[278]
After the typical condemnation of standing armies, the highly democratic constitution of Pennsylvania declared: "the people have a right to bear arms for the defence of themselves and the state."[279] Vermont, a year later, largely copied Pennsylvania's declaration of rights.[280] Pennsylvania and Vermont were also the only two states that expressly protected freedom of speech.[281] The remaining two states, Georgia and South Carolina, were silent on the militia and arms although they both had press clauses.[282]
The proposed Federal Constitution was anything but silent on military issues; it gave numerous military powers to Congress. Article I explicitly gave Congress the powers (1) to "raise and support armies," (2) to "provide and maintain a navy," and (3) to "make rules for the government and regulation of the land and naval forces."[283] The document then turned to the militia and authorized Congress to "provide for organizing, arming, and disciplining" a militia, and to "provide for calling forth the militia to execute the laws of the Union [and] suppress insurrections."[284] The reasons for granting Congress the power to maintain an army were expressed in a letter written by Gouverneur Morris.[285] For all the rhetoric about militias as an essential element of freedom, they were ineffective fighting forces during (p.1352)Revolution.[286] The Constitutional Convention yielded to necessity rather than ideology and authorized a standing army.[287]
The Constitution's ratification would have meant that the battle over control of military force, and the ability of the national government to take action against rebellions and insurrections, had been won decisively by the national government. The Antifederalists understood this all too well. The military provisions frightened the Antifederalists, probably more than did any other part of the nationalizing Constitution.
In The Federalist No. 46, Madison tried to calm Antifederalists' fears by "disprov[ing] the reality" of what he claimed was "the visionary supposition that the Federal Government may previously accumulate a military force for the projects of ambition."[288] After focusing on how unlikely it was that the people would "silently and patiently" wait, he turned to the practical military issue, to show that "State Governments with the people on their side would be able to repel the danger."[289] A standing army's size inherently is limited and the state militias therefore could defeat it.[290] Madison then contrasted America with Europe where, despite large standing armies, "the governments are afraid to trust the people with arms."[291] If Europeans, those "debased subjects of arbitrary power," had the advantages of Americans, they, too, would be free.[292] Madison concluded, "Let us ... no longer insult" Americans by suggesting that they might be tamed into submission.[293] If the federal government were to lack "the confidence of the people, [then] its (p.1353)schemes of usurpation will be easily defeated by the State governments, who will be supported by the people."[294]
Madison, like everyone else, pro or con, equated the militia with "the people." At the Virginia ratifying convention, George Mason, who had refused to sign the proposed Constitution in Philadelphia, partially because it lacked a declaration of rights,[295] asked rhetorically, "Who are the militia?" and then answered, "They consist now of the whole people ...."[296] His fear was that if "that paper on the table" were not amended, the militia might not be so inclusive in the future.[297] It was important to the preservation of liberty that the true militia, rather than the "select militia," be available. Thus the Federal Farmer,[298] attacking the Constitution, tied together the preservation of liberty and the wide distribution of arms: "[T]o preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them."[299]
The Federalists were honorable men, so the Antifederalists did not have to take up arms against the newly created central government.[300] Because the Federalists were both honorable and sagacious men, amendments to the Constitution were forthcoming. Seven states proposed some amendment of the Constitution.[301] South Carolina desired an amendment reserving rights (p.1354)to the states,[302] while Massachusetts wanted reserved states' rights and a guarantee of civil juries.[303] All other states requested those guarantees, as well as numerous others. Four states wanted a right to bear arms. Virginia, New York, and North Carolina proposed that the people should have a right to keep and bear arms.[304] New Hampshire demanded that "Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion."[305] In comparison, four states also wished to guarantee freedom of the press,[306] but only three would have guaranteed freedom of speech.[307]
Ten days after Madison introduced the Bill of Rights,[308] Tench Coxe[309] published a defense of Madison's proposals:
As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article in their right to keep and bear their private arms.[310](p.1355)
Coxe forwarded a copy to Madison,[311] who replied immediately, commending Coxe's efforts.[312]
Madison's proposals were sent to the House acting as a Committee of the Whole,[313] and the future Second Amendment emerged still looking awkward. "Country" became "state" and the references to the militia and the right to bear arms were reversed: "A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms."[314] The final form of the amendment was the Senate's.[315] As it did with the future First Amendment, the Senate made the language more economical by dropping the definition of militia,[316] changing "best security" to "necessary" and dropping the conscientious objection clause.[317]
What did the Framers intend? Although the record is somewhat ambiguous, the Standard Model individual rights theory has far more to support it than does the collective rights theory (p.1356)that necessarily negates an individual right. The Second Amendment was a reaction against the military clauses of Article I of the Constitution and a recognition of how deeply Americans felt about an armed citizenry that could defend its rights and liberties as it had so recently in the Revolutionary War.
