From the Radio Free Michigan archives ftp://141.209.3.26/pub/patriot If you have any other files you'd like to contribute, e-mail them to bj496@Cleveland.Freenet.Edu. ------------------------------------------------ [Compiled by Matt Giwer Matt.Giwer@f20.n3603.z1.fidonet.org The contributions of many people are involved in this compilation whose names I have not kept. If anyone would like to come forward and claim credit I will be happy to give credit where it is due. I did not expect to have it for more than personal use when I was collecting the pieces.] 1. What is the Constitutional basis for gun ownership? The Constitutional issues of ownership are contained explicitely in these sections. The basic Constitution gives Congress the power to regulate the Militia. The Constitution of the United States of America Article I. Sect. 8. The Congress shall have power To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; To provide and maintain a navy; To make rules for the government and regulation of the land and naval forces; To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions.; To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress; ===== The 2nd limits the basic power of Congress in regards to the militia in that it prohibits the power of Congress in regard to the militia from disarming the militia. (Noting at the time the militia was considered to be every able bodied male, etc.) AMENDMENTS 2nd Amendment A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. ===== The 14th prohibits the denial of an Federal right by any state. (The Doctrine of Incorporation holds the 2nd has not been incorporated as there has not been any Supreme Court decision related to a specific state law.) 14th Amendment Sect. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny any person within its jurisdiction the equal protection of the laws. 2. What is the early legislation regarding the militia? A. The Militia Act (1792): Excerpt "[E]ACH AND EVERY FREE ABLE-BODIED WHITE MALE CITIZEN OF THE RESPECTIVE STATES, RESIDENT THEREIN, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) SHALL SEVERALLY AND RESPECTIVELY BE ENROLLED IN THE MILITIA by the captain or commanding officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this act. And it shall at all times hereafter be the duty of every such captain or commanding officer of a company to enroll EVERY SUCH CITIZEN as aforesaid. . . [emphasis added] "That EVERY CITIZEN so enrolled and notified, shall within six month thereafter, PROVIDE HIMSELF with a good musket or firelock, a sufficient bayonet and belt, two spare flints. . .." [An Act. . . Establishing an Uniform Militia through the United States; May 8, 1792 -- emphasis added] B. The National Guard Act (1903): Excerpt The National Guard was establish in 1903 when Congress created the NG under its power to "raise and support armies". (see H.R. Report No. 141, 73d Cong., 1st Sess. at 2-5, 1933) It was done in order to create reserve MILITARY units. The NG was specifically intended to avoid status as the constitutional militia, and this distinction is recognized by 10 U.S.C. 311. It was not, nor was it intended to be the Militia as was recognize by the USSC in Presser and reaffirmed again in US v. Miller. "[T]he militia shall consist of every able-bodied male citizen of the respective States, Territories, and the District of Columbia, and every able-bodied male of foreign birth who has declared his intention to become a citizen, who is more than eighteen and less than forty-five years of age, and shall be divided into two classes -- the organized militia, to be know as the National Guard of the State, Territory, or District of Columbia, or by such other designations as may be given them by the laws of the respective States or Territories, and the remainder to be know as the Reserve Militia." [from "An Act To promote the efficiency of the militia, and for other purposes", January 21, 1903] C. 10 U.S.C. 311 (from my xerox): Excerpt "311. Militia: Composition and classes (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are commissioned officers of the National Guard. (b) The classes of the militia are -- (1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia." 3. What are the relevant Supreme Court decisions? U.S. v. Cruikshank, 92 U.S. 542 (1875) "This [the right to arms] is not a right GRANTED BY the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The 2nd Amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress." Presser v State of Illinois [116 U.S. 252 (1886)] "It is undoubtedly true that all citizens capable of bearing arms constituted the reserved military force or reserve militia of the United States as well as of the States, and in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security and disable the people from performing their duty to the General Government." [id at 265] UNITED STATES v. MILLER ET AL. No. 696 SUPREME COURT OF THE UNITED STATES 307 U.S. 174; 59 S. Ct. 816; 83 L.Ed. 1206; 39-1 U.S. Tax Cas. (CCH) P9513; 22 A.F.T.R. (P-H) 331; 1939-1 C.B. 373; 1939 P.H. P5421 March 30, 1939, Argued May 15, 1939, Decided PRIOR HISTORY: APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF ARKANSAS. APPEAL under the Criminal Appeals Act from a judgment sustaining a demurrer to an indictment for violation of the National Firearms Act. DISPOSITION: 26 F.Supp. 1002, reversed. SYLLABUS: The National Firearms Act, as applied to one indicted for transporting in interstate commerce a 12-gauge shotgun with a barrel less than 18 inches long, without having registered it and without having in his possession a stamp-affixed written order for it, as required by the Act, held: 1. Not unconstitutional as an invasion of the reserved powers of the States. Citing Sonzinsky v. United States, 300 U.S. 506, and Narcotic Act cases. P. 177. 2. Not violative of the Second Amendment of the Federal Constitution. P. 178. The Court can not take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia; and therefore can not say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon. COUNSEL: Mr. Gordon Dean argued the cause, and Solicitor General Jackson, Assistant Attorney General McMahon, and Messrs. William W. Barron, Fred E. Strine, George F. Kneip, W. Marvin Smith, and Clinton R. Barry were on a brief, for the United States. No appearance for appellees. JUDGES: Hughes, McReynolds, Butler, Stone, Roberts, Black, Reed, Frankfurter; Douglas took no part in the consideration or decision of this case. MR. JUSTICE McREYNOLDS delivered the opinion of the Court. An indictment in the District Court Western District Arkansas, charged that Jack Miller and Frank Layton "did unlawfully, knowingly, wilfully, and feloniously transport in interstate commerce from the town of Claremore in the State of Oklahoma to the town of Siloam Springs in the State of Arkansas a certain firearm, to-wit, a double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230, said defendants, at the time of so transporting said firearm in interstate commerce as aforesaid, not having registered said firearm as required by Section 1132d of Title 26, United States Code (Act of June 26, 1934, c. 737, Sec. 4 [@ 5], 48 Stat. 1237), and not having in their possession a stamp-affixed written order for [***3] said firearm as provided by Section 1132c, Title 26, United States Code (June 26, 1934, c. 737, Sec. 4, 48 Stat. 1237) and the regulations issued under authority of the said Act of Congress known as the 'National Firearms Act' approved June 26, 1934, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States." [text of Act in footnote omitted] A duly interposed demurrer alleged: The National Firearms Act is not a revenue measure but an attempt to usurp police power reserved to the States, and is therefore unconstitutional. Also, it offends the inhibition of the Second Amendment to the Constitution -- "A well regulated Militia, being necessary to the security of a free State, the right of people to keep and bear Arms, shall not be infringed." The District Court held that section eleven of the Act violates the Second Amendment. It accordingly sustained the demurrer and quashed the indictment. The cause is here by direct appeal. Considering Sonzinsky v. United States (1937), 300 U.S. 506, 513, and what was ruled in sundry causes arising [*178] under the Harrison Narcotic Act n2 -- United States v. Jin Fuey Moy (1916), 241 U.S. 394; United States v. Doremus (1919), 249 U.S. 86, 94; Linder v. United States (1925), 268 U.S. 5; Alston v. United States (1927), 274 U.S. 289; Nigro v. United States (1928), 276 U.S. 332 -- the objection that the Act usurps police power reserved to the States is plainly untenable. In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158. The Constitution as originally adopted granted to the Congress power -"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress." With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view. The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia -- civilians primarily, soldiers on occasion. The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. Blackstone's Commentaries, Vol. 2, Ch. 13, p. 409 points out "that king Alfred first settled a national militia in this kingdom," and traces the subsequent development and use of such forces. Adam Smith's Wealth of Nations, Book V, Ch. 1, contains an extended account of the Militia. It is there said: "Men of republican principles have been jealous of a standing army as dangerous to liberty." "In a militia, the character of the labourer, artificer, or tradesman, predominates over that of the soldier: in a standing army, that of the soldier predominates over every other character; and in this distinction seems to consist the essential difference between those two different species of military force." "The American Colonies In The 17th Century," Osgood, Vol. 1, ch. XIII, affirms in reference to the early system of defense in New England - "In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to cooperate in the work of defence." "The possession of arms also implied the possession of ammunition, and the authorities paid quite as much attention to the latter as to the former." "A year later [1632] it was ordered that any single man who had not furnished himself with arms might be put out to service, and this became a permanent part of the legislation of the colony [Massachusetts]." 4. What was the original intent of the Second Amendment? It is not questionable the original intent was that the people had specifically prohibited the Federal Government from prohibiting citizen ownership. "False is the idea of utility...that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils, except destruction (of liberty). The laws that forbid the carrying of arms are laws of such nature. They disarm only those who are neither inclined nor determined to commit crimes...such laws serve rather to encourage than to prevent homocides, for an unarmed man may be attacked with greater confidence than an armed man." Thomas Jefferson 'Commonplace Book' 1775 "As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the articlein their right to keep and bear arms." - Tench Coxe in "REMARKS ON THE FIRST PART OF THE AMENDMENTS TO THE FEDERAL CONSTITUTION." Under the pseudonym "A Pennsylvanian" in the Philidelphia Federal Gazette, June 18, 1789 at 2 col 1. "On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." - Thomas Jefferson, letter to William Johnson, June 12, 1823, "THE COMPLETE JEFFERSON," p322 "Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforceunjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of regular troops..." - Noah Webster, "An Examination into the Leading Principles of the Federal Constitution" (1787) in Pamphlets on the Constitution fo the United States (P. Ford, 1888) "The right of the people to keep and bear arms has been recognized by the General Government; but the best security of that right after all is, the military spirit, that taste for martial exercises, which has always distinguished the free citizens of these States...Such men form the best barrier to the liberties of America." - Gazette of the United States, October 14, 1789 "A Militia, when properly formed, are in fact the people themselves...and include all men capable of bearing arms." - Richard Henry Lee, Additional Letters from the Federal Farmer, (1788) at 169 "When firearms go, all goes - we need them every hour" - President George Washington "No free man shall ever be debarred the use of arms." - Thomas Jefferson "To preserve liberty it is essential that the whole body of the people always possess arms and be taught alike, especially when young, how to use them." - Richard Henry Lee "I ask, sir, what is the militia? It is the whole people, except for a few public officials." - George Mason "I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurptions" -- James Madison "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety" - Benjamin Franklin "God grants liberty only to those who love it, and are always ready to guard and defend it." - Daniel Webster "Congress may give us a select militia which will, in fact, be a standing army -- or congress, afraid of a general militia, may say there shall be no militia at all. when a select militia is formed; the people in general may be disarmed." - John Smilie "If the laws of the union were oppressive, they could not carry them into effect, if the people were possessed of the proper means of defense." - William Lenoir "The strongest reason for people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government." - Thomas Jefferson "Whenever people...entrust the defense of their country to a regular, standing army, composed of mercenaries, the power of that country will remain under the direction of the most wealthy citizens..." - "A Framer" in the independent gazetteer, 1791 "Americans have the right and advantage of being armed -- unlike the citizens of other countries whose governments are afraid to trust the people with arms." - James Madison "Every corner of this land knows firearms, and more than 99 99/100 percent of them by their silence indicate they are in safe and sane hands." - George Washington "Firearms stand next in importance to the constitution itself. The very atmosphere of firearms anywhere and everywhere restrains evil influence - they deserve a place of honor with all that's good." - George Washington "We, the people are the rightful masters of both congress and the courts - not to overthrow the constitution, but to overthrow men who pervert the constitution." - A. Lincoln "The great object is that every man be armed.... everyone who is able may have a gun." - Patrick Henry "Guard with jealous attention the public liberty. suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined." - Patrick Henry "Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of europe. the supreme power in america cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of regular troops." - Noah Webster "The constitution shall never be construed....to prevent the people of the united states who are peaceable citizens from keeping their own arms." - Alexander Hamilton "Our legislators are not sufficiently appraised of the rightful limits of their power; that their true office is to declare and enforce our natural rights and duties, and to take none of them from us." -- Thomas Jefferson 5. Opinions are fine but where is proof? Documents on the First Congress Debate on Arms and Militia. Extracted from 'The Origins of the American Constitution, A Documentary History Edited by Michael Kammen, Penquin Books, 1986; and 'Creating the Bill of Rights The Documentary Record from the First Federal Congress, Edited by Helen E. Veit, et al, The Johns Hopkins University Press, 1991. (Edacted by Jim Knoppow) From the Madison Resolution, June 8, 1789. Resolved, that the following amendments ought to be proposed by Congress to the legislatures of the states, to become, if ratified by three fourths thereof, part of the constitution of the United States... The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person... ----------------------------------------------------------------------------- AMENDMENTS PROPOSED BY STATES Massachusetts Convention-- Did not propose a keeping and bearing amendment, nor a militia nor a standing army amendment. South Carolina-- Proposed no keeping and bearing, or militia or standing army amendment. New Hampshire-- TENTH, That no standing Army shall be Kept up in time of Peace unless with the consent of three fourths of the Members of each branch of Congress, nor shall Soldiers in Time of Peace be Quartered upon private Houses without the consent of the Owners... TWELFTH Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion. Virginia-- SEVENTEENTH, That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power. EIGHTEENTH, That no Soldier in time of peace ought to be quartered in any house without the consent of the owner, and in time of war in such manner only as the laws direct. NINETEENTH, That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead... (Amendments proposed to the body of the Constitution).... NINTH, that no standing army or regular troops shall be raised or kept up in time of peace, without the consent of two thirds of the members present in both houses. TENTH, That no soldier shall be inlisted for any longer term than four years, except in time of war, and then for no longer term than the continuance of the war. ELEVENTH, That each State respectively shall have the power to provide for organizing, arming and disciplining it's own Militia, whensoever Congress shall omit or neglect to provide for the same. That the Militia shall not be subject to Martial Law, except when in actual service in time of war, invasion, or rebellion; and when not in the actual service of the United States, shall be subject only to such fines, penalties and punishments as shall be directed or inflicted bfy the laws of its own State. New York-- That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State; that the Militia should not be subject to Martial Law, except in time of War Rebellion or Insurrection. That standing Armies in time of Peace are dangerous to Liberty, and ought not to be kept up, except in Cases of necessity; and that at all times, the Military should be under strict Subordination to the Civil Power. That in time of Peace no Soldier ought to be quartered in any House without the consent of the Owner, and in time of War only by the civil Magistrate in such manner as the Laws may direct...that the Militia of any State shall not be compelled to serve without the limits of the State for a longer term than six weeks, without the Consent of the Legislature thereof. ------------------------------------------------------------------------- HOUSE COMMITTEE REPORT, July 28, 1789. ...