SECOND AMENDMENT

Was the Second Amendment designedto safeguard the private right ofindividuals to defend themselves?

Viewpoint: Yes. Endorsing a liberal individualistic vision of America wherecitizens pursue private interests, the Founding Fathers designed the SecondAmendment to grant citizens the right to bear arms to protect themselvesfrom any assault on their natural liberties, whether from other individuals or atyrannical government.

Viewpoint: No. Guided by republican ideals, the Founding Fathers believedcitizens had a collective obligation to defend the security of the state, and theindividual's right to bear arms is limited to his service in militias formed for thatpurpose.

No constitutional amendment has produced as much controversy amonghistorians, legal scholars, and the public as the Second Amendment (1791),which confers upon the American people the right "to keep and bear arms"and to maintain "a well regulated militia." Fueling this dispute is a currentdebate over gun control and its relationship to violent crime in the UnitedStates. Both proponents and opponents of gun control look to the SecondAmendment to bolster their arguments. Those favoring restrictive gun legisla-tion consider the amendment as guaranteeing a collective right to own guns,while those opposing gun control interpret the amendment as the guarantorof an individual "right to bear arms."

In part, this debate centers on the militia clause of the Second Amend-ment. Colonial Americans had a long-standing tradition of relying on localmilitiamen for purposes of defense and communal unity. This preference formilitias was strengthened during the American Revolution when the BritishCrown sent large standing armies of professional soldiers to the Thirteen Col-onies to enforce imperial measures that the colonists felt violated their rightsas Britons. Thus, the Second Amendment reflected American fears of stand-ing armies as a potential threat to liberty and the confidence in local militiasas the safest means of resisting tyranny.

Also important for understanding this debate are the Founding Fathers'contrasting political philosophies. Proponents of the individual right to beararms argue that the Founders were motivated by the ideology of classical lib-eralism, which envisioned a free society where individuals promotedself-interest and protected their persons, property, and rights with minimalinterference from the government. However, the Founders believed that themilitia alone was insufficient to protect individual liberty. Individual-rightsadvocates maintain that just because militia members were armed did notpreclude nonmilitiamen from arming themselves. Indeed, many states hadclauses in their constitutions guaranteeing their citizens the right to beararms. In short, the Framers intended the Second Amendment to restrict theability of the federal government to regulate individual gun ownership so as toenable people to protect their rights and interests from arbitrary measures.

Those who maintain that the Second Amendment protects only the com-276 munal right to bear arms argue that the Founders were more influenced by

republican philosophy, which envisions a civic-minded and virtuous citizenry that places the welfareof the community ahead of private interest. Citizens displayed their civic virtue by serving in the mili-tia. Moreover, the group points out that an armed citizenry did not imply an armed population, whichthe Founders believed posed a danger to the liberty and security of the embryonic republic. This atti-tude is reflected in the Constitution, which grants Congress the right to establish a standing armyand deprives the states of authority over their militias. In doing so, the Framers sought to curtail theculture of the citizen-soldier and to revive, through the Second Amendment, the concept of a com-munal right to bear arms. According to the collective-rights thesis, the Founders believed that thegreatest threat to personal liberty and property came from armed individuals, not from a centralizedgovernment. This concept may explain why the Bill of Rights, in defiance of the Lockean social-con-tract theory stated in the Declaration of Independence (1776), only guarantees the "right of the peo-ple peaceably to assemble" and not the right to turn their guns on the government. As events soonrevealed in the pitifully unsuccessful Shays's (1786-1787) and Whiskey Rebellions (1794), individ-ual ownership of guns could never protect the people from a government intent on taking their property.Instead, the police powers of the states are considered adequate to protect their people from harm.

Viewpoint:Yes. Endorsing a liberal individualisticvision of America where citizenspursue private interests, the FoundingFathers designed the SecondAmendment to grant citizens theright to bear arms to protectthemselves from any assault ontheir natural liberties, whether fromother individuals or a tyrannicalgovernment.

Vitriolic rhetoric, personal attacks, and guiltby association occasionally characterize scholarlydebate. Yet, during the later decades of the twen-tieth century, irascible language became conven-tional in the debate over the meaning of theSecond Amendment (1791). Perhaps on noother issue in contemporary politics (aside fromabortion) does academic discourse merge withbumper-sticker slogans. On a positive note, how-ever, exploring the right to keep and bear armsserves as a tool for explaining contending viewsabout the early national period. The debate high-lights the conflicting interpretations about themeaning of "original intent," the clash betweenFederalists and Antifederalists, and above all, thedifferences between two seemingly distinct ideol-ogies: republicanism and classical liberalism.

