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To Keep and Bear Arms

In England, the need for a common discipline for militias was recognized, in order that the establishment of ranks, order, drill, maneuver, military obedience and punishment would be the same in neighboring counties, and even between the temporary army and the continuing militia (since some of the same men would go in or out of service in both). As early as Henry IV’s time, an overall “commission of army,” meant “to muster and array (or set in military order) the inhabitants of every district,” was accepted.44

In America, the Constitution gives the federal government the power and duty to “discipline” the state militias—i.e., set their order of military rank, procedure, drill, and punishment. The so-called militias that wear the private insignia of Representative Schroeder’s interlocutor are not “well-regulated” in the constitutional sense. The only militia recognized by the Second Amendment is one “regulated” by the militia clauses of the Constitution—one organized, armed, and disciplined by the federal government. Though the state militias (the National Guard financed by Congress) are under the ordinary jurisdiction of the states’ governors, the common discipline insures that the guard will be efficient if it is federalized (by a procedure also in the Constitution).

Only fantasts can think the self-styled militias of our day are acting under the mandate of, or even in accord with, the Second Amendment. Only madmen, one would think, can suppose that militias have a constitutional right to levy war against the United States, which is treason by constitutional definition (Article III, Section 3, Clause 1). Yet the body of writers who proclaim themselves at the scholarly center of the Second Amendment’s interpretation say that a well-regulated body authorized by the government is intended to train itself for action against the government. The proclaimer of the Standard Model himself says that the National Guard cannot be the militia intended by the Second Amendment since that militia was meant to oppose the government, and the National Guard is required to swear an oath of loyalty to the government that funds and organizes it. 45

The Standard Model finds, squirreled away in the Second Amendment, not only a private right to own guns for any purpose but a public right to oppose with arms the government of the United States. It grounds this claim in the right of insurrection, which clearly does exist whenever tyranny exists. Yet the right to overthrow government is not given by government. It arises when government no longer has authority. One cannot say one rebels by right of that nonexistent authority. Modern militias say the government itself instructs them to overthrow government—and wacky scholars endorse this view. They think the Constitution is so deranged a document that it brands as the greatest crime a war upon itself (in Article III: “Treason against the United States shall consist only in levying war against them…”) and then instructs its citizens to take this up (in the Second Amendment). According to this doctrine, a well-regulated group is meant to overthrow its own regulator, and a soldier swearing to obey orders is disqualified for true militia virtue.

Gun advocates claim that a militia is meant to oppose (not assist) the standing army. But even in England the militia’s role was not to fight the king’s army. The point of the militias was to make it unnecessary to establish a standing army. That no longer applied when the Second Amendment was adopted, since the Constitution had already provided Congress the powers to “raise and support armies” (Article I, Section 8, Clause 12), to “provide and maintain a navy” (Clause 13), and “to make rules for the government and regulation of the land and naval forces” (Clause 14). The battle against a standing army was lost when the Constitution was ratified, and nothing in the Second Amendment as it was proposed and passed altered that.46 Nor did it change the Constitution’s provision for using militias “to suppress insurrections” (Clause 15), not to foment them.

Yet gun advocates continue to quote from the ratification debates as if those arguments applied to the interpretation of the Second Amendment. They were aimed at the military clauses in the proposed Constitution. Patrick Henry and others did not want the Constitution to pass precisely because it would set up a standing army—and it did.

One of the Standard Modelers’ favorite quotations, meant to prove that the militia was designed to fight against, not for, the federal government, is James Madison’s argument, in Federalist No. 46, that any foreseeable national army could not conquer a militia of “half a million citizens with arms in their hands.” But Madison says this while making what he calls a “visionary supposition”—that the federal government has become a tyranny, overthrowing freedom.

That the people and the States should for a sufficient period of time elect an uninterrupted succession of men ready to betray both; that the traitors should throughout this period, uniformly and systematically preserve some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggeration of a counterfeit zeal, than like the sober apprehensions of genuine patriotism.47

Madison says he will grant, per impossible, such a hypothesis in order to consider the result:

A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combination in short would result from an apprehension of the federal, as was produced by the dread of the foreign yoke…

Madison is describing the Revolution, when Committees of Correspondence, Minutemen, and other bodies of resistance to tyranny sprang into being. It is not the “well-regulated militia” under the Constitution that is being described, but the revolutionary effort of a people overthrowing any despotism that replaces the Constitution and makes it void. Tyrannicides do not take their warrant from the tyrant’s writ. In Madison’s dire hypothesis, all bets are off and the pre-government right of resistance replaces governmental regulations including the Second Amendment. He is not describing the militia as envisioned in the Second Amendment. To use his words as if they explained the amendment’s proper functioning is absurd.

