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To Keep and Bear Arms

Second Amendment Symposium Issue

Tennessee Law Review, Spring 1995
University of Tennessee—Knoxville College of Law, 378 pp., $7.00 (paper)

To Keep and Bear Arms: The Origins of an Anglo-American Right

by Joyce Lee Malcolm
Harvard University Press, 232 pp., $29.95

Guns, Crime, and Freedom

by Wayne LaPierre, foreword by Tom Clancy
HarperPerennial, 263 pp., $12.50 (paper)

An Argument, Shewing, that a Standing Army Is inconsistent with A Free Government, and absolutely destructive to the Constitution of the English Monarchy

by John Trenchard
London

Over the last decade, an industrious band of lawyers, historians, and criminologists has created a vast outpouring of articles justifying individual gun ownership on the basis of 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.”

This body of commentary, much of it published in refereed law journals, has changed attitudes toward the Second Amendment. The National Rifle Association’s lobbyists distribute it to legislators. Journalists like Michael Kinsley and George Will disseminate this school’s views. Members of it now claim, on the basis of their work’s quantity and what they believe is its quality, that scholarship on this subject is now all theirs—so that even to hold an opposing view is enough to “discredit its supporters,” according to the historian Joyce Lee Malcolm.1

The Tennessee Law Review devotes most of its Spring issue to a collection of articles by members of this school, including one that says its authors have created “the Standard Model” for interpreting the Second Amendment. To this mood of self-congratulation can be added the fact that a majority of Americans tell pollsters that they believe the Second Amendment protects private ownership of guns. So the defenders of that position feel they hold both the scholarly high ground and the popular consensus. The five who constitute a kind of inner circle of Standard Modelers—Robert J. Cottrol, Stephen P. Halbrook, Don B. Kates, Joyce Lee Malcolm, and Robert E. Shalhope—recycle each other’s arguments energetically. Three of the five write in the Tennessee Law Review issue, one of them (Malcolm) devoting her essay to the fourth (Cottrol), while the fifth (Shalhope) is frequently cited.

Then why is there such an air of grievance, of positive victimhood, in the writings of the “Standard Model” school? They talk of the little honor they are given, of the “mendacious” attitude of the legal establishment, of a rigidity that refuses to recognize their triumph. Don Kates (with co-authors) sputters in mixed metaphors of an opposition that “exists in a vacuum of lock-step orthodoxy almost hermetically sealed from the existence of contrary data and scholarship.”2 Randy E. Barnett, introducing the Tennessee Law Review symposium predicts dire things if people do not “accord some respect to those citizens (and academics) whose views it [the Standard Model Scholarship] supports.”3 Glenn Harlan Reynolds, in the article stating the Standard Model thesis, argues that militia extremism may be fueled by the Model’s opponents, who are “treating the Constitution, too, as a preserve of the elite.”4

Their own reciprocating nods and citations of approval are apparently not enough for these authors. Nor is popular support enough. They still talk like Rodney Dangerfield, getting no respect. They should ask themselves more penetratingly why this should be. Perhaps it is the quality of their arguments that makes them hard to take seriously.

Take the case of Stephen P. Halbrook, one of the central figures in this new literature. His imaginative manipulation of evidence runs to arguments like this, from his 1989 book, A Right to Bear Arms: the Second Amendment cannot be referring only to military weapons, since a Federal-period dictionary (Noah Webster’s), under “bear,” lists “to bear arms in a coat” as one usage, and only a handgun could be carried in a coat pocket.5 Mr. Halbrook does not recognize the term “coat of arms,” a decidedly military form of heraldry presided over by the College of Arms (by Mr. Halbrook’s interpretative standards, a medical institution specializing in the brachium).

The quality of the school’s arguments can be seen in the very article that proposes the “Standard Model” as the norm of scholarship in this area. Glenn Harlan Reynolds “proves” that the Second Amendment looked to private ownership of guns by quoting Patrick Henry, in these words (and these words only): “The great object is that every man be armed…. Everyone who is able may have a gun.”6

That quotation comes from the debate over adopting the Constitution. It cannot, therefore, be concerned with the Second Amendment, which was not proposed until after the Constitution was in effect. Henry is not discussing the Amendment’s text, which the Standard Model says looks to other weapons than those used by the militias (citizens’ armies) of the states. Henry is talking precisely about the militia clause in the Constitution, which refers only to military weapons (“Congress shall have the power to provide for organizing, arming, and disciplining the militia,” Article I, Section 8, Clause 16). Henry argues that federal arming of militias will either supplant or duplicate the states’ arming of their own forces (the arrangement under the Articles of Confederation and in colonial times). He says that, in the case of duplication.

Our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is that every man [of the militia] be armed. But can the people afford to pay for double sets of arms, &c? Every one who is able may have a gun. But we have learned, by experience, that, necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case.7

The debate throughout is on ways to arm the militia. The “arms” referred to are cognate with “regimentals, etc.” as military equipment. The attempts to get guns in every hand are the result of state laws for equipping the militia. Henry is saying that if the states could not do this heretofore, how is the federal government to do it?

Time after time, in dreary expectable ways, the quotes bandied about by Standard Model scholars turn out to be truncated, removed from context, twisted, or applied to a debate different from that over the Second Amendment. Those who would argue with them soon tire of the chase from one misquotation to another, and dismiss the whole exercise—causing the angry reaction from Standard Modelers that they are not taken seriously. The problem is that taking them seriously is precisely what undermines their claims.