Those who believe the Second Amendmentprotects a collective right to have weapons con-fine the right to a state-sponsored militia. Inshort, keeping and bearing arms is inseparablefrom a well-regulated militia. A militia played animportant role in eighteenth-century thinking,particularly with regard to republican ideologythat collective-right scholars claim permeated theFounding generation. Fearful of moral licen-tiousness and the impending corruption of polit-ical institutions, advocates of republicanismstressed the need to promote a virtuous citi-

zenry, whereby individual citizens sacrificedtheir self-interests for the common good. Indi-vidualism, though compatible with republicanideology, must be subordinated to the relation-ship that exists among members of a society. Inorder to foster republican virtue among the citi-zenry, it was necessary to encourage regular par-ticipation in communal life. Training with a localmilitia was one form of achieving this goal. Notonly did militias offer citizens the opportunityto defend their interests collectively, theyallowed the American gentry to instill amongtheir lesser neighbors a strong commitment topublic order and social hierarchy. The SecondAmendment, then, was one more attempt by theFounders to inculcate virtue and republicanismin the American people.

Though republicanism furnished importantideas and rhetoric for the Founders, many histo-rians, including Gordon S. Wood, Robert E.Shalhope, and Joyce Appleby, contend thatrepublicanism gave way to the ideology of classi-cal liberalism by the 1780s. The best interpreta-tion of the Second Amendment takes intoaccount the prevalence of classical liberalismamong the Founding generation, especiallyamong those men most responsible for establish-ing the Bill of Rights.

Classical liberals envisioned a free societywhere individuals promoted their self-interestsand enjoyed the fruits of their own labor. Theirproductivity enhanced the nature of societybecause economic exchange encouraged citizensto cooperate with each other for mutual bene-fit. Likewise, classical liberals pointed to areasof life, such as the family, where people natu-rally sought the mutual benefits of cooperationwith others. Social cohesiveness and the com-mon good were maintained as people soughtwhat was best for themselves and those closestto them.

Classical liberals consistently blamed thegovernmental use of arbitrary power for derail-

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ing the benefits of free societies. If political insti-tutions became too powerful, government agentsmight disrupt a free society, accidentally elimi-nate the incentives for mutual exchange and com-munal participation, or worse, deliberately attackthe vital interests of individual citizens. To pro-tect individual liberty, classical liberals relied onthe moral philosophy of natural rights, wherebycertain things existed outside the authority ofgovernment. Classical liberals went so far as todescribe some natural rights as "inalienable,"meaning they could not be taken away even if amajority of citizens wished to do so. Rights alsoworked in concert with responsibilities, the mostimportant of which was protecting one's naturalrights of life and property. Governments couldneither touch these rights nor interfere in a per-son's responsibility in protecting them. Thegreatest concern for most American citizens dur-ing the Founding period was limiting the powerof government, not providing political institu-tions with the means of inculcating virtue.

Protection of natural rights required morethan reliance upon local governments; itdemanded a dedication to self-preservation onthe part of individuals. The most often citedlegal commentator of the day, English jurist Wil-liam Blackstone, insisted that owning arms was anecessary and subordinate right to protecting"inviolate the three great and primary rights, ofpersonal security, personal liberty, and privateproperty." English political philosopher JamesBurgh summarized the position by writing:

No kingdom can be secured otherwise than byarming the people. The possession of arms isthe distinction between a freeman and a slave.He, who has nothing, and who himselfbelongs to another, must be defended by him,whose property he is, and needs no arms. Buthe, who thinks he is his own master, and haswhat he can call his own, ought to have armsto defend himself, and what he possesses; elsehe lives precariously, and at discretion.

For this reason, when the rebellious colo-nists began writing state constitutions, theirframers inserted deliberate language linking theright to bear arms with individual protection ofrights. In 1776 Pennsylvanians provided that"The right of the citizens to bear arms in defenseof themselves and the State shall not be ques-tioned." That Pennsylvanians did not have a statemilitia when the Constitution was drafted under-scores their refusal to restrict gun ownership tomilitia service.