It is from such material that the Standard Model makes its case that militias are supposed to oppose the government that organizes, funds, and regulates them. They have been helped along by two frivolous but influential articles supposedly written “from the left,” published in The Yale Law Journal. In 1989, Sanford Levinson found the idea of a right to revolution in the Second Amendment so “interesting” that it, along with other things in the text, could be “embarrassing” to liberals like himself.48 One sign of this article’s influence is that it dazzled the eminent constitutionalist George Will, whose praise for the article has been disseminated ever since by the National Rifle Association.49

In 1991, David L. Williams upped Sanford Levinson’s bid, calling the Second Amendment not only “embarrassing” but “terrifying” because it imports republican resistance into a merely liberal document.50 If no modern militia meets the standards of republican virtue, then the courts should try to enforce the Second Amendment by other “republican” steps—like universal service, broader distribution of property, and other things Professor Williams agrees with. Any document would be terrifying if it mandates whatever a professor has on his wish list.

Both Levinson and Williams quote indiscriminately from republican literature and the ratification debates as if the question of a standing army were still “up” when the amendment was framed and ratified. With scholars like these, the NRA hardly needs to hire its own propagandists. They all agree, for their own circuitous reasons, that Second Amendment militias are organized, funded, and regulated by the federal government so that they may take arms against the federal government. It sometimes seems as if our law journals were being composed by Lewis Carroll using various other pseudonyms.

4. The people. Gun advocates claim that the “right of the people” to keep and bear arms is distributive, the right of every individual taken singly. It has that sense in, for instance, the Fourth Amendment (“the right of the people to be secure in their persons”). But the militia as “the people” was always the populus armatus, in the corporate sense (one cannot be a one-person militia; one must be formed into groups). Thus Trenchard calls the militia “the people” even though as we have seen, the groups he thought of were far from universal.51 The militia literature often refers to “the great body of the people” as forming the militia, and body (corpus) is a necessarily corporate term. The great body means “the larger portion or sector of” (OED, “great,” 8:c). This usage came from concepts like “sovereignty is in the people.” This does not mean that every individual is his or her own sovereign. When the American people revolted against England, there were loyalists, hold-outs, pacifists who did not join the revolution. Yet Americans claimed that the “whole people” rose, as Madison wrote in the Federalist, since the connection with body makes “whole” retain its original, its etymological sense—wholesome, hale, sound (sanus). The whole people is the corpus sanum, what Madison calls “the people at large.”52 Thus “the people” form militias though not every individual is included in them. The people as a popular body (corpus) was often contrasted with the rulers (senatus populusque), which is not a distributive sense (that would exclude senators from individual rights).

Gun advocates like to quote republican literature, based on classical history, to say that every citizen should be a soldier. That was true of Greece and Rome, where slaves gave citizens far greater freedom to be devoted to political and military life. But we should remember two things. Ancient citizens were not trained to be militiamen, a force supplementary to regular troops. Athenians were trained to be the regular troops (hoplites), as Romans were trained to be legionaries. And, second, initiation into citizenship was part of the same process that inducted one into religious duties to the state.53 No modern republic has contemplated such militarization and regimentation of political life, which is the very farthest thing from the individualism of those who would read the Second Amendment distributively. Political life was corporate life in antiquity.

A false universalism makes the Standard Modelers say that the militia mentioned in the Second Amendment is made up of the entire citizenry. Enrollment of a segment of the populace in the National Guard does not count, since that is what the British described negatively as a “select” militia.54 The attempt to raise a volunteer force for royal use across local lines was seen, in the seventeenth century, as a step toward assembling the elements of a standing army. But that does not mean that the ordinary local militia was ever universal. No locale could empty out its fields and shops to train all males of the appropriate age. The militia was in fact “select” in that it represented the local squirearchy and its dependents. The very operation of the militia depended on some people continuing their ordinary work—civil officials, food suppliers, sowers and harvesters, ostlers, blacksmiths, and the like. The very term “trained bands” means that the militia was not universal: only those with the time, opportunity, acceptance, and will to be exercised in training were actual “bandsmen,” on whose discipline depended the effectiveness of the trained bands in precluding the need for a standing army. Any breakdown of order at the local level would destroy the argument that militias were a sufficient defense of the kingdom under ordinary circumstances.

