Vol. 13 No. 4 (April 2003)
THE MILITIA AND THE RIGHT TO BEAR ARMS, OR, HOW THE SECOND AMENDMENT FELL SILENT, by H. Richard Uviller and William G. Merkel. Durham: Duke University Press, 2002. 338 pp. Cloth $19.95. ISBN: 0-8223-3017-2.
Reviewed by Daniel E. Smith, Department of History, Humanities, Philosophy and Political Science. Northwest Missouri State University. Email: desmith@mail.nwmissouri.edu .
The 2nd Amendment is a strange provision, particularly to constitutional scholars. On the one hand it is the source of remarkably bitter controversy, arguably surpassed only by abortion among popular debates over constitutional rights, and has spawned a closet industry of scholarly works in recent years. On the other hand, it has been so rarely addressed by the judiciary that no one can presume to know the current status of the Amendment in American jurisprudence. Moreover, the 2nd Amendment is somewhat of an anomaly in the Bill of Rights. Its language and structure do not closely track any of the other amendments, the closest parallel being the two clauses of the 4th Amendment. The “right of the people to keep and bear arms” resonates as a classic protection of the individual against a potentially oppressive government, to many the epitome of a uniquely American individualism. Yet this right of the people is appended to the so-called “militia clause” which suggests, if not mandates, that the right to keep and bear arms is limited to the context of a citizen militia. The debate over the proper meaning of these two clauses, and which is paramount, has raged for decades, recent highlights being NRA President Charlton Heston’s “cold dead hands” speech; the 5th Circuit’s decision in U S. v. EMERSON, in which, arguably for the first time, the federal judiciary has embraced the NRA’s interpretation of the 2nd Amendment as a personal right of the people; and Attorney General John Ashcroft’s recent reversal of the government’s longstanding support for primacy of the militia clause (in connection with the EMERSON decision).
With THE MILITIA AND THE RIGHT TO ARMS, OR, HOW THE SECOND AMENDMENT FELL SILENT, H. Richard Uviller and William G. Merkel enter the fray with perhaps the definitive description of the militia in American history, culture and political theory. While the book breaks little new ground, one might say it strip-mines the ground only lightly traversed by other scholars and legal historians. This book is top-notch constitutional history and masterful in its melding of history and legal argument. The authors go well beyond discussion of the founding documents into the republican roots of the citizen militia and the meaning of the right to “keep and bear arms” in seventeenth century England. They meticulously avoid superimposing contemporary understandings of these terms in their analysis. In short, they have produced not only a fine work on the 2nd Amendment, but a model for those who would use historical research to inform contemporary legal/constitutional debate.
The authors’ thesis is simple and predictable. First, although the 2nd Amendment did create a personal right to “keep and bear arms,” it did so only insofar as private arms were needed to maintain a citizen militia. The basis for the right is the collective, republican concept of the citizen militia, and the primary objective of enshrining the militia in the Bill of Rights was to guard against the dangers of a standing professional army. Moreover, the phrase “keep and bear arms” had distinctly military connotations leading up to and including the founding era, and there is remarkably little evidence of an individualist right to possess guns, even in the anti-federalist literature. However, the authors do not entirely eschew the individualist interpretation of the Amendment; the “right of the people” was, they believe, intended to vest the ownership and possession of arms in the potential militia members—(white male) citizens.
Second, because the citizen militia withered away as an institution long ago and has no contemporary successor, the conditions for the right to keep