[CTRL] 2nd Amendment (2) (lengthy)

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THE EMBARRASSING SECOND AMENDMENT

Sanford Levinson University of Texas at Austin School of Law
Reprinted from the Yale Law Journal, Volume 99, pp. 637-659
One of the best known pieces of American popular art in this century is the New
Yorker cover by Saul Steinberg presenting a map of the United States as seen by
a New Yorker, As most readers can no doubt recall, Manhattan dominates the map;
everything west of the Hudson is more or less collapsed together and minimally
displayed to the viewer. Steinberg's great cover depends for its force on the
reality of what social psychologists call "cognitive maps." If one asks
inhabitants ostensibly of the same cities to draw maps of that city, one will
quickly discover that the images carried around in people's minds will vary by
race, social class, and the like. What is true of maps of places --that they
differ according to the perspectives of the mapmakers--is certainly true of all
conceptual maps.

To continue the map analogy, consider in this context the Bill of Rights; is
there an agreed upon "projection" of the concept? Is there even a canonical
text of the Bill of Rights?[1] Does it include the first eight, nine, or ten
Amendments to the Constitution? Imagine two individuals who are asked to draw a
"map" of the Bill of Rights. One is a (stereo-) typical member of the American
Civil Liberties Union (of which I am a card-carrying member); the other is an
equally (stereo-) typical member of the "New Right." The first, I suggest,
would feature the First Amendment[2]as Main Street, dominating the map, though
more, one suspects, in its role as protector of speech and prohibitor of
established religion than as guardian of the rights of religious believers. The
other principal avenues would be the criminal procedures aspects of the
Constitution drawn from the Fourth,[3] Fifth,[4]Sixth,[5] and
Eighth[6]Amendments. Also depicted prominently would be the Ninth Amendment,[7]
although perhaps as in the process of construction. I am confident that the
ACLU map would exclude any display of the just compensation clause of the Fifth
Amendment[8]or of the Tenth Amendment.[9] The second map, drawn by the New
Rightist, would highlight the free exercise clause of the First Amendment,[10]
the just compensation clause of the Fifth Amendment,[11] and the Tenth
Amendment.[12] Perhaps the most notable difference between the two maps,
though, would be in regard to the Second Amendment: "A well regulated militia
being necessary to the security of a free State, the right of the people to
keep and bear Arms shall not be infringed." What would be at most a blind alley
for the ACLU mapmaker would, I am confident, be a major boulevard in the map
drawn by the New Right adherent. It is this last anomaly that I want to explore
in this essay.

I. The Politics Of Interpreting The Second Amendment

To put it mildly, the Second Amendment is not at the forefront of
constitutional discussion, at least as registered in what the academy regards
as the venues for such discussion --law reviews,[13]casebooks, [14] and other
scholarly legal publications. As Professor Larue has recently written, "the
second amendment is not taken seriously by most scholars."[15] Both Laurence
Tribe [16] and the Illinois team of Nowak, Rotunda, and Young [17]at least
acknowledge the existence of the Second Amendment in their respective treatises
on constitutional law, perhaps because the treatise genre demands more
encyclopedic coverage than does the casebook. Neither, however, pays it the
compliment of extended analysis. Both marginalize the Amendment by relegating
it to footnotes; it becomes what a deconstructionist might call a "supplement"
to the ostensibly "real" Constitution that is privileged by discussion in the
text. [18] Professor Tribe's footnote appears as part of a general discussion
of congressional power. He asserts that the history of the Amendment
"indicate[s] that the central concern of [its] framers was to prevent such
federal interferences with the state militia as would permit the establishment
of a standing national army and the consequent destruction of local autonomy."
[19] He does note, how ever, that "the debates surrounding congressional
approval of the second amendment do contain references to individual self-
protection as well as to states' rights," but he argues that the qualifying
phrase "'well regulated" makes any invocation of the Amendment as a restriction
on state or local gun control measures extremely problematic." [20] Nowak,
Rotunda, and Young mention the Amendment in the context of the incorporation
controversy, though they discuss its meaning at slightly greater length.[21]
They state that "[t]he Supreme Court has not determined, at least not with any
clarity, whether the amendment protects only a right of state governments
against federal interference with state militia and police forces.. .or a right
of individuals against the federal and state government[s]."[22]

Clearly the Second Amendment is not the only ignored patch of text in our
constitutional conversations. One will find extraordinarily little discussion
about another one of the initial Bill of Rights, the Third Amendment: "No
Soldier shall, in time of peace be quartered in any house, without the consent
of the Owner, nor in time of war, but in a manner to be prescribed by law." Nor
does one hear much about letters of marque and reprisal [23] or the granting of
titles of nobility. [24] There are, however, some differences that are worth
noting.