The only historians who have refuted the individual rights theory, albeit from very different viewpoints, are Lawrence Delbert Cress and Garry Wills. Cress wrote that the history of the Second Amendment demonstrates civic republicanism, pure and simple: public virtue with its emphasis on the character and the duties of the citizen.[318] Civic republicanism, by definition, excludes the possibility of an individual right.[319] Wills wrote that the same history surrounding the adoption of the Second Amendment confirms his linguistic analysis that, in context, the amendment means nothing; Madison just snookered everyone.[320]
Cress began with the irrefutable conclusion that the citizen militia traces its lineage directly back to civic republican ideology.[321] He also ended with this premise, concluding that every statement about arms must be interpreted in light of this corporate view of society.[322] Cress took the statements of civic republicanism very seriously. Because republicanism is corporate and hierarchical, rather than individual and egalitarian, Cress viewed the militia as "reinforc[ing] the deferential social and political relationships that ensured order and a respect for (p.1357)authority throughout society."[323] Citizenship entailed duties, not prerogatives, and one of those duties was militia service.[324]
The problems with Cress's approach are twofold. First, his position rests on the conclusion that the civic republicanism of England remained unchanged in the dramatically different setting of Colonial America, where hunting game was not a problem and Indians occasionally were. I concede that this premise may be correct.[325] Second, significant contrary evidence suggests that more than republicanism is at work. Cress believed such statements are not entitled to credit because they are "clearly out of touch" with prevailing ideology.[326] Yet that assertion implicitly requires Cress to place Thomas Jefferson out of touch with his times, a conclusion that is not possible.[327]
Jefferson's initial proposed Virginia constitution did not even mention the militia, but it did guarantee that "no freeman shall ever be debarred the use of arms."[328] Years later Jefferson wrote to George Washington, in language that sounds like the (p.1358)words of an NRA executive, "one loves to possess arms."[329] Jefferson believed that guns were important to an individual's independence and character. He advised his nephew that "[g]ames played with the ball and others of that nature, are too violent for the body and stamp no character on the mind."[330] Instead, Jefferson stated, "I advise the gun. While this gives a moderate exercise to the body, it gives boldness, enterprize, and independance to the mind" and should be "the constant companion of your walks."[331] Jefferson's advice flows directly out of republicanism, but his proposed guarantee is purely in terms of an individual right.
Cress wished "to place citizenship, especially the idea of citizens in arms, in a context compatible with the republican theory of revolutionary America."[332] This demands a literal and monolithic ideology of civic republicanism, one that even Cress acknowledged "may have been anachronistic in 1789."[333] Why, then, should the Framers be expected to comply with an anachronism? "Common sense [holds] that a society that was unwilling to allow all adult males to vote would not embrace a constitutional principle ensuring their right to own firearms."[334] In 1775, however, General Thomas Gage ordered citizens of Boston to turn in their arms, and many complied.[335] Commenting in this incident, the Continental Congress declared, "They accordingly delivered up their Arms, but in open violation of Honour ...."[336] The society that Cress describes already required those nonvoting adult males to own firearms for their militia service.[337] One may speculate as to how the citizens (p.1359)might have reacted to a similar proclamation to disarm coming from General Alexander Hamilton in February 1801.[338]
One would anticipate that the citizens would not have reacted positively to such a demand. The answer to this hypothetical becomes more clear if the First Amendment scholars have framed a correct theory of sovereignty. If there had been a shift from a Blackstonian conception to a belief in sovereignty of the people,[339] then it seems inconceivable that the people would have turned over their arms after ratifying the Second Amendment.