Yet both the general public, which has a disposition to believe that the Second Amendment protects gun ownership, and the NRA lobby are bolstered in that view by the sheer mass of the articles now being ground out and published in journals. It is difficult to sort out all the extraneous, irrelevant, and partial material daily thrown into the debate. Even to make a beginning is difficult. One must separate what the Second Amendment says from a whole list of other matters not immediately at issue. Some argue, for instance, that there is a natural right to own guns (Blackstone is often quoted here) antecedent to the right protected by the amendment, or that such a right may be protected in other places (common law, state constitutions, statute, custom, etc.). All that could be true without affecting the original scope of the Second Amendment. One could argue for instance, that owners of property have a right to charge rental on it—but that is not the point at issue in the Third Amendment (against quartering federal troops on private property).

In order to make any progress at all, we must restrict ourselves to what, precisely, is covered by the Second Amendment. That is not hard to determine, once the irrelevant debris adrift around its every term has been cleared away. Each term exists in a discernible historic context, as does the sentence structure of the amendment.

That amendment, as Madison first moved it, read:

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.8

The whole sentence looks to military matters, the second clause giving the reason for the right’s existence, and the third giving an exception to that right. The connection of the parts can be made obvious by using the same structure to describe other rights. One could say, for instance: “The right of free speech shall not be infringed; an open exchange of views giving the best security to intellectual liberty; but no person shall be free to commit libel.” Every part is explained in relation to every other part. The third clause makes certain what Madison means in this place by “bear arms.” He is not saying that Quakers, who oppose war, will not be allowed to use guns for hunting or sport.

Did the changes made to Madison’s proposed amendment remove it from its original (solely military) context? Only two substitutions were made in the wording—“country” became “state” and “the best security of” became “necessary to.” This latter change might demote the right to bear arms by comparison with other rights (perhaps, say, free speech is the very best security of freedom), but it does not alter the thing being discussed.9 Beyond that, nothing was added to the text, so it could not be altered by addition. Was it altered by deletion? “Well armed and” was dropped, in drafting sessions that generally compressed the language, but “well regulated” includes “well armed” (see below, Number 3). Then the whole third clause was omitted—but for a reason that still dealt with the military consequences of the sentence.

Elbridge Gerry objected to the third clause on the grounds that rulers might declare some people “scrupulous” and then exclude them from service—as some tended to declare Quakers ineligible for office since they take no oaths; or as Catholics were once declared incapable, without scruple, of defending a Protestant government.10 Gerry was clearly talking of public service, not whether Quakers should go hunting or target shooting. His objection resembles the one Samuel Johnson made to limiting militia service by the imposition of a religious oath.11

One transposition was made in Madison’s sentence, but it strengthened the military context, as even the Standard Modeler, Joyce Lee Malcolm, admits.12 The basis for the asserted right was put first, as is normal in legal documents. The preamble, the “whereas,” the context-establishing clause—these set the frame for what follows: “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.” To use again the parallel sentence on free speech, transposition would produce: “An open exchange of views being necessary to the security of intellectual liberty, the right of free speech shall not be infringed.” Such preceding declaration of intent is found, for example, in the Constitution’s copyright clause (Article I, Section 8, Clause 8), where the simple listing of granted powers “to coin money…to declare war,” etc., is varied by a prior statement of purpose: “to promote the progress of science and useful arts by securing for limited times to authors and inventors…” The prefixed words give the reason for, and scope of, what follows.

  1. 1

    Joyce Lee Malcolm, “Gun Control and the Constitution: Sources and Explorations on the Second Amendment,” Tennessee Law Review (Spring 1995), p. 815.

  2. 2

    Don B. Kates, Henry E. Schaffer, John K. Lattimer, George B. Murray, and Edwin H. Cassem, “Guns and Public Health: Epidemic of Violence or Pandemic of Propaganda?” Tennessee Law Review (Spring 1995), p. 519.

  3. 3

    Randy E. Barnett, “Guns, Militias, and Oklahoma City,” Tennessee Law Review (Spring 1995), p. 452.

  4. 4

    Glenn Harlan Reynolds, “A Critical Guide to the Second Amendment,” Tennessee Law Review (Spring 1995), p. 512.

  5. 5

    Stephen P. Halbrook, A Right to Bear Arms (Greenwood Press, 1989), p. 101. The author had published this argument five years earlier in his book That Every Man Be Armed: The Evolution of a Constitutional Right (University of New Mexico Press, 1984), p. 219, and no scholar of the movement had the heart (or perhaps the head) to correct him in the interval.

  6. 6

    Glenn Harlan Reynolds, “A Critical Guide to the Second Amendment,” Tennessee Law Review (Spring 1995), p. 469.

  7. 7

    Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Washington, 1836), Vol. 3, p. 386.

  8. 8

    Bernard Schwartz, The Bill of Rights: A Documentary History (Chelsea House, 1971), Vol. 2, p. 1026.

  9. 9

    It was a commonplace that a proper militia was “the best security” to a state—meaning best physical guarantor of “national security.” Adam Smith uses just those words in his Lectures on Jurisprudence (Oxford University Press, 1978), p. 543. But Madison broadened the issue by distinguishing a free country’s protection.

  10. 10

    Bernard Schwartz, The Bill of Rights, Vol. 2, p. 1107; “They can declare who are religiously scrupulous, and prevent them from bearing arms.”

  11. 11

    See Johnson’s texts analyzed by J.C.D. Clark, in Samuel Johnson: Literature, Religion and English Cultural Politics From the Restoration to Romanticism (Cambridge University Press, 1994), pp. 120–126.

  12. 12

    Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right (Harvard University Press, 1994), pp. 160–161: “The language had also been tightened by reversing the reference to the military and the right of the people to bear arms, perhaps intentionally putting more emphasis on the militia.”

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