The Third Amendment, to take the easiest case, is ignored because it is in fact
of no current importance what whatsoever (although it did, for obvious reasons,
have importance at the time of the founding). It has never, for a single
instant, been viewed by any body of modern lawyers or groups of laity as highly
relevant to their legal or political concerns. For this reason, there is almost
no case law on the Amendment. [25] I suspect that few among even the highly
sophisticated readers of the Journal can summon up the Amendment without the
aid of the text.

The Second Amendment, though, is radically different from these other pieces of
constitutional text just mentioned, which all share the attribute of being
basically irrelevant to any ongoing political struggles. To grasp the
difference, one might simply begin by noting that it is not at all unusual for
the Second Amendment to show up in letters to the editors of newspapers and
magazines. [26]That judges and academic lawyers, including the ones that write
casebooks, ignore it is most certainly not evidence for the proposition that no
one else cares about it. The National Rifle Association, to name the most
obvious example, cares deeply about the Amendment, and an apparently serious
Senator of the United States averred that the right to keep and bear arms is
the "right most valued by free men." [27] Campaigns for Congress in both
political parties, and even presidential campaigns, may turn on the apparent
commitment of the candidates to a particular view of the Second Amendment. This
reality of the political process reflects the fact that millions of Americans,
even if (or perhaps especially if) they are not academics, can quote the
Amendment and would disdain any presentation of the Bill of Rights that did not
give it a place of pride.

I cannot help but suspect that the best explanation for the absence of the
Second Amendment from the legal consciousness of the elite bar, including that
component found in the legal academy, [28] is derived from a mixture of sheer
opposition to the idea of private ownership of guns and the perhaps
subconscious fear that altogether plausible, perhaps even "winning,"
interpretations of the Second Amendment would present real hurdles to those of
us supporting prohibitory regulation. Thus the title of this essay --The
Embarrassing Second Amendment -- for I want to suggest that the Amendment may
be profoundly embarrassing to many who both support such regulation and view
themselves as committed to zealous adherence to the Bill of Rights (such as
most members of the ACLU). Indeed, one sometimes discovers members of the NRA
who are equally committed members of the ACLU, differing with the latter only
on the issue of the Second Amendment but otherwise genuinely sharing the
libertarian viewpoint of the ACLU.

It is not my style to offer "correct" or "incorrect" interpretations of the
Constitution. [29] My major interest is in delineating the rhetorical
structures of American constitutional argument and elaborating what is
sometimes called the "politics of interpretation," that is, the factors that
explain why one or another approach will appeal to certain analysts at certain
times, while other analysts, or times, will favor quite different approaches.
Thus my general tendency to regard as wholly untenable any approach to the
Constitution that describes itself as obviously correct and condemns its
opposition as simply wrong holds for the Second Amendment as well. In some
contexts, this would lead me to label as tendentious the certainty of NRA
advocates that the Amendment means precisely what they assert it does. In this
particular context--i.e., the pages of a journal whose audience is much more
likely to be drawn from an elite, liberal portion of the public--I will instead
be suggesting that the skepticism should run in the other direction, That is,
we might consider the possibility that "our" views of the Amendment, perhaps
best reflected in Professor Tribe's offhand treatment of it, might themselves
be equally deserving of the "tendentious" label.

II. The Rhetorical Structures of the Right to Bear Arms

My colleague Philip Bobbitt has, in his book Constitutional Fate, [30]spelled
out six approaches -- or "modalities," as he terms them -- of constitutional
argument. These approaches, he argues, comprise what might be termed our legal
grammar. They are the rhetorical structures within which "law-talk" as a
recognizable form of conversation is carried on. The six are as follows:
1) textual argument -- appeals to the unadorned language of the text; [31]

2) historical argument -- appeals to the historical background of the vision
being considered, whether the history considered be general, such as background
but clearly crucial events (such as the American Revolution). or specific
appeals to the so-called intentions of framers; [32]

3) structural argument -- analyses inferred from the particular structures
established by the Constitution, including the tripartite division of the
national government; the separate existence of both state and nation as
political entities; and the structured role of citizens within the political
order; [33]

4) doctrinal argument -- emphasis on the implications of prior cases decided by
the Supreme Court; [34]

5) prudential argument -- emphasis on the consequences of adopting a proferred
decision in any given case; [35]

6) ethical argument -- reliance on the overall "ethos" of limited government as
centrally constituting American political culture. [36]

I want to frame my consideration of the Second Amendment within the first five
of Bobbitt's categories; they are all richly present in consideration of the
Amendment might mean. The sixth, which emphasizes the ethos of limited
government, doe s not play a significant role in the debate of the Second
Amendment. [37]