Wills believes the history of the Second Amendment supports his linguistic exegesis of its text so that the truly informed reader will understand that, in context, the Amendment adds nothing to the Constitution.[340] In 1789, when the Bill of Rights first was introduced,[341] Congress could create a standing army as well as organize and regulate militias.[342] Congress still had these powers in 1792, after the amendments to the Constitution were ratified.[343] According to Wills, there is no individual right to possess arms in the Constitution and the Second Amendment did not grant such a right. What the Second Amendment provides is what the Constitution provided already: a right to bear arms in a well-regulated militia.[344](p.1360)
Wills derided the historical claims for an individual right by making two points on how to assess the relevant history. First, he claimed that much of the evidence offered by the Standard Model advocates is distorted and false.[345] Second, he asserted that statements about arms and standing armies made during the ratification debates do not count as evidence because they were aimed at the military clauses in the proposed Constitution, not at the Second Amendment.[346]
As to Wills's first point, I do not pretend to be a Second Amendment historian,[347] but I am deeply skeptical of a blanket and unsupported claim that all other scholars are mistaken.[348] Wills's second point is absurd on its face. If statements made about standing armies, militias, and arms in the aftermath of the Glorious Revolution count as evidence[349] then, a fortiori, statements made a century later also count. If our only evidence about the provisions of the Bill of Rights is limited to what was said after ratification of the Constitution and before ratification of the Amendments three years later, then we indeed have an impoverished record.
Wills's conclusion that the Second Amendment adds nothing to the Constitution seems so stark even to himself that he asks, "[w]hy, then, did Madison propose the Second Amendment?"[350] This question is especially baffling if Wills is correct and the Amendment "had no real meaning."[351] The answer, Wills concluded, is that Madison snookered the Antifederalist opposition.[352] The Second and Third Amendments[353] were simply (p.1361)part of "anti-royal rhetoric."[354] Thus the Third Amendment "had no real meaning in a government that is authorized to build barracks, forts, and camps."[355] Wills's conclusion is demonstrably short-sighted. Of course Congress can build forts, but if the costs of maintaining a standing army proved great, Congress might wish to economize by quartering troops in private homes. Furthermore, quartering troops "on" a population need not only be a cost cutting measure. It might operate as a direct punishment of recalcitrant groups or areas.[356] The Third Amendment speaks directly to these issues with real meaning.
A more charitable, traditional, and correct view of Madison is that he entered the ratification debates and wrote The Federalist essays believing that a bill of rights was unnecessary and potentially harmful, because of the inability to list all human rights and therefore the costs of possibly omitting something important.[357] Thomas Jefferson disagreed with Madison about the need for a bill of rights.[358] The Antifederalists vehemently disagreed,[359] and Madison's opponent in the election for the First Congress, James Monroe, disagreed as well.[360] Madison then became a supporter of a bill of rights.[361] Wills claimed that this (p.1362)support was tactical, quoting Madison's statement that "this will kill the opposition everywhere."[362]
Wills is only partially correct, as Jack Rakove's extraordinary new book, Original Meanings, shows.[363] Madison's support for a bill of rights was, indeed, reluctant. The experiences of his adult life had convinced him that the dangers in a republic were those stemming from majoritarian excess. He was skeptical that any limitations--parchment barriers--could check a determined majority. That applied to a bill of rights as well.[364] Nevertheless, Madison did not need to do anything in 1789. There was no implicit, much less explicit promise of amendments to gain ratification in the decisive and divided states of Virginia, Massachusetts, and New York. The imperative for amendments had passed. "Most Federalists had grown indifferent to the questions, nor were former Anti-Federalists now sitting in Congress any more insistent, largely because they knew that the substantive changes desired in the Constitution lay beyond their reach."[365]
On June 8, 1789, Madison introduced his bill of rights and delivered a sophisticated justification, invoking judicial supervision[366] as well as the need and method of protecting against omissions.[367] Wills would have us believe that Madison did not mean what he said; he was just carrying on a charade. The only evidence that Wills offers to support this theory is that (p.1363)Antifederalists like Robert Whitehill and Patrick Henry, who had demanded a bill of rights during the ratification debates, "changed their stance and opposed the amendments."[368] A better reason ought to be offered to justify not taking Madison at his word.
Wills's claim that Madison snookered the Antifederalists by offering them military amendments without meaning could be generalized. Wills's rationale could as easily be applied to guarantees of press, speech, religion, jury trials, search warrants, everything. Yet evidence exists that Madison cared deeply about the religion clauses, as they are perfectly consistent with his famous 1785 statement, A Memorial and Remonstrance.[369] Is Wills asking us to doubt Madison's sincerity on this point too? Most likely, Wills implicitly is making the claim that Madison was serious about parts of the Bill of Rights, but not others. According to this theory, he cared about the clauses having meaning, not those lacking meaning: the Second and Third Amendments.[370] This analytical process has been a lengthy circle, but it is still a circle. Wills has divined Madison's intent from Wills's own extended linguistic analysis of the amendments:[371] because they mean nothing to Wills, ergo Madison intended them to mean nothing.
