[Copyright © 1996 Cornell Law Review. Originally published as 81 Cornell L. Rev. 879-952 (1996). Permission for WWW use at this site generously granted by the author. For educational use only. The printed edition remains canonical. For citational use please obtain a back issue from William S. Hein & Co., 1285 Main Street, Buffalo, New York 14209; 716-882-2600 or 800-828-7571.]
David C. Williams[+]
I. What the Militia Has Right--Armed Revolution
II. What the Militia Has Wrong--The Body of the People
III. Theme and Variations--Militia Visions of the People
Conclusion: A Modern Constitutional Right of Revolarize my analysis of the Framers' intent from David C. Williams, Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101 Yale L.J. 551, 563-86 (1991).
[20] See J.G.A. Pocock, The Machiavellian Moment 66-75, 204-05 (1975); Wood, supra note 8, at 53-57, 118-19; Williams, supra note 18, at 563-67.
[21] See Lance Banning, The Jeffersonian Persuasion: Evolution of a Party Ideology 42-43, 49-51 (1978); Pocock, supra note 20, at 406-08; Wood, supra note 8, at 32-34.
[22] See Banning, supra note 21, at 65-66.
[23] See Lawrence D. Cress, Citizens in Arms: The Army and Militia in American Society to the War of 1812, at 23-25 (1982); Pocock, supra note 20, at 413; W.A. Speck, Reluctant Revolutionaries 155 (1988); Williams, supra note 18, at 572.
[24] See Andrew Fletcher, A Discourse of Government with Relation to Militias, in Selected Political Writings and Speeches 1, 10 (David Daiches ed., 1979); John Trenchard & Thomas Gordon, Cato's Letters No. 94, reprinted in The English Libertarian Heritage 222-23 (David L. Jacobson ed., 1965); Speck, supra note 23, at 145-46, 154-56 (documenting the suspicion caused by the support of a standing army and royal influence on judges).
[25] See Banning, supra note 21, at 78-80 (discussing the impact on colonists of the decaying control of the monarchy); Wood, supra note 8, at 32-34 (discussing the King's power to destroy the constitutional balance in England).
[26] According to Akhil R. Amar, this divergence is an example of "agency costs": the interests of the agent (government) departing from the interests of the principal (the people). Amar argues that these costs formed the core concern of the Framers. Their desire, in his view, was less to create private individual liberties and more to empower the citizenry to control a dangerous government. See Akhil R. Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1133 (1991).
[27] See Williams, supra note 18, at 575-77.
[28] U.S. Const. amend. II.
[29] See, e.g., Carl T. Bogus, Race, Riots, and Guns, 66 S. Cal. L. Rev. 1365, 1372-74 (1993); Keith A. Ehrman & Dennis A. Henigan, The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?, 15 U. Dayton L. Rev. 5, 31-34 (1989); Dennis A. Henigan, Arms, Anarchy and the Second Amendment, 26 Val. U. L. Rev. 107, 108 (1991).
[30] U.S. Const. amend. II.
[31] See Stephen P. Halbrook, The Right of the People or the Power of the State: Bearing Arms, Arming Militias, and the Second Amendment, 26 Val. U. L. Rev. 131 (1991); Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204 (1983); Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989); Nelson Lund, The Second Amendment, Political Liberty, and the Right of Self-Preservation, 39 Ala. L. Rev. 103 (1987); William Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke L.J. 1236 (1994).
[32] See Bogus, supra note 29, at 1373-74; Ehrman & Henigan, supra note 29, at 33-34; Henigan, supra note 29, at 116-19; Kates, supra note 31, at 221-25; Levinson, supra note 31, at 646-50; Lund, supra note 31, at 107-08; Van Alstyne, supra note 31, at 1244-46.
[33] Declaration of Independence of 1994, reprinted in Stern, supra note 14, app. 102.
[34] Militia of Montana, The Militia 8 (pamphlet from MOM in Noxon, Montana) (on file with the author).
[35] Jim Faulkner, Martial Law and Emergency Powers, Federal Lands Update, Nov. 1994, at 5. As its title suggests, Federal Lands Update sees the threat of tyranny particularly evident in federal land policy and environmental regulation.
[36] The Free Militia, Field Manual Section § 1 at 47 (1994) (on file with the author). A particularly malignant expression of this idea comes from the neo-Nazi National Alliance. A flyer explains that "FREE MONEY CAN BE YOURS--if you are an 80-IQ welfare mother," an illegal alien, a "member of Jewish organized crime gangs" or a "homosexual 'performance artist.'" On the other hand, "all this free money is not available to you if you are an ordinary straight White American, a descendant of the men and women of Europe who discovered, pioneered, and built America." Instead, "your job is to work hard to provide all the free money and free goodies that the criminals--uh, I mean the politicians--like to give away to buy the votes of the minority and the special interest voting blocs." Free Money (National Alliance) (on file with the author).
[37] Thompson, supra note 16, app. 102. Note the implicit analogy to the actions of the British crown in the seventeenth century. See supra notes 21-26 and accompanying text.
[38] For example:
U.S. Marines were asked if they would be willing to KILL American civilians who resisted confiscation of privately owned firearms. The sad commentary on that question was that the U.S. Marine Corp [sic]; in which we all have a son, daughter, grandchild, relative, or an acquaintance just down the street, in that tightly regimented organization; the overwhelming answer was YES! Sad, but true.
Faulkner, supra note 35, at 6.
[39] John Grady, U.S. Government initiates Open Warfare Against American People, Militia News, Collector's Edition 1994, at 2, reprinted in Stern, supra note 14, app. 104.
[40] See, e.g., Beth Hawkins, Patriot Games, Detroit Metro Times, Oct. 12-18, 1994, at 14; Hate Movement Shifts Tactics in 1994, Klanwatch Intelligence Report (Southern Poverty Law Center, Montgomery, Alabama), Mar. 1995, at 9, 11; Philip Weiss. Off the Grid, N.Y. Times, Jan. 8, 1995, § 6, at 24, 29-30, 44-52.
[41] See, e.g., Thomas, supra note 1, at 32-34.
[42] Richard Snell Update, Taking Aim (MOM, Noxon, MT), Mar. 1995, at 7. Snell was a convicted murderer with ties to the militia movement. See id. at 8; Jo Thomas & Ronald Smothers, Oklahoma City Bombing Was Target of Plot as Early as '83, Official Says, N.Y. Times, May 20, 1995, at A6. References to Waco and Ruby Ridge abound in the militia materials. The Militia News, for example, opines:
The recent 51 day siege and massacre of nearly one hundred men, women and children in Waco, Texas, was a crime of the greatest magnitude. It was a cruel, sadistic, brutal crime. It was a crime which violated nearly every article of the Bill of Rights .... It resembled the burning and obliteration of Christian cities and the annihilation of their inhabitants by Mogul hordes in earlier centuries.