[6] "A well regulated militia*, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms."# this point failed for want of a second. # On August 17, Jackson made a motion in the Committe of the Whole House to insert "upon paying an equivalent to be established by law," at this point. On the suggestion of Smith (S.C.), Jackson proposed to change this phrase to, "No one, religiously scrupulous of bearing arms, shall be compelled to render military service in person, upon paying an equivalent." This was apparently superseeded by Benson's motion to strike out "but no person" through "bear arms," which the COWH disagreed to, 24-22. On the same day, a motion by Burke to insert the following at this point was disagreed to, by a majority of 13: "A standing army of regular troops in time of peace, is dangerous to public liberty, and such shall not be raised or kept up in time of peace but from necessity, and for the security of the people, nor then without the consent of two-thirds of the members present of both houses, and in all cases the military shall be subordinate to the civil authority." The House, on August 20, agreed to a motion to insert "in person" at this point. ------------------------------------------------------------------------- HOUSE RESOLUTION AND ARTICLES OF AMENDMENT; August 24, 1789. ARTICLE THE FIFTH. A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.* toa motion to insert the following at this point: that standing armies, in time of peace, being dangerous to Liberty, should be avoided as far as the circumstances and protection of the community admit; and that in all cases the military should be under strict subordination to, and governed by the civil Power. That no standing army or regular troops shall be raised in time of peace, without the consent of two thirds of the Members present in both Houses, and that no soldier shall be inlisted for any longer term than the continuance of the war. On September 4, the Senate agreed to amend Article 5 to read as follows: A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed. On September 9, the Senate replaced "the best" with "necessary to the." On the same day, the Senate disagreed toa motion to insert "for the common defence" after "bear arms." This article and the following ones were then renumbered as articles 4 through 8. ARTICLE THE SIXTH. No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner prescribed by law. ---------------------------------------------------------------------------- ADDITIONAL ARTICLES OF AMENDMENT; September 8, 1789 That no standing army or regular troops shall be raised or kept up in time of peace, without the consent of two thirds of the members present in both houses. That no soldier shall be enlisted for any longer term than four years, except in time of war, and then for no longer term than the continuance of the war. That each State respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same. That the militia shall not be subject to martial law, except when in actual service in time or war, invasion or rebellion; and when not in the actual service of the United States, shall be subject only tosuch fines, penalties, and punishments as shall be directed or inflicted by the laws of its own State. --------------------------------------------------------------------------- SENATE AMENDMENTS, September 9, 1789 [8] To erase the word "fifth"--& insert--fourth--& to erase from the fifth article the words, "composed of the body of the people--the word "best"--& the words "but no one religiously scrupulous of bearing arms shall be compelled torender military service in person"--& insert after the word "being" in the first line--necessary to. -------------------------------------------------------------------------- ARTICLES OF AMENDMENT, as Agreed to by the Senate, September 14, 1789 ARTICLE THE FOURTH. A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed. ------------------------------------------------------------------------- DEBATE ON THE MILITIA AND RIGHT TO KEEP AND BEAR IN THE HOUSE (Senate debates were secret). The Congressional Register, 17 August 1789 The house went into a committee of the whole, on the subject of amendments. The 3d clause of the 4th proposition in the report was taken into consideration, being as follows; "A well regulated militia, composed of the body of the people, being the best security of a free state; the right of the people to keep and bear arms shall not be infringed, but no person, religiously scrupulous, shall be compelled to bear arms. Mr. Gerry. This declaration of rights, I take it, is intended to secure the people against the mal-administration of the government; if we could suppose that in all cases the rights of the people would be attended to, the occasion for guards of this kind would be removed. Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constition itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms. What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now it must be evident, that under this provision, together with their other powers, congress could take such measures ith respect to a militia, as make a standing army necessary. Whenever government mean to invace the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins. This was actually done by Great Britain at the commencement of the late revolution. They used every means in their power to prevent the establishement of an effective militia to the eastward. The assembly of Massachusetts, seeing the rapid progress that administra- tion were making, to divest them of their inherent privileges, endeavored to counteract them by the organization of the militia, but they were always defeated by the influence of the crown. Mr. Seney-- wished to know what question there was before the committee, in order to ascertain the point upon which the gentleman was speaking? Mr. Gerry--replied, that he meant to make a motion, as he disapproved of the words as they stood. He then proceeded, No attempts that they made, were successful, until they engaged in the struggle which emancipated them at once from their thralldom. Now, if we give a discretionary power to exclude those from militia duty who have religious scruples, we may as well make no provision on this head; for this reason he wished the words to be altered so as to be confined to persons belonging to a religious sect, scrupulous of bearing arms. Mr. Jackson--Did not expect that all the people of the United States would turn Quakers or Moravians, consequently one part would have to defend the other, in case of invasion; now this, in his opinion, was unjust, unless the consitution secured an equivalent, for this reason he moved to amend the clause, by inserting at the end of it "upon paying an equivalent to be established by law." Mr. Smith, (of S.C.)--Enquired what were the words used by the conventions respecting this amendment; if the gentleman would conform to what was proposed by Virginia and Carolina, he would second him: He thought they were to be excused provided they found a substitute. Mr. Jackson--Was willing to accommodate; he thought the expression was, "No one, religiously scrupulous of bearing arms, shall be compelled to render military service in person, upon paying an equivalent." Mr. Sherman--Conceived it difficult to modify the clause and make it better. It is well-known that those ho are religiously scrupulous of bearing arms, are equally scrupulous of getting substitutes or paying an equivalent; many of them would rather die than do either one or the other--but he did not see an absolute necessity for a clause of this kind. We do not live under an arbitrary government, said he, and the states respectively will have the government of the militia, unless when called into actual service; beside, it would not dotoalter it so as to exclude the whole of any sect, because there are men amongst the quakers who will turn out, notwithstanding the religious principles of this society, and defend the cause of their country. Certainly it will be improper to prevent the exercise of such favorable dispositions, at least while it is the practice of nations to determine their contests by the slaughter of their citizens and subjects. Mr. Vining--Hoped the clause would be suffered to remain as it stood, because he saw no use in it if it as amended so as to compel a man to find a substitute, which, with respect to the government, was the same as if the person himself turned out to fight. Mr. Stone--Enquired what the words "Religiously scrupulous" had reference to, was it of bearing arms? If it was, it ought so to be expressed. Mr. Benson--Moved to have the words "But no person religiously scrupulous shall be compelled to bear arms" struck out. He would always leave it to the benevolence of the legislature--for, modify it, said he, as you please, it will be impossible to express it in such a manner as to clear it from ambiguity. No man can claim this indulgence of right. It may be a religious persuasion, but it is no natural right, and therefore ought to be left to the discretion of the government. If this stands part of the constitution, it will be a question before the judiciary, on every regulation you make with respect to the organization of the militia, whether it comports with this declaration or not? It is extremely injudicious to intermix matters of doubt with fundamentals. I have no reason to believe but the legislature will always possess humanity enough to indulge this class of citizens in a matter they are so desirous of, but they ought to be left to their discretion. The motion for striking out the whole clause being seconded, was put, and decided in the negative, 22 members voting for it, and 24 against it. Mr. Gerry--Objected to the first part of the clause, on account of the uncertainty with which it is expressed: a well-regulated militia being the best security of a free state, admitted an idea that a standing army was a secondary one. It ought to read "a well regulated militia, trained to arms," in which case it would become the duty of the government to provide this security, and furnish a greater certainty of its being done. Mr. Gerry's motion not being seconded, the question was put on the clause as reported, which being adopted. Mr. Burke--Proposed to add to the clause just agreed to, an amendment to the following effect: "A standing army of regular troops in time of peace, is dangerous to public liberty, and such shall not be raised or kept up in tim of peace but from necessity, and for the security of the people, nor then without the consent of two-thirds of the members present of both houses, and in all cases the military shall be subordinate to the civil authority." This being seconded. Mr. Vining--Asked whether this was to be considered as an addition to the last clause, or an amendment by itself? If the former, he would remind the gentleman the clause was decided; if the latter, it was improper to introduce new matter, as the house had referred the report specially to the committee of the whole. Mr. Burke--Feared that what with being trammelled in rules, and the apparent disposition of the committee, he should not be able to get them to consider any amendment; he submitted to such proceeding because he could not help himself. Mr. Hartley--thought the amendment in order, and was ready to give his opinion of it. He hoped the people of America would always be satisfied with having a majority to govern. He never wished to see two-thirds or three-fourths required, because it might put it in the power of a small minority to govern the whole union. The question on mr. Burke's motion was put, and lost by a majority of 13. ------------------------------------------------------------------------------ AUGUST 20, 1789 Mr. SCOTT objected tothe clause in the sixth amendment, "No person religiously scrupulous shall be compelled to bear arms." He said, if this becomes part of the constitution, we can neither call upon such persons for services nor an equivalent; it is attended with still further difficulties, for you can never depend upon your militia. This will lead to the violation of another article in the constitution, which secures to the people the right of keeping arms, as in this case you must have recourse to a standing army. I conceive it is a matter of legislative right altogether. I know there are many sects religiously scrupulous in this respect: I am not for abridging them of any indulgence by law; my design is to guard against those who are of no religion. It is said that religion is on the decline; if this is the case, it is an argument in my favour; for when the time comes that there is no religion, persons will more generally have recourse to these pretexts to get excused. Mr. BOUDINOT said that the provision in the clause or something like it appeared to be necessary. What dependence can be placed in men who are conscientious in this respect? Or what justice can there be in compelling them to bear arms, when, if they are honest men, they would rather die than use them. He then adverted to several instances of oppression in the case which occurred during the [revolutionary] war. In forming a militia we ought tocalculate for an effectual defence, and not compel characters of this description to bear arms. I wish that in establishing this government we may be careful to let every person know that we will not interfere with any person's particular religious profession. If we strike out this clause, we shall lead such persons to conclude that we mean to compel them to bear arms. Mr. VINING and Mr. JACKSON spake upon the question. The words 'in person' were added after the word 'arms', and the amendment was adopted. LETTERS AND DOCUMENTS REFERING TO KEEPING AND BEARING Fisher Ames to George R. Minor. 12 June, 1789 The civil departments will employ us next, and the judiciary the Senate. They will finish their stint, as the boys say, before the House has done. Their number is less, and they have matured the business in committee. Yet Mr. Madison has inserted, in his amendments, the increase of representatives, each State having two at least. The rights of conscience, of bearing arms, of changing the government, are declared to be inherent in the people. Freedom of the press too. There is a prodigious great dose fro a medicine. But it will stimulate the stomach as little as hasty- pudding. It is rather food than physic. An immense mass of sweet and other herbs and roots for a diet drink. Samuel Nasson to George Thatcher. 9 july 1787 I find that Ammendments are once again on the Carpet. I hope that such may take place as will be for the Best Interest of the whole. A Bill of rights well secured that we the people may know how far we may Proceade in Every Department then their will be no Dispute Between people and rulers in that may be secured the right to keep and bear arms for Common and Extraordinary Occations such as to secure ourselves against the wild Beast and also to amuse us by fowling and for our Defence against a Common Enemy you know to learn the Use of arms is all that can Save us from a forighn foe that may attempt to subdue us for if we keep up the Use of arms and become well acquainted with them we Shall allway be able to look them in the face that arise up against us for it is impossible to Support a Standing armey large Enough toGuard our Lengthy Sea Coast and now Spare me on the subject of Standing armeys in a time of Peace they allway was first or last the downfall of all free Governments it was by their help Caesar made proud Rome Own a Tyrant and a Traytor for a Master. Only think how fatal they ware to the peace of this Countery in 1770 what Confeusion they Brought on the fatal 5 of March [the Boston Massacre] I think the remembrance of that Night is enough to make us Carefull how we Introduce them in a free republican Government--I therefore hope they will be Discouraged for I think the man that Enters as a Soldier in a time of peace only for a living is only a fit tool toinslave his fellows For this purpose was a Standing Army first introduced in the World anoather that I hope will be Established in the bill is tryals by Juryes in all Causes Excepting where the parties agree to be without I never wish to be in the power of any Sett of Men let them be Never so good but hope to be left in the hands of my Countery and if any Enemey means to bribe he must have money anough to settle it with the Country. ---------------------------------------------------------------------------- ROGER SHERMAN'S PROPOSED COMMITTEE REPORT. 