Let us nevertheless assume that Wills is correct and that Madison truly intended the Second Amendment to be meaningless. So what? The people, not Madison, adopted the Second Amendment because sovereignty rested in the people.[372] The (p.1364)people adopted the Second Amendment as written, not Madison's "shrewd ploy." Therefore, the controlling understanding of the Second Amendment would be the understanding of the people, not the understanding of the deceivers. By definition, if the Framers intend a ruse, their masked intent is irrelevant.[373]
At this point, doctrinal argument answers the question of what to do with meaningless text. At least since Marbury v. Madison, it has been a canon of constitutional construction that "[i]t cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it."[374] Thus Wills could be right, but Marbury renders his conclusion irrelevant. If there are alternative constructions that could give the Second Amendment meaning, they must be adopted.[375] As we have seen, such constructions are available. By Marbury's own terms they would prevail over a construction that rendered the amendment without effect. It makes no sense to declare a clause a dead letter when an alternate reading gives it meaningful life.
Although I find myself surprised by my own words, the historical claim for the individual rights view of the Second Amendment (p.1365)seems at least as strong as the historical claim for a strongly individualist First Amendment. Words and guns enabled a successful revolution, and it is not surprising that the founding generation thought highly of both. William Cushing, Chief Justice of the Supreme Judicial Court of Massachusetts, wrote in a letter to John Adams: "Without this liberty of the press could we have supported our liberties against british administration? or could our revolution have taken place? Pretty certainly it could not."[376] There are far more references from authoritative sources of an individual right to bear arms than there are for a right of the press going beyond prior restraints.[377]
Originalism reached its nadir with the debate over Robert Bork's nomination to the Supreme Court.[378] It seemingly became more acceptable as two other Yalies, Bruce Ackerman and Akhil Amar, have attempted to create a liberal originalism.[379] The neutral observer is likely to be uneasy about ceding constitutional determinations either to advocate-historians, whether they be liberal or conservative (or Ivy pedigreed) or to those dead for longer than a century and a half. Like life itself, the Constitution is for the living. Still, constitutional interpretation owes some homage to the concerns of the ratifying generation.[380] One need not accept originalism, but in construing the Second Amendment or any other provision of the Constitution, it is important to acknowledge what that generation intended.
Traditional argument acknowledges that our understanding of the Constitution changes as the nation changes, and it requires a sensitive reading of where we have been to fashion the Constitution (p.1366)to accommodate where we are going. No one has ever explained it better than Justice John M. Harlan when he stated that decisions must recognize "the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing" and it serves to highlight the balance between "liberty [of the individual] and the demands of organized society."[381] This principle distinguishes traditional argument from historical argument. The former looks to all our history to fix the meaning of a provision in the present; the latter looks to the pre-Constitution history to fix the meaning of a provision at the founding.
Justice Harlan was explaining traditional argument in its natural setting, determining the contours of due process,[382] where a less elevated description of the process is that it takes a right we value highly and protects it even more. Nevertheless, traditional argument is not confined to due process. Because of the selective incorporation doctrine, traditional argument is fundamental to whether a particular provision of the Bill of Rights is incorporated and applied to the states through the Fourteenth Amendment. When Justice Cardozo explained that the First Amendment was "the matrix, the indispensable condition, of nearly every other form of freedom,"[383] he did so in the context of explaining why the First Amendment applies to the states but the Double Jeopardy Clause does not.[384]
Traditional argument, as explained by Justice Harlan, also plays a central role in First Amendment jurisprudence.[385] It is (p.1367)not coincidence that the title of Harry Kalven's posthumous magnum opus on the First Amendment is A Worthy Tradition,[386] and the title perfectly summarizes the role of tradition in First Amendment argument. A dominant strand of First Amendment thought incorporates a whiggish view of history as almost always progressing, hopefully approaching perfection.
Our First Amendment tradition is well understood. Milton's Areopagitica,[387] the end of licensing,[388] Zenger,[389] and the American Revolution are antecedents. Then there is the First Amendment, too quickly followed by the fall from grace of the Sedition Act.[390] The tradition moves to the suppression of dissent in World War I, highlighting the great dissenting opinions of Justices Holmes and Brandeis,[391] celebrates their moving from dissents to doctrine and the creation of the "preferred position."[392] The tradition is then dismayed by the regression of Dennis[393] and the communist cases,[394] but simultaneously acquired new dissenting heroes in Justices Black and Douglas, and applauds the restoration of the First Amendment with the Civil (p.1368)Rights Cases.[395] From Sullivan[396] to Brandenburg[397] to Cohen,[398] First Amendment doctrine was "working itself pure."[399] That this whiggish history is incomplete and wrong[400] is not important; what is important is that the First Amendment celebrates the whiggish tale as if it were true.