Not everyone during the Founding periodendorsed classical liberalism as much as thePennsylvanians, but the commitment to republi-canism (and to collective rights), however strongit might have been, was not solid enough tooverwhelm Americans' desires to protect their

rights and interests from intrusive governments.A case in point was the ratification of the Con-stitution and the tumultuous battle betweenFederalists and Antifederalists. Many Federalistspushed to strengthen the economic powers ofthe national government so it could tax foreigntrade and fund the national debt. Other Federal-ists worried about rampant disorder and morallicentiousness among the citizenry. In bothcases the nationally minded Federalists hoped tocorrect what they perceived as deficiencies inpublic virtue, self-restraint, and national feel-ings. At the Philadelphia convention and duringthe ratification process, however, nationalistconcerns were downplayed to win support for anew constitution. Important compromises werereached to protect local interests, the powers ofstate governments, and above all, individualrights and liberties.

Both individual- and collective-right sup-porters use arguments put forth by the Antifed-eralists to make their case. For advocates of acollective right, the facts that Federalistsdeflected so many criticisms and that they con-trolled the First Congress mean that the Antifed-eralists were irrelevant. The Antifederalists losttheir Constitutional battles and in the processtheir more libertarian approach to governmentand individual rights.

Upon closer inspection, the Antifederalistsapparently exerted far greater influence than onemight think. Making certain that the Antifeder-alists did not derail ratification forced the Feder-alists to make important promises andconcessions, most notably that the new federalgovernment would not be as powerful as Anti-federalist critics warned it might become. Unableto win the Antifederalists over in the importantstates of Massachusetts and Virginia, Federalistsunderstood that, without a bill of rights, ratifica-tion would quickly fail. The momentum in favorof the Constitution of 1787 as it came out of thePhiladelphia convention waned, while supportfor a constitution with amendments increased.The best the Federalists could do was dampenenthusiasm for the Antifederalist amendments,but the Federalists were powerless to stop thecreation of a bill of rights. The Antifederalists,then, were anything but irrelevant and politicallyimpotent. They shaped the debate on the Consti-tution as best they could, forcing the Federaliststo compromise on major issues. Furthermore,even if shrewd politicians such as Virginia dele-gate James Madison paid them only lip service,people believed Federalist promises that federalpolitical power would be strictly limited so as toguarantee both individual and communal liberty.

Antifederalists feared the Constitution notonly overly centralized political power but alsotook away natural rights. As Virginia politician

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and Revolutionary orator Patrick Henry toldthe Virginia Ratifying Convention, "The firstthing I have at heart is American liberty; the sec-ond thing is American Union." The victory ofthe Antifederalists in securing a bill of rightssymbolized the triumph of liberalism overrepublicanism. Government agents and repre-sentatives, no matter how virtuous, would notbe trusted without guaranteeing individualrights. Nor was it the case that Antifederalistshoped to limit the federal government's jurisdic-tion over basic rights so the state governmentscould regulate them. In most respects, the pow-ers reserved to the people paralleled similarrestrictions at the state level. Pennsylvania,North Carolina, Massachusetts, and Virginiahad clauses in their respective declarations ofrights or constitutions guaranteeing the right tobear arms. Other states, such as New York,explicitly affirmed the responsibility of citizensto protect their property and society. Even Ver-mont, which would not receive statehood until1791, included a provision protecting the rightto bear arms in its proposed constitution of1777. Furthermore, Antifederalist delegates inNew York, North Carolina, Rhode Island, andVirginia insisted that statements be attached totheir ratifying ordinances and to the Constitu-tion explicitly stating the kinds of rights to bereserved to the people, all of which included theright to keep and bear arms. New Hampshire'sdelegates went so far as to demand that "Con-gress shall never disarm any Citizen unless suchas are or have been in Actual Rebellion."

The importance of the Antifederalists in thedebate on the Second Amendment can be seenin another light, one completely separate fromquestions about the ideological origins of theamendment. As historian David Hackett Fischerargues, Antifederalism largely drew its member-ship from the frontier or backcountry settle-ments, or from other minority cultural groupssuch as the Dutch in New York and Germans inPennsylvania. Beyond the rank and file, key lead-ers of the movement claimed backcountry ori-gins. Many Americans living in these areas mightnot have been intellectually robust, but theylived a life where protection of natural rights,particularly property, was considered sacrosanct.Most came from the Irish Sea borderlands ofEngland, Scotland, and Ireland, where anarchicconditions prevailed during the seventeenth andeighteenth centuries. Subsequently, as colonists,backcountry settlers from these areas werealready accustomed to defending their propertyand families either individually or as part of clan-nish vigilante groups. The anarchic state of fron-tier society in America, coupled with hostilitybetween Europeans and Native Americans, fur-ther enhanced their commitment to self-defense.As the Founders cemented the union closer

together, backcountry settlers saw no reason todefer their own protection to either a state mili-tia or to a federal army. This position is not tosay that violence characterized everything aboutfrontier America, but the cultural conditions ofScotch-Irish settlers would never have allowedthe keeping of weapons only in the confines ofmilitia service. Thus, the cultural conditions pro-moting individual ownership of weapons pro-vide essential clarification on the collective-individual right debate.