21-28 July 1789 ...5 The Militia shall be under the government of the laws of the respective States, when not in the actual Service of the united States, but Such rules as may be prescribed by Congress for their uniform organisation & discipline shall be observed in officering and training them. but military Service Shall not be required of persons religiously Scrupulous of bearing arms. 6 No Soldier Shall be quartered in any private house, in time of Peace, nor at any time, but by authority of law. (11 articles were proposed in this committee report, with the advisory that they be sent to the legislatures of the several states to be adopted by them as amendments of the Constitution of the United States. The 'natural rights' mentioned in this report include; "rights of conscience in matters of religion; of acquiring property, and of pursuing happiness & safety; of Speaking, writing and publishing their Sentiments which decency and freedom; of peaceably Assembling to consult their common good, and of applying to the Government by petition or remonstrance for redress of grievances. Of these rights therefore they Shall not be deprived by the government of the united States." No mention of keeping and bearing is made in the document. According to the footnote in 'Creating the Bill of Rights', "This document is apparently Sherman's proposal to the House select committee, showing how Madison's amendments could be revised and placed at the end of the Constitution.") ------------------------------------------------------------------------ Richard Henry Lee to Charles Lee, 28 August 1789 The enclosed paper will shew you the amendments passed the H. of R. to the Constitution--They are short of som essentials, as Election interference & Standing Army &c. I was surprised to find in the Senate that it was proposed we should postpone the consideration of Amendments until Experience had shewn the necessity of any--As if experience was more necessary to prove the propriety of those great principles of Civil liberty which the wisdom of Ages has found to be necessary barriers against the encroachments of power in the hands of frail Men! My Colleague was sick & absent. The laboring oar was with me. A Majority of 2 thirds however agreed to take the Amendments under consideration next Monday--I hope that if we cannot gain the whole loaf, we shall at least have some bread. -------------------------------------------------------------------------- Theodorick Bland Randolph to St. George Tucker, 9 September 1789 The house f Representatives have been for some time past engaged on the subject of amendments to the constitution, though in my opinion they have not made one single material one. The senate are at present engaged on that subject; Mr. Richd. H. Lee told me that he proposed to strike out the standing army in time of peace but could not carry it. He also sais that it has been proposed, and warmly favoured that, liberty of Speach and of the press may be stricken out, as they only tend to promote licenciousness. If this takes place god knows what will follow. ------------------------------------------------------------------------- John Randolph to St. George Tucker, 11 September 1789 A majority of the Senate for not allowing the militia arms & if two thirds had agreed it would have been an amendment to the Constitution. They are afraid that the Citizens will stop their full Career to Tyranny & Oppression. -------------------------------------------------------------------------- Richard Henry Lee to Patrick Henry, 14 September 1789 (The paper is in bad condition, the words in brackets are from historian Charles Campbell's pre-Civil War transcript in the Hugh Blair Grigsby Papers, Virginia Historical Society. There are only two mentions of a standing army, but his view of the real strength of the rights in amendment is interesting). [I have] since waited to see the issue of the proposed amendts. to the Constitution, that I might giver you the most [exact] account of that business. As they came from the H. of R. they were very far short of the wishes of our Convention, but as they are returned by the Senate they are certainly much weakened. You may be assured that nothing on my part was left undone to prevent this, and every possible effort was used to give success toall the Amendments proposed by our Country--We might as well have attempted to move Mount Atlas upon our shoulders--In fact, the idea of subsequent Amendments was delusion altogether, and so intended by the greater part of those who arrogated to themselves the name of Federalists. I am grieved to see that too many look at the Rights of the people as a Miser examines a Security to find a flaw in it! The great points of free election, Jury trial in criminal cases much loosened, the unlimited right of Taxation, and Standing Armies in peace, remain as they were. Some valuable Rights are indeed *declared*, but the powers that remain are very sufficient to render them nugatory at pleasure. The most essential danger from the present System arises, [in my] opinion, from its tendency toa Consolidated government, instead of a Union of Confederated States--The history of the world and reason concurs in proving that so extensive a Territory [as the] U. States comprehend never was, or can be governed in freed[om] under the former idea--Under the latter is it abundantly m[ore] practicable, because extended representation, know[lege of] character, and confidence in consequence, [are wanting to sway the] opinion of Rulers, without which, *fear* the offspri[ng of Tyranny] can alone answer. Hence Standing Armies, and des[potism] follows. I take this reasoning to be unrefutable, a[nd] therefore it becomes the friends of liberty to guard [with] perfect vigilance every right that belongs to the Sta[tes] and to protest against every invasion of them--taking care always to procure as many protesting States as possible--This kind of vigilance will create caution and probably establish such a mode of conduct as will create a system of precedent that will prevent a Consolidating effect from taking place by slow, but sure degrees. And also not to cease in renewing their efforts for so amending the federal Constitution as to prevent a Consolidation by securing the due Authority of the States. At present perhaps a sufficient number of Legislatures cannot be got to agree in demanding a Convention--But I shall be much mistaken if a great sufficiency will not e'er long concur in this measure. The preamble to the Amndmnts is realy curious--A careless reader would be apt to suppose that the amendments desired by the States had been graciously granted. But when the thing done is compared with that desired, nothing can be more unlike... By comparing the Senate amendments with [those] from below by carefully attending to the m[atter] the former will appear will calculated to enfeeble [and] produce ambiguity--for instance--Rights res[erved] to the States or the *People*--The people here is evidently designed fo[r the] People of the *United States*, not of the Individual States [page torn] the former is the Constitutional idea of the people--We *the people* &c. It was affirmed the Rights reserved by the States bills of rights did not belong to the States--I observed that then they belonged to the people of the States, but that this mode of expressing was evidently *calculated* to give the Residuum to the people of the U. States, which was the Constitutional language, and to deny it to the people of the Indiv. State --At least that it left room for cavil & false construction--They would not insert after people thereof--altho it was moved. Also on August 17, 1789, Benson made a motion to strike out "but no person religiously scrupulous shall be compelled to bear arms." The COWH turned down the motion by a vote of 24 - 22. Also on August 17, 1789, Burke proposed to insert "A standing army of regular troops in time of peace, is dangerous to public liberty, and shall not be raised or kept up in time of peace but from necessity, and for the security of the people, nor then withut the consent of two-thirds of the members present of both houses, and in all cases the military shall be subordinate to the civil authority." This was voted down by a majority of 13. On August 20, the House agreed to insert "in person," so that the clause read, "but no person religiously scrupulous shall be compelled to bear arms in person." On August 24, 1789, a House Resolution and Articles of Amendments were passed and sent to the Senate. The Amendment then read: "Article the Fifth. A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person." On September 4, 1789, the Senate disapproved a motion to insert at the end, "that standing armies, in time of peace, being dangerous to Liberty, should be avoided as far as the circumstances and protection of the community will admit; and that in all cases the military should be under strict subordination to, and governed by the civil Power. That no standing army or regular troops shall be raised in time of peace, without the consent of two thirds of the Members present in both Houses, and that no soldier shall be inlisted for any longer term than the continuance of the war." Also on September 4, 1789, the Senate agreed to amend Article 5 to read: "A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed." On September 8, 1789, the _Senate Legislative Journal_ shows the following entry as an additional article of amendment: "That each State respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same. That the militia shall not be subject to martial law, except when in the actual service in time of war, invasion or rebellion; and when not in the actual service of the United States, shall be subject only to such fines, penalties, and punishments as shall be directed or inflicted by the laws of its own State." On September 9, 2789 the Senate replaced "the best" with "necessary to the." Thus, the proposed amendment read: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." On September 14, 1789, the Senate agreed to twelve Articles of Amendment. The preamble reads: "The Conventions of a Number of the States having, at the Time of their adopting the Constitution, expressed a Desire, in Order to prevent misconstruction or abuse of its Powers, that further declaratory and restrictive Clauses shuld be added: And as extending the Ground of public Confidence in the Government, will best insure the beneficent end of its Institution--" A joint resolution of the Senate and House of Representatives was drafted to forward the twelve amendments to the States for consideration. The House disagreed. The Fourth Amendment read: "A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed." On September 24, 1789 a Conference Committee Report was issued whereby difference were reconciled. The Fourth Amendment remained unchanged. The House issued a resolution requesting the President forward the Articles of Amendments to the States, plus Rhode Island and North Carolina. 6. But the words as adopted are confusing. I just had a conversation with Mr. A.C. Brocki, Editorial Coordinator for the Office of Instruction of the Los Angeles Unified School District. Mr. Brocki taught Advanced Placement English for several years at Van Nuys High School, as well as having been a senior editor for Houghton Mifflin. I was referred to Mr. Brocki by Sherryl Broyles of the Office of Instruction of the LA Unified School District, who described Mr. Brocki as the foremost expert in grammar in the Los Angeles Unified School District -- the person she and others go to when they need a definitive answer on English grammar. I gave Mr. Brocki my name, told him Sherryl Broyles referred me, then asked him to parse the following sentence: "A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed." Mr. Brocki informed me that the sentence was overpunctuated, but that the meaning could be extracted anyway. "A well-schooled electorate" is a nominative absolute. "being necessary to the security of a free State" is a participial phrase modifying "electorate" The subject (a compound subject) of the sentence is "the right of the people" "shall not be infringed" is a verb phrase, with "not" as an adverb modifying the verb phrase "shall be infringed" "to keep and read books" is an infinitive phrase modifying "right" I then asked him if he could rephrase the sentence to make it clearer. Mr. Brocki said, "Because a well-schooled electorate is necessary to the security of a free state, the right of the people to keep and read books shall not be infringed." I asked: can the sentence be interpreted to restrict the right to keep and read books to a well-schooled electorate -- say, registered voters with a high-school diploma?" He said, "No." I then identified my purpose in calling him, and read him the Second Amendment in full: "A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." He said he thought the sentence had sounded familiar, but that he hadn't recognized it. I asked, "Is the structure and meaning of this sentence the same as the sentence I first quoted you?" He said, "yes." I asked him to rephrase this sentence to make it clearer. He transformed it the same way as the first sentence: "Because a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." I asked him whether the meaning could have changed in two hundred years. He said, "No." I asked him whether this sentence could be interpreted to restrict the right to keep and bear arms to "a well-regulated militia." He said, "no." According to Mr. Brocki, the sentence means that the people "are" the militia, and that the people have the right which is mentioned. I asked him again to make sure: Schulman: "Can the sentence be interpreted to mean that the right can be restricted to "a well-regulated militia?" Brocki: "No, I can't see that." Schulman: "Could another, professional in English grammar or linguistics interpret the sentence to mean otherwise?" Brocki: "I can't see any grounds for another interpretation." I asked Mr. Brocki if he would be willing to stake his professional reputation on this opinion, and be quoted on this. He said, "Yes." At no point in the conversation did I ask Mr. Brocki his opinion on the Second Amendment, gun control, or the right to keep and bear arms. J. Neil Schulman July 17, 1991 7. But can not the words be reinterprated today? The principle of interperation of legal documents was well understood at the time the Constitution was written and what was written was most certainly written with how the words would be interperated in mind. Blackstone summarizes the concept in use at the time. The words would have been written to survive such and interperatation with their intended meaning. HOW SHOULD THE CONSTITUTION BE READ AND INTERPRETED? In the volume _Constitutionalism in Perspective: The United States Constitution in Twentieth Century Politics_, the first three essays attempt in the first section to answer the question I've written above. The method of interpretation I'm putting forth here is the one explained by Christopher Wolfe in "How to Read and Interpret the Constitution." Niether Sanford Levinson ("Can One Account for Tastes in Constitutional Interpretation") nor Gary J. Jacobsohn ("Concluding Essay--Rules Are Not Enough: An Argument for Principled Unpredictability") dispute the accuracy or application of Wolfe's presentation. So, we have here a basis upon which we can look at the Amendment and perhaps make judgements about it. TRADITIONAL INTERPRETATION "The founders acted on an understanding of interpretation which was dominant during the first, or what I call the traditional, era of U.S. constitutional history, which ran from the founding until the end of the nineteenth century. During this era there was, I think, substantial agreement about the general rules of interpretation, although as students of U.S. history know, there was also substantial disagreement about the particualr interpretations of the Constitution on the basis of these common rules." ". . . Constitutional interpretation was viewed as a special case of legal interpretation, drawing especially on the background of rules for legal interpretation developed in English law. Blackstone, for example, has a section on rules of interpretation at the beginning of his influential *Commentaries on the Laws of England*, published on the eve of the American Revolution. I will use this as an example of what the framers assumed as part of the background for their efforts to establish and implement--which required interpreting--the Constitution." BLACKSTONE ON INTERPRETATION "Blackstone says that the best way to interpret the law is to explore the intention of the lawgiver at the time the law was made 'by signs the most natural and probable.' There are five basic signs: 'the words, the context, the subject-matter, the effects and consequences, or the spirit and reason of the law.'" 1. THE WORDS "The words are to be understood 'in their most usual and most known signification . . . their general and popular use.' This is especially true for the American Constitution, since the document was written for the people, who are the ultimate authority in that government, and one should assume that a writer using words as they are understood by those with whom he wishes to communicate. . . . The one apparent exception to relying on the normal 'popular' usage of words is that there may be some technical terms such as 'Writ of Habeas Corpus' or 'ex post facto Law.' But then, one might argue that, in a certain sense, the technical definition *is* the 'popular' usage. . . . Of course, there might be more doubt with respect to some other terms, e.g., in how technical a sense should the word 'contract' be taken, in Article one, section ten?" 2. THE CONTEXT "If the meaning of the words is dubious (e.g. ambiguous, equivocal, or intricate), Blackstone says, then the meaning can be established from the context. Blackstone says, then the meaning can be established from the context. This refers not only to the immediate verbal context, but to the broader senses of context. Two examples he gives are first, the preamble of the law whose meaning is in question, and second, the use of the word or words in similar laws passed by the same legislature and relating to the same subject or point. 