The consequence of the First Amendment's worthy tradition is a doctrine that grants extraordinary protection to expression. Although that doctrine largely was developed to protect liberal minorities from conservative majorities, it has proven quite impervious to the efforts of the last fifteen years to censor conservative speech. The First Amendment literature is gleefully incorporating the rejection of censorious liberals into the tradition.[401]
It is not surprising that there is no comparable Second Amendment tradition, for the Second Amendment experience largely is the mirror image of the First. When the First Amendment was ignored and "forgotten"[402] in the nineteenth century, the Second Amendment was celebrated. Where as the First Amendment freely crosses the Atlantic to embrace John (p.1369)Milton[403] and John Stuart Mill,[404] the Second Amendment seemingly draws blanks. When the First Amendment began its incredible ascendancy after the dissents by Justices Holmes and Brandeis,[405] the Second Amendment got Justice McReynolds's opinion in Miller.[406]
Yet, as the history shows, there was once a gravitas to the Second Amendment. We have seen the importance to the First Amendment of St. George Tucker's American edition of Blackstone's Commentaries.[407] When Tucker placed sovereignty in the people, he cut through the prior restraint/subsequent punishment dichotomy, because a sovereign people could not at any time be silenced by their temporary agents.[408] To the extent that we credit Tucker with his prescience about the First Amendment, we must note also that he exalted the Second Amendment. Furthermore, Tucker thought that the Second Amendment, not the First, held the key to American liberty.[409] After quoting the Amendment, he stated: "This may be considered as the true palladium of liberty."[410]
Tucker contrasted the United States with Great Britain where he believed that "the right of keeping arms is effectually taken away from the people of England."[411] This was not so in America, because of the Second Amendment's guarantee that people could bear arms "without any qualification as to their condition or degree, as is the case in the British government."[412] Accordingly, Americans could exercise the "right of self defence[,] the first law of nature."[413] Americans could also protect their "liberty" which, in lands with standing armies but no individual right to bear arms, "if not already annihilated, [was] on the (p.1370)brink of destruction."[414] Just as Tucker cut through the prior restraint/subsequent punishment dichotomy to note that to be effective, the First Amendment had to prohibit both, so he broke through the private possession/state control dichotomy to conclude that to be effective, the Second Amendment had to guarantee individual possession of arms.
A quarter of a century later, Justice Joseph Story reiterated Tucker's praise of the Second Amendment.[415] Like Tucker, Story called it "the palladium of the liberties of a republic" and stated that it "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."[416] Story, however, added a cautionary note based on the fact that militia service was falling from favor and was perceived as burdensome.[417]
Possibly because of the waning favor of the militia, it was during this period that the first post-Constitution state constitutions that omitted a right to bear arms clause were written. Iowa,[418] Wisconsin,[419] Minnesota,[420] and California[421] did not guarantee the right. During the same period, however, Arkansas,[422] Michigan,[423] Texas,[424] and Oregon[425] did. One of the Civil War states, Kansas, guaranteed a right to bear arms,[426] but Nevada[427] and West Virginia[428] did not. The debates in Congress in the immediate aftermath of the Civil War demonstrated, (p.1371)however, that an armed populace had lost little of its importance to a new generation of constitutional framers.[429]
The Bill of Rights had responded to perceived fears of a strong and overreaching Federal Government.[430] The Fourteenth Amendment responded to actual abuses by state governments in the years leading to the Civil War and especially in the year after the surrender at Appomattox, when Southern State after Southern State adopted laws to reduce the freedmen to serfdom.[431] Congress first responded by adopting the Freedmen's Bureau Act[432] and the Civil Rights Act[433] over presidential vetoes and objections that the Thirteenth Amendment did not provide constitutional authority for their provisions.[434] The Fourteenth Amendment was designed, in part, to end any such questions.[435] Additionally, as Eric Foner stated, the Fourteenth Amendment "was deemed necessary, in part, precisely because [freedom of speech, the right to bear arms, trial by impartial jury, and protection against cruel and unusual punishment and unreasonable search and seizure were] being systematically violated in the South in 1866" and Congress wished to guarantee the protection of these rights against future state abridgement.[436]