Still, the function of militia service in theideology of other eighteenth-century Americansremains to be addressed. Most Americans agreedthat only by protecting both communal and per-sonal interests could liberty be preserved.Able-bodied male citizens were expected todefend their communities through militia serviceas much as they secured their private interests.The two goals were linked but not mutuallydependent. On a practical level, a citizen militiacould never be counted on to perform the task ofprotecting individual liberty at all times. And yet,the individual protection of interests created spe-cial problems for communal defense, one thatproponents of militias under the Articles of Con-federation and the Constitution hoped to fix. Inthe first place, members had to be armed inorder for the militia to work. Second, the armsused by the militia members must be of uniformordnance. Finally, all members of the militiamust be trained to use these uniform weapons.

Though their inadequacies were at timesexaggerated, militias rarely performed as well onthe battlefield as a regular standing army. Fewscholars would deny that militiamen werepoorly disciplined and often ran away duringthe heat of battle. At least part of their inade-quate performance depended upon technology,as British regulars behaved comparably whenconfronted with state-of-the-art weaponry.Therefore, members of the Continental Con-gress worked to ensure the continued and wide-spread possession of modern weaponry as theRevolutionary War (1775-1783) drew to aclose. In April 1783 a select committee, includ-ing New Yorker Alexander Hamilton and Vir-ginian James Madison, reported a resolutionwhereby decommissioned regulars "shall beallowed their fire arms and accoutrements, as anextra reward for their long and faithful service."Each time delegates debated giving Congressthe power to tax commerce, arms and ammuni-tion were specifically excluded from taxation, asthey often were at the state level. Keeping peo-ple armed for future military service was para-mount, but it does not follow that becausemilitiamen must be armed, only those serving inmilitia formations could have firearms. Thegoal, as Henry observed at the Virginia Ratify-

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THE MILITIA ACT OF 1792On 2 May 1792 the Second Congress passed the Militia Act,which provided the president with the authority to call out themilitia. Some of the sections of that act appear here:

Section 1. Be it enacted by the Senate andHouse of Representatives of the United States ofAmerica in Congress assembled, That wheneverthe United States shall be invaded, or be in immi-nent danger of invasion from any foreign nationor Indian tribe, it shall be lawful for the Presidentof the United States, to call forth such number ofthe militia of the state or states most convenientto the place of danger or scene of action as hemay judge necessary to repel such invasion, andto issue his orders for that purpose, to suchofficer or officers of the militia as he shall thinkproper; and in case of an insurrection in anystate, against the government thereof, it shall belawful for the President of the United States, onapplication of the legislature of such state, or ofthe executive (when the legislature cannot beconvened) to call forth such number of the militiaof any other state or states, as may be appliedfor, or as he may judge sufficient to suppresssuch insurrection.

Sec. 2. And be it further enacted, That when-ever the laws of the United States shall beopposed or the execution thereof obstructed, inany state, by combinations too powerful to be sup-pressed by the ordinary course of judicial pro-ceedings, or by the powers vested in the marshalsby this act, the same being notified to the Presi-dent of the United States, by an associate justiceor the district judge, it shall be lawful for the Presi-dent of the United States to call forth the militia ofsuch state to suppress such combinations, and tocause the laws to be duly executed. And if themilitia of a state, where such combinations mayhappen, shall refuse, or be insufficient to suppressthe same, it shall be lawful for the President, if thelegislature of the United States be not in session,to call forth and employ such numbers of the mili-tia of any other state or states most convenientthereto, as may be necessary, and the use of mili-tia, so to be called forth, may be continued, if nec-essary, until the expiration of thirty days after thecommencement of the ensuing session.

Sec. 3. Provided always, and be it furtherenacted, That whenever it may be necessary, inthe judgment of the President, to use the militaryforce hereby directed to be called forth, the Presi-dent shall forthwith, and previous thereto, by proc-lamation, command such insurgents to disperse,and retire peaceably to their respective abodes,within a limited time.

Sec. 4. And be it further enacted, That themilitia employed in the service of the UnitedStates, shall receive the same pay and allow-ances, as the troops of the United States, whomay be in service at the same time, or who werelast in service, and shall be subject to the samerules and articles of war: And that no officer, non-commissioned officer or private of the militia shallbe compelled to serve more than three months in

any one year, nor more than in due rotation withevery other able-bodied man of the same rank inthe battalion to which he belongs.