3. THE SUBJECT-MATTER "Words are also to be understood in relation to the subject- matter with which the legislator is dealing. If the word has several legitimate meanings, it may be that one of them is particularly apt when the speaker is dealing with one kind of subject rather than another, and that will help to suggest which meaning the legislator intended." 4. EFFECTS AND CONSEQUENCES "The next 'sign' Blackstone mentions must be understood carefully. It is deriving aid from the 'effects and consequences' of different meanings. This does not mean that the legislator is free to reject a meaning if he does not like the consequences, in the sense that he favors a different policy view. The rule is applicable to more extreme cases, namely, 'where the words bear either none, or a very absurd signification, if literally understood.' The classic example was the law of the city of Bologna which prohibited 'drawing blood,' which was construed not to apply to doctors." 5. THE SPIRIT AND REASON OF THE LAW "But 'the most universal and effectual way of discovering the true meaning of the law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it.' Thus, for example, a law ought not to be extended to cases where the reason for the law is inapplicable if the words do not require it." Wolfe has a good deal more to say about the traditional method of interpretation before going on to compare and contrast it with more modern fashions. What I've extracted here is enough to give us a sound criteria and a common frame of reference. 8. If interpretations can not vary what is the current interpretation? The following analysis stands alone as a scholarly legal analysis. The EMBARRASSING SECOND AMENDMENT Sanford Levinson University of Texas at Austin School of Law Reprinted from the Yale Law Journal, Volume 99, pp. 637-659 One of the best known pieces of American popular art in this century is the New Yorker cover by Saul Steinberg presenting a map of the United States as seen by a New Yorker, As most readers can no doubt recall, Manhattan dominates the map; everything west of the Hudson is more or less collapsed together and minimally displayed to the viewer. Steinberg's great cover depends for its force on the reality of what social psychologists call "cognitive maps." If one asks inhabitants ostensibly of the same cities to draw maps of that city, one will quickly discover that the images carried around in people's minds will vary by race, social class, and the like. What is true of maps of places --that they differ according to the perspectives of the mapmakers--is certainly true of all conceptual maps. To continue the map analogy, consider in this context the Bill of Rights; is there an agreed upon "projection" of the concept? Is there even a canonical text of the Bill of Rights? Does it include the first eight, nine, or ten Amendments to the Constitution? Imagine two individuals who are asked to draw a "map" of the Bill of Rights. One is a (stereo-) typical member of the American Civil Liberties Union (of which I am a card-carrying member); the other is an equally (stereo-) typical member of the "New Right." The first, I suggest, would feature the First Amendment2 as Main Street, dominating the map, though more, one suspects, in its role as protector of speech and prohibitor of established religion than as guardian of the rights of religious believers. The other principal avenues would be the criminal procedures aspects of the Constitution drawn from the Fourth,3 Fifth,4 Sixth,5 and Eighth6 Amendments. Also depicted prominently would be the Ninth Amendment,7 although perhaps as in the process of construction. I am confident that the ACLU map would exclude any display of the just compensation clause of the Fifth Amendment8 or of the Tenth Amendment.9 The second map, drawn by the New Rightist, would highlight the free exercise clause of the First Amendment,10 the just compensation clause of the Fifth Amendment,11 and the Tenth Amendment.12 Perhaps the most notable difference between the two maps, though, would be in regard to the Second Amendment: "A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed." What would be at most a blind alley for the ACLU mapmaker would, I am confident, be a major boulevard in the map drawn by the New Right adherent. It is this last anomaly that I want to explore in this essay. I. The Politics Of Interpreting The Second Amendment To put it mildly, the Second Amendment is not at the forefront of constitutional discussion, at least as registered in what the academy regards as the venues for such discussion --law reviews,13 casebooks,14 and other scholarly legal publications. As Professor Larue has recently written, "the second amendment is not taken seriously by most scholars."15 Both Laurence Tribe16 and the Illinois team of Nowak, Rotunda, and Young17 at least acknowledge the existence of the Second Amendment in their respective treatises on constitutional law, perhaps because the treatise genre demands more encyclopedic coverage than does the casebook. Neither, however, pays it the compliment of extended analysis. Both marginalize the Amendment by relegating it to footnotes; it becomes what a deconstructionist might call a "supplement" to the ostensibly "real" Constitution that is privileged by discussion in the text.18 Professor Tribe's footnote appears as part of a general discussion of congressional power. He asserts that the history of the Amendment "indicate[s] that the central concern of [its] framers was to prevent such federal interferences with the state militia as would permit the establishment of a standing national army and the consequent destruction of local autonomy."19 He does note, how ever, that "the debates surrounding congressional approval of the second amendment do contain references to individual self-protection as well as to states' rights," but he argues that the qualifying phrase "'well regulated" makes any invocation of the Amendment as a restriction on state or local gun control measures extremely problematic."20 Nowak, Rotunda, and Young mention the Amendment in the context of the incorporation controversy, though they discuss its meaning at slightly greater length.21 They state that "[t]he Supreme Court has not determined, at least not with any clarity, whether the amendment protects only a right of state governments against federal interference with state militia and police forces.. .or a right of individuals against the federal and state government[s]."22 Clearly the Second Amendment is not the only ignored patch of text in our constitutional conversations. One will find extraordinarily little discussion about another one of the initial Bill of Rights, the Third Amendment: "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law." Nor does one hear much about letters of marque and reprisal23 or the granting of titles of nobility. 24 There are, however, some differences that are worth noting. The Third Amendment, to take the easiest case, is ignored because it is in fact of no current importance what whatsoever (although it did, for obvious reasons, have importance at the time of the founding). It has never, for a single instant, been viewed by any body of modern lawyers or groups of laity as highly relevant to their legal or political concerns. For this reason, there is almost no case law on the Amendment.25 I suspect that few among even the highly sophisticated readers of the Journal can summon up the Amendment without the aid of the text. The Second Amendment, though, is radically different from these other pieces of constitutional text just mentioned, which all share the attribute of being basically irrelevant to any ongoing political struggles. To grasp the difference, one might simply begin by noting that it is not at all unusual for the Second Amendment to show up in letters to the editors of newspapers and magazines.26 That judges and academic lawyers, including the ones that write casebooks, ignore it is most certainly not evidence for the proposition that no one else cares about it. The National Rifle Association, to name the most obvious example, cares deeply about the Amendment, and an apparently serious Senator of the United States averred that the right to keep and bear arms is the "right most valued by free men."27 Campaigns for Congress in both political parties, and even presidential campaigns, may turn on the apparent commitment of the candidates to a particular view of the Second Amendment. This reality of the political process reflects the fact that millions of Americans, even if (or perhaps especially if) they are not academics, can quote the Amendment and would disdain any presentation of the Bill of Rights that did not give it a place of pride. I cannot help but suspect that the best explanation for the absence of the Second Amendment from the legal consciousness of the elite bar, including that component found in the legal academy, 28 is derived from a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even "winning," interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation. Thus the title of this essay --The Embarrassing Second Amendment -- for I want to suggest that the Amendment may be profoundly embarrassing to many who both support such regulation and view themselves as committed to zealous adherence to the Bill of Rights (such as most members of the ACLU). Indeed, one sometimes discovers members of the NRA who are equally committed members of the ACLU, differing with the latter only on the issue of the Second Amendment but otherwise genuinely sharing the libertarian viewpoint of the ACLU. It is not my style to offer "correct" or "incorrect" interpretations of the Constitution.29 My major interest is in delineating the rhetorical structures of American constitutional argument and elaborating what is sometimes called the "politics of interpretation," that is, the factors that explain why one or another approach will appeal to certain analysts at certain times, while other analysts, or times, will favor quite different approaches. Thus my general tendency to regard as wholly untenable any approach to the Constitution that describes itself as obviously correct and condemns its opposition as simply wrong holds for the Second Amendment as well. In some contexts, this would lead me to label as tendentious the certainty of NRA advocates that the Amendment means precisely what they assert it does. In this particular context--i.e., the pages of a journal whose audience is much more likely to be drawn from an elite, liberal portion of the public--I will instead be suggesting that the skepticism should run in the other direction, That is, we might consider the possibility that "our" views of the Amendment, perhaps best reflected in Professor Tribe's offhand treatment of it, might themselves be equally deserving of the "tendentious" label. II. The Rhetorical Structures of the Right to Bear Arms My colleague Philip Bobbitt has, in his book Constitutional Fate,30 spelled out six approaches -- or "modalities," as he terms them -- of constitutional argument. These approaches, he argues, comprise what might be termed our legal grammar. They are the rhetorical structures within which "law-talk" as a recognizable form of conversation is carried on. The six are as follows: 1) textual argument -- appeals to the unadorned language of the text;31 2) historical argument -- appeals to the historical background of the vision being considered, whether the history considered be general, such as background but clearly crucial events (such as the American Revolution). or specific appeals to the so-called intentions of framers;32 3) structural argument -- analyses inferred from the particular structures established by the Constitution, including the tripartite division of the national government; the separate existence of both state and nation as political entities; and the structured role of citizens within the political order;33 4) doctrinal argument -- emphasis on the implications of prior cases decided by the Supreme Court;34 5) prudential argument -- emphasis on the consequences of adopting a proferred decision in any given case;35 6) ethical argument -- reliance on the overall "ethos" of limited government as centrally constituting American political culture.36 I want to frame my consideration of the Second Amendment within the first five of Bobbitt's categories; they are all richly present in consideration of the Amendment might mean. The sixth, which emphasizes the ethos of limited government, doe s not play a significant role in the debate of the Second Amendment.37 A. Text I begin with the appeal to text. Recall the Second Amendment: "A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed." No one has ever described the Constitution as a marvel of clarity, and the Second Amendment is perhaps one of the worst drafted of all its provisions. What is special about the Amendment is the inclusion of an opening clause -- a preamble, if you will -- that seems to set out its purpose. No similar clause is part of any other Amendment,38 though that does not, of course, mean that we do not ascribe purposes to them. It would be impossible to make sense of the Constitution if we did not engage in the ascription of purpose. Indeed, the major debates about The First Amendment arise precisely when one tries to discern a purpose, given that "literalism" is a hopelessly failing approach to interpreting it. We usually do not even recognize punishment of fraud -- a classic speech act -- as a free speech problem because we so sensibly assume that the purpose of the First Amendment could not have been, for example, to protect the circulation of patently deceptive information to potential investors in commercial enterprises. The sharp differences that distinguish those who would limit the reach of the First Amendment to "political" speech from those who would extend it much further, encompassing non-deceptive commercial speech, are all derived from different readings of the purpose that underlies the raw text.39 A standard move of those legal analysts who wish to limit the Second Amendment's force is to focus on its "preamble" as setting out a restrictive purpose. Recall Laurence Tribe's assertion that the purpose was to allow the states to keep their militias and to protect them against the possibility that the new national government will use its power to establish a powerful standing army and eliminate the state militias. This purposive reading quickly disposes of any notion that there is an "individual" right to keep and bear arms. The right, if such it be, is only a states's right. The consequence of this reading is obvious: the national government has the power to regulate--to the point of prohibition--private ownership of guns, since that has, by stipulation, nothing to do with preserving state militias. This is, indeed, the position of the ACLU, which reads the Amendment as protection only the right of "maintaining an effective state militia...[T]he individual's right to keep a nd bear arms applies only to the preservation or efficiency of a well-regulated [state] militia. Except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected."40 This is not a wholly implausible reading, but one might ask why the Framers did not simply say something like "Congress shall have no power to prohibit state-organized and directed militias." Perhaps they in fact meant to do something else. Moreover, we might ask if ordinary readers of the late 18th Century legal prose would have interpreted it as meaning something else. The text at best provides only a starting point for a conversation. In this specific instance, it does not come close to resolving the questions posed by federal regulation of arms. Even if we accept the preamble as significant, we must still try to figure out what might be suggested by guaranteeing to "the people the right to keep and bear arms;" moreover, as we shall see presently, even the preamble presents unexpected difficulties in interpretation. B. History One might argue (and some have) that the substantive right is one pertaining to a collective body -- "the people"-- rather than to individuals. Professor Cress, for example, argues that state constitutions regularly use the words "man" or "person" in regard to "individual rights such as freedom of conscience," whereas the use in those constitutions of the term "the people" in regard to a right to bear arms is intended to refer to the "sovereign citizenry" collectively organized.41 Such an argument founders, however, upon examination of the text of the federal Bill of Rights itself and the usage there of terms "the people" in the First, Fourth, Ninth, and Tenth Amendments. Consider that the Fourth Amendment protects "[t]he right of he people to be secure in their persons," or that the First Amendment refers to the "right of the people peaceably to assemble, and to petition the Government for a redress of grievances." It is difficult to know how one might plausibly read the Fourth Amendment as other than a protection of individual rights, and it would approach the frivolous to read the assembly and petition clause as referring only to the right of state legislators to meet and pass a remonstrance directed to Congress or the President against some government act. The Tenth Amendment is trickier, though it does explicitly differentiate between "state" and "the people" in terms of retained rights.42 Concededly, it would be possible to read the Tenth Amendment as suggesting only an ultimate right revolution by the collective people should the "states" stray too far from their designated role of protecting the rights of the people. This reading follows directly from the social contract theory of the state.