Grady, supra note 39, at 2-3. About Ruby Ridge, The Free Militia recounts: "The BATF attempted to entrap Randy Weaver in Idaho. When he refused to become one of their henchmen, his cabin was put under 24-hour BATF surveillance, leading to a surprise confrontation that left Weaver's son and wife dead and Weaver acquitted of any wrongdoing." The Free Militia, supra note 36, at 43.
[43] Chris Bouneff, Leader: Militia Misunderstood, Idaho Press-Trib., Apr. 9, 1995, at 4A. Sherwood has denied the statement. Id.
[44] Thompson, supra note 16, app. 102.
[45] See James Corcoran, Bitter Harvest 27 (1990) (noting that the Posse Comitatus takes its name from the Latin for "power of the country").
[46] See Bouneff, supra note 43, at 4A. Samuel Sherwood, for example, issued his threat against state legislators because he believes that they might side with the central government in the coming civil war.
[47] Some Framers believed that religious establishment was necessary to maintain a virtuous state, but others were rationalist Deists who believed that traditional religion could only benight the government. See David C. Williams & Susan H. Williams, Volitionalism and Religious Liberty, 76 Cornell L. Rev. 769, 853-58 (1991) (considering the views of James Madison and Thomas Jefferson). In any event, modern secular humanism did not even exist in the eighteenth century for the Framers to worry about. The drafters of the Bill of Rights worried that some particular religious denomination, not humanists, might take over the federal government. The Federalist No. 10, at 124-26 (James Madison) (I. Kramnick ed., 1986). As a result, they adopted the Establishment and Free Exercise clauses along with the Second Amendment.
[48] On the other hand, shorn of its anti-semitism, the militia writers' worry about a conspiracy by international financiers has some resonance in the civic republican concern about banking, taxes, and credit as instruments of governmental corruption of the citizenry. See supra text accompanying notes 21-22.
[49] Indeed, those differences explain why the militias mistake themselves for the Body of the People: Militia writers construct a traitorous Other composed of whoever disagrees with them. See infra part II.B.2.
[50] See Williams, supra note 18, at 586-88.
[51] U.S. Const. art. I, § 8, cl. 16. Proponents of the amendment were especially worried that Congress might abuse its new powers of "organizing, arming, and disciplining, the Militia" by disarming popular militias and thus removing the main potential source of resistance to a federal army. See Ehrman & Henigan, supra note 29, at 29.
[52] See Williams, supra note 18, at 572-86.
[53] See Stephen Halbrook, That Every Man Be Armed 75 (1984).
[54] Id.; 2 Bernard Schwartz, The Bill of Rights: A Documentary History 842 (1971).
[55] 1 Annals of Congress 749-50 (Joseph Gales ed., 1789). These two examples are illustrative of many similar statements. For interested readers, most Second Amendment scholarship bristles with similar quotations.
[56] See sources cited supra note 31.
[57] Compare Bogus, supra note 29, at 1372-73 (arguing that the notion of a constitutionally guaranteed individual right to bear arms is a myth) and Ehrman & Henigan, supra note 29, at 21-34 (arguing that the Second Amendment is aimed at a military-related right to bear arms) and Henigan, supra note 29, at 114-15 (arguing that the Framers viewed the militia as an instrument of governmental authority) with Kates, supra note 31, at 214-20 (arguing that the Second Amendment guarantees the people's right to possess arms) and Lund, supra note 31, at 111-12 (arguing that the Second Amendment protects an individual's right to keep and bear arms) and Van Alstyne, supra note 31, at 1241-44 (noting that the right belongs to the common citizen rather than a standing army).
[58] See, e.g., Lund, supra note 31, at 111-12, 118.
Nicholas Johnson has argued that the Ninth Amendment offers a firmer basis for a constitutional right of self-defense than the Second Amendment. Nicholas Johnson, Beyond the Second Amendment: An Individual Right to Arms Viewed Through the Ninth Amendment, 24 Rutgers L.J. 1, 1-16 (1992). Robert Shalhope argues that there is direct historical support for the idea that the Second Amendment protects a right of self-defense. Robert Shalhope, The Ideological Origins of the Second Amendment, 69 J. Am. Hist. 599, 604-12 (1982). His sources, however, do not support this claim. See Williams, supra note 18, at 587 n.198.
[59] Nelson Lund, for example, has argued that general liberal theory guarantees a right to self-defense, and the Second Amendment should be interpreted broadly in light of liberal theory. Lund, supra note 31, at 117-23.
Don Kates has argued that the Framers believed that the right of revolution originates from a more basic Lockean right of self-defense, so that in protecting the specific right of revolution, they really meant to protect the more general right of self-defense. Kates, supra note 31, at 244. As Part Two of this Article will explain, the individualism inherent in these arguments is not consistent with the civic republicanism that produced the Second Amendment. Accordingly, a personal right of self-defense is a poor candidate for inclusion in the range of implicit Second Amendment rights, whatever they may be.
[60] See supra text accompanying notes 12-49.
[61] Six O'Clock Newscast (Indianapolis Eyewitness News, May 1, 1995).
[62] The Militia, supra note 34, at 3.
[63] See supra text accompanying notes 37-42.
[65] Militia of Montana Declaration, supra note 16, at 5.
[66] The Militia, supra note 34, at 8.
[67] The Free Militia, supra note 36, at 47.
[68] Jim Faulkner, Why There is a Need For the Militia in America, Federal Lands Update, Oct. 1994, at 6.
[69] The Free Militia, supra note 36, at 39 (quoting from the Declaration of Independence).
[70] Application, supra note 14.
[71] Grady, supra note 39, at 4. Other militia writers rely on another familiar imprecation by Henry: "Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined." Sherwood, supra note 15, at 60.
[72] See, e.g., Halbrook, supra note 53, at 84-87; Kates, supra note 31, at 211-20; Levinson, supra note 31, at 646-47.
[73] See, e.g., John H. Ely, Democracy and Distrust 95, 227 n.76 (1980); Laurence H. Tribe, American Constitutional Law 299 n.6 (2d ed. 1988); John Levin, The Right to Bear Arms: The Development of the American Experience, 48 Chi.-Kent L. Rev. 148, 158-59 (1971); Roy G. Weatherup, Standing Armies and Armed Citizens: An Historical Analysis of the Second Amendment, 2 Hastings Const. L.Q. 961, 999 (1975).
[74] For more detailed exposition of this argument, see Williams, supra note 18, at 588-94.
[77] Grady, supra note 14, at 5.
[78] Sherwood, supra note 15, at 58.
Lee actually wrote: "[T]he constitution ought to secure a genuine and guard against a select militia...." Richard H. Lee, An Additional Number of Letters from the Federal Farmer to the Republican 169 (1788). By this assertion, he meant that the Constitution should secure a genuine (i.e., universal) militia and forbid a select (i.e., less than universal) militia. See Williams, supra note 18, at 594.
[79] Faulkner, supra note 68, at 6.