A. Text
I begin with the appeal to text. Recall the Second Amendment: "A well regulated
Militia being necessary to the security of a free State, the right of the
people to keep and bear Arms shall not be infringed." No one has ever described
the Constitution as a marvel of clarity, and the Second Amendment is perhaps
one of the worst drafted of all its provisions. What is special about the
Amendment is the inclusion of an opening clause -- a preamble, if you will --
that seems to set out its purpose. No similar clause is part of any other
Amendment, [38]though that does not, of course, mean that we do not ascribe
purposes to them. It would be impossible to make sense of the Constitution if
we did not engage in the ascription of purpose. Indeed, the major debates about
The First Amendment arise precisely when one tries to discern a purpose, given
that "literalism" is a hopelessly failing approach to interpreting it. We
usually do not even recognize punishment of fraud -- a classic speech act -- as
a free speech problem because we so sensibly assume that the purpose of the
First Amendment could not have been, for example, to protect the circulation of
patently deceptive information to potential investors in commercial
enterprises. The sharp differences that distinguish those who would limit the
reach of the First Amendment to "political" speech from those who would extend
it much further, encompassing non-deceptive commercial speech, are all derived
from different readings of the purpose that underlies the raw text. [39]
A standard move of those legal analysts who wish to limit the Second
Amendment's force is to focus on its "preamble" as setting out a restrictive
purpose. Recall Laurence Tribe's assertion that the purpose was to allow the
states to keep their militias and to protect them against the possibility that
the new national government will use its power to establish a powerful standing
army and eliminate the state militias. This purposive reading quickly disposes
of any notion that there is an "individual" right to keep and bear arms. The
right, if such it be, is only a states's right. The consequence of this reading
is obvious: the national government has the power to regulate--to the point of
prohibition--private ownership of guns, since that has, by stipulation, nothing
to do with preserving state militias. This is, indeed, the position of the
ACLU, which reads the Amendment as protection only the right of "maintaining an
effective state militia...[T]he individual's right to keep a nd bear arms
applies only to the preservation or efficiency of a well-regulated [state]
militia. Except for lawful police and military purposes, the possession of
weapons by individuals is not constitutionally protected." [40]

This is not a wholly implausible reading, but one might ask why the Framers did
not simply say something like "Congress shall have no power to prohibit state-
organized and directed militias." Perhaps they in fact meant to do something
else. Moreover, we might ask if ordinary readers of the late 18th Century legal
prose would have interpreted it as meaning something else. The text at best
provides only a starting point for a conversation. In this specific instance,
it does not come close to resolving the questions posed by federal regulation
of arms. Even if we accept the preamble as significant, we must still try to
figure out what might be suggested by guaranteeing to "the people the right to
keep and bear arms;" moreover, as we shall see presently, even the preamble
presents unexpected difficulties in interpretation.

B. History
One might argue (and some have) that the substantive right is one pertaining to
a collective body -- "the people"-- rather than to individuals. Professor
Cress, for example, argues that state constitutions regularly use the words
"man" or "person" in regard to "individual rights such as freedom of
conscience," whereas the use in those constitutions of the term "the people" in
regard to a right to bear arms is intended to refer to the "sovereign
citizenry" collectively organized. [41] Such an argument founders, however,
upon examination of the text of the federal Bill of Rights itself and the usage
there of terms "the people" in the First, Fourth, Ninth, and Tenth Amendments.
Consider that the Fourth Amendment protects "[t]he right of he people to be
secure in their persons," or that the First Amendment refers to the "right of
the people peaceably to assemble, and to petition the Government for a redress
of grievances." It is difficult to know how one might plausibly read the Fourth
Amendment as other than a protection of individual rights, and it would
approach the frivolous to read the assembly and petition clause as referring
only to the right of state legislators to meet and pass a remonstrance directed
to Congress or the President against some government act. The Tenth Amendment
is trickier, though it does explicitly differentiate between "state" and "the
people" in terms of retained rights. [42] Concededly, it would be possible to
read the Tenth Amendment as suggesting only an ultimate right revolution by the
collective people should the "states" stray too far from their designated role
of protecting the rights of the people. This reading follows directly from the
social contract theory of the state.( But, of course, many of these rights are
held by individuals.)

Although the record is suitably complicated, it seems tendentious to reject out
of hand the argument that the one purpose of the Amendment was to recognize an
individual's right to engage in armed self-defense against criminal conduct.
[43] Historian Robert E. Shallhope supports this view, arguing in his article
The Ideological Origins of the Second Amendment [44]that the Amendment
guarantees individuals the right "to possess arms for their own personal
defense." [45] It would be especially unsurprising if this were the case, given
the fact that the development of a professional police force (even within large
American cities) was still at least half a century away at the end of the
colonial period . [46] I shall return later in this essay to this individualist
notion of the Amendment, particularly in regard into the argument that
"changing circumstances," including plausibility. But I want now to explore a
second possible purpose of the Amendment, which as a sometime political
theorist I find considerably more interesting.

