Whatever you
happen to believe about the original meaning of the Second Amendment is
probably, if not altogether wrong, at least not altogether right. This, at
least, is Saul Cornell's main contention in A Well Regulated Militia This
is not because it is so hard to find out what people thought about the Second
Amendment in 1790. It's just that so many people thought so many things that it
is not really possible to reconstruct a coherent original understanding of the
text. And even if we could, such an understanding would be based on a
historical context that simply does not apply to America in the 21st century.
Let's begin
with that context. In the 18th century, local militias were kind of a big deal.
Not only did most states and communities have them; most adult white males
belonged to them, and were required to belong to them, as a condition of
exercising other rights of citizenship. At this time, there was no standing
army and no real professional police force. If a community wanted
protection--from Indians, Redcoats, bad guys or whatever--the local militia had
to provide it.
And that's the
way we liked it back then. Most people saw standing armies as instruments of
tyranny. In Massachusetts and Virginia, the British governors had tried to
disband militias, seize people's arms, and bring in professional soldiers
(quartered in the homes of citizens) to provide protection. The colonists were
not amused.
The Second
Amendment grew out of the concern that this sort of thing could happen again
(so, too, did the Third Amendment, which forbids the quartering of soldiers in
peacetime). When state legislators were petitioning the First Congress about
possible amendments for the Bill of Rights, nearly all of them submitted
amendments that would guarantee the right to bear arms AND prohibit a standing
army during peace time. Federalist, who were unimpressed with the performance
of the state militias during the Revolution, managed to fight off the
objections to a standing army. To do this, however, they had to guarantee the
perpetuity of state militias (and assure that soldiers would not be quartered
in homes).
What all of
this gives us is a preamble to the Second Amendment that (translated into
modern English) reads something like this: "Because a well-trained and
well-provisioned militia is the only kind of security force consistent with the
principles of a free Republic, the right of the people to keep and bear
arms shall not be infringed." The key here is that serving in a militia
was both a civic right and a civic responsibility, like voting or serving on
juries. The two clauses in the Second Amendment emphasize both the civic duty
("a well regulated militia being necessary to the security of a free
state") and the civil right ("the right of the people to keep and
bear arms shall not be infringed.") The right and the duty are
inseparable. To the eighteenth-century mind, they could not be otherwise.
Most of the
things that we now associate with the Second Amendment were not part of the
original understanding but results of various battles and court cases in the
nineteenth century. Among the most important of these are:
The Individual Right to Self-Defense, which was recognized as a common-law right during the
Founding era but not applied to the Second Amendment until the Jackson era. At
that time, however, new State constitutions in Mississippi, Maine, Michigan,
Missouri, and (a little bit later), Texas merged the Constitutional right to
bear arms with the common-law right to self-defense in statements like:
"the right to bear arms in defense of self and state." This gradually
became the orthodox interpretation (and on many ways still is). However, during
Reconstruction, many Southern States rejected the Individual Rights approach to
the Second Amendment in favor of a Collective Rights approach that rejected any
individual Constitutional right to bear arms. They did so primarily because
freed slaves were demanding the right to exercise their right to bear arms.
Nonetheless, the Reconstruction-Era Theory of Collective Rights became the
dominate liberal approach to the Second Amendment in the 20th century
The Collective Right of Resistance, or the belief that the right to bear arms gave state
or local militias the right to resist federal tyranny. Anti-federalists in the
First Congress wanted something like this in the Bill of Rights, but
Federalists did not go out of their way to give it to them. According to
Cornell, this is first used as a legal argument in the aftermath of Dorr's
Rebellion (against the State of Rhode Island) in 1842. The Court, under the
direction of Supreme Court Justice Joseph Story flatly rejected this argument
that any part of the Constitution conveyed a right of rebellion.
The Individual Right of Revolution: The view that the Second Amendment was designed to
give individuals (as opposed to state or community militias) the right to
resist the tyranny of the state--completely unheard of in the Founding Era--has
become something of an article of faith among gun-rights advocates in the 20th
century. Cornell does an excellent job tracing this conception back to the
1850s and the abolitionist movement. This view finds expression in the
abolitionist writings of Henry Ward Beecher and its fulfillment in the raid of
John Brown. It has never been upheld in any court, and most Constitutional
scholars believe that it completely reverses the original understanding of the
Second Amendment by transforming it from an encouragement of civic virtue to an
implement of civic destruction. Nonetheless, according to a recent poll, 65% of
Americans believe that this is the purpose of the Second Amendment.
(IMPORTANT
NOTE: The Founders clearly recognized the natural right of revolution,
which they exercised themselves in the Declaration of Independence and the
Revolutionary War. But this emphatically is not the same thing as the Constitutional
right to revolution, which many people see--with no support from the
Founders--in the Second Amendment today).
So, where do we
go from here. A lot of people think that we should base our interpretation of
the Second Amendment on the "original intent" of the Founding
Fathers. Could we do it? Sure. Here's how:
1. Dismantle
all branches of the American military.
2. Eliminate
police forces.
3. Require all
male citizens to own military weapons (i.e. eliminate the right NOT to bear
arms).
4. Allow
government agents to record all weapons owned by citizens, to enter homes to
inspect the weapons, and punish people for handling guns incorrectly.
5. Require
people to give up their own time every month to engage in unpaid military
exercises (this, really, is what "well regulated" means).
6. Require all
citizens to bear arms in the defense of the common good, at the discretion of
the executive and regardless of their personal beliefs, or face military
discipline for insubordination.
7. Require
everybody to sign a loyalty oath or lose the rights of citizenship, including
the right to bear arms.
None of these
things, of course, is likely to happen. No modern American--liberal or
conservative--would tolerate them. What this means, then, is that we are going
to have to do what people did throughout the 19th and 20th centuries and
interpret the Second Amendment in a way that makes sense for the context that
we happen to live in. In his very eloquent final chapter, Saul Cornell
recommends that we think about somehow reconnecting the civil right to bear
arms with the civic virtue that doing so once entailed. Such an approach would
recognize that people have a right to own guns, but that they also have a
responsibility to "bear arms" in a way that contributes to, or at
least does not detract from, the public good.