[80] The Militia, supra note 34, at 7. The Second Amendment Committee purports to derive this conclusion from a linguistic analysis of the Amendment itself. According to A.C. Brocki, teacher of Advanced English, a foremost expert in grammar, former Senior Editor for Houghton Mifflin, the sentence means that the people are the militia. Smith, supra note 14.
[81] Definitions of the unorganized militia vary. Federal Lands Update asserts that the unorganized militia consists of every "able bodied male between 18 and 65." This definition is "a true vestige of the intent of the Founding Fathers and a heritage of the Guarantee of the Second Amendment." See Faulkner, supra note 68, at 6. MOM explains that the unorganized militia includes "all able-bodied citizen's [sic] of this state" and "therefor [sic], the unorganized militia conforms with 'Militia' as provided for in the second amendment." The Militia, supra note 34, at 6.
In fact, current law defines the unorganized militia as all males between the ages of 17 and 45 and all female officers of the national guard. 10 U.S.C. § 311 (1994). At present, that definition has no functional significance. The Code does not provide for the arming, equipping, organizing, training, or funding of the unorganized militia. In fact, § 311 seems to do only one thing: it allows those citizens who fit the statutory definition to proclaim that they are members of the militia, as militia writers are eager to do. For example, Linda Thompson, who does not appear to fit the definition, has proclaimed herself "Acting Adjutant General" of the Unorganized Militia of the United States "[p]ursuant to 10 U.S.C. § 311 and Articles I and II of the Bill of Rights." Linda Thompson, Ultimatum to Each Member of the United States House of Representatives and United States Senate (Apr. 19, 1994) (on file with author).
[82] Ray Southwell, co-founder of the Michigan Militia, explained the appeal: "What I've found is that people are so angry they're loose cannons.... They come into the militia and their anger level drops. Now we have a common goal, a common good. He's realized he's not alone." Beth Hawkins, Conspiratorial Views, Detroit Metro-times, Oct. 12-18, 1994, at 13.
[83] The Militia, supra note 34, at 7.
[84] Faulkner, supra note 68, at 6.
[85] The Free Militia, supra note 36, at 47.
[87] Notoriously, that clause does not appear in most of the NRA's promotional material. See Osha Gray Davidson, Under Fire 134-35 (1993).
[88] Faulkner, supra note 68, at 6.
[89] In this sense, it is not enough that American citizens have a universal right to own arms or to join a militia; the militia must in fact be universal. Otherwise, whenever there is a revolution, it will be made in the interests of the faction that actually holds the arms. See Williams, supra note 18, at 593-94.
[90] See infra part II.B.2.
[91] The Antifederalist Papers 75 (Morton Borden ed., 1965).
[92] 1 Annals of Congress, supra note 55, at 750.
[93] Faulkner, supra note 35, at 3.
[94] Grady, supra note 14, at 3.
[95] McAlvany Intelligence Advisor, March 1994, at 20.
[96] The Militia, supra note 34, at 3.
[97] See Faulkner, supra note 35, at 1; Faulkner, supra note 68, at 2; The Militia, supra note 34, at 7. A single-page flyer distributed at militia meetings also bears the quoted language and an attribution to Sarah Brady ("in HER OWN WORDS"), all in very large letters so as to fill the whole page. Brady Flyer (on file with the author).
[98] The Free Militia, supra note 36, at 47. According to the Detroit Metro Times, Michigan Militia Leaders agree, saying that "semi-automatic weapons are militia-style arms. Therefore, the only reason to ban them is to lay the groundwork for enslaving the populace." Beth Hawkins, Guns and Glory, Detroit Metro Times, Oct. 12-18, 1994, at 12.
[99] The Free Militia, supra note 36, at 42a. The description of these bills as "subversive" seems ironic, coming from a group committed to subversion and regarding bills that enjoyed popular support. As Part Three explains, however, this usage is consistent with militia ideology: they see themselves as the true American people and individuals who oppose them are traitors or foreigners. Accordingly, the bills are subversive of the real America.
[100] The Militia, supra note 34, at 7-8.
[101] Faulkner, supra note 68, at 2.
[102] Faulkner, supra note 35, at 5.
[103] The Free Militia, supra note 36, at 42 (footnote omitted).
[104] Hitler Flyer (on file with the author). To reinforce the message, the document goes on: "Political prisoners and Death Camps can't exist without 'Gun Control'. [sic] Some Americans still feel 'Gun Control' is a good idea. To save America from these Nazi-lovers, we must destroy 'Gun Control'!! [sic]" Id.
[105] The Militia, supra note 34, at 6-7.
[106] See, e.g., Beth Hawkins, Patriot Games, Detroit Metro Times, Oct. 12-18, 1994, at 13.
[107] See Grady, supra note 14, at 6; Application, supra note 14; The Free Militia, supra note 36, at 47; Sherwood, supra note 15, at xv.
[108] One interviewer expressed this worry to Norman Olson, co-founder of the Michigan Militia, before the bombing: "But if you establish 83 militias in every county in the state, who's to say that they'll all agree on what the government does? What's to prevent another Bosnia here?" Robert Downes, On the Front Lines with Northern Michigan's Militia, Northern Express, Aug. 22, 1994, at 4. Olson's response is discussed infra note 296.
[109] See E. Wayne Carp, The Problem of National Defense in the Early American Republic, in The American Revolution: Its Character and Limits 14, 32 (Jack P. Greene ed., 1987); Thomas P. Slaughter, The Whiskey Rebellion 44-45, 48 (1986).
[110] See, e.g., Richard M. Brown, Strain of Violence 4-7, 63-66 (1975) (describing the ideological impetus for rural rebellion); Slaughter, supra note 109, at 31-34, 39, 47-48, 54, 127-30.
[111] See Williams, supra note 18, at 582-83.
[112] See id. at 577-82, 585-86.
[113] A Pennsylvanian, Pennsylvania Gazette, Feb. 20, 1788, reprinted in 2 Documentary History of the Ratification of the Constitution (Microfilm Supp.) 1778-1780 (John P. Kaminski & Gaspara J. Saladino eds., 1981).
[114] 3 Samuel Adams, Writings 251 (Henry A. Cushing ed., 1906).
[115] Lee, supra note 78, at 170.
[116] See Joel Barlow, Advice to the Privileged Orders in the Several States of Europe 46 (1956); Lee, supra note 78, at 169; Lawrence D. Cress, An Armed Community: the Origins and Meaning of the Right to Bear Arms, 71 J. Am. Hist. 22, 31-32 (1984); Williams, supra note 18, at 578.
[117] Thomas Jefferson, A Declaration by the Representatives of the United States of America, in General Congress Assembled, in Thomas Jefferson: Writings 19 (Merrill D. Peterson ed., 1984).
[118] 1 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 327-28 (2d ed. 1836).
[119] 9 Documentary History of the Ratification of the Constitution 440 (John P. Kaminski & Gaspara J. Saladino eds., 1990).
[120] See 1 Elliot, supra note 118, at 244.