It is true that Congress passed a militia law in 1792 providing that every able-bodied man should equip himself with a musket to serve in the militia—but it was a dead letter, since no organized training was provided for.55 This was like defining the jury pool as the citizenry at large without providing for voir dires, so that no jury panels could be formed. Not until Congress passed the Dick Act in 1903 was the overall organization of a trained militia (the Guard) put on a regular basis. The gun advocates’ talk of a time when the militia of the United States was universal is not nostalgia for a past reality, but a present dream about a past dream. The militia actions of the nineteenth century were sporadic, “select,” and largely ineffectual.56

Adam Smith predicted in the eighteenth century, and Max Weber confirmed in this century, that modern principles of the division of labor, specialization of scientific warfare, and bureaucratization of responsibility would shift the functions of the eighteenth-century militia to professional armies and to local police forces, giving the state a “monopoly on force” as a matter of efficiency. George Washington, who had bitterly criticized the militias during the Revolution, tried to adhere to the Second Amendment by proposing what was known as the Knox Plan, for a small but well-trained militia. Congress, instead, gave him the Militia Act of 1792, which made of the militia a velleity.

Why, in fact, did Madison propose the Second Amendment? Not to prevent a standing army. That was already established by Article I, and the amendment did not overthrow it. Not to organize the militia. That, too, was mandated by Article I. Even a Standard Modeler like Joyce Lee Malcolm treats the amendment as, constitutionally, a gesture: “A strong statement of preference for a militia must have seemed more tactful than an expression of distrust of the army.”57 Constitutional law normally enacts more than “a strong statement of preference.”

Why, then, did Madison propose the Second Amendment? For the same reason that he proposed the Third, against quartering troops on the civilian population. That was a remnant of old royal attempts to create a standing army by requisition of civilian facilities. It had no real meaning in a government that is authorized to build barracks, forts, and camps. But it was part of the anti-royal rhetoric of freedom that had shown up, like the militia language, in state requests for amendments to the Constitution.

Madison knew that the best way to win acceptance of the new government was to accommodate its critics on the matter of a bill of rights. He had opposed that during the ratification debates, recognizing that people like Robert Whitehill and Patrick Henry were using the demand to kill the document, not to improve it. His assessment was confirmed when Anti-federalists like Henry and Whitehill changed their stance and opposed the amendments when Madison offered them. Henry

thought that the amendments would “tend to injure rather than serve the cause of liberty” by lulling the suspicions of those who had demanded amendments in the first place… The Antifederalist strategy, it seems, was to reject the most popular of the amendments, thus making it necessary for Congress to take up the whole matter again. 58

Henry feared that Madison was doing in the Antifederalists with sweet talk, and he was right. Madison confided to a friend: “It will kill the opposition everywhere.”59 Sweet-talking the militia was a small price to pay for such a coup—and it had as much impact on real life as the anti-quartering provisions that arose from the same motive. Thus he crafted an amendment that did not prevent the standing army (and was not meant to) but drew on popular terms that were used for that purpose in the past. His sentence structure set as totally military a context for this amendment as for the Third. Every term in the Second Amendment, taken singly, has as its first and most obvious meaning a military meaning. Taken together, each strengthens the significance of all the others as part of a military rhetoric.

Against this body of evidence we have the linguistic tricks of the Standard Model which wrench terms from context and impose fanciful meanings on them. The Standard Model takes apart the joint phrasing of keep-and-bear arms to make “keep” mean only keep-in-the-home-for-private-use and “bear arms” mean carry-a-gun-in-the-hand. The ratification-debate attacks on the militia clause of the Constitution are illegitimately applied to the support of the later amendment. Madison is made to talk as if obliterating the government could be a way to obey the government. We are told that the Second Amendment is deliberately insurrectionary and proclaimed (in an absent-minded way) the right of armed rebellion as a method of regulating the military. We are told that arms, all the equipage of war, can be borne in a coat pocket. Heraldry is mixed with haberdashery, humbug with history, and scholarly looking footnotes with simple-minded literalism. By the methods used in the Standard Model, we could argue that a good eighteenth-century meaning for “quarter” shows that the Third Amendment was intended to prevent soldiers from having their limbs lopped off in private homes.