Assume, as Professor Cress has argued, that the Second Amendment refers to a
communitarian, rather than an individual right. [47] We are still left the task
of defining the relationship between the community and the state apparatus. It
is this fascinating problem to which I now turn.

Consider once more the preamble and its reference to the importance of a well-
regulated militia. Is the meaning of the term obvious? Perhaps we should make
some effort to find out what the term "militia" meant to 18th century readers
and writers, rather than assume that it refers only to Dan Quayle's Indiana
National Guard and the like. By no means am I arguing that the discovery of
that meaning is dispositive as to the general meaning of the Constitution for
us today. But it seems foolhardy to be entirely uninterested in the historical
philology behind the Second Amendment.

I, for one, have been persuaded that the term "militia" did not have the
limited reference that Professor Cress and many modern legal analysts assign to
it. There is strong evidence that "militia" refers to all of the people, or
least all of those treated as full citizens of the community. Consider, for
example, the question asked by George Mason, one of the Virginians who refused
to sign the Constitution because of its lack of a Bill of Rights: "Who are the
militia? They consist now of the whole people." [48] Similarly, the Federal
Farmer, one of the most important Anti-Federalist opponents of the
Constitution, referred to a "militia, when properly formed, [as] in fact the
people themselves." [49] We have, of course, moved now from text to history.
And this history is most interesting, especially when we look at the
development of notions of popular sovereignty. It has become almost a cliche of
contemporary American historiography to link the development of American
political thought, including its constitutional aspects, to republican thought
in England, the "country" critique of the powerful "court" centered in London.
One of the school's most important writers, of course, was James Harrington,
who not only was in influential at the time but also has recently been given a
certain pride of place by one of the most prominent of contemporary "neo-
republicans," Professor Frank Michelman. [50] One historian describes
Harrington as having made "the most significant contribution to English
libertarian attitudes toward arms, the individual, and society." [51] He was a
central figure in the development of the ideas of popular sovereignty and
republicanism. [52] For Harrington, preservation of republican liberty requires
independence, which rests primarily on possession of adequate property to make
men free from coercion by employers or landlords. But widespread ownership of
land is not sufficient. These independent yeoman would also bear arms. As
Professor Morgan puts it, "[T]hese independent yeoman, armed and embodied in a
militia, are also a popular government's best protection against its enemies,
whether they be aggressive foreign monarchs or scheming demagogues within the
nation itself." [53]

A central fear of Harrington and of all future republicans was a standing army,
composed of professional soldiers. Harrington and his fellow republicans viewed
a standing army as a threat to freedom, to be avoided at all almost all costs.
Thus, says Morgan, "A militia is the only safe form of military power that a
popular government can employ; and because it is composed of the armed
yeomanry, it will prevail over the mercenary professionals who man the armies
of neighboring monarchs." [54]

Scholars of the First Amendment have made us aware of the importance of John
Trenchard and Thomas Gordon, whose Cato's Letters were central to the formation
of the American notion of freedom of the press. That notion includes what
Vincent Blasi would come to call the "checking value" of a free press, which
stands as a sturdy exposer of governmental misdeeds. [55] Consider the
possibility, though, that the unlimited "checking value" in a republican polity
is the ability of an armed populace, presumptively motivated by a shared
commitment to the common good, to resist governmental tyranny. [56] Indeed, one
of Cato's letters refers to "the Exercise of despotick Power [as] the
unrelenting War of an armed Tyrant upon his unarmed subjects..." [57]

Cress persuasively shows that no one defended universal possession of arms. New
Hampshire had no objection to disarming those who "are or have been in actual
rebellion," just as Samuel Adams stressed that only "peaceable citizens" should
be protected in their right of "keeping their own arms." [58] All these points
can be conceded, however, without conceding as well that Congress -- or, for
that matter, the States, -- had the power to disarm these "peaceable citizens."
Surely one of the foundations of American political thought of the period was
the well-justified concern about political corruption and consequent
governmental tyranny. Even the Federalists, fending off their opponents who
accused them of foisting an oppressive new scheme upon the American people,
were careful to acknowledge the risk of tyranny. James Madison, for example,
speaks in Federalist Number Forty- Six of "the advantage of being armed, which
the Americans possess over the people of almost every other nation." [59] The
advantage in question was not merely the defense of American borders; a
standing army might well accomplish that. Rather, an armed public was
advantageous in protecting political liberty. It is therefore no surprise that
the Federal Farmer, the nom de plume of an anti-federalist critic of the new
Constitution and its absence of a Bill of Rights, could write that "to preserve
liberty, it is essential that the whole body of the people always posses s
arms, and be taught alike, especially when young, how to use them..." [60] On
this matter, at least, there was no cleavage between the pro-ratification
Madison and his opponent.