[121] See Halbrook, supra note 31, at 179.
[123] Pauline Maier, From Resistance to Revolution 87-88 (1972).
[124] Brown, supra note 110, at 61-62 (citations omitted).
[125] Maier, supra note 123, at 64 (citation omitted).
[126] See, e.g., Robert M. Calhoon, The Reintegration of the Loyalists and the Disaffected, in The American Revolution: Its Character and Limits, supra note 109, at 51; Edward Countryman, A People in Revolution 170-75, 186, 214-15, 235-36, 284-85 (1981).
[127] In this sense, the theory of the existence of a body of the people never presupposed absolute unanimity among the citizenry. Rather, it assumed that the bulk of the people formed a core group that could act on shared values and customs, outside of the normal channels of political authority. Dissenters from this core could not be part of the revolutionary movement. As this Article will argue, there is good reason to wonder whether the bulk of the modern American citizenry still form such a revolutionary core.
[128] See, e.g., Banning, supra note 21, at 97-102; Pocock, supra note 20, at 517-21; Wood, supra note 8, at 544-47; Williams, supra note 18, at 569-71. See generally Isaac Kramnick, Republicanism and Bourgeois Radicalism (1990). Madison's Federalist 10 is the locus classicus of this approach. The Federalist No. 10 (James Madison).
[129] See supra text accompanying note 108; Williams, supra note 18, at 568-69.
[130] See Williams, supra note 18, at 564-65.
[131] See supra text accompanying note 89.
[132] See, e.g., Kates, supra note 31, at 267-68; Levinson, supra note 31, at 646-51; Lund, supra note 31, at 111-16.
[133] See, e.g., Halbrook, supra note 53, at 84-87; Kates, supra note 31, at 218; Van Alstyne, supra note 31, at 1236-37.
[134] See, e.g., Kates, supra note 31, at 223-25.
[135] See supra text accompanying notes 113-22.
[136] See infra text accompanying notes 155-62.
[137] See infra text accompanying notes 259-61.
[138] See infra text accompanying notes 182-90. As this Article notes below, see infra text accompanying notes 151-54, Don Kates recognizes the possibility of civil war, but he fails to recognize the significance of that fact.
[139] The selection of these articles was based on their scholarly excellence, even though this author disagrees with parts of their analysis. These pieces, in other words, represent the individual rights view at its best, yet they still conjure with the People. One could amass similar conjurings in many other articles, but that task would be more tedious than useful.
Only Akhil R. Amar has seriously addressed how historical changes in the relationship of the individual to the People might affect the meaning of the Second Amendment. In his view, most of the original Bill of Rights were political (popular), not individual (civil), rights; they were designed to allow the people to express its will. By contrast, the Framers of the Fourteenth Amendment, through which the right to arms may be incorporated against the States, were primarily concerned about individual rights. Akhil R. Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193, 1262-66 (1992). Although he does not offer a precise explanation of the modern meaning of the right to arms under the Fourteenth Amendment, Amar plainly believes that it differs from the original right to arms under the Second Amendment:
[T]he core applications and central meanings of the right to keep and bear arms and other key rights were very different in 1866 than in 1789.... [W]hen we 'apply' the Bill of Rights against the states today, we must first and foremost reflect on the meaning and the spirit of the Amendment of 1866, not the Bill of 1789.
Id. at 1266. Because the popular right to revolution does not translate very well into an individual right, Amar presumably believes that it does not apply to the states through the Fourteenth Amendment at all. Regrettably, however, Amar does not address the modern meaning of the Second Amendment itself, so it is unclear whether he believes that the American citizenry still has a right of revolution against the federal government.
[140] See Levinson, supra note 31. This Article is probably responsible for much of the recent scholarly interest in the Second Amendment, the so-called "Second Amendment Renaissance." It has influenced political commentators, see, e.g., George F. Will, America's Crisis of Gunfire, Wash. Post, Mar. 21, 1991, at A21, politicians, and even popular novelists; see Stephen Hunter, Point of Impact 9 (1993). It is, in short, a central document in modern individual rights theory.
[141] Levinson, supra note 31, at 645.
[142] Id. at 648 (citing Lund, supra note 31, at 111-16).
[144] See Lund, supra note 31. Like Levinson's and Kates's articles, this article has attracted widespread, respectful attention from other individual rights theorists, perhaps because it is uncommonly intellectually sophisticated and careful. Unfortunately, most writers have ignored what may be the most interesting and original part of the piece: a proposal to control gun ownership through mandatory insurance requirements. Id. at 127-30.
[149] Id.
[150] Id.
[151] See Kates, supra note 31, at 268. Like Levinson's, Kates's article is a seminal piece in the development of the individual rights theory. For many years, it was the only article on the Second Amendment published in a "top-ten" law review; its documentation is prodigious; and it has been very widely cited.
[155] Grady, supra note 39, at 3.
[156] Faulkner, supra note 68, at 4 (emphasis added).
[157] Id.
[158] United States Militia Assoc., Official Policy and Announcement, Member Behavior Toward Law Enforcement Personnel 7 (1995) [ USMA pamphlet] .
[159] The Militia, supra note 34, at 8.
[160] See, e.g., Letter from North American Volunteer Militia to Judge Jeff Langton (Dec. 30, 1994) (copy on file with the author).
[161] Ultimatum by Linda Thompson (April 19, 1994) (on file with the author).
[162] Id.
[163] Rush Limbaugh felt so vulnerable to criticism that he wrote an editorial for a major magazine arguing that he is not to blame for the bombing. Rush Limbaugh, Blame the Bombers--Only, Newsweek, May 8, 1995, at 39.
[164] Glenn H. Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461, 464 (1995).
[174] Professor Reynolds offers one principal limit: resistance to an electoral government is definitionally illegitimate because recourse in a democracy must be to the ballot box, not the bullet box. Cf. Reynolds, supra note 164, at 507; Glenn H. Reynolds, Up in Arms About a Revolting Movement, Chi. Tri., Jan. 30, 1995, at N11. (To protect Professor Reynolds's good name, it is important to add that the atrocious "revolting movement" pun was his editors' idea, not his. See Reynolds, supra note 164, at 506 n.212.) One wonders whether he intends this limit to be absolute. If so, other individual rights theorists would disagree with him. Sanford Levinson, for example, argues that even elected governments can engage in such tyrannous acts as to justify revolution. See Levinson, supra note 31, at 657.
[175] Reynolds, supra note 164, at 508-12.
[176] Id. at 509 (quoting Williams, supra note 18, at 593).
[177] Id. at 510 (quoting Williams, supra note 18, at 582).
[178] See Williams, supra note 18, at 588-96.
[179] Unfortunately, Reynolds argues that the states' rights theory is to blame for the militia movement:
[S]ome gun-control proponents have promulgated the notion that the Second Amendment protects only a militia; many pro-gun activists have responded by forming militias in the hopes that doing so would somehow expand their constitutional rights.... Be careful what you advocate in terms of constitutional principles, because people may listen to you.