As I said at the beginning, my argument does not deny any private right to own and use firearms. Perhaps that can be defended on other grounds—natural law, common law, tradition, statute. It is certainly true that most people assumed such a right in the 1780s—so naturally, in fact, that the question was not “up” and calling for specific guarantees. All I maintain is that Madison did not address that question when drafting his amendment. When he excepted those with religious scruple, he made clear that “bear arms” meant wage war—no Quaker was to be deprived of his hunting gun.

The recent effort to find a new meaning for the Second Amendment comes from the failure of appeals to other sources as a warrant for the omnipresence of guns of all types in private hands. Easy access to all these guns is hard to justify in pragmatic terms, as a matter of social policy. Mere common law or statute may yield to common sense and specific cultural needs. That is why the gun advocates appeal, above pragmatism and common sense, to a supposed sacred right enshrined in a document Americans revere. Those advocates love to quote Sanford Levinson, who compares the admitted “social costs” of adhering to gun rights with the social costs of observing the First Amendment.60 We have to put up with all kinds of bad talk in the name of free talk. So we must put up with our world-record rates of homicide, suicide, and accidental shootings because, whether we like it or not, the Constitution tells us to. Well, it doesn’t.

Letters

To Keep and Bear Arms: An Exchange November 16, 1995

  1. 44

    William Blackstone, Commentaries on the Laws of England, facsimile of the first edition of 1765–1769, edited by Stanley N. Katz (University of Chicago Press, 1979), Vol. 1, p. 398.

  2. 45

    Glenn Harlan Reynolds, “A Critical Guide to the Second Amendment,” pp. 476–467: “The National Guard was never designed to resist a tyrannical government…. And they are required to swear an oath of loyalty to the United States government, as well as to their states.”

  3. 46

    Of course, the original point of British resistance to standing armies was lost in America. The militias were parliament’s tool to keep the king from having a regular revenue for standing forces. In America, the parliament (Congress) had established itself as the organizer and founder of the military forces, a point made both by Hamilton in The Federalist (Nos. 24, 26, 28) and Madison (Elliot, Debates in the Several State Conventions, Vol. 3, p. 383).

  4. 47

    James Madison, The Federalist No. 46, pp. 320–321.

  5. 48

    Sanford Levinson, “The Embarrassing Second Amendment,” Yale Law Journal (December 1989), pp. 637–659.

  6. 49

    See Wayne LaPierre, Guns, Crime, and Freedom (Regnery Publishing, 1994), pp. 12, 175. For the constitutionalism of George Will, see Garry Wills, “Undemocratic Vistas,” New York Review of Books, November 19, 1992, pp. 28–34.

  7. 50

    David C. Williams, “Civic Republicanism and the Second Amendment: The Terrifying Second Amendment,” Yale Law Journal (December 1991), pp. 551–615.

  8. 51

    Trenchard, An Argument, p. 15.

  9. 52

    Madison, The Federalist No. 46, p. 316.

  10. 53

    See for instance, S.D. Lambert, The Phratries of Attica (University of Michigan Press, 1993), pp. 25–58, 205–236.

  11. 54

    Ironically, the private militias of our day like to compare themselves with the Minutemen of the Revolutionary era—yet those were volunteer forces joined only by the ideologically compatible, something far closer to the “select militia” of the eighteenth century than is the contemporary National Guard. For the lack of universal service in colonial militias, see John Shy, A People Numerous and Armed (Oxford University Press, 1976), pp. 21–33.

  12. 55

    The best summary of this matter is by Frederick Bernays Wiener, “The Militia Clause of the Constitution,” Harvard Law Review (December 1940), pp. 181–219.

  13. 56

    Wiener, “The Militia Clause,” pp. 188–193.

  14. 57

    Malcolm, To Keep and Bear Arms, p. 164.

  15. 58

    Richard R. Beeman, Patrick Henry (McGraw-Hill, 1974), pp. 170–172. There is a good contemporary description of Henry’s attempt to kill the Bill of Rights he had earlier demanded in The Papers of James Madison (University Press of Virginia, 1979), Vol. 12, pp. 463–465.

  16. 59

    Madison, Papers, Vol. 12, p. 347. Madison called the Bill of Rights “the nauseous project of amendments,” which he considered unnecessary in a republic, but “not improper in itself,” and useful for preeempting a position it would be inconvenient to surrender to the Antifederalists (pp. 346–347). This is hardly the stubborn call to a last bastion of freedom that gun advocates find in the Second Amendment.

  17. 60

    Levinson, “The Embarrassing Second Amendment,” pp. 657–659.

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