In his influential Commentaries on the Constitution, Joseph Story, certainly no
friend of Anti-Federalism, emphasized the "importance" of the Second Amendment.
[61] He went on to describe the militia as the "natural defence of a free
country" not only "against sudden foreign invasions" and "domestic
insurrections," with which one might well expect a Federalist to be concerned,
but also against "domestic usurpations of power by rulers." [62] "The right of
the citizens to keep and bear arms has justly been considered," Story wrote,
"as the palladium of the liberties of a republic; since it offers a strong
moral check against the usurpation and arbitrary power by rulers; and will
generally, even if these are successful in the first instance, enable the
people to resist and triumph over them." [63]

We also see this blending of individualist and collective accounts of the right
to bear arms in remarks by Judge Thomas Cooley, one of the most influential
19th century constitutional commentators. Noting that the state might call into
its official militia only "a small number" of the eligible citizenry, Cooley
wrote that "if the right [to keep and bear arms] were limited to those
enrolled, the purpose of this guaranty might be defeated altogether by the
action or neglect to act of the government it was meant to hold in check." [64]
Finally, it is worth noting the remarks of Theodore Schroeder, one of the most
important developers of the theory of freedom of speech early in this century.
[65] "[T]he obvious import [of the constitutional guarantee to carry arms]," he
argues, "is to promote a state of preparedness for self-defense even against
the invasions of government, because only governments have ever disarmed any
considerable class of people as a means toward their enslavement." [66]
Such analyses provide the basis for Edward Abbey's revision of a common bumper
sticker, "If guns are outlawed, only the government will have guns." [67] One
of the things this slogan has helped me to understand is the political tilt
contained within the Weberian definition of the state -- i.e., the repository
of a monopoly of the legitimate means of violence 6 [68] -- that is so commonly
used by political scientists. It is a profoundly statist definition, the
product of a specifically German tradition of the (strong) state rather than of
a strikingly different American political tradition that is fundamentally
mistrustful of state power and vigilant about maintaining ultimate power,
including the power of arms, in the populace.

We thus see what I think is one of the most interesting points in regard to the
new historiography of the Second Amendment -- its linkage to conceptions of
republican political order. Contemporary admirers of republican theory use it
as a source of both critiques of more individualist liberal theory and of
positive insight into the way we today might reorder our political lives. [69]
One point of emphasis for neo-republicans is the value of participation in
government, as contrasted to mere representation by a distant leadership, even
if formally elected. But the implications of republicanism might push us in
unexpected, even embarrassing, directions; just as ordinary citizens should
participate actively in governmental decision-making, through offering their
own deliberative insights, rather than be confined to casting ballots once
every two or four years for those very few individuals who will actually make
the decisions, so should ordinary citizens participate in the process of law
enforcement and defense of liberty rather than rely on professionalized
peacekeepers, whether we call them standing armies or police.

D. Structure
We have also passed imperceptibly into a form of structural argument, for we
see that one aspect of the structure of checks and balances within the purview
of 18th century thought was the armed citizen. That is, those who would limit
the meaning of the Second Amendment to the constitutional protection of state-
controlled militias agree that such protection rests on the perception that
militarily competent states were viewed as a potential protection against a
tyrannical national government. Indeed, in 1801 several governors threatened to
call out state militias if the Federalists in Congress refused to elect Thomas
Jefferson president. [70] But this argument assumes that there are only two
basic components in the vertical structure of the American polity--the national
government and the states. It ignores the implication that might be drawn from
the Second, Ninth, and Tenth Amendments; the citizenry itself can be viewed as
an important third component of republican governance insofar as it stands
ready to defend republican liberty against the depredations of the other two
structures, however futile that might appear as a practical matter.