Reynolds, supra note 164, at 511.
That claim, however, is plainly mistaken. The militia movement has not "responded" to any Second Amendment scholarship, properly interpreted, and scholars cannot be responsible for the willful distortion of their scholarship by political movements. In addition, militia members share at least as much philosophical ground with the individual rights theory as with the states' rights theory. Like states' rights theorists, militia members believe that it is important to organize into militias, and that organization may make them more dangerous. They would not be dangerous at all, however, if they did not believe in a private right to own arms to make a revolution, a position that they share with the individual rights theorists.
[181] There is one argument available to individual rights theory. On the one hand, only a formal state militia may make a revolution, but on the other hand, there exists a universal right to own private arms so that the states will have an armed populace from which to summon their militia. Indeed, in seeking to reconcile the introductory clause of the Amendment (about the importance of a militia) with the main clause (about the right of the people), some scholars have already suggested that one purpose of the provision is to ensure an armed citizenry as a foundation for state militias:
[O]ne purpose of the Founders having been to guarantee the arms of the militia, they accomplished that purpose by guaranteeing the arms of the individuals who made up the militia.... [B]elieving that a militia (composed of the entire people possessed of their individually owned arms) was necessary for the protection of a free state, they guaranteed the people's right to possess those arms.
Kates, supra note 31, at 217-18; see also Reynolds, supra note 164, at 472-73; Van Alstyne, supra note 31, at 1243-44.
From an individual rights perspective, however, this path is treacherous. First, most individual rights theorists might accept the idea that one purpose of the Amendment was to ensure an armed citizenry to make up the militia. They would emphatically deny, however, that only a formally organized militia has the right to revolution. See Kates, supra note 31, at 217-18. Even in the passage above, Kates identifies the militia with "the entire people possessed of their individually owned arms." Id. From the point of view of these theorists, there is good reason for this denial. If the state declines to raise a militia, the people (private American citizens) have no right to revolution. If the state systematically abjures reliance on a militia, there would appear to be no need for an armed populace to supply the militia, thus eliminating the private right to arms. Finally, if the Amendment is to provide a population base for state militias, it would appear to be a protection for the states, not individuals. States could choose to disband the militia and disarm the citizenry if they so chose; or they could choose to keep the militia, arm them at public expense, and disarm everyone else. Only the federal government would be barred from disarming the general population, because that would interfere with the states' right to raise its militia from an armed populace, if they should see fit. Such a position seems to have more in common with the states' rights theory than the individual rights theory.
[182] See Calhoon, supra note 126, at 59-62.
[183] U.S. Const. amend. XIX.
[184] U.S. Const. amend. XIV.
[185] See, e.g., John Higham, Strangers in the Land: Patterns of American Nativism, 1860-1925 (1988); Kenneth L. Karst, Belonging to America (1989).
[186] See, e.g., The Countryside in the Age of Capitalist Transformation: Essays in the Social History of Rural America (Steven Hahn & Jonathan Prude eds., 1985).
[187] See E.J. Dionne, Jr., Why Americans Hate Politics (1991).
[188] See James M. Buchanan & Gordon Tullock, The Calculus of Consent: Logical Foundations of Constitutional Democracy (1962); George J. Stigler, The Theory of Economic Regulation, 2 Bell J. Econ. & Mgm't. Sci. 3 (1971).
[189] See Williams & Williams, supra note 47, at 776-89, 880-81.
[190] Perhaps the most plausible explanation might run along the following lines: there does not exist a people now, and under normal circumstances they never may become one. Nonetheless, in the event of true, severe, and large-scale oppression, a people might emerge, rallying together to drive off the tyrant. This argument has the advantage of at least being an explanation of how a people might arise; it does not, in other words, merely conjure with the concept of a people. It suffers, however, from at least two important problems. First, without more analysis, it is entirely speculative; the people might come together under provocation, but they might not. As the next Part will suggest, under present circumstances, there is reason to believe that citizens will not all perceive, evaluate, or respond to a crisis of oppression in the same way. See infra part III. Second, this explanation of self-constitution is at least somewhat inconsistent with the Framers' theory of self-constitution. The Framers believed that the American people already were a people, committed to the common good, unified, and organized in the militia. See Williams, supra note 18, at 569, 577-85. As a result, they could reliably predict that a right of revolution would actually result in revolution, rather than endemic civil war. That prediction was part of their larger belief that republican measures, like a right of revolution, were appropriate for a republican citizenry, but might be inappropriate for an alienated, atomistic, and self-interested citizenry. See id. at 564-65, 605.
[191] See James A. Aho, The Politics of Righteousness 93 (1990).
[192] See Corcoran, supra note 45, at 238.
[193] See id. at 29.
[194] See James W. Gibson, Warrior Dreams 220-30 (1994).
[195] As just one example, members of the Covenant, the Sword, and the Arm of the Lord firebombed a Jewish community center here in Bloomington, Indiana. See United States v. Ellison, 793 F.2d 942 (8th Cir.), cert. denied, 479 U.S. 937 (1986); Laura Lane, Neo-Nazis Admit Setting '83 Fire at Jewish Center, Bloomington Herald-telephone, July 18, 1985, at 1.
[196] Shortly before the bombing, McVeigh telephoned Elohim City, a Christian Identity compound. Furthermore, the timing of the bombing may also be significant. Aside from occurring on the anniversary of the assault on Waco, it also coincided with the scheduled execution date for Richard Snell, a white supremacist who holds Christian Identity beliefs and who plotted a similar bombing against the same building in 1983. See Jo Thomas & Ronald Smothers, Oklahoma City Building Was Target of Plot as Early as '83, Official Says, N.Y. Times, May 20, 1995, at A6.
[197] See, e.g., Aho, supra note 191, at 83-113; James Coates, Armed and Dangerous 77-103 (1987).
[198] See Aho, supra note 191, at 93-94.
[199] This summary is drawn from, inter alia, Aho, supra note 191, at 92-104 and Gibson, supra note 194, at 216-17.
[200] See Chip Berlet, Political Research Associates, Armed Militias, Right Wing Populism, and Scapegoating 4 (Apr. 27, 1995) (copy on file with the author); Hate Movement Shifts Tactics in 1994, Klanwatch Intelligence Rep. #77, Mar. 1995, at 9, 10-11; Montana Human Rights Network, A Season of Discontent: Militias, Constitutionalists, and the Far Right in Montana 2, 8 (May 1994); Hawkins, supra note 40, at 13.
[201] See, e.g., Hawkins, supra note 40, at 13. For example, the Texas Militia urges: "Open your militia to all races, creeds, religions. This is what America is really all about. This is why they came...." Johnny Johnson, Texas Militia--Statement 3 (Feb. 11, 1995), reprinted in Stern, supra note 14, app. 15. Similarly, the USMA does not "participate, sanction, or support" racist groups such as "the Nazis, Skin-heads, fascists, KKK," and it "allow[s] all men the full freedom and exercise of their conscience to worship." USMA pamphlet, supra note 158, at 3.