Evidence exists for the proposition that the Framers of the Fourteenth Amendment intended to incorporate the protections of the entire Bill of Rights against state action.[437] There is even better evidence that they intended to guarantee freedom of speech, the right to bear arms, and the right to an impartial jury against state action.[438] The Fourteenth Amendment targeted the South and the actual abuses being perpetrated (p.1372)there.[439] The newly freed blacks needed to be able to protect themselves.[440]
Evidence of the Framers' intent to incorporate the whole Bill of Rights was central to Justice Black,[441] but has been irrelevant to the other Justices, who collectively have taken a variety of approaches to the issue of the applicability of the Bill of Rights to the states.[442] At one time, when Cruikshank,[443] Presser,[444] and Patterson[445] were newly decided, the Bill of Rights had no applicability to the states.[446] Beginning with Palko v. Connecticut,[447] however, the Court, openly and self-consciously, began to selectively incorporate some guarantees but not others.[448] Justice Cardozo explained that although certain provisions of the Bill of Rights might "have value and importance," that was not enough; instead, they had to be "the very essence of a scheme of ordered liberty."[449] In other words, only those provisions "so rooted in the traditions and conscience of our people as to be ranked as fundamental" were incorporated.[450]
Palko collapsed in the 1960s when the Court was incorporating every provision of the Bill of Rights that it considered.[451] Duncan v. Louisiana explained the newer approach as rejecting Palko's idealized and imagined system and inquiring into the (p.1373)reality of American practice.[452] Thus the right of a criminal jury trial was incorporated because all states guaranteed it;[453] for purposes of incorporation, a right is fundamental if it appears in the Bill of Rights and it is widely accepted by the states, either through their constitutions or their common law.[454] The rash of Supreme Court incorporation decisions, however, left two obvious provisions for incorporation untouched: the Second and Seventh Amendments.[455] Both issues have been raised, but the Court has refused to review them.[456]
If review were granted on a Second Amendment case, the "correct" outcome might not be so clear. Under the Duncan approach, the Second Amendment claim easily is stated: the right to bear arms is found in the Bill of Rights and in forty-three of the fifty state constitutions (including the two states admitted to the union in the mid-twentieth century).[457] The argument against incorporation could come from one of several directions. The first would be consequentialist and easily stated: Guns kill, so allowing civilians to have them is bad policy. The second is likely to be the least persuasive: Forty-three states is a lot, but not enough to override the values of federalism and the wishes of the other seven.[458] The third would be that simply balancing (p.1374)the decisions of forty-three states against the decisions of seven misses the point of our traditions. A long time ago, there was a tradition of bearing arms, but that tradition has been lost for most of a century, and it is not to be regained by judicial fiat.
If incorporation is not certain under Duncan, how might the issue be decided under Palko? If the question is whether the right was of the "very essence of ordered liberty" in 1791 or 1868, then the answers would be "yes" and "probably yes." Calling the Second Amendment the "palladium of liberty"[459] is roughly equivalent to calling the First Amendment the "indispensable condition[ ] of nearly every other form of freedom."[460] If the date were 1937, however, it would seem inconceivable that the elite in American society would talk of the Second Amendment in such terms. After 1968, and the assassinations of Martin Luther King, Jr. and Robert Kennedy, inconceivable becomes impossible.
The collective rights theory obviates all of these problems dealing with incorporation.[461] If no individual can claim the right to bear arms, there is no issue. If the "right" exists in the State, incorporation against state interference is utterly incomprehensible.[462]
The collective rights theory, however, has weaknesses stemming from the debates in the post-Civil War thirty-ninth Congress. Militia service had now disappeared from the discussions of the right to bear arms.[463] Northern Republicans were hardly interested in creating a new Southern armed force, but they were interested in protecting blacks.[464] Also, the civic republicanism prevalent in the founding generation was gone. There was no argument about the necessary preconditions of civic (p.1375)virtue; Republicans cared about self-defense for their allies in an openly hostile environment.[465] No one has offered any evidence to suggest that the Framers or ratifiers of the Fourteenth Amendment thought in terms of a collective right to own guns.