One implication of this republican rationale for the Second Amendment is that
it calls into question the ability of a state to disarm its citizenry. That is,
the strongest version of the republican argument would hold it to be a
"privilege and immunity of United States citizenship"--of membership in a
liberty-enhancing political order -- to keep arms that could be taken up
against tyranny wherever found, including, obviously, state government.
Ironically, the principal citation supporting this argument is to Chief Justice
[Roger] Taney's egregious opinion in Dred Scott, [71] where he suggested that
an uncontroversial attribute of citizenship, in addition to the right migrate
from one state to another, was the right to possess arms. The logic of Taney's
argument at the point seems to be that, because it was inconceivable that the
Framers could have genuinely imagined blacks having the right to possess arms,
it follows that they could not have envisioned them as being citizens, since
citizenship entailed the right. Taney's seeming recognition of a right to arms
is much relied on by opponents of gun control. [72] Indeed, recall Madison's
critique, in Federalist Numbers Ten and Fourteen, of republicanism's
traditional emphasis on the desirability of small states as preservers of
republican liberty. He transformed this debate by arguing that the states would
be less likely to preserve liberty because they could so easily fall under the
sway of a local dominant faction, whereas an extended republic would guard
against this danger. Anyone who accepts the Madisonian argument could scarcely
be happy enhancing the power of the states over their own citizens; indeed,
this has been one of the great themes of American constitutional history, as
the nationalism of the Bill of Rights has been deemed necessary in order to
protect popular liberty against state depredation.

D. Doctrine
Inevitably one must at least mention, even though there is not space to discuss
fully, the so-called incorporation controversy regarding the application of the
Bill of Rights to the states through the Fourteenth Amendment. It should be no
surprise that the opponents of gun control appear to take a "full
incorporationist" view of that Amendment. [73] They view the privileges and
immunities clause, which was eviscerated in the Slaughterhouse Cases, [74] as
designed to require the states to honor the rights that had been held, by
Justice Marshall in Barron v. Baltimore in 1833, [75]to restrict only the
national government. In 1875 the Court stated, in United States v. Cruickshank,
[76] that the Second Amendment, insofar as it grants any right at all, "means
no more than that it shall not be infringed by Congress. This is one of the
amendments that has no other effect than to restrict the powers of the national
government..." Lest there be any remaining doubt on this point, the Court
specifically cited the Cruickshank language eleven years later in Presser v.
Illinois, [77]in rejecting the claim that the Second Amendment served to
invalidate an Illinois statute that prohibited "any body of men whatever, other
than the regular organized volunteer militia of this State, and the troops of
the United States....to drill or parade with arms in any city, or town, of this
State, without the license of the Governor thereof..." [78]

The first "incorporation decision," Chicago, B & Q.R.Co. v. Chicago, [79] was
not delivered until eleven years after Presser; one therefore cannot know if
the judges in Cruickshank and Presser were willing to concede that any of the
amendments comprising the Bill of Rights were anything more than limitations on
congressional or other national power. The obvious question, given the modern
legal reality of the incorporation of almost all of the right s protected by
the First, Fourth, Fifth, Sixth, and Eighth Amendments, is what exactly
justifies treating the Second Amendment as the great exception. Why, that is,
could Cruickshank and Presser be regarded as binding precedent any more than
any of the other "pre-incorporation" decisions refusing to apply given aspects
of the BIll of Rights against the states?

If one agrees with Professor Tribe that the Amendment is simply a federalist
protection of state rights, then presumably there is nothing to incorporate.
[80] If, however, one accepts the Amendment as a serious substantive limitation
on the ability of the national government to regulate the private possession of
arms based on either the "individualist" or the "new-republican" theories
sketched above, then why not follow the "incorporationist" logic applied to
other amendments a nd limit the states as well in their powers to regulate (and
especially to prohibit) such possession? The Supreme Court has almost
shamelessly refused to discuss the issue, [81] but that need not stop the rest
of us.

Returning, though, to the question of Congress' power to regulate the keeping
and bearing of arms, one notes that there is, basically, only one modern case
that discusses the issue, United States v. Miller, [82] decided in 1939 . Jack
Miller was charged with moving a sawed-off shotgun in interstate commerce in
violation of the National Firearms Act of 1934. Among other things, Miller and
a compatriot had not registered the firearm, as required by the Act. The court
below ha d dismissed the charge, accepting Miller's argument that the Act
violated the Second Amendment.

The Supreme Court reversed unanimously, with the arch- conservative Justice
McReynolds writing the opinion. [83]Interestingly enough, he emphasized that
there was no evidence showing that a sawed- off shotgun "at this time has some
reasonable relationship to the preservation or efficiency of a well regulated
militia." [84] And "[c]ertainly it is not within judicial notice that this
weapon is any part of the ordinary military equipment or that its use could
contribute t o the common defense." [85] Miller might have had a tenable
argument had he been able to show that he was keeping or bearing a weapon that
clearly had a potential military use. [86]