Sec. 5. And be it further enacted, That everyofficer, non-commissioned officer or private of themilitia, who shall fail to obey the orders of thePresident of the United States in any of the casesbefore recited, shall forfeit a sum not exceedingone year's pay, and not less than one month'spay, to be determined and adjudged by a courtmartial; and such officers shall, moreover, be lia-ble to be cashiered by sentence of a court martial:and such non-commissioned officers and privatesshall be liable to be imprisoned by the like sen-tence, or failure of payment of the fines adjudgedagainst them, for the space of one calendarmonth for every five dollars of such fine.

Sec. 6. And be it further enacted, That courtmartial for the trial of militia be composed of militiaofficers only.

Sec. 7. And be it further enacted, That allfines to be assessed, as aforesaid, shall be certi-fied by the presiding officer of the court martialbefore whom the same shall be assessed, to themarshal of the district, in which the delinquentshall reside, or to one of his deputies; and also thesupervisor of the revenue of the same district,who shall record the said certificate in a book tobe kept for that purpose. The said marshal or hisdeputy shall forthwith proceed to levy the saidfines with costs, by distress and sale of the goodsand chattels of the delinquent, which costs andmanner of proceeding, with respect to the sale ofthe goods distrained, shall be agreeable to thelaws of the state, in which the same shall be, inother cases of distress; and where any non-commissioned officer or private shall beadjudged to suffer imprisonment, there being nogoods or chattels to be found, whereof to levy thesaid fines, the marshal of the district or his deputymay commit such delinquent to gaol, during theterm, for which he shall be so adjudged to impris-onment, or until the fine shall be paid, in the samemanner as other persons condemned to fine andimprisonment at the suit of the United States, maybe committed.

Sec. 8. And be it further enacted, That themarshals and their deputies shall pay all suchfines by them levied to the supervisor of the reve-nue, in the district in which they are collected,within two months after they shall have receivedthe same, deducting therefrom five per centum,as a compensation for their trouble; and in case offailure, the same shall be recoverable by action ofdebt or information in any court of the UnitedStates, of the district, in which such fines shallbelieved, having cognizance therefor, to be suedfor, prosecuted and recovered, in the name of thesupervisor of the district, with interest and costs.

Source: 'Militia Act of 1792," Constitution Society<http://www.constitution.org/mil/miLact, 1792.htm>.

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ing Convention, was simply "that every man bearmed" whose service could be requested.

The other two problems of individual gunownership for the militias—uniform outfittingand training—reached a climax during the cre-ation of the Constitution. If every soldierowned a different gun, then his unit faced seri-ous problems. As Pennsylvania delegate JamesWilson noted:

Men without a uniformity of arms, accoutre-ments, and discipline, are no more than a mobin a camp; that, in the field, instead of assist-ing, they interfere with one another. If a sol-dier drops his musket, and his companion,unfurnished with one, takes it up, it is of noservice, because his cartridges do not fit it. Bymeans of this system, a uniformity of arms anddiscipline will prevail throughout the UnitedStares.

Wilson's solution involved granting the new fed-eral government power to regulate, equip, andtrain state militias to ensure uniformity, a con-cept that eventually became Article I, Section 8,Clause 16 of the Constitution.

Antifederalists responded to this provisionin their usual refractory manner. For example,Henry feared that "If they [Congress] neglect orrefuse to discipline or arm our militia, they willbe useless: the states can do neither—this powerbeing exclusively given to Congress." Even moreemphatic than Henry, Virginia delegate to theConstitutional Convention George Mason wor-ried that "Should the national government wishto render the militia useless, they may neglectthem, and let them perish, in order to have a pre-tence of establishing a standing army."

Following the lead of the Antifederalists,several states ratified the Constitution on thecondition that amendments be presented to thestates, including some stipulation that protectedthe states' control over their militias. New Yorkdelegates insisted that "the people have a right tokeep and bear arms; that a well-regulated militia,including the body of the people capable of bear-ing arms, is the proper, natural, and safe defenceof a free state." In doing so, they recognized thatbearing arms and serving in the militia were notmutually exclusive.