This creates an interesting originalist possibility. Even assuming that the Second Amendment is about a collective right, the Fourteenth Amendment, linguistically and by intent, was not.[466] Therefore, if the collective rights theory has any controlling historical validity, the federal government could limit arms to organized militias, but state governments could not. A right that the Fourteenth Amendment protects is individual and states may not abridge it, once the Court declares that right to be encompassed by the Fourteenth Amendment.[467]
Through 1866, there was a strong, consistent belief in the right to bear arms. This belief is reflected years later in Thomas Cooley's General Principles of Constitutional Law, in which he wrote that "the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose."[468] Yet this view was shattered within a century. The beginnings came during Reconstruction, when, not surprisingly, the Republicans' belief that the freedmen needed to be armed was not shared by white southerners.[469] Clayton Cramer has noted that the years following the Civil War witnessed a burst of legislation to restrict the right to carry arms, in both the former Confederacy and former slave-states that had remained in the Union.[470] (p.1376)Kates suggests that the target of the legislation was the freedmen, and there is no reason to doubt this conclusion.[471] Thus, even as convictions of white defendants were overturned, the laws were upheld for use in other circumstances.[472] In 1941, a Florida Supreme Court judge in exactly these circumstances quite candidly said that everyone knew why these laws had been enacted: blacks, but not whites, were to be disarmed.[473]
The South led, and eventually the rest of the nation followed, with restrictions on both the concealed and open carrying of weapons.[474] New York's Sullivan Law of 1911[475] required the licensing of handguns after both the New York Times and the New York Tribune complained of armed immigrants.[476] On the West Coast, fears of Asian immigrants led to restrictive measures.[477] Fear of those who were different led whites to demand limitations on bearing arms.
In the twentieth century both laws and elite opinion have questioned the Second Amendment, and this questioning became virtually universal after the assassinations of King and Kennedy. As a result, the collective rights theory "flowered in the 1960s or '70s as a prop in national political debates about gun control laws."[478] As the elite's disdain for guns grew, the Second Amendment became the only provision of the Bill of Rights to be attacked publicly by (retired) Supreme Court Justices Warren Burger[479] and Lewis Powell.[480] The epithet "gun nut" too (p.1377)often placed NRA members in similar categories with racists, cult members like Branch Davidians, and pornographers. When celebrating the bicentennial of the Bill of Rights, the St. Louis Post-Dispatch offered a Second Amendment story that contained a lengthy segment by a woman whose brother had been shot by a criminal.[481] It did not run a parallel piece about a Holocaust survivor describing her feelings about the Nazi march in Skokie.[482]
If one needed a synthesis, all that would be required is to open the pages of the 1989 Yale Law Journal to Professor Wendy Brown's comments about a helpful hunter who, as a good Samaritan, assisted her and a companion, far from the nearest AAA tow truck, with a car problem: Brown stereotypes the hunter as a would-be rapist.[483] Yet for all the negative stereotypes among elites, four states amended their constitutions in the 1980s to protect, for the first time, the right to possess arms.[484] Furthermore, nonelite opinion seems to believe, contrary to Dean Griswold,[485] that there is a right to bear arms.[486]
Like the actions of the white South after the Civil War, there is ample material here for the making and telling of a tradition.[487] But what makes the First Amendment tradition (p.1378)successful--a combination of academic and judicial support, as well as popular support by the press--is missing at both ends of Second Amendment tradition. Academics claiming Second Amendment parity with other rights have been too wedded to historical and textual argument--unable to see that there is much more to constitutional argument and analysis. What the Second Amendment needs is a coherent tradition that embraces the good while explaining and accommodating the bad.[488] Perhaps, however, such a tradition cannot yet be written.
This requires considering the interesting constitutional possibility that the Second Amendment died sometime in the past 125 years. David Williams has authored two excellent articles that combine taking the Second Amendment seriously with proclaiming its death.[489] Both articles center on the civic republican basis of the Amendment.[490] The first article joined Professor Brown in proclaiming civic virtue dead and suggesting that the Second Amendment went with it.[491] There are three problems with this thesis. First, someone more authoritative than an academic must sign civic virtue's death certificate. Second, there is more to the Second Amendment than republicanism--especially in the events surrounding the inception of the Fourteenth Amendment, when republicanism was nonexistent. Third, the Second Amendment can exist without republicanism, even though Williams may find this prospect "terrifying."[492]
Williams's second article states that the Second Amendment presupposed a unitary "people," and as a nation we no longer (p.1379)are one people.[493] Again, there are three problems with this thesis, parallelling those of his initial attempt. First, this conclusion would make too many Yale professors unemployable.[494] Second, the Constitution seems to presume conclusively that we are one people. Third, the right to bear arms can exist in a many-peopled society.