Justice McReynolds went on to describe the purpose of the Second Amendment as
"assur[ing] the constitution and render[ing] possible the effectiveness of [the
militia]. [87] He contrasted the Militia with troops of a standing army, which
the Constitution indeed forbade the states to keep without the explicit consent
of Congress. The sentiment of the time strongly disfavored standing armies; the
common view was that adequate defense of country and laws could be secured
through the Militia -- civilians primarily, soldiers on occasion." [88]
McReynolds noted further that "the debates in the Convention, the history and
legislation of Colonies and States, and the writings of approved commentators
[all] [s]how plainly enough that the Militia comprised all males physically
capable of acting in concert for the common defense."[89]

It is difficult to read Miller as rendering the Second Amendment meaningless as
a control on Congress. Ironically, MIller can be read to support some of the
most extreme anti-gun control arguments, e.g., that the individual citizen has
a right to keep and bear bazookas, rocket launchers, and other armaments that
are clearly relevant to modern warfare, including, of course, assault weapons.
Arguments about the constitutional legitimacy of a prohibition by Congress of
private ownership of handguns or, what is much more likely, assault rifles,
might turn on the usefulness of such guns in military settings.

E. Prudentialism
WE have looked at four of Bobbitt's categories -- text, history, structure, and
case law doctrine -- and have seen, at the very least, that the arguments on
behalf of a "strong" Second Amendment are stronger than many of us might wish
were the case. This, then, brings us up to the fifth category, prudentialism,
or an attentiveness to the practical consequences, which is clearly of great
importance in any debate about gun control. The standard argument in favor of
strict control and, ultimately, prohibition of private ownership focuses on the
extensive social costs of widespread distribution of firearms. Consider, for
example, a recent speech given by former Justice Lewis Powell to the American
Bar Association.He noted that over 40, 000 murders were committed in the United
States in 1986 and 1987, and that fully sixty percent of them were committed
with firearms. [90]Justice Powell indicated that "[w]ith respect to handguns,"
in contrast "to sporting rifles and shotguns [,] it is not easy to understand
why the Second Amendment, or the notation of liberty, should be viewed as
creating a right to own and carry a weapon that contributes so directly to the
shocking number of murders in our society." [91]

It is hard to disagree with Justice Powell; it appears almost crazy to protect
as a constitutional right something that so clearly results in extraordinary
social cost with little, if any, compensating social advantage. Indeed, since
Justice Powell's talk, the subject of assault rifles has become a staple of
national discussion, and the opponents of regulation of such weapons have
deservedly drawn the censure of even conservative leaders like William Bennett.
It is almost impossible to imagine that the judiciary would strike down a
determination by Congress that the possession of assault weapons should be
denied to private citizens.

Even if one accepts the historical plausibility of the arguments advanced
above, the overriding temptation is to say that times and circumstances have
changed and that there is simply no reason to continue enforcing an outmoded,
and indeed, dangerous, understanding of private rights against public order.
This criticism is clearest in regard to the so-called individualist argument,
for one can argue that the rise of a professional police force to enforce the
law has made irrelevant, and perhaps even counter-productive, the continuation
of a strong notion of self-help as the remedy for crime. [92]

I am not unsympathetic to such arguments. It is no purpose of this essay to
solicit membership for the National Rifle Association or to express any
sympathy for what even Don Kates, a strong critic of the conventional dismissal
of the Second Amendment, describes as "the gun lobby's obnoxious habit of
assailing all forms of regulation on 2nd Amendment grounds." [93] And yet...
Circumstances may well have changed in regard to individual defense, although
we ignore at our political peril the good faith belief of many Americans that
they cannot rely on the police for protection against a variety of criminals.
Still, l et us assume that the individualist reading of the Amendment has been
vitiated by changing circumstances. Are we quite so confident that
circumstances are equally different in regard to the republican rationale
outlined earlier?

One would, of course, like to believe that the state, whether at the local or
national level, presents no threat to important political values, including
liberty. But our propensity to believe that this is the case may be little more
than a sign of how truly different we are from our radical forbearers. I do not
want to argue that the state is necessarily tyrannical; I am not an anarchist.
But it seems foolhardy to assume that the armed state will necessarily be
benevolent. The American political tradition is, for good or ill, based in
large measure on a healthy mistrust of the state. The development of widespread
suffrage and greater majoritarianism in our polity is itself no sure
protection, at least within republican theory. The republican theory is
predicated on the stark contrast between mere democracy, where people are
motivated by selfish personal interest, and a republic, where civic virtue,
both in common citizen and leadership, tames selfishness on behalf of the
common good. In any event, it is hard for me to see how one can argue that
circumstances have so changed us as to make mass disarmament constitutionally
unproblematic. [94] Indeed, only in recent months have we seen the brutal
suppression of the Chinese student demonstrations in Tiananmen Square. It
should not surprise us that some NRA sympathizers have presented that situation
as an abject lesson to those who unthinkingly support the prohibition of
private gun ownership. "[I]f all Chinese citizens kept arms, their rulers would
hardly have dared to massacre the demonstrators... The private keeping of hand-
held personal firearms is within the constitutional design for a counter to
government run amok... As the Tianamen Square tragedy showed so graphically, AK
47's fall into that category of weapons, and that is why they are protected by
the Second Amendment." [95] It is simply silly to respond that small arms are
irrelevant against nuclear armed states; Witness contemporary Northern Ireland
and the territories occupied by Israel, where the sophisticated weaponry of
Great Britain and Israel have proved almost totally beside the point. The fact
that these may not be pleasant examples does not affect the principal point,
that a state facing a totally disarmed population is in a far better position,
for good or ill, to suppress popular demonstrations and uprisings than one that
must calculate the possibilities of its soldiers and officials being injured or
killed. [96]