[202] This conspiracy theory has also been a staple of other right-wing extremists. See Berlet, supra note 200, at 5.
[203] For example, some militia members believe that eight Jewish families control the Federal Reserve System. See, e.g., Beth Hawkins, Conspiratorial Views, Detroit Metro Times, Oct. 12-18, 1994, at 13; Roger Tatarian, Rationale for Citizen Militias is Frightening, The Fresno Bee, Nov. 20, 1994, at B7.
[204] See infra part III.B.
[205] Grady, supra note 39, at 1.
[206] Id.
[207] Id.
[208] Aho, supra note 191, at 246.
[209] Id. at 247-49.
[210] The Militia, Calling Our Nation, No. 73, at 30.
[211] Id.
[212] Id. at 31.
[213] Id. at 30.
[214] Id.
[215] Id.
[216] Id.
[217] See Corcoran, supra note 45, at 28.
[218] See Gun Rights Were Meant to Be Beyond the Reach of Government Officials (distribution of the Second Amendment Committee) (on file with the author); Season of Discontent, supra note 200, at 11.
[219] Which Constitution?, The Patriot, Jan. 1990, at 1.
[220] See Aho, supra note 191, at 261.
[221] Pace Amendment, Art. of Amend. XXVII § 1 (on file with author).
[222] Article of Amendment XXVII (on file with the author).
[223] See Williams, supra note 18, at 602-03.
[224] See Jost Delbruck, Global Migration--Immigration--Multiethnicity: Challenges to the Concept of the Nation-State, 2 Ind. J. Glob. L. Stud. 45, 48-51, 57-58 (1994); David Williams, European and U.S. Perspectives on Civic Republicanism, 2 Ind. J. Glob. L. Stud. 71, 74-75 (1994).
[225] See, e.g., John Rawls, Political Liberalism 18-19 (1993).
[226] See Kenneth Karst, Belonging to America (1989); Delbruck, supra note 224, at 51-53.
[227] See, e.g., Herbert J. Gans, Middle American Individualism: The Future of Liberal Democracy (1988).
[228] See infra note 277 and accompanying text.
[229] See Police/Military Alert: United Nations Treachery Exposed, Aid & Abet Police Newsletter at 1, 1 (Special Edition No. 12).
[230] One uncommonly complete list includes not only the predictable members of the Clinton administration--Bruce Babbitt, Henry Cisneros, and Donna Shalala--but some less likely candidates as well: Newt Gingrich, Larry Pressler, Sandra Day O'Connor, and Laurence Silberman. See Fund to Restore an Educated Electorate, The CFR/Trilateral/New World Order Connection (paid advertisement), Prescott Sun, Dec. 1, 1993, at 11.
[231] "Though not realized at the time, the UN Charter, ratified as a treaty by the Senate and signed by the President, was an instrument of surrender." Louis Stradling, The Constitution vs. The UN Charter, Aid & Abet Police Newsletter at 5 (Special Issue Number 12). By the 1950s, "the plans for the dissolution of the nation, the surrender of our sovereignty, and the merger of the U.S. into a one world government under the United Nations was well underway." Grady, supra note 39, at 1.
[232] The plot seeks "the emasculation of our national security and the transfer of all our military forces to a United Nations command in preparation for the New World government." Grady, supra note 39, at 2. The conspirators will "[e]stablish an [i]nternational [a]rmy under the United Nations to control the people of the world.... All independent national military forces will be dissolved." The Central Yavapai Center for Action, The Hidden Agenda (paid advertisement), Prescott Sun, Dec. 1, 1993, at 11. They will "[d]isarm citizens; transfer US military to the UN." Stradling, supra note 231, at 2.
[233] "There are presently over one million (1,000,000) foreign troops in these United States." Faulkner, supra note 35, at 6. "The federal government, at this Time, is transporting large Armies of foreign Mercenaries to complete the work of Death, Desolation, and Tyranny, already begun, often under the color of the law of the United Nations." Thompson, supra note 16, at 3.
[234] For those with the interest, MOM's publication Taking Aim offers the most detailed and complete conspiracy theories. See, e.g., Militia of Montana, Taking Aim (February 1995); Militia of Montana, Taking Aim (Special Edition 1994).
[235] "[M]ysterious military operations with 'black helicopters' [are] being conducted all across the United States." Faulkner, supra note 35, at 6.
[236] "All people will be required to maintain a federal identity card, ultimately a computer chip under the skin of your hand will be the technique used to identify you and all pertinent information about you." The Hidden Agenda, supra note 232, at 11.
[237] "Why have tons of barbed wire and over 5,000 mattresses been off-loaded at Ft. Chaffee, Arkansas?" Faulkner, supra note 35, at 6.
[238] "Troop movement markers (bright colored reflective stickers on the backs of road signs) and U.N. Troops are already in place in this country...." Thompson, supra note 16, at 5.
[239] See Charles Zeps, ALERT! Militias Targeted 24/03/95, Talk. Politics. Guns, Mar. 24, 1995.
[240] "When the federal government decides to enact martial law; and they will; the [d]irector of FEMA becomes a virtual DICTATOR." Faulkner, supra note 35, at 5.
[241] See Alex Heard, The Road to Oklahoma City, The New Republic, May 15, 1995, at 15.
[242] The Militia of Montana Catalogue, for example, lists the following videotapes, among others: "America in Peril," "Equipping for the New World Order," "New World Order Land and Farm Confiscation," "New World Order Seminar," "New World Order--Take Over of America," "Enroute to Global Occupation." Militia of Montana Catalogue, supra note 12, at 2-5.
[243] Stradling, supra note 231, at 2.
[244] Grady, supra note 39, at 3.
[245] See supra note 5 and accompanying text.
[246] Step Three in the "Hidden Agenda" is to "[e]stablish a national propaganda machine.... All national T.V. networks, national newspapers, and radio networks are currently controlled by those that would destroy us." The Hidden Agenda, supra note 232, at 11. "Our national media has become nothing but the official mouthpiece of the government, putting forth false 'polls' and outright propaganda to sway the public opinion...." Thompson, supra note 16, at 5.
[247] "The majority of the 240 million residents of the U.S. are non-thinking sheep, easily led and programmed." Grady, supra note 39, at 3. "To trusting Americans, it is unbelievable, but veteran readers know that the NEW WORLD ORDER is to be a socialist dictatorship. That popular media and high officials ignore or deny and ridicule it, confuses people and thwarts organized opposition." Stradling, supra note 231, at 2. "The trust people put in the media is beyond reason. As babes at the breast of Mother Media, they suck their daily sustenance of managed 'news.'" Id. at 9.
[248] "[T]here are millions who have not fallen for the propaganda and conditioning, and of these millions, hundreds of thousands will physically resist.... These are our hope." Grady, supra note 39, at 3.