For his part, Madison had to placate Anti-federalist concerns, but any action he took couldnot be soon enough for the Antifederalists. Infact, Antifederalist pressure increased by May1789, the month Madison announced he wouldbring forward amendments for consideration,when the states of New York and Virginia sepa-rately petitioned for a second constitutional con-vention. To satisfy the "great body of thepeople" who had opposed ratification becausenot enough was done to guard individual liberty,Madison thought it necessary for Congress to

"declare the great rights of mankind securedunder this constitution." Hoping to stress hispoint by inserting reserved rights within thebody of the Constitution, Madison initiallyplaced the right to keep and bear arms afterClause 3 of Article I, Section 9, where individualrights are protected, not next to the militia clauseof Article I, Section 8. His personal notes indi-cate his proposed amendments "relate 1st to pri-vate rights," not to corporate rights. Theterminology of the final form of the SecondAmendment followed that of the House of Rep-resentatives' debate of the proposed amend-ments. The only matter of disagreementconcerned exemptions for militia service basedon religious conscience. No Congressman raisedissue with the amendment's treatment of theindividual right to have arms.

Given the nature of the ratification debatesand the proceedings of the First Congress, theFounders conceived the Second Amendment asa limit on the federal government's ability to reg-ulate individual gun ownership and to hinder thestates' abilities to muster, equip, and train theirmilitia. By implication, rather than qualifyingindividuals' right to protect themselves and theirproperty, it encouraged the widespread owner-ship of weapons as well as reinforced the peo-ple's duty to protect their interests fromarbitrary government.

-CAREY M. ROBERTS,ARKANSAS TECH UNIVERSITY

Viewpoint:No. Guided by republican ideals, theFounding Fathers believed citizenshad a collective obligation to defendthe security of the state, and theindividual's right to bear arms islimited to his service in militiasformed for that purpose.

On 15 December 1791 the Bill of Rightsofficially became a part of the Constitution. Thecivil rights guaranteed in the first ten amend-ments quickly became the mantra of many Amer-icans. Included in the amendments wereprovisions that the general government cannottake away the freedom of speech, freedom of thepress, freedom of religion, or right to bear arms.At one time or another, however, the entire Billof Rights has been a subject of controversy anddebate. Questions arose as to whether the prohi-bition on the government against abridging theBill of Rights is absolute. Few of its provisionsare as controversial as the Second Amendment.

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A pressing question remains whether it protectsthe individual right to keep guns or the collectiveright of the people for security through a militia.The wording of the amendment is responsiblefor the confusion.

"The Second Amendment is as vague as it isambiguous," wrote historian Leonard W. Levy inOrigins of the Bill of Rights (1999). The contro-versy surrounding its meaning is directly trace-able to its ambiguity. Proponents of theunobstructed federal right to bear arms read lit-erally, "the right of the people to keep and bearArms" shall not be denied them. This belief isundergirded by the view that it was the originalintent of the Framers of the amendment tosecure that right. Their opponents rely uponanother clause, "a well regulated Militia," as nec-essary for the security of the states. They contendthat the amendment protects only the communalright of the people to have a state military force,ostensibly for protection from the tyranny of anaggressive government. The documentary recordsuggests that the latter argument is probably themost accurate.

The notion that individual governmentsneeded an armed force was established duringthe colonial period of the United States. Settlersliving on the frontier needed to be prepared tofight on short notice against the Native Ameri-cans. The colonies also subsidized a citizen army.In 1774 the Continental Congress officiallyasked the colonies to establish militia units fordefensive purposes. The history of colonial pro-

test against Britain illustrates a communalresponse to the struggle. The minutemen (selectmilitiamen who could be ready to march at amoment's notice) went into action at Lexingtonand Concord in April 1775. Throughout theRevolutionary War (1775-1783), the Continen-tal Congress could only requisition troops fromthe states and their ranks of citizen-soldiers. Theability of the states to call forth a militia wastherefore fundamental to the colonial experienceand obviously a necessity in a society without aprofessional army. Furthermore, in the Declara-tion of Independence (1776) Americans werecautioned that governments should not bereplaced "for light and transient causes." Withthis clause the Continental Congress made inde-pendence one of the most conservative revolu-tionary movements of the ages.

While the American experience under theArticles of Confederation (1781-1789) wouldnot have disturbed this culture, the Constitutionprovided for a consolidated government with thecapacity to establish a standing army. Both execu-tive and legislative war powers in the Constitu-tion affirm that Congress can provide andmobilize its military forces. Obviously, this con-stitutional power contradicted the culture of thecitizen-soldier as well as the constitutional sover-eignty of the states under the Articles of Confed-eration. It was a common belief of Americansthat a federal government might abuse itsauthority and that the only realistic checks uponits powers were from state militias. However, the

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Constitution virtually deprived the states oftheir authority over the militias. In Article I, Sec-tion 8, the federal legislature was specificallygiven power over the militia to execute the lawsof the Union. Not only would it provide for themilitia, it would arm and discipline it. The stateswere only given powers to appoint and train itsmilitia officers, but could do so only under theauthority of Congress.