III. Taking the Second Amendment Seriously
There is one further problem of no small import; if one does accept the
plausibility of any of the arguments on behalf of a strong reading of the
Second Amendment, but, nevertheless, rejects them in the name of social
prudence and the present -day consequences produced by finicky adherence to
earlier understandings, why do we not apply such consequentialist criteria to
each and every part of the Bill of Rights? [97] As Ronald Dworkin has argued,
what it meant to take rights seriously is that one will honor them even when
there is significant social cost in doing so. If protecting freedom of speech,
the rights of criminal defendants, or any other parts of the Bill of Rights
were always (or even most of the time) clearly cost less to the society as a
whole, it would truly be impossible to understand why they would be as
controversial as they are. The very fact that there are often significant costs
-- criminals going free, oppressed groups having to hear viciously racist
speech and so on -- helps to account for the observed fact that those who view
themselves as defenders of the Bill of Rights are generally antagonistic to
prudential arguments. Most often, one finds them embracing versions of textual,
historical, or doctrinal arguments that dismiss as almost crass and vulgar any
insistence that times might have changed and made too "expensive" the continued
adherence to a given view. "Cost-benefit" analysis, rightly or wrongly, has
come to be viewed as a "conservative" weapon to attack liberal rights. [98] Yet
one finds that the tables are strikingly turned when the Second Amendment comes
into play. Here it is "conservatives" who argue in effect that social costs are
irrelevant and "liberals" who argue for a notion of the "living Constitution"
and "changed circumstances" that would have the practical consequence of
removing any real bite from the Second Amendment.

As Fred Donaldson of Austin, Texas wrote, commenting on those who defended the
Supreme Court's decision upholding flag-burning as compelled by a proper (and
decidedly non-prudential) understanding of the First Amendment, "[I]t seems
inconsistent for [defenders of the decision] to scream so loudly" at the
prospect of limiting the protection given expression "while you smile
complacently at the Second torn and bleeding. If the Second Amendment is not
worth the paper it is written on, what price the First?" [99] The fact that Mr.
Donaldson is an ordinary citizen rather than an eminent law professor does not
make his question any less pointed or its answer less difficult.

For too long, most members of the legal academy have treated the Second
Amendment as the equivalent of an embarrassing relative, whose mention brings a
quick change of subject to other, more respectable, family members. That will
no longer d o. It is time for the Second Amendment to enter full scale into the
consciousness of the legal academy. Those of us who agree with Martha Minow's
emphasis on the desirability of encouraging different "voices" in the legal
conversation1 [100] should be especially aware of the importance of recognizing
the attempts of Mr. Donaldson and his millions of colleagues to join the
conversation. To be sure, it is unlikely that Professor Minow had those too
often peremptorily dismissed as "gun nuts " in mind as possible providers of
"insight and growth," but surely the call for sensitivity to different or
excluded voices cannot extend only those groups "we" already, perhaps
"complacent[ly]," believe have a lot to tell "us."1 [101] I am not so naive as
to believe that conversation will overcome the chasm that now separates the
sensibility of, say, Senator Hatch and myself as to what constitutes the
"right[s] most valued by free men [and women]." [102] It is important to
remember that one will still need to join up sides and engage in vigorous
political struggle. But it might at least help to make the political sides
appear more human to one another. Perhaps "we" might be led to stop referring
casually to "gun nuts" just as, maybe, members of the NRA could be brought to
understand the real fear that the currently almost uncontrolled system of gun
ownership sparks in the minds of many whom they casually dismiss as "bleeding-
heart liberals." Is not, after all, the possibility of serious, engaged
discussion about political issues at the heart of what is most attractive in
both liberal and republican versions of politics?

Transcribed by
Chris Crobaugh 30460 Otten Rd. N. Ridgeville, Ohio 44039 (216) 327-6655
Lorain County Firearms Defense Association Ohio Constitution Defense Council

{{<End>}}

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