[249] See Richard Ashcraft, Revolutionary Politics and Locke's Two Treatises of Government 22-28 (1986); Maier, supra note 123, at 42, 183-97; Williams, supra note 18, at 565, 581-86.
[250] See Maier, supra note 123, at 224-27.
[251] The Militia News relies on Patrick Henry for its inspiration:
It is natural to man to indulge in the illusions of hope. We are apt to shut our eyes against a painful truth. Is this the part of wise men, engaged in a great and arduous struggle for liberty? ... For my part, whatever anguish of spirit it may cost, I am willing to know the whole truth; to know the worst and to provide for it.
Grady, supra note 39, at 3. "What is needed is millions of Paul Reveres, shouting the message, 'The enemy is here.'" Stradling, supra note 231, at 9.
[252] See Maier, supra note 123, at 224-27.
[253] Id.
[254] See Susan Williams, Feminist Legal Epistemology, 8 Berkeley Women's L.J. 63, 68-72 (1993). See generally Richard Rorty, Philosophy and the Mirror of Nature (1979) (describing traditional epistemology as holding that human knowledge reflects such an objective reality and criticizing that approach).
[255] For criticisms of the possibility of such a "universal" perspective, see Sandra Harding, Whose Science? Whose Knowledge? (1991); Naomi Scheman, Individualism and the Objects of Psychology, in Discovering Reality: Feminist Perspectives on Epistemology and Metaphysics 255 (Sandra Harding & Merrill B. Hintikka eds., 1983).
[256] The Hidden Agenda, supra note 232, at 11.
[257] See supra notes 208-09 and accompanying text.
[258] See Corcoran, supra note 45, at 24-29.
[259] See Richard Hofstadter, The Paranoid Style in American Politics, in The Paranoid Style in American Politics and Other Essays 23-40 (1965); Eli Sagan, The Honey and the Hemlock: Democracy and Paranoia in Ancient Athens and Modern America 13-34 (1991).
[260] See Berlet, supra note 200, at 6.
[261] See Aho, supra note 191, at 162-63, 185-211.
[262] See, e.g., Hawkins, supra note 40, at 13-14.
[263] See Aho, supra note 191, at 135-63, 185-211.
[264] Texas Militia--Statement, supra note 201, at 6.
[265] Id.
[266] Letter from North American Volunteer Militia to Judge Jeff Langton, supra note 160.
[267] Faulkner, supra note 35, at 2.
[268] The Militia, supra note 34, at 8.
[269] See, e.g., Aho, supra note 191, at 37-42.
[270] The Free Militia, supra note 36, at 44. See Corcoran, supra note 45, at 51. For example, Linda Thompson explains: "The Federal Government, under the Constitution, never had the legal authority to pass a national tax on income and the 16th Amendment (the law that enacted the income tax) was never ratified, as required by law." Thompson, supra note 16, at 5.
[271] See Aho, supra note 191, at 39.
[272] The Free Militia, supra note 36, at 45.
[273] See, e.g., Elizabeth Larson, Secessionism in the West, The Defender, Nov. 1994, at 1, 9.
[274] The Free Militia, supra note 36, at 44.
[275] See Larson, supra note 273, at 1.
[276] For example, the North American Militia warns state officeholders: "You have state agents who are threatening to take wildlife from an individual. The individual is not a corporation and has certain unalienable rights. The state of Montana does not own the wildlife. The regulations do not pertain to the human being inhabitants of Montana." Letter from North American Volunteer Militia to Judge Jeff Langton, supra note 160.
[277] For example: "The bad news is that the Clintonistas want your property and are serious about stealing it." McAlvany Intelligence Advisor, supra note 95, at 18.
[278] James Catron, Watch Out!, Federal Lands Update, Oct. 1994, at 3.
[279] USMA pamphlet, supra note 158, at 3.
[280] According to one poll, only 33% of white males and 22% of all others believe that "citizens have the right to arms themselves in order to oppose the power of the Federal Government." Smolowe, supra note 3, at 68.
[281] Grady, supra note 14, at 5-6.
[282] The Militia, supra note 34, at 3-4.
[283] See Tribe, supra note 73, at 301.
[284] See, e.g., Ely, supra note 73, at 1341; Laurence H. Tribe, God Save This Honorable Court 42-43 (1985); Geoffrey R. Stone et al., Constitutional Law 38-39 (2d ed. 1991). Some deny that language can ever produce determinate meaning, even under the best circumstances, but I need not go that far for present purposes.
[285] See Ronald Dworkin, Law's Empire (1986); Stanley Fish, Is There a Text in This Class? (1980); Owen M. Fiss, Objectivity and Interpretation, 34 Stan. L. Rev. 739 (1982); William M. Eskridge, Jr., Gadamer/Statutory Interpretation, 90 Colum. L. Rev. 609 (1990); William D. Popkin, The Collaborative Model of Statutory Interpretation, 61 S. Cal. L. Rev. 541 (1988).
[286] See, e.g., United States v. Lopez, 115 S. Ct. 1624 (1995) (six opinions); Board of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 114 S. Ct 2481 (1994) (six opinions); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) (five opinions).
[287] Grady, supra note 14 at 5-6. Sadly, such accusations of bad faith are also common in the scholarly debate over the Second Amendment. See Andrew Jay McClurg, The Rhetoric of Gun Control, 42 Am. U. L. Rev. 53 (1992).
[288] See Williams, supra note 18, at 603-04, 607-09.
[289] Thompson, supra note 16, at 3. Similarly, Calvin Greenup and others published an open letter in a local newspaper declaring: "I ... solemnly Publish and Declare my American National Status and Rights to emancipate absolute my 'res' in trust from the foreign jurisdiction known as the municipal corporation of the District of Columbia.... By this emancipation I return to an estate of primary sovereignty and freedom that pre-exists all government(s)." Letter to the Editor, Ravalli Republic, Sept. 28, 1993, reprinted in Stern, supra note 14, app. 7.
[290] Texas Militia--Statement, supra note 201, at 3.
[291] How to Activate the Constitutional Militia in Your Area, posted Talk. Politics. Guns, March 24, 1995. Similarly, another posting urges: "The [recruiting] team should visit likely places and persons who might refer them to prospective recruits. Gun shops, American Legion and VFW halls, civic organizations, sheriff and fire departments." Jon Roland, Militia Organizing--Advance Teams, posted Talk. Politics. Guns, March 24, 1995.
[292] The Militia of Montana, Sanders County, Unit Alpha, Rules and Regulations 2 (copy on file with the author).
[293] Id. at 3.
[294] Id.
[295] Id. at 1.