Moreover, the federal government retainedthe constitutional authority to suspend habeascorpus. Though Article I, Section 8, specificallyrequires a national emergency for its suspensionof habeas corpus, there is little doubt that the gov-ernment could officially silence its detractors.With these provisions, state control over the mili-tias was virtually lost and civil liberty was threat-ened. The Second Amendment resurrected statepower in this area and thereby revived the notionof a communal right to bear arms. As Pennsylva-nian political economist and Federalist TenchCoxe wrote in an essay in 1788, "Who are themilitia? Are they not ourselves?" Indeed, modernscholars such as Stephen P. Halbrook and DavidB. Kopel have interpreted Coxe's writings to sup-port the individual-right thesis. Unable to ignorethe militia clause in the amendment, they addgrudgingly that it also provides for protectionagainst the federal army.

However, Coxe wrote during the late eigh-teenth and early nineteenth centuries when theUnited States was virtually in a state of nature.Survival on the frontier required a rugged andself-sufficient individual. People needed to beready to defend person and property, as well as tohunt for their sustenance. Halbrook and Kopelthus advanced the Standard Model of the SecondAmendment, which is commonly found in legalliterature. This interpretation encompasses theindividual right to bear arms for self-defense andhunting, as well as for arming the militia for pro-tection against federal armies. However, the awk-wardly phrased amendment was conceived as acheck on federal power; to accomplish a well-regu-lated and trained militia, individuals needed someexperience with firearms. In this context the col-lective-right thesis is more plausible.

Proponents of the collective-right argumenthave significant constitutional sanction for theirposition. The Second Amendment balanced fed-eral power and state power over a shared responsi-bility for the militia. The immediate experience ofthe states confirms this view—and not the notionthat armed citizens would offer protection fromthe government. In 1786, for example, many Amer-icans were alarmed when Daniel Shays and otherfarmers in Massachusetts applied common meth-ods of protest to defeat oppressive state policies.Farmers, still smarting from the postwar economicdepression, faced foreclosures instead of favorable

state policies. George Washington, former Com-mander in Chief of the Continental Army, wasaghast at the rebellion, exclaiming, "good examplesare necessary to rescue the political machine fromthe impending story." Surprisingly, Massachusettspolitician Samuel Adams was equally uncharitable,stating, "Rebellion against a king may be pardoned,or lightly punished, but the man who dares to rebelagainst the laws of a republic ought to sufferdeath." Neither man applauded Shays and his com-rades, who sought to protect their property from atyrannical state.

The federal government was no less adamantin its position in 1794, when farmers in westernPennsylvania were burdened by an excise tax.Unable to easily transport crops (especially corn) tomarket, they distilled whiskey and used it to barterin the local economy. The excise tax would havedestroyed this market, and the farmers early sub-mitted their grievances to Congress. Their com-plaints went beyond trade; when prosecuted theywere hauled into court in Philadelphia, which tookthem away from their fields. Like the Shaysites, thePennsylvania farmers returned to the methods ofthe Revolution, threatening to tar and feather taxcollectors and destroying their offices. The federalgovernment responded with military action andfederal prosecution for treason.

The advocates of the individual-rights argu-ment cite the Second Amendment to argue that itguarantees the right to own guns. They suggestthat guns enable citizens to protect themselvesagainst the government and other individuals whowould do them harm. There is nothing in the his-tory of the United States that supports this theory.The federal government does not tolerate armedrebellion. The First Amendment guarantees only"the right of the people peaceably to assemble." Itcannot be said that the Founding Fathers intendedfor armed citizens to turn their guns on the state;this type of action has never been tolerated, and theUnited States has prosecuted rebels.

There is little real evidence that the SecondAmendment was designed to protect an individualright to bear arms. American concern for safety andsecurity has always been a communal one. Lawenforcement has long been the answer for personalthreats; Americans have always viewed vigilantes asloathsome. To suggest that the Second Amend-ment guarantees the right of every individual toown weapons of any description flies in the face oflogic and fact.

As Chief Justice Warren E. Burger stated in1991: "The Second Amendment has been thesubject of one of the greatest pieces of fraud, Irepeat the word 'fraud', on the American publicby special interest groups that I have ever seen inmy lifetime."