( But, of course, many of these rights are held by individuals.) Although the record is suitably complicated, it seems tendentious to reject out of hand the argument that the one purpose of the Amendment was to recognize an individual's right to engage in armed self-defense against criminal conduct.43 Historian Robert E. Shallhope supports this view, arguing in his article The Ideological Origins of the Second Amendment44 that the Amendment guarantees individuals the right "to possess arms for their own personal defense." 45 It would be especially unsurprising if this were the case, given the fact that the development of a professional police force (even within large American cities) was still at least half a century away at the end of the colonial period .46 I shall return later in this essay to this individualist notion of the Amendment, particularly in regard into the argument that "changing circumstances," including plausibility. But I want now to explore a second possible purpose of the Amendment, which as a sometime political theorist I find considerably more interesting. Assume, as Professor Cress has argued, that the Second Amendment refers to a communitarian, rather than an individual right.47 We are still left the task of defining the relationship between the community and the state apparatus. It is this fascinating problem to which I now turn. Consider once more the preamble and its reference to the importance of a well-regulated militia. Is the meaning of the term obvious? Perhaps we should make some effort to find out what the term "militia" meant to 18th century readers and writers, rather than assume that it refers only to Dan Quayle's Indiana National Guard and the like. By no means am I arguing that the discovery of that meaning is dispositive as to the general meaning of the Constitution for us today. But it seems foolhardy to be entirely uninterested in the historical philology behind the Second Amendment. I, for one, have been persuaded that the term "militia" did not have the limited reference that Professor Cress and many modern legal analysts assign to it. There is strong evidence that "militia" refers to all of the people, or least all of those treated as full citizens of the community. Consider, for example, the question asked by George Mason, one of the Virginians who refused to sign the Constitution because of its lack of a Bill of Rights: "Who are the militia? They consist now of the whole people."48 Similarly, the Federal Farmer, one of the most important Anti-Federalist opponents of the Constitution, referred to a "militia, when properly formed, [as] in fact the people themselves."49 We have, of course, moved now from text to history. And this history is most interesting, especially when we look at the development of notions of popular sovereignty. It has become almost a cliche of contemporary American historiography to link the development of American political thought, including its constitutional aspects, to republican thought in England, the "country" critique of the powerful "court" centered in London. One of the school's most important writers, of course, was James Harrington, who not only was in influential at the time but also has recently been given a certain pride of place by one of the most prominent of contemporary "neo-republicans," Professor Frank Michelman.50 One historian describes Harrington as having made "the most significant contribution to English libertarian attitudes toward arms, the individual, and society."51 He was a central figure in the development of the ideas of popular sovereignty and republicanism.52 For Harrington, preservation of republican liberty requires independence, which rests primarily on possession of adequate property to make men free from coercion by employers or landlords. But widespread ownership of land is not sufficient. These independent yeoman would also bear arms. As Professor Morgan puts it, "[T]hese independent yeoman, armed and embodied in a militia, are also a popular government's best protection against its enemies, whether they be aggressive foreign monarchs or scheming demagogues within the nation itself."53 A central fear of Harrington and of all future republicans was a standing army, composed of professional soldiers. Harrington and his fellow republicans viewed a standing army as a threat to freedom, to be avoided at all almost all costs. Thus, says Morgan, "A militia is the only safe form of military power that a popular government can employ; and because it is composed of the armed yeomanry, it will prevail over the mercenary professionals who man the armies of neighboring monarchs."54 Scholars of the First Amendment have made us aware of the importance of John Trenchard and Thomas Gordon, whose Cato's Letters were central to the formation of the American notion of freedom of the press. That notion includes what Vincent Blasi would come to call the "checking value" of a free press, which stands as a sturdy exposer of governmental misdeeds.55 Consider the possibility, though, that the unlimited "checking value" in a republican polity is the ability of an armed populace, presumptively motivated by a shared commitment to the common good, to resist governmental tyranny.56 Indeed, one of Cato's letters refers to "the Exercise of despotick Power [as] the unrelenting War of an armed Tyrant upon his unarmed subjects..."57 Cress persuasively shows that no one defended universal possession of arms. New Hampshire had no objection to disarming those who "are or have been in actual rebellion," just as Samuel Adams stressed that only "peaceable citizens" should be protected in their right of "keeping their own arms."58 All these points can be conceded, however, without conceding as well that Congress -- or, for that matter, the States, -- had the power to disarm these "peaceable citizens." Surely one of the foundations of American political thought of the period was the well-justified concern about political corruption and consequent governmental tyranny. Even the Federalists, fending off their opponents who accused them of foisting an oppressive new scheme upon the American people, were careful to acknowledge the risk of tyranny. James Madison, for example, speaks in Federalist Number Forty- Six of "the advantage of being armed, which the Americans possess over the people of almost every other nation."59 The advantage in question was not merely the defense of American borders; a standing army might well accomplish that. Rather, an armed public was advantageous in protecting political liberty. It is therefore no surprise that the Federal Farmer, the nom de plume of an anti-federalist critic of the new Constitution and its absence of a Bill of Rights, could write that "to preserve liberty, it is essential that the whole body of the people always posses s arms, and be taught alike, especially when young, how to use them..."60 On this matter, at least, there was no cleavage between the pro-ratification Madison and his opponent. In his influential Commentaries on the Constitution, Joseph Story, certainly no friend of Anti-Federalism, emphasized the "importance" of the Second Amendment.61 He went on to describe the militia as the "natural defence of a free country" not only "against sudden foreign invasions" and "domestic insurrections," with which one might well expect a Federalist to be concerned, but also against "domestic usurpations of power by rulers."62 "The right of the citizens to keep and bear arms has justly been considered," Story wrote, "as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power by rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them."63 We also see this blending of individualist and collective accounts of the right to bear arms in remarks by Judge Thomas Cooley, one of the most influential 19th century constitutional commentators. Noting that the state might call into its official militia only "a small number" of the eligible citizenry, Cooley wrote that "if the right [to keep and bear arms] were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check."64 Finally, it is worth noting the remarks of Theodore Schroeder, one of the most important developers of the theory of freedom of speech early in this century.65 "[T]he obvious import [of the constitutional guarantee to carry arms]," he argues, "is to promote a state of preparedness for self-defense even against the invasions of government, because only governments have ever disarmed any considerable class of people as a means toward their enslavement."66 Such analyses provide the basis for Edward Abbey's revision of a common bumper sticker, "If guns are outlawed, only the government will have guns."67 One of the things this slogan has helped me to understand is the political tilt contained within the Weberian definition of the state -- i.e., the repository of a monopoly of the legitimate means of violence 68 -- that is so commonly used by political scientists. It is a profoundly statist definition, the product of a specifically German tradition of the (strong) state rather than of a strikingly different American political tradition that is fundamentally mistrustful of state power and vigilant about maintaining ultimate power, including the power of arms, in the populace. We thus see what I think is one of the most interesting points in regard to the new historiography of the Second Amendment -- its linkage to conceptions of republican political order. Contemporary admirers of republican theory use it as a source of both critiques of more individualist liberal theory and of positive insight into the way we today might reorder our political lives.69 One point of emphasis for neo-republicans is the value of participation in government, as contrasted to mere representation by a distant leadership, even if formally elected. But the implications of republicanism might push us in unexpected, even embarrassing, directions; just as ordinary citizens should participate actively in governmental decision-making, through offering their own deliberative insights, rather than be confined to casting ballots once every two or four years for those very few individuals who will actually make the decisions, so should ordinary citizens participate in the process of law enforcement and defense of liberty rather than rely on professionalized peacekeepers, whether we call them standing armies or police. D. Structure We have also passed imperceptibly into a form of structural argument, for we see that one aspect of the structure of checks and balances within the purview of 18th century thought was the armed citizen. That is, those who would limit the meaning of the Second Amendment to the constitutional protection of state-controlled militias agree that such protection rests on the perception that militarily competent states were viewed as a potential protection against a tyrannical national government. Indeed, in 1801 several governors threatened to call out state militias if the Federalists in Congress refused to elect Thomas Jefferson president.70 But this argument assumes that there are only two basic components in the vertical structure of the American polity--the national government and the states. It ignores the implication that might be drawn from the Second, Ninth, and Tenth Amendments; the citizenry itself can be viewed as an important third component of republican governance insofar as it stands ready to defend republican liberty against the depredations of the other two structures, however futile that might appear as a practical matter. One implication of this republican rationale for the Second Amendment is that it calls into question the ability of a state to disarm its citizenry. That is, the strongest version of the republican argument would hold it to be a "privilege and immunity of United States citizenship"--of membership in a liberty-enhancing political order -- to keep arms that could be taken up against tyranny wherever found, including, obviously, state government. Ironically, the principal citation supporting this argument is to Chief Justice [Roger] Taney's egregious opinion in Dred Scott,71 where he suggested that an uncontroversial attribute of citizenship, in addition to the right migrate from one state to another, was the right to possess arms. The logic of Taney's argument at the point seems to be that, because it was inconceivable that the Framers could have genuinely imagined blacks having the right to possess arms, it follows that they could not have envisioned them as being citizens, since citizenship entailed the right. Taney's seeming recognition of a right to arms is much relied on by opponents of gun control.72 Indeed, recall Madison's critique, in Federalist Numbers Ten and Fourteen, of republicanism's traditional emphasis on the desirability of small states as preservers of republican liberty. He transformed this debate by arguing that the states would be less likely to preserve liberty because they could so easily fall under the sway of a local dominant faction, whereas an extended republic would guard against this danger. Anyone who accepts the Madisonian argument could scarcely be happy enhancing the power of the states over their own citizens; indeed, this has been one of the great themes of American constitutional history, as the nationalism of the Bill of Rights has been deemed necessary in order to protect popular liberty against state depredation. D. Doctrine Inevitably one must at least mention, even though there is not space to discuss fully, the so-called incorporation controversy regarding the application of the Bill of Rights to the states through the Fourteenth Amendment. It should be no surprise that the opponents of gun control appear to take a "full incorporationist" view of that Amendment.73 They view the privileges and immunities clause, which was eviscerated in the Slaughterhouse Cases,74 as designed to require the states to honor the rights that had been held, by Justice Marshall in Barron v. Baltimore in 1833,75 to restrict only the national government. In 1875 the Court stated, in United States v. Cruickshank,76 that the Second Amendment, insofar as it grants any right at all, "means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government..." Lest there be any remaining doubt on this point, the Court specifically cited the Cruickshank language eleven years later in Presser v. Illinois,77 in rejecting the claim that the Second Amendment served to invalidate an Illinois statute that prohibited "any body of men whatever, other than the regular organized volunteer militia of this State, and the troops of the United States....to drill or parade with arms in any city, or town, of this State, without the license of the Governor thereof..."78 The first "incorporation decision," Chicago, B & Q.R.Co. v. Chicago,79 was not delivered until eleven years after Presser; one therefore cannot know if the judges in Cruickshank and Presser were willing to concede that any of the amendments comprising the Bill of Rights were anything more than limitations on congressional or other national power. The obvious question, given the modern legal reality of the incorporation of almost all of the right s protected by the First, Fourth, Fifth, Sixth, and Eighth Amendments, is what exactly justifies treating the Second Amendment as the great exception. Why, that is, could Cruickshank and Presser be regarded as binding precedent any more than any of the other "pre-incorporation" decisions refusing to apply given aspects of the BIll of Rights against the states? If one agrees with Professor Tribe that the Amendment is simply a federalist protection of state rights, then presumably there is nothing to incorporate.80 If, however, one accepts the Amendment as a serious substantive limitation on the ability of the national government to regulate the private possession of arms based on either the "individualist" or the "new-republican" theories sketched above, then why not follow the "incorporationist" logic applied to other amendments a nd limit the states as well in their powers to regulate (and especially to prohibit) such possession? The Supreme Court has almost shamelessly refused to discuss the issue,81 but that need not stop the rest of us. Returning, though, to the question of Congress' power to regulate the keeping and bearing of arms, one notes that there is, basically, only one modern case that discusses the issue, United States v. Miller,82 decided in 1939 . Jack Miller was charged with moving a sawed-off shotgun in interstate commerce in violation of the National Firearms Act of 1934. Among other things, Miller and a compatriot had not registered the firearm, as required by the Act. The court below ha d dismissed the charge, accepting Miller's argument that the Act violated the Second Amendment. The Supreme Court reversed unanimously, with the arch- conservative Justice McReynolds writing the opinion.83 Interestingly enough, he emphasized that there was no evidence showing that a sawed- off shotgun "at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia."84 And "[c]ertainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense."85 Miller might have had a tenable argument had he been able to show that he was keeping or bearing a weapon that clearly had a potential military use.86 Justice McReynolds went on to describe the purpose of the Second Amendment as "assur[ing] the constitution and render[ing] possible the effectiveness of [the militia].87 He contrasted the Militia with troops of a standing army, which the Constitution indeed forbade the states to keep without the explicit consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia -- civilians primarily, soldiers on occasion."88 McReynolds noted further that "the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators [all] [s]how plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense."89 It is difficult to read Miller as rendering the Second Amendment meaningless as a control on Congress. Ironically, MIller can be read to support some of the most extreme anti-gun control arguments, e.g., that the individual citizen has a right to keep and bear bazookas, rocket launchers, and other armaments that are clearly relevant to modern warfare, including, of course, assault weapons. Arguments about the constitutional legitimacy of a prohibition by Congress of private ownership of handguns or, what is much more likely, assault rifles, might turn on the usefulness of such guns in military settings. E. Prudentialism WE have looked at four of Bobbitt's categories -- text, history, structure, and case law doctrine -- and have seen, at the very least, that the arguments on behalf of a "strong" Second Amendment are stronger than many of us might wish were the case. This, then, brings us up to the fifth category, prudentialism, or an attentiveness to the practical consequences, which is clearly of great importance in any debate about gun control. The standard argument in favor of strict control and, ultimately, prohibition of private ownership focuses on the extensive social costs of widespread distribution of firearms. Consider, for example, a recent speech given by former Justice Lewis Powell to the American Bar Association.He noted that over 40, 000 murders were committed in the United States in 1986 and 1987, and that fully sixty percent of them were committed with firearms.90 Justice Powell indicated that "[w]ith respect to handguns," in contrast "to sporting rifles and shotguns [,] it is not easy to understand why the Second Amendment, or the notation of liberty, should be viewed as creating a right to own and carry a weapon that contributes so directly to the shocking number of murders in our society."91 It is hard to disagree with Justice Powell; it appears almost crazy to protect as a constitutional right something that so clearly results in extraordinary social cost with little, if any, compensating social advantage. Indeed, since Justice Powell's talk, the subject of assault rifles has become a staple of national discussion, and the opponents of regulation of such weapons have deservedly drawn the censure of even conservative leaders like William Bennett. It is almost impossible to imagine that the judiciary would strike down a determination by Congress that the possession of assault weapons should be denied to private citizens. Even if one accepts the historical plausibility of the arguments advanced above, the overriding temptation is to say that times and circumstances have changed and that there is simply no reason to continue enforcing an outmoded, and indeed, dangerous, understanding of private rights against public order. This criticism is clearest in regard to the so-called individualist argument, for one can argue that the rise of a professional police force to enforce the law has made irrelevant, and perhaps even counter-productive, the continuation of a strong notion of self-help as the remedy for crime.92 I am not unsympathetic to such arguments. It is no purpose of this essay to solicit membership for the National Rifle Association or to express any sympathy for what even Don Kates, a strong critic of the conventional dismissal of the Second Amendment, describes as "the gun lobby's obnoxious habit of assailing all forms of regulation on 2nd Amendment grounds."93 And yet... Circumstances may well have changed in regard to individual defense, although we ignore at our political peril the good faith belief of many Americans that they cannot rely on the police for protection against a variety of criminals. Still, l et us assume that the individualist reading of the Amendment has been vitiated by changing circumstances. Are we quite so confident that circumstances are equally different in regard to the republican rationale outlined earlier? One would, of course, like to believe that the state, whether at the local or national level, presents no threat to important political values, including liberty. But our propensity to believe that this is the case may be little more than a sign of how truly different we are from our radical forbearers. I do not want to argue that the state is necessarily tyrannical; I am not an anarchist. But it seems foolhardy to assume that the armed state will necessarily be benevolent. The American political tradition is, for good or ill, based in large measure on a healthy mistrust of the state. The development of widespread suffrage and greater majoritarianism in our polity is itself no sure protection, at least within republican theory. The republican theory is predicated on the stark contrast between mere democracy, where people are motivated by selfish personal interest, and a republic, where civic virtue, both in common citizen and leadership, tames selfishness on behalf of the common good. In any event, it is hard for me to see how one can argue that circumstances have so changed us as to make mass disarmament constitutionally unproblematic.94 Indeed, only in recent months have we seen the brutal suppression of the Chinese student demonstrations in Tiananmen Square. It should not surprise us that some NRA sympathizers have presented that situation as an abject lesson to those who unthinkingly support the prohibition of private gun ownership. "[I]f all Chinese citizens kept arms, their rulers would hardly have dared to massacre the demonstrators... The private keeping of hand-held personal firearms is within the constitutional design for a counter to government run amok... As the Tianamen Square tragedy showed so graphically, AK 47's fall into that category of weapons, and that is why they are protected by the Second Amendment."95 It is simply silly to respond that small arms are irrelevant against nuclear armed states; Witness contemporary Northern Ireland and the territories occupied by Israel, where the sophisticated weaponry of Great Britain and Israel have proved almost totally beside the point. The fact that these may not be pleasant examples does not affect the principal point, that a state facing a totally disarmed population is in a far better position, for good or ill, to suppress popular demonstrations and uprisings than one that must calculate the possibilities of its soldiers and officials being injured or killed.96 III. Taking the Second Amendment Seriously There is one further problem of no small import; if one does accept the plausibility of any of the arguments on behalf of a strong reading of the Second Amendment, but, nevertheless, rejects them in the name of social prudence and the present -day consequences produced by finicky adherence to earlier understandings, why do we not apply such consequentialist criteria to each and every part of the Bill of Rights?97 As Ronald Dworkin has argued, what it meant to take rights seriously is that one will honor them even when there is significant social cost in doing so. If protecting freedom of speech, the rights of criminal defendants, or any other parts of the Bill of Rights were always (or even most of the time) clearly cost less to the society as a whole, it would truly be impossible to understand why they would be as controversial as they are. The very fact that there are often significant costs -- criminals going free, oppressed groups having to hear viciously racist speech and so on -- helps to account for the observed fact that those who view themselves as defenders of the Bill of Rights are generally antagonistic to prudential arguments. Most often, one finds them embracing versions of textual, historical, or doctrinal arguments that dismiss as almost crass and vulgar any insistence that times might have changed and made too "expensive" the continued adherence to a given view. "Cost-benefit" analysis, rightly or wrongly, has come to be viewed as a "conservative" weapon to attack liberal rights.98 Yet one finds that the tables are strikingly turned when the Second Amendment comes into play. Here it is "conservatives" who argue in effect that social costs are irrelevant and "liberals" who argue for a notion of the "living Constitution" and "changed circumstances" that would have the practical consequence of removing any real bite from the Second Amendment. As Fred Donaldson of Austin, Texas wrote, commenting on those who defended the Supreme Court's decision upholding flag-burning as compelled by a proper (and decidedly non-prudential) understanding of the First Amendment, "[I]t seems inconsistent for [defenders of the decision] to scream so loudly" at the prospect of limiting the protection given expression "while you smile complacently at the Second torn and bleeding. If the Second Amendment is not worth the paper it is written on, what price the First?"99 The fact that Mr. Donaldson is an ordinary citizen rather than an eminent law professor does not make his question any less pointed or its answer less difficult. For too long, most members of the legal academy have treated the Second Amendment as the equivalent of an embarrassing relative, whose mention brings a quick change of subject to other, more respectable, family members. That will no longer d o. It is time for the Second Amendment to enter full scale into the consciousness of the legal academy. Those of us who agree with Martha Minow's emphasis on the desirability of encouraging different "voices" in the legal conversation100 should be especially aware of the importance of recognizing the attempts of Mr. Donaldson and his millions of colleagues to join the conversation. To be sure, it is unlikely that Professor Minow had those too often peremptorily dismissed as "gun nuts " in mind as possible providers of "insight and growth," but surely the call for sensitivity to different or excluded voices cannot extend only those groups "we" already, perhaps "complacent[ly]," believe have a lot to tell "us."101 I am not so naive as to believe that conversation will overcome the chasm that now separates the sensibility of, say, Senator Hatch and myself as to what constitutes the "right[s] most valued by free men [and women]."102 It is important to remember that one will still need to join up sides and engage in vigorous political struggle. But it might at least help to make the political sides appear more human to one another. Perhaps "we" might be led to stop referring casually to "gun nuts" just as, maybe, members of the NRA could be brought to understand the real fear that the currently almost uncontrolled system of gun ownership sparks in the minds of many whom they casually dismiss as "bleeding-heart liberals." Is not, after all, the possibility of serious, engaged discussion about political issues at the heart of what is most attractive in both liberal and republican versions of politics? FOOTNOTES 1. It is not irrelevant that the Bill of Rights submitted to the states in 1789 included not only what are now the first ten Amendments, but also two others, Indeed, what we call the First Amendment was only the third one of the list submitted to the states. The initial "first amendment" in fact concerned the future size of the House of Representatives, a topic of no small importance to the Anti- Federalists, who were appalled by the smallness of the House seemingly envisioned by the Philadelphia farmers. The second prohibited any pay raise voted by the members of Congress to themselves from taking effect until an election "shall have intervened." See J. Goebel, 1 The Oliver Wendell Holmes Devise History Of the Supreme Court OF the United States: antecedents and beginnings to 1801, at 442n.162 (1971). Had all of the initial twelve proposals been ratified, we would, it is possible, have a dramatically different cognitive map of the Bill of Rights. At the very least, one would neither hear defenses of the "preferred status" of freedom of speech framed in terms of the "firstness" of some special intention of the Framers to safeguard the particular rights laid out there. 2. "Congress shall make no law respecting an establishment of religion...or abridging the freedom of speech, or of the press; or of the right of the people to peaceably to assemble, and to petition the Government for a redress of grievances." U.S. Const. Amend. I 3. "The right of the people to be secured in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, a nd particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. Amend. IV. 4. "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment of indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual services in the time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life and limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law..." U.S. Const. Amend. V 5. "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have previously ascertained by la w, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense." U.S. Const. Amend. VI. 6. "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. Amend. VIII. 7. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." U.S. Const. Amend.IX. 8. "[N]or shall private property be taken for public use, without just compensation." U.S. Const. Amend. V. 9. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const. Amend. X. 10. "Congress shall make no law...prohibiting the free exercise thereof [religion]..." U.S. Const. Amend. I. 11. See supra note 8. 12. See supra note 9. 13. There are several law review articles discussing the Amendment. See, e.g. Lund, infra note 96, and the articles cited in Dowlut & Knoop, State Constitutions and the Right to Keep and Bear Arms, 7 Okla. U.L. Rev. 177, 178 n.3 (1982). See also the valuable symposium on Gun Control, edited by Don Kates, in 49 Law & Contemp. Probs. 1-267 (1986), including articles by Shallhope, The Armed Citizen in the Early Republic, at 125; Kates, The Second Amendment: A Dialogue, at 143; Halbrook, What the Framers Intended: A Linguistic Analysis of the Right to "Bear Arms," at 151. The symposium also includes a valuable bibliography of the published materials on gun control, including Second Amendment considerations, at 251-67. The most important single article is almost undoubtedly Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204 (1983). Not the least significant aspect of Kates' article is that it is basically the only one to have appeared in an "elite" law review. However, like many of the authors of other Second Amendment pieces, Kates is a practicing lawyer rather than a legal academic. I think it is accurate to say that no one recognized by the legal academy as a "major" writer on constitutional law has deigned to turn his or her talents to a full consideration of the Amendment. But see Larue, Constitutional Law and Constitutional History, 36 Buffalo L.Rev. 373, 375-78 (1988)(briefly discussing Second Amendment). Akhil Reed Amar's reconsiderations of the foundations of the Constitution also promises to delve more deeply into the implications of the Amendment. See Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425, 1495-1500 (1987). Finally, there is one book that provides more in depth treatment of the Second Amendment: S. Halbrook, That Every Man Be Armed, The Evolution of a Constitutional Right (1984). George Fletcher, in his study of the Bernard Goetz case, also suggests that Second Amendment analysis not frivolous, though he does not elaborate the point. G. Fletcher, A Crime of Self-Defense 156-58, 210-11 (1988). One might well find this overt reference to "elite" law reviews and "major" writers objectionable, but it is foolish to believe that these distinctions do not exist within the academy, or more importantly, that we cannot learn about the sociology of academic discourse through taking them into account. No one can plausibly believe that the debates that define particular periods of academic discourse are a simple reflection of "natural" interest in the topic. Nothing helps an issue so much as its being taken up as an obsession by a distinguished professor from, say Harvard or Yale. 14. One will search the "leading" casebooks in vain for any mention of the Second Amendment. Other than its being included in the text of the Constitution that all of the casebooks reprint, a reader would have no reason to believe that the Amendment exists or could possibly be of interest to the constitutional analyst. I must include, alas, P. Brest and S. Levinson, Processes of Constitutional Decisionmaking (2d ed. 1983), within this critique, though I have every reason to believe that this will not be true of the forthcoming third edition. 15. Larue, supra note 13, at 375. 16. L. Tribe, American Constitutional Law (2d ed. 1988). 17. J. Nowak, R. Rotunda,& J. Young, Constitutional Law (3d ed. 19860. 18. For a brilliant and playful meditation on the way the legal world treats footnotes and other marginal phenomena, see Balking, The Footnote, 83 Nw. U. L. Rev. 275, 276-81 (1989). 19. Tribe, supra note 16 at 299 n6. 20. Id.; see also J. Ely, Democracy and Distrust 95 (1980) ("[T]he framers and ratifiers...opted against leaving to the future the attribution of [other] purposes, choosing instead explicitly to legislate the goal in terms of which the provision was to be interpreted.") As shall be seen below, see infra text accompanying note 38, the preamble may be less plain in its meaning than Tribe's (and Ely's) confident argument suggests. 21. J. Nowak, R. Rotunda & J. Young supra note 17, at 316n.4. They do go on to cite a spate of articles by scholars who have debated the issue. 22. Id, at 316 n. 4. 