Still, Williams highlights an important question of whether unamended parts of the Constitution can die.[495] Bruce Ackerman's concept of "constitutional moments"[496] might explain how this could happen, but it seems unhelpful here because even if Ackerman's concept is valid, if the Second Amendment is dead, it slipped away over time and not in a constitutional moment. The Second Amendment tradition may be the opposite of the First's and may really consist of the telling of how a right went from the "palladium of liberty"[497] to the constitutional graveyard.
The Contracts Clause,[498] the heart of nineteenth century rights jurisprudence,[499] offers an interesting analogy of constitutional morbidity. Recall that the core of early Contracts Clause jurisprudence was a prohibition on state enactment of debtor relief laws.[500] Recall also that Chief Justice Hughes sustained the Minnesota Mortgage Moratorium Law in Home Building and Loan Association v. Blaisdell.[501]
Chief Justice Hughes's opinion in Blaisdell spent a lot of time trying to explain why the debtor relief law did not impair the obligation of contract as the text of the Contracts Clause, its history, and prior Supreme Court opinions indicated.[502] A fair (p.1380)reading seems to be that: (1) times change;[503] (2) Minnesota had not adopted repudiation of debts as state policy;[504] and therefore (3) reasonable, temporary impairments are constitutional.[505]
A like analysis fits the Second Amendment quite well; (1) obviously times change and rights change with them;[506] (2) neither the federal Government nor any state has ever adopted a policy of total gun control; and (3) accordingly, reasonable limits on gun ownership are constitutional. Putting together points (2) and (3) in practical and doctrinal terms means that so long as at least one type of weapon, such as hunting rifles, is not banned, any other regulation would be valid.[507]
The subsequent history of the Contracts Clause is not wholly consistent with my suggested reading of Blaisdell, but it is close enough for constitutional analysis. Only twice in the six decades since Blaisdell has the Court found that a state statute went too far in eliminating rights of contract.[508] Actually, Second Amendment advocates might envy such a record, because it far exceeds theirs. Nevertheless, traditional argument, with its emphasis on what history teaches us, can cut two ways. It can overprotect the highly popular and it can underprotect the consistently unpopular.
In the former situation, it takes something that is well protected--like freedom of expression, liberty of contract, or sexual intimacies in marriage--and protects it even more. The result typically is that outlying communities are brought within a national consensus.(p.1381)
The latter situation, underprotecting the consistently unpopular, is more troubling because it is a way that a constitutional provision may wither or die without formal action of Congress and the state legislatures to change it. Obviously, a guarantee of a right found in the Constitution got there because it once was thought to be important. In the case of the right to keep and bear arms, this lasted at least through the Reconstruction Era.[509] Over time, however, majorities, aided by the opinions of the dominant elite, have wished the right would vanish. Indeed, legal elites have claimed that Miller already did the disappearing act.[510] To the extent that traditional argument gives a constitutional imprimatur to this, it is troubling, just as Blaisdell was troubling.
It is troubling because a shift in tradition would justify a majority committing exactly the type of abuse the Constitution was designed to prevent. In Blaisdell, changed circumstances meant that a majority could impose debtor relief laws on the mortgage-holding minority.[511] It may have been no big deal in these circumstances, because banks and the like could be expected to protect themselves.[512] In the Second Amendment context, however, changed tradition could mean that a majority may disarm a minority it wishes to oppress, even in the face of language and an expired tradition that guaranteed the minority a right to keep and bear arms, partially to preclude government oppression. To put it bluntly, traditional argument would justify committing one of the abuses the Amendment was aimed at precluding. As such it offers confirmation of Madison's underlying worry that declarations of rights were but "parchment barriers."[513]
Thus, when we celebrate tradition, we must recognize that it is not a one-way ratchet, nor is it necessarily a good thing. Having said that, it seems inescapable that despite text and history, (p.1382)the differences in evolution of their respective traditions seem to best explain the relative constitutional status of the first two amendments.
Structural argument takes as its starting point the particular structures and institutions established or recognized by the Constitution, and the relationships among them. Normally, this involves either the checks and balances found among the three branches of the federal government, the existence of the States and federalism, or the relationship between representative government and the citizenry. However, as Justice Stewart reminded everyone two decades ago, the Framers created another structure in the First Amendment: an autonomous press with its ability to check the excesses of government.[514] He did not mention the Second Amendment, but an arms-bearing populace, either inside or outside a militia, also empowers the citizens as another check on government.
The press, Edmund Burke's Fourth Estate,[515] has perceived itself, and in turn has been perceived, as an independent watchdog on the government, especially when the three branches of government are identified singularly as "The Government." In Stewart's words, the First Amendment's guarantee