-STEPHEN MIDDLETON,NORTH CAROLINA STATE UNIVERSITY

HISTORY IN DISPUTE, VOLUME 12: THE AMERICAN REVOLUTION 283

References

Joyce Appleby, Capitalism and A New SocialOrder: The Republican Vision of the 1790s(New York: New York University Press,1984).

William Blackstone, Commentaries on the Laws ofEngland, 4 volumes (Oxford: ClarendonPress, 1765-1769).

Carl T. Bogus, ed., The Second Amendment inLaw and History: Historians and Constitu-tional Scholars on the Right to Bear Arms(New York: New Press, 2000).

James Burgh, Political Disquisitions, Or, anEnquiry into Public Errors, Defects, andAbuses, 3 volumes (London: Dilly, 1774-1775).

Saul Cornell, "Commonplace or Anachronism:the Standard Model, the Second Amend-ment, and the Problem of History in Con-temporary Constitutional Theory,"Constitutional Commentary, 16 (Summer1999): 221-246.

Cornell, "Don't Know Much about History: theCurrent Crisis in Second AmendmentScholarship," Northern Kentucky LawReview, 29 (Summer 2002): 657-682.

Lawrence Delbert Cress, "An Armed Commu-nity: The Origins and Meaning of the Rightto Bear Arms," Journal of American History,71 (June 1984): 22-42.

Bill R. Davidson, To Keep and Bear Arms (NewRochelle, N.Y.: Arlington House, 1969).

Jonathan Elliot, The Debates in the Several StateConventions on the Adoption of the FederalConstitution, as Recommended by the GeneralConvention at Philadelphia, in 1787, 5 vol-umes (Washington, D.C.: Elliot, 1836).

David Hackett Fischer, Albion's Seed: Four BritishFolkways in America (New York: OxfordUniversity Press, 1989).

David P. Halbrook, That Every Man Be Armed:The Evolution of a Constitutional Right(Albuquerque: University of New MexicoPress, 1984).

Dennis Henigan, "Arms, Anarchy and the Sec-ond Amendment," Valparaiso UniversityLaw Review, 26 (Fall 1991): 107-129.

Don B. Kates Jr., Handgun Prohibition and theOriginal Meaning of the Second Amendment(Bellevue, Wash.: Second AmendmentFoundation, 1984).

David B. Kopel, "The Second Amendment inthe Nineteenth Century," Brigham ToungUniversity Law Review (Fall 1998): 1359-1545.

Sanford Levinson, "The Embarrassing SecondAmendment," Tale Law Journal, 99 (1989):637-659.

Leonard W. Levy, Origins of the Bill of Rights(New Haven: Yale University Press, 1999).

Library of Congress, Journals of the ContinentalCongress, 1774-1789, 34 volumes, edited byWorthington Chauncey Ford, GaillardHunt, John C. Fitzpatrick, and Roscoe R.Hill (Washington, D.C.: Government Print-ing Office, 1904-1937).

Joyce Lee Malcolm, To Keep and Bear Arms: TheOrigins of an Anglo-American Right (Cam-bridge, Mass.: Harvard University Press,1994).

Murray N. Rothbard, with Leonard P. Liggio,Conceived in Liberty (New Rochelle, N.Y.:Arlington House, 1975).

Bernard Schwartz, The Bill of Rights: A Documen-tary History, volume 2 (New York: ChelseaHouse, 1971).

Robert E. Shalhope, "The Ideological Origins ofthe Second Amendment," Journal of Ameri-can History, 69 (December 1982): 599-614.

Shalhope and Cress, "The Second Amendmentand the Right to Bear Arms: An Exchange,"Journal of American History, 71 (December1984): 587-593.

Francis Newton Thorpe, ed., The Federal andState Constitutions, Colonial Charters, andOther Organic Laws of the States, Territories,and Colonies Now or Heretofore Forming theUnited States of America, 7 volumes (Wash-ington, D.C.: Government Printing Office,1909).

David C. Williams, "Civic Republicanism andthe Citizen Militia: The Terrifying SecondAmendment," Tale Law Journal, 101(December 1991): 551-615.

Williams, "The Militia Movement and the Sec-ond Amendment Revolution: Conjuringwith the People," Cornell Law Review, 81(May 1996): 879-952.

Gordon S. Wood, The Creation of the AmericanRepublic, 1776-1787 (Chapel Hill: Univer-sity of North Carolina Press, 1969).

284 HISTORY IN DISPUTE, VOLUME 12: THE AMERICAN REVOLUTION