[296] An interview with Norman Olson, a cofounder of the Michigan Militia, nicely brings the interpretive and political problems together. The interviewer asked Olson, "[I]f you establish 83 militias in every county in the state, who's to say that they'll all agree?" Olson responded, "You have to listen to our mission: defend the Constitution and see that all men remain free." The interviewer then pointed out the interpretive problem: "But hundreds of courts interpret the Constitution differently.... Who would decide if there were dozens of militias?" Olson's answer to that difficulty raised the political difficulty instead: "What happens if a person doesn't like the philosophy of the brigade? He just walks away--that's it." Downes, supra note 108, at 4. This ultimate solution--the exit option--may allay worries about the rights of the individual, but it practically guarantees the disintegration of a revolutionary people.
[297] See Stanley B. Greenberg, Middle Class Dreams (1995).
[298] Grady, supra note 14, at 2.
[299] The Hidden Agenda, supra note 232, at 11.
[300] The Texas Constitutional Militia urges its chapters to
[e]ducate its members in ... the Bible, which has been the greatest single guiding influence for all great nations desiring to be free.... [and to] [s]eek the protection, wisdom, and leadership of Almighty God as we submit to Him to do His will in protecting the liberty and freedom He has given to all Americans.
Texas Constitutional Militia--Statement, supra note 201, at 7.
[301] Gordon Kahl raged in his last letter: "These enemies of Christ have ... thrown our Constitution and our Christian Common Law (which is nothing other than the Laws of God as set forth in the Scriptures) into the garbage can." Aho, supra note 191, at 246. One publication explains that our constitutional rights are "the divine endowment of the Creator to each person.... Note that there is no mention of HUMAN or CIVIL rights." Stradling, supra note 231, at 3. Under the Constitution, "our system of justice is founded in the wisdom of God based on Bible laws preserved through centuries by Anglo-Saxons." Id. at 4.
God intends the government to do you good by maintaining law, order, and justice. When the government systematically punishes the upright citizen and commends wrongdoing, it is no longer serving God's purpose .... If we are submitted to Jesus Christ and committed to Constitutional liberties, then our conscience demands the resistance of unconstitutional authority, which is no authority at all.
The Free Militia, supra note 36, at 11. In short, "WHEN ELECTED OFFICIALS BREAK THEIR OATH TO UPHOLD THE CONSTITUTION, IT IS NOT THE PATRIOTIC CITIZEN WHO IS IN REBELLION, BUT THE GOVERNING OFFICIAL." Id.
[303] For example, the Free Militia lists as examples of "violated civil rights":
For a generation we have had legalized abortion which denies the right of the unborn child to live.... Attempts have recently been made to require state certification of private school teachers and homeschoolers.... The America 2000 education program is designed to standardize the curriculum in and centralize control of all public schools by imposing 'outcome based' education ...."
The Free Militia, supra note 36, at 40-41.
[304] One distribution is overt (and slightly more inclusive than most) about the denominational battle lines: in the New World Order,
[a]ll congregations affiliated with the National Council of Churches and liberal Jewish councils, may continue to function . These groups are not incompatible with the aims and designs of the Alliance. However, all other fundamental, independent, Bible-centered congregations; all conservative Greek and Russian Orthodox churches; Orthodox Hebrew synagogues and Roman Catholic parishes with large Eastern European ethnic constituencies, will cease operation at once.
John Grady, When Will it Happen? (one-page handout on file with the author).
[305] See Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992).
[306] See Wallace v. Jaffree, 472 U.S. 38 (1985).
[307] See Stone v. Graham, 449 U.S. 39 (1980).
[308] See Barry A. Kosmin & Seymour P. Lachman, One Nation Under God 10-11, 230-31(1993).
[309] See id. at 157-251.
[310] See U.S. Const. art. I, § 2, cl. 1 (election of representatives); U.S. Const. amend. XVII (direct election of senators); U.S. Const. art. II, § 1 (election of president); Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1903) (describing the Supreme Court as the agent and protector of the people in exercising judicial review).
[311] Gordon Wood put the phrase, "the people out-of-doors," into wide circulation to describe the people acting on their own initiative, outside the ordinary channels of government. See Wood, supra note 8, at 319-28.
[312] The "Yale School" of constitutional interpretation might appear to propose a third form of popular constitutional action, between the people tamed and the people militant. Professor Akhil Amar, for example, argues that the American citizenry has a right to amend the Constitution by a simple majority vote. Article V of the Constitution, with its requirement of a supermajority, prescribes only those procedures that the government must follow in initiating change. Akhil R. Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 94 Colum. L. Rev. 457, 457-58 (1994). Bruce Ackerman argues that, under special conditions, the people may engage in a process of self-conscious deliberation leading to "higher lawmaking." When this deliberation results in widespread consensus on matters of principle through the populace and the branches of government, it effectively becomes a new constitutional regime. Bruce Ackerman, We the People: Foundations 266-69 (1991). For the purposes of this Article, however, Amar and Ackerman are describing actions of the people tamed, for they both assert that the people must act through formal, constrained, and peaceful channels. By contrast, in a revolution, the body of people must act as an organic unit outside of normal governmental channels because, by definition, the people are revolting against government. Thus, as Amar points out, a revolution "required no vote of the People themselves." Amar, supra, at 500. Similarly, in Ackerman's scheme, a proposed amendment must secure support through the normal channels of popular deliberation and all three branches of government, not through violent popular action. Ackerman, supra, at 266-69.
[313] See Nicholas J. Johnson, Beyond the Second Amendment: An Individual Right to Arms Viewed Through the Ninth Amendment, 24 Rutgers L.J. 1, 37, 71-73; Kates, supra note 31, at 226-27; Levinson, supra note 31, at 658-659; Reynolds, supra note 164, at 466-68, 495.
[314] See U.S. Const. amends. I-VII, XIII-XV, XIX (forbidding legislatures from limiting individual rights).
[315] See Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting) (describing the Court's work as representing "the balance [between order and liberty] 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") .
[316] See Wood, supra note 8, at 553-62.
[317] See U.S. Const. art. I, § 3, cl. 1 (senators represent states, not population).
[318] See The Federalist No. 10, supra note 47, at 126-27.
[319] See, e.g., Frank Michelman, Law's Republic, 97 Yale L.J. 1493 (1988); Suzanna Sherry, Civic Virtue and the Feminine Voice in Constitutional Adjudication, 72 Va. L. Rev. 543 (1986); Cass R. Sunstein, Beyond the Republican Revival, 97 Yale L.J. 1539 (1988).
[320] See Maier, supra note 123, at 41-48, 68-69.
[321] See Drew R. McCoy, the Elusive Republic 15-16, 23-38 (1980).
[322] See 2 Schwartz, supra note 54.
[323] See Reynolds, supra note 164, at 464-71.
[324] For example, Paul Gilje has carefully examined popular disorder in New York City from 1763 to 1834. He argues that such disorder came to be seen as less legitimate for two reasons. First, after the American Revolution, New York had a representative government. Second, New Yorkers came to see popular disorder less as a protest of the People and more as the opportunistic action of particular ethnic, religious, and class groups. Paul A. Gilje, The Road to Mobocracy: Popular Disorder in New York City, 1763-1834 (1987).