Second Thoughts on the Second Amendment

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.

Advocates of the right to bear arms often insist that the Second Amendment is rooted in both collective and individual rights of self-defense--against political oppression and crime--without recognizing how those rights conflict. The republican right to resist oppression is the right of the majority, or the people, not the right of a small religious cult in Waco, Texas, or of a few survivalist tax protesters in Idaho. The members of these groups have individual rights against the government, state and federal. (Both the American Civil Liberties Union and the NRA protested the government's actions in Waco and its attack on the survivalist Randy Weaver and his family.) But refuseniks and refugees from society are not republicans. They do not constitute the citizen militia envisioned by the framers, any more than they stand for the American community; indeed, they stand against it--withdrawing from the body politic, asserting their rights to alienation and anomie or membership in exclusionary alternative communities of their own. Republicanism can't logically be invoked in the service of libertarianism. It elevates civic virtue over individualism, consensus over dissent.

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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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