Second Thoughts on the Second Amendment

THE Supreme Court has never answered these fundamental questions about the constitutional uses of guns. It has paid scant attention to the Second Amendment, providing little guidance in the gun-control debate. Two frequently cited late-nineteenth-century cases relating to the Second Amendment were more about federalism than about the right to bear arms. Presser v. Illinois , decided in 1886, involved a challenge to a state law prohibiting private citizens from organizing their own military units and parades. The Court held that the Second Amendment was a limitation on federal, not state, power, reflecting the prevailing view (now discredited) that the Bill of Rights in general applied only to the federal government, not to the states. (A hundred years ago the Court did not apply the First Amendment to the states either.) Presser followed U.S. v. Cruikshank, which held that the federal government could not protect people from private infringement of their rights to assemble and bear arms. Cruikshank, decided in 1876, invalidated the federal convictions of participants in the lynching of two black men. This ruling, essentially concerned with limiting federal police power, is virtually irrelevant to Second Amendment debates today, although it has been cited to support the proposition that an oppressed minority has a compelling need (or a natural right) to bear arms in self-defense.

The most significant Supreme Court decision on the Second Amendment was U.S v. Miller (1939), a less-than-definitive holding now cited approvingly by both sides in the gun-control debate. Miller involved a prosecution under the 1934 National Firearms Act. Jack Miller and his accomplice had been convicted of transporting an unregistered shotgun of less than regulation length across state lines. In striking down their Second Amendment claim and upholding their conviction, the Court noted that no evidence had been presented that a shotgun was in fact a militia weapon, providing no factual basis for a Second Amendment claim. This ruling implies that the Second Amendment could protect the right to bear arms suitable for a militia.

Advocates of gun control or prohibition like the Miller case because it makes the right to bear arms dependent on at least the possibility of service in a militia. They cite the Court's declaration that the Second Amendment was obviously intended to "assure the continuation and render possible the effectiveness" of state militias; they place less emphasis on the Court's apparent willingness to permit private citizens to possess military weapons. Citing Miller, a dealer at a gun show told me that the Second Amendment protects the ownership of only such devices as machine guns, Stingers, and grenade throwers. But advocates of gun ownership don't generally emphasize this awkward implication of U.S. v. Miller any more than their opponents do: it could lead to prohibitions on handguns. They like the Miller decision because it delves into the history of the Second Amendment and stresses that for the framers, the militia "comprised all males physically capable of acting in concert for the common defense."

This view of the militia as an inchoate citizens' army, not a standing body of professionals, is central to the claim that the Second Amendment protects the rights of individual civilians, not simply the right of states to organize and arm militias. And, in fact, fear and loathing of standing armies did underlie the Second Amendment, which was at least partly intended to ensure that states would be able to call up citizens in defense against a tyrannical central government. (Like the Bill of Rights in general, the Second Amendment was partly a response to concerns about federal abuses of power.) James Madison, the author of the Second Amendment, invoked in The Federalist Papers the potential force of a citizen militia as a guarantee against a federal military coup.

Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government: still it would not be going too far to say that the State governments with the people on their side would be able to repel the danger. . . . To [the regular army] would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties and united and conducted by governments possessing their affection and confidence. It may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the late successful resistance of this country against the British arms will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.

This passage is enthusiastically cited by advocates of the right to bear arms, because it supports their notion of the militia as the body of people, privately armed; but it's also cited by their opponents, because it suggests that the militia is activated and "conducted" by the states, and it stresses that citizens are "attached" to their local governments. The militia envisioned by Madison is not simply a "collection of unorganized, privately armed citizens," Dennis Henigan, a handgun-control advocate, has argued.

That Madison's reflections on the militia and the Supreme Court's holding in U.S. v. Miller can be cited with some accuracy by both sides in the debate testifies to the hybrid nature of Second Amendment rights. The Second Amendment presumes (as did the framers) that private citizens will possess private arms; Madison referred offhandedly to "the advantage of being armed, which the Americans possess." But Madison also implied that the right to bear arms is based in the obligation of citizens to band together as a militia to defend the common good, as opposed to the prerogative of citizens to take up arms individually in pursuit of self-interest and happiness.

THE tension at the heart of the Second Amendment, which makes it so difficult to construe, is the tension between republicanism and liberal individualism. (To put it very simply, republicanism calls for the subordination of individual interests to the public good; liberalism focuses on protecting individuals against popular conceptions of the good.) A growing body of scholarly literature on the Second Amendment locates the right to bear arms in republican theories of governance. In a 1989 article in the Yale Law Journal that helped animate the Second Amendment debate, the University of Texas law professor Sanford Levinson argued that the Second Amendment confers an individual right to bear arms so that, in the republican tradition, armed citizens might rise up against an oppressive state. Wendy Brown, a professor of women's studies at the University of California at Santa Cruz, and David C. Williams, a law professor at Cornell University, have questioned the validity of a republican right to bear arms in a society that lacks the republican virtue of being willing to put communal interests first. Pro-gun activists don't generally acknowledge the challenge posed by republicanism to the individualist culture that many gun owners inhabit. They embrace republican justifications for gun ownership, stressing the use of arms in defending the community, at the same time that they stress the importance of guns in protecting individual autonomy.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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