23. U.S. Const. art. I Sec. 10 24. U.S. Const. art. I sec. 9, cl. 8. 25. See, e.g., Legislative Reference Serv., Library of Congress, the Constitution of the United States of America; Analysis and Interpretation 923 (1964), which quotes the Amendment and then a comment from Miller, The Constitution 646 (1 893): "This amendment seems to have been thought necessary. It does not appear to have been the subject of judicial exposition; and it is so thoroughly with our ideas, that further comment is unnecessary." Cf. Engblom v. Carey, 724 F.2d 2 8 (2d Cir. 1983), affg 572 F. Supp. 44 (S.D.N.Y. 1983). Engblom grew out of a "statewide strike of correction officers, when they were evicted from their facility-residence...and members of the National Guard were housed in their residences without their consent." The district court had initially granted summary judgment for the defendants in a suit brought by the officers claiming a deprivation of their right under the Third Amendment. The Second Circuit, however, reversed on the ground that it could not "say that as a matter of law appellants were not entitled to the protection of the Third Amendment," Engblom v. Carey, 677 F.2d 957, 964 (2d Cir. 1982). The District Court on remand held that, as the Third Amendment rights had not been clearly established at the time of the strike, the defendants were protected by a qualified immunity, and it is this opinion that was upheld by the Second Circuit. I am grateful to Mark Tushnet for bringing this case to my attention. 26. See, e.g. The Firearms the Second Amendment Protects, N.Y. Times, June 9, 1988, at A22, col 2 (three letters); Second Amendment and Gun Control, L.A. Times, March 11, 1989, Part II, at 9 col 1. 1 (nine letters) ; What 'Right to Bear Arms'?, N.Y. Times, July 20, 1989, at A23, col 1(national ed.)(op. ed. essay by Daniel Abrams); see also We Rebelled to Protect Our Gun Rights, Washington Times, July 20, 1989, at F2 col. 4. 27. Fee Subcommittee on the Constitution of the Comm. on the Judiciary, the Right to Keep and Bear Arms, 97th Cong., 2d Sess. viii (1982)(preface by Senator Orrin Hatch)[thereinafter The Right to Keep and Bear Arms]. 28. See supra notes 13-14. 29. See Levinson, Constitutional Rhetoric and the Ninth Amendment, 64 Chi-Kent L.Rev. 131 (1988). 30. P. Bobbit, Constitutional Fate (1982). 31. Id. at 25-38. 32. Id. at 9-24. 33. Id. at 75-92. 34. Id. at 39-58 35. Id. at 59-73. 36. Id. at 93-119. 37. For the record, I should note that Bobbitt disagrees with this statement, making an eloquent appeal (in conversation) on behalf of the classic American value of self-reliance for the defense of oneself and, perhaps more importantly, one's family. I certainly do not doubt the possibility of constructing an "ethical" rationale for limiting the state's power to prohibit gun ownership. Nonetheless, I would claim that no one unpersuaded by any of the arguments derived from the first five models would suddenly change his or her mind upon being presented with an "ethical" argument. 38. Cf., e.g. the patents and copyrights clause, which sets out the power of Congress "[t]o promote the progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." U.S. Const. art. I Sec. 8. 39.For examples of this, see F. Schauer, Freedom of Speech: A Philosophical Enquiry (1982); Levinson, First Amendment, Freedom of Speech, Freedom of Expression: Does it Matter What We Call It? 80 Nw. U.L.Rev. 767 (1985)(reviewing M. Redish, Freedom of Expression: A Critical Analysis (1984)). 40. ACLU Policy #47. I am grateful to Joan Mahoney, a member of the national board of the ACLU, for providing me with a text of the ACLU's current policy on gun control. 41. Cress, An Armed Community: The Origins and Meaning of the Right to Bear Arms, 71 J. Am. Hist. 22, 31 (1984). 42. See U.S. Const. Amend. X. 43. For a full articulation of the individualist view of the Second Amendment, see Kates Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204(1983). One can also find an efficient presentation of this view in Lund, infra note 96, at 117. 44. Shallhope, The Ideological Origins of the Second Amendment, 69 J. Am. Hist. 599 (1982). 45. Id. at 614. 46. See Daniel Boorstin's laconic comment that "the requirements for self-defense and food-gathering had put firearms in the hands of nearly everyone" in colonial America. D. Boorstin -- the Colonial Experience 353 (1958). The beginnings of a professional police force in Boston are traced in R. Lane, Policing the City: Boston 1822-1855 (1967). Lane argues that as of the earlier of his two dates, "all the major eastern cities...had several kinds of officials serving various police functions, all of them haphazardly inherited from the British and colonial past. These agents were gradually drawn into better defined and more coherent organizations." Id. at 1. However, as Oscar Handlin points out in his introduction to the book, "to bring into being a professional police force was to create precisely the kind of hireling body considered dangerous by conventional political theory," Id. at vii. 47. See Cress, supra note 41. 48. 3 J. Elliott, Debates in the General State Conventions 425 (3d ed. 1937)(statement of George Mason, June 14, 1788), reprinted in Kates, supra note 13, at 261 n. 51. 49. Letters from the Federal Farmer to the Republican 123 (W. Bennett e.1978)(ascribed to Richard Henry Lee), reprinted in Kates, supra note 13 at 261 n. 51. 50. Michelman, The Supreme Court 1985 Term -- Forward: Traces of Self Government, 100 Harvard L. Rev. 4, 39 (1986)(Harrington is "pivotal figure in the history of the 'Atlantic' branch of republicanism that would find its way to America"). 51. Shallhope, supra note 44, at 602. 52. Edmund Morgan discusses Harrington in his recent book, Inventing the People 85-87 (1988)(analyzing notion of popular sovereignty in American thought). 53. Id. at 156. 54. Id. at 157. Morgan argues incidentally, that the armed yeomanry was neither effective as a fighting force nor particularly protective of popular liberty, but that is another matter. For our purposes, the ideological perceptions are surely more important the "reality" accompanying them. Id. at 160-65. 55. Blasi, The Checking Value in First Amendment Theory, 1977 A. B. Found. Res. J. 521. 56. See Lund, infra note 96, at 111-116. 57. Shallhope, supra note 44, at 603 (quoting 1755 edition of Cato's Letters). Shallhope also quotes from James Burgh, another English writer well known to American revolutionaries: "The possession of arms is the distinction between a freeman and a slave. He, who has nothing, and who himself belongs to another, must be defended by him whose property he is, and needs no arms. But he, who thinks he is his own master, and has what he can call his own, ought to have arms to defend himself, and what he possesses; else he lives precariously; and at discretion." Id at 604. To be sure, Burgh also wrote that only men of property should in fact comprise the militia: "A militia consisting of any others than the men of property in a country, is no militia; but a mungrel army." Cress, supra note 41, at 27 (emphasis in original)(quoting J. Burgh, 2 Political Disquisitions: or An Enquiry Into Public Errors, Defects, and Abuses (1774-75)). Presumably, though, the widespread distribution o f property would bring with it equally widespread access to arms and membership in the militia. 58. See Cress, supra note 41, at 34. 59. The Federalist No. 46 at 299 (J. Madison)(C. Rossiter ed. 1961). 60. Letters from the Federal Farmer to the Republican 124 (W. Bennett ed. 1978). 61. 3 J. Story, Commentaries Sec. 1890 (1833) quoted in 5 The Founders' Constitution 214 (P. Kurland & R. Lerner eds. 1987). 62. Id. 63. Id. Lawrence Cress, despite his forceful of Shallhope's individualists rendering of the Second Amendment, nonetheless himself notes "[t]he danger posed by manipulating demagogues, ambitious rulers, and foreign invaders to free institutions required the vigilance of citizen-soldiers cognizant of the common good." Cress, supra note 41, at 41 (emphasis added). 64. T. Cooley, The General Principles of Constitutional Law in The United States of America 298 (3d ed. 1898): "The Right of the People to bear arms in their own defense, and to form and drill military organizations in defense of the State, may not b e very important in this country, but it is significant as having been reserved by the people as a possible and necessary resort for the protection of self- government against usurpation, and against any attempt on the part of those who may for the time be in possession of State authority or resources to set aside the constitution and substitute their own rule for that of the people. Should the contingency ever arise when it would be necessary for the people to make use of the arms in their hands for the protection of constitutional liberty, the proceeding, so far from being revolutionary, would be in strict accord with popular right and duty. Cooley advanced this same idea in The Abnegation of Self- Government, 12 Princeton Rev. 213-14 (1883). 65. See Rabban, The First Amendment in Its Forgotten Years, 90 Yale L.J. 514, 560 (1981) ("[P]rodigious theoretical writings of Theodore Schroeder...were the most extensive and libertarian treatments of freedom of speech in the prewar period"); see also Graber, Transforming Free Speech (forthcoming 1990)(manuscript at 4-12; on file with author). 66. T. Schroder, Free Speech for Radicals 104 (reprint ed. 1969). 67. Shalhope, supra note 44, at 45. 68. See M. Weber, The Theory of Social and Economic Organization 156 (T. Parsons ed. 1947), where he lists among "[t]he primary formal characteristics of the modem state" the fact that: "to-day, the use of force is regarded as legitimate only so far as it is either permitted by the state or prescribed by it... The claim of the modern state to monopolize the use of force is as essential to it as its character of compulsory jurisdiction and continuous organization." 69. See, e.g., Symposium: The Republican Civil Tradition, 97 Yale L.J. 1493-1723 (1988). 70. See D. Malone, 4 Jefferson and His Times: Jefferson the President: First Term, 1801-1805, AT 7-11 (1970)(republican leaders ready to use state militias to resist should lame duck Congress attempt to violate clear dictates of Article II by designating someone other than Thomas Jefferson as President in 1801). 71. Scott v. Sanford 60 U.S. (19 How.) 393,417 (1857). 72. See, e.g., Featherstone, Gardiner & Dowlut, The Second Amendment to the United States Constitution Guarantees and Individual Right to Keep and Bear Arms, supra note 27, at 100. 73. See, e.g..., Halbrook, The Fourteenth Amendment and the Right to Keep and Bear Arms: The Intent of the Framers, in The Right to Keep and Bear Arms, supra note 27, at 79. Not the least of the ironies observed in the debate about the Second Amendment is that NRA conservatives like Senator Hatch could scarcely have been happy with the wholesale attack leveled by former Attorney General Meese on the incorporation doctrine, for here is one area where some "conservatives" may in fact b e more zealous adherents of that doctrine than are most liberals, who, at least where the Second Amendment is concerned, have a considerably more selective view of incorporation. 74. 83 U.S. 36 (1873). 75. 32 U.S. (7 Pet.)243 (1833). 76. 92 U.S. 542, 553 (1875). 77. 116 U.S. 252, 267 (1886). For a fascinating discussion of Presser, see Larue, supra note 13, at 386-90. 78. 116 U.S. at 253. There is good reason to believe that this statute, passed by the Illinois legislature in 1879, was part of an effort to control (and indeed, suppress) widespread labor unrest linked to the economic troubles of the time. For the background of the Illinois statute, see P. Avrich, The Haymarket Tragedy 45 (1984): "As early as 1875, a small group of Chicago socialists, most of them German immigrants, had formed an armed club to protect the workers against police and military assaults, as well as against physical intimidation at the polls. In the eyes of its supporters...the need for such a group was amply demonstrated by the behavior of the police and [state- controlled] militia during the Great Strike of 1877, a national protest by labor triggered by a ten percent cut in wages by the Baltimore and Ohio Railroad, which included the breaking up of workers' meetings, the arrest of socialist leaders, [and] the use of club, pistol and bayonet against strikers and their supporters...Workers...were resolved never again to be shot and beaten without resistance. Nor would the stand idly by while their meeting places were invaded or their wives and children assaulted. The were determined , as Albert Parsons [a leader of the anarchist movement in Chicago] expressed it, to defend both 'their persons and their rights.'" 79. 166 U.S. 226 (1897) (protecting rights of property owners by requiring compensation for takings of property). 80. My colleague Douglas Laycock has reminded me that a similar argument was made by some conservatives in regard to the establishment clause of the First Amendment. Thus, Justice Brennan noted that "[i]t has been suggested, with some support in history, that absorption of the First Amendment's ban against congressional legislation 'respecting an establishment of religion' is conceptually impossible because the Framers meant the Establishment Clause also to foreclose any attempt by Congress to disestablish the official state churches." Abington School District v. Schempp, 374 U.S. 203, 254 (1963) (Brennan, J., concurring) (emphasis added). According to this reading, it would be illogical to apply the establishment clause against the states "because that clause is not one of the provisions of the Bill of Rights which in terms protects a 'freedom' of the individual," id. at 256, inasmuch as it is only a federalist protection of states against a national establishment (or disestablishment). "The fallacy in this contention," responds Brennan, "is that it underestimates the role of the Establishment Clause as a co-guarantor, with the Free Exercise Clause, of religious liberty." Id. Whatever the sometimes bitter debates about the precise meaning of "establishment," it is surely the case that Justice Brennan, even as he almost cheerfully concedes that at one point in our history the "states-right" reading of the establishment clause would have been thoroughly plausible, expresses what has become the generally accepted view as to the establishment clause being some kind of limitation on the state as well as on the national government. One may wonder whether the interpretive history of the establishment clause might have any lessons for the interpretation of the Second Amendment. 81. It refused, for example, to review the most important modern gun control case, Quilici v. Village of Morton Grove, 695 F. 2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983), where the Seventh Circuit Court of Appeal s upheld a local ordinance in Morton Grove, Illinois, prohibiting the possession of handguns within its borders. 82. 307 U.S. 174 (1939. 83. Justice Douglas, however, did not participate in the case. 84. Miller, 307 U.S. at 178. 85. Id. at 178 (citation omitted). 86. Lund notes that "commentators have since demonstrated that sawed- off or short barrelled shotguns are commonly used as military weapons." Lund, infra note 96, at 109. 87. 307 U.S. at 178. 88. Id. at 179. 89. Id. 90. L. Powell, Capital Punishment, Remarks Delivered to the Criminal Justice Section, ABA 10 (Aug 7, 1988). 91. Id. at 11. 92. This point is presumably demonstrated by the increasing public opposition of police officials to private possession of handguns (not to mention assault rifles). 93. D. Kates, Minimalist Interpretation of the Second Amendment 2 (draft Sept. 29, 1986) (unpublished manuscript available from author). 94. See Lund, supra note 96, at 116. 95. Wimmershoff-Caplan, The Founders and the AK-47, Washington Post, July 6, 1989, at A18, col. 4, reprinted as Price of Gun Deaths Small Compared to Price of Liberty, Austin-American Statesman, July 11, 1989, at A11. Ms. Wimmershoff-Caplan is identified as a "lawyer in New York" who is "a member of the National Board of the National Rifle Association." Id. One of the first such arguments in regard to the events in Tianamen Square was made by William A. Black in a letter, Citizens Without Guns, N.Y. Times, June 18, 1989, at D26, col. 6. Though describing himself as "find[ing] no glory in guns [and] a profound anti-hunter," he nonetheless "stand[s] with those who would protect our right to keep and bear arms" and cited for support the fact that "none [of the Chinese soldiers] feared bullets: the citizens of China were long ago disarmed by the Communists." "Who knows," he asks, "what the leaders and the military and the police of our America will be up to at some point in the future? We need an armed citizenry to protect our liberty." As one might expect, such arguments draw heated responses. See Rudlin, The Founders and the AK-47 (Cont'd) Washington Post, July 20, 1989 at A22, col 3. Jonathan Rudlin accused Ms. Wimmershoff-Caplan of engaging in Swiftian satire, as no one could "take such a brilliant burlesque seriously." Neal Knox, however, endorsed her essay in full, adding the Holocaust to the list of examples: "Could the Holocaust have occurred if Europe's Jews had owned thousands of then-modern military Mauser bolt action rifles?" See also, Washington Post, July 12, 1989, at A22, for other letters. 96. See Lund, The Second Amendment, Political Liberty, and the Right to Self-Preservation, 39 Ala. L. Rev. 103 (1987) at 115: "The decision to use military force is not determined solely by whether the contemplated benefits can be successfully obtained through the use of available forces, but rather determined by the ratio of those benefits to the expected costs. It follows that any factor increasing the anticipated cost of a military operation makes the conduct of that operation incrementally more unlikely. This explained why a relatively poorly armed nation with a small population recently prevailed in a war against the United States, and it explains why governments bent on the oppression of their people almost always disarm the civilian population before undertaking more drastically oppressive measures." I should note that I wrote (and titled) this article before reading Lund's article, which begins, "The Second Amendment to the United States Constitution h as become the most embarrassing provision of the Bill of Rights." I did hear Lund deliver a talk on the Second Amendment at the University of Texas Law School during the winter of 1987, which may have penetrated my consciousness more than I realized while drafting this article. 97. See D. Kates, supra note 93, at 24-25 n. 13, for a discussion of this point. 98. See, e.g., Justice Marshall's dissent, joined by Justice Brennan, in Skinner v. Railway Labor Executive Association, 109 S. Ct. 1402, (1989) upholding the government's right to require drug tests of railroad employees following accidents. It begins with his chastising the majority for "ignor[ing] the text and doctrinal history of the Fourth Amendment, which require that highly intrusive searches of this type be based on probable cause, not on the evanescent cost-benefit calculations of agencies or judges," id. at 1423, and continues by arguing that "[t]he majority's concern with the railroad safety problems caused by drug and alcohol abuse is laudable; its cavalier disregard for the Constitution is not. There is no drug exception to the Constitution, any more than there is a communism exception or an exception for other real or imagined sources of domestic unrest." Id. at 1426. 99. Donaldson, Letter to Editor, Austin America-Statesman, July 8, 1989, at A19, col. 4. 100. See Minow, The Supreme Court 1986 Term -- Foreword: Justice Engendered 101 Harv. L. Rev. 1074-90 (1987). "We need settings in which to engage in the clash of realities that breaks us out of settled and complacent meanings and create s opportunities for insight and growth." Id. at 95; see also Getman, Voices, 66 Tex. L. Rev. 577 (1988). 101. And, perhaps more to the point, "you" who insufficiently listen to "us" and to "our" favored groups. 102. See supra note and accompanying text. Transcribed by Chris Crobaugh 30460 Otten Rd. N. Ridgeville, Ohio 44039 (216) 327-6655 Lorain County Firearms Defense Association Ohio Constitution Defense Council 9. What does the American Civil Liberties Union have to say on the matter? The ACLU takes the position that gun ownership is a collective rather than a group right while disregarding the composition of the group that constitutes the militia. However, they do not support gun control laws based upon their violation of due process. From: "The Policy Guide of the ACLU" - Gun Control Policy #47 - The setting in which the Second Amendment was proposed and adopted demonstrates that the right to bear arms is a collective one, existing only in the collective population of each state for the purpose of maintaining an effective state militia. The ACLU agrees with the Supreme Court's long-standing interpretation of the Second Amendment that the individual's right to bear arms applies only to the preservation or efficiency of a well-regulated militia. Except for lawful police and military purposes, the possession of weapons by individuals is to constitutionally protected. Therefore, there is no constitutional impediment to the regulation of firearms. Nor does the ACLU believe that there is a significant civil liberties value apart from the Second Amendment in an individual right to own or use firearms. Interests of privacy and self-expression may be involved in any individual's choice of activities or possessions, but these interests are attenuated where the activity, or the object sought to be possessed, is inherently dan- gerous to others. With respect to firearms, the ACLU believes that this quality of dangerousness justifies legal regulation which substantially restricts the individual's interest in freedom of choice. However, particular federal or state laws on licensing, registration, prohibition or other regulation of the manufacture, shipment, sale, purchase or possession of guns may raise civil liberties questions. For example, the enforcement process of systems of licensing, registration, or prohibition may threaten extensive invasions of privacy as owners are required to disclose details of ownership and information about their personal history, views, and associations. Furthermore, police enforcement of such schemes may encourage entrapment, illegal searches and other means which violate civil liberties. The ACLU takes the position that any such legislation must be drafted bearing these problems in mind and seeking to minimize them. {Board Minutes, June 14-15, 1979.} ------------------ FOOTNOTE 1. When the Board adopted the June 1979 policy, it was suggested that it was unclear as to whether or not the ACLU supported gun control as a civil liberties matter, or simply did not oppose government regulation on this issue. In order to clarify this question the following sentence was added to paragraph three of the policy as a footnote, "It is the sense of this body, that the word 'justifies' in this policy means we will affirmatively support gun control legislation." - At the April 12-13, 1980 Board meeting, the policy's footnote was reconsidered. Several Board members believed that the statement was inconsistent with the rest of the policy because there was no civil liberties rationale within the policy for affirmative ACLU support of gun control legislation. The Board then moved to refer the policy to the Due Process Committee to refine and discuss further the rationale for affirmative ACLU support of gun control legislation. At the June 23-24, 1982 Board meeting, the Due Process Committee recommended deletion of the footnote from the gun control policy. The Committee's recommendation was based on the fact that no acceptable civil liberties rationale could be developed for affirmative support of gun control legislation. The link between guns and the breakdown of civil liberties, the Committee suggested, contains too much of the approach to crime control. And crime control, the Committee said, includes measures violative of civil liberties. The possibility that a person who might be defending his or her self at home might be arrested for use of a handgun is troubling. If we support gun control legislation, we are encouraging the police to search homes, cars and persons. The Due Process Committee suggested that the problem with the footnote was that it was indefensible on civil liberties grounds, and that it is not the ACLU's role to commit the ACLU to involve ourselves in social issues by finding a constitutional basis where there is none. Even though gun control is a desirable social objective, and it would be nice to find a civil liberties rationale for affirmative ACLU support of gun control legislation, the Committee noted that the ACLU has never supported particular remedies for particular crimes, and as such, we cannot support gun control legislation. 10. Do guns really prevent crime? First let us look at the Uniform Crime Report from the FBI. Below are numbers for 1990 crime rates in all 50 states plus DC. Note that the higher the gun rights index, the lower the crime rate in all cases except rape -- which may be due to the fact that attempted rapes are reported much more likely to be reported than successful rapes (the category rape includes both). I haven't been successful in locating info which separates attempted rape from completed rape. NOTE: rates are in crimes per 100,000 people, unless otherwise specified. Gun Crime Vio- Prop- Homi- Rape Rights Index lent erty cide Index Total Crime Crime **' **'' Average for: Top third 41 5995.7 778.3 5217.4 12.2 38.5 Middle third 66 5181.5 517.5 4664.0 7.0 41.6 Bottom third 80 4742.7 419.6 4323.1 6.1 39.3 D. C. 0 10774.3 2458.2 8316.0 77.8 49.9 Illinois 7 5935.1 967.4 4967.7 10.3 39.4 Tennessee 28 5051.0 670.4 4380.6 10.5 49.5 Texas 33 7826.8 761.4 7065.3 14.1 51.5 Arkansas 33 4866.9 532.2 4334.7 10.3 43.3 California 42 6603.6 1045.2 5558.4 11.9 42.6 New York 43 6363.8 1180.9 5182.8 14.5 29.8 Utah 44 5659.9 283.9 5376.0 3.0 37.8 New Jersey 45 5447.2 647.6 4799.7 5.6 29.8 Iowa 46 4100.9 299.7 3801.2 1.9 18.4 N. Dakota 50 2922.4 73.9 2848.5 0.8 17.8 Hawaii 50 6106.7 280.9 5825.8 4.0 32.5 N. Carolina 52 5485.9 623.5 4862.3 10.7 34.3 Florida 54 8810.8 1244.3 7566.5 10.7 52.4 Massachusetts 54 5297.9 736.3 4561.5 4.0 33.7 Ohio 55 4843.4 506.2 4337.3 6.1 46.8 Maryland 56 5830.5 919.0 4911.5 11.5 45.7 Missouri 58 5120.6 715.3 4405.3 8.8 32.5 Minnesota 61 4538.8 306.1 4232.7 2.7 34.0 Virginia 62 4440.6 350.6 4090.0 8.8 31.0 Colorado 65 6053.7 526.0 5527.8 4.2 46.2 New Mexico 66 6684.1 780.2 5903.9 9.2 49.7 Kentucky 66 3299.4 390.4 2909.1 7.2 29.0 Oklahoma 66 5598.7 547.5 5051.2 8.0 47.0 Wisconsin 66 4395.1 264.7 4130.4 4.6 20.7 Alaska 66 5152.7 524.5 4628.2 7.5 72.9 Arizona 66 7888.7 652.4 7236.4 7.7 40.9 Nebraska 66 4213.1 330.0 3883.1 2.7 30.0 Kansas 66 5193.1 447.7 4745.4 4.0 40.4 Michigan 66 5994.8 790.4 5204.4 10.4 77.6 S. Carolina 67 6045.2 976.6 5068.7 11.2 53.7 Connecticut 69 5386.7 553.7 4833.0 5.1 27.9 Mississippi 69 3869.1 340.4 3528.8 12.2 44.1 Wyoming 69 4210.6 301.4 3909.3 4.9 29.5 Oregon 71 5646.0 506.8 5139.2 3.8 46.9 Rhode Island 72 5352.7 431.9 4920.8 4.8 24.7 W. Virginia 72 2503.0 169.3 2333.7 5.7 23.6 Georgia 76 6763.6 756.3 6007.3 11.8 53.6 Alabama 77 4915.2 708.6 4206.7 11.6 32.6 Idaho 77 4057.1 275.7 3781.4 2.7 27.3 Washington 78 6222.9 501.6 5721.3 4.9 64.0 Indiana 79 4683.3 473.9 4209.4 6.2 37.9 Pennsylvania 80 3476.1 431.0 3045.1 6.7 25.8 New Hampshire 81 3645.2 131.5 3513.7 1.9 34.8 Delaware 83 5360.4 655.2 4705.1 5.0 88.1 Nevada 83 6063.6 600.9 5462.7 9.7 62.2 S. Dakota 83 2909.3 162.8 2746.5 2.0 34.3 Montana 83 4502.1 159.3 4342.8 4.9 24.4 Maine 84 3697.8 143.2 3554.5 2.4 19.7 Louisiana 88 6486.7 898.4 5588.2 17.2 42.2 Vermont 99 4340.9 127.2 4213.7 2.3 25.9 Gun Robb- Aggra- Burg- Theft Motor Rights ery vated lary Vehicle Index Assault Theft Average for: Top third 41 294.8 432.9 1244.4 3331.7 640.2 Middle third 66 121.8 347.1 1100.3 3131.6 432.0 Bottom third 80 112.1 262.2 1011.4 2913.8 397.9 D. C. 0 1213.5 1117.0 1983.0 4996.9 1336.1 Illinois 7 394.0 523.6 1063.0 3262.0 642.8 Tennessee 28 191.2 419.2 1264.0 2545.1 571.5 Texas 33 260.8 435.1 1851.5 4304.7 909.0 Arkansas 33 113.2 365.4 1210.9 2834.4 289.4 California 42 377.0 613.6 1345.4 3197.5 1015.5 New York 43 624.7 512.0 1160.7 2979.4 1024.7 Utah 44 59.9 186.3 880.6 4257.6 237.7 New Jersey 45 301.0 311.1 1017.2 2843.0 939.5 Iowa 46 39.2 240.1 808.4 2822.9 169.9 N. Dakota 50 7.8 47.4 426.6 2288.8 133.1 Hawaii 50 91.4 153.0 1228.2 4217.1 380.5 N. Carolina 52 152.1 426.4 1530.4 3048.3 283.7 Florida 54 416.8 764.4 2170.6 4569.6 826.3 Massachusetts 54 217.1 481.4 1112.7 2525.3 923.6 Ohio 55 188.5 264.7 982.5 2864.1 490.6 Maryland 56 363.8 497.9 1119.9 3082.9 708.7 Missouri 58 216.4 457.6 1065.8 2800.2 539.4 Minnesota 61 92.7 176.7 907.2 2959.9 365.6 Virginia 62 123.3 187.6 731.1 3031.4 327.5 Colorado 65 90.6 385.0 1208.8 3890.6 428.4 New Mexico 66 115.1 606.2 1738.7 3828.5 336.7 Kentucky 66 69.1 285.2 766.9 1942.7 199.4 Oklahoma 66 121.9 370.5 1447.5 3002.0 601.7 Wisconsin 66 112.7 126.7 751.4 2962.6 416.5 Alaska 66 76.7 367.4 894.3 3168.5 565.4 Arizona 66 160.9 442.8 1669.9 4703.0 863.5 Nebraska 66 51.1 246.2 723.8 2981.1 178.2 Kansas 66 117.6 285.7 1166.5 3243.5 335.4 Michigan 66 234.0 468.4 1143.3 3347.4 713.7 S. Carolina 67 152.4 759.3 1380.4 3302.4 385.8 Connecticut 69 234.8 286.0 1227.7 2874.4 730.9 Mississippi 69 86.2 198.0 1251.2 2070.0 207.6 Wyoming 69 15.9 251.1 631.0 3129.3 149.0 Oregon 71 144.3 311.8 1135.4 3545.2 458.6 Rhode Island 72 122.0 280.4 1271.1 2695.3 954.4 W. Virginia 72 37.9 102.1 657.1 1522.7 153.9 Georgia 76 263.5 427.4 1619.4 3714.3 673.6 Alabama 77 143.7 520.7 1103.4 2755.4 347.8 Idaho 77 15.0 230.7 813.2 2802.7 165.5 Washington 78 130.0 302.7 1262.9 4011.4 447.1 Indiana 79 101.3 328.4 943.3 2827.1 439.0 Pennsylvania 80 176.2 222.3 729.1 1810.5 505.5 New Hampshire 81 27.2 67.6 735.5 2534.2 244.0 Delaware 83 164.8 397.3 970.5 3290.8 443.9 Nevada 83 238.3 290.7 1367.4 3502.7 592.5 S. Dakota 83 12.4 114.1 527.4 2108.9 110.2 Montana 83 21.7 108.4 709.1 3391.2 242.5 Maine 84 25.1 96.0 823.0 2554.9 176.6 Louisiana 88 269.8 569.2 1437.9 3548.6 601.7 Vermont 99 11.7 87.2 1087.3 2918.5 207.9 Collegiate Dictionary (1981) intentional killings. reporting error. All crime figures from 1990 FBI UCR's see crime_definitions for descriptions of crimes. We note crime appears to be roughly inverse to gun control laws. Now we look at the following study. The following figures come from the tables of Attack injury and Crime Completion Rates in Robbery and Assault Incidents by Self-Protection Method, U.S., 1979-1985, from Gary Kleck, "Crime Control Though the Private Use of Armed Force", Social Problems, Vol. 35, No. 1, Feb 1988: ASSAULT VICTIM STATISTICS Method of Self Protection % Attacked % Injured Total # Times Used Used Gun 23.2% 12.1% 386083 Used Knife 46.4 29.5 123062 Used Other Weapons 41.4 25.1 454570 Used Physical Force 82.8 52.1 6638823 Tried to get help or frightened offender 55.2 40.1 4383117 Threatened or reasoned with offender 40.0 24.7 5743008 Nonviolent resistance, including evasion 40.0 25.5 8935738 Other measures 36.1 20.7 1451103 Any self-protection 49.5 30.7 21801957 No self-protection 39.9 27.3 6154763 TOTAL 47.3 29.9 27956719 We note the gun is the most effective means by a factor of two over any other method and three and one half times over [unarmed] physical force. Although this does constitute proof in a statistical sense, it does give a reasonable explanation as to at least one contributing factor, the use of guns, appears to give a causal explanation for the inverse relationship between gun control and crime. ==================================================================== READING LIST Posted on Prodigy by John Marshall, El Paso, TX, 4/18/92 2ND AMENDMENT BIBLIOGRAPHY Hays, "The Right to Keep and Bear Arms, A Study in Judicial Misinterpretation," 2 Wm. & Mary L.R. 381 (1960) Sprecher, "The Lost Amendment," 51 Am. Bar Assn.J. 554 & 665 (2 parts)(1965) Comment "The Right to Keep and Bear Arms: A Necessary Constitutional Guarantee Or an Outmoded Provision Of the Bill of Rights?," 31 Albany L.R. 74 (1967) Levine & Saxe, "The Second Amendment: The Right to Bear Arms," 7 Houston L.R. 1 (1969) McClure, "Firearms and Federalism," 7 Idaho L.R., 197 (1970) Hardy & Stompoly, "Of Arms And the Law," 51 Chi-Kent L.R. 62 (1974) Weiss, "A Reply to Advocates of Gun Control Law," 52 Jour. Urban Law 577 (1974) Caplan, "Restoring the Balance: The Second Amendment Revisitied," 5 Fordham Urban L.J. 31 (1976) Whisker, "Historical Development and Subsequent Erosion of the Right to keep and Bear Arms," 78 W. VA L.R. 171 (1976) Caplan, "handgun Control: Constitutional Or Unconstitutional?," 10 NC Central L.J. 53 (1978) Cantrell, "The Right of the Individual to Bear Arms," 53 Wis. Bar Bull 21 (Oct. 1980) Halbrook, "The Jurisprudence of the Second and Fourteenth Amendments," 4 Geo. Mason L.R. 1 (1981) Caplan, "The Right of the Individual to Bear Arms: A Recent Judicial Trend," 1982 Detroit Coll. of Law Review 789 (1982) Gardiner, "To Preserve Liberty: A Look At the Right to Keep and Bear Arms," 10 Northern KY Univ. Law Review 63 (1982) Halbrook "To Keep and Bear Their Private Arms: The Adoption of the Second Amendment, 1787-1791," 10 Northern KY Univ. Law Review 13 (1982) Shalhope, "The Ideological Origins of the Second Amendment," 69 J. of Am. History 599 (1982) "The Right to Keep and Bear Arms," Report of the Subcommittee on the Constitution of the Committee on the Judiciary, United States Senate, 97th Congress, 2nd Session (1982) Dowlut, "The Right to Arms: Does the Constitution Or the Prediliction of Judges Reign?," 36 OK L.R. 65 (1983) Malcolm, "The Right of the People to Keep and Bear Arms: The Common Law Tradition," 10 Hastings Const. Law Quarterly 285 (Winter 1983) Kates, "Handgun Prohibition and the Original Meaning of the Second Amendment," 82 Mich. L.R. 204 (1983) Halbrook "That Every Man be Armed: The Evolution of a Constitutional Right (U. of NM Press (1984) Halbrook, "What the Framers Intended: A Linguistic Analysis Of The Right to 'Bear Arms," 49 Law & Contemp.Problems 151 (1986) Hardy, Origins and Development of the Second Amendment," Southport CT, Blacksmith (1986) Hardy, "The Second Amendment and the Historiography Of The Bill of Rights," 4 Jour. of Law & Politics 1 (1987) Levinson, "The Embarrassing Second Amendment," 99 Yale L.J. 637 (1989) Bordenet, "The Right to Possess Arms: The Intent Of the Framers of the Second Amendment, 21 Univ. W. Los Angeles L. Rev. 1 (1990). Type of Material: Book LC Call Number: HV8059 .G77 Author: Greenwood, Colin. Title: Firearms control: a study of armed crime and firearms control in England and Wales. Publication Info: London, Routledge and Kegan Paul, 1972. Phys. Description: viii, 272 p. illus., map. 23 cm. Notes: Includes bibliographical references. Subjects: Gun control--Great Britain. Subjects: Firearms--Law and legislation--Great Britain. Subjects: Crime--Great Britain. Subjects: Violent crimes--Great Britain. LC Card Number: 73150974 //r922 ISBN: 0-7100-7435-2 ------------------------------------------------ (This file was found elsewhere on the Internet and uploaded to the Radio Free Michigan site by the archive maintainer. Protection of Individual Rights and Liberties. E-mail bj496@Cleveland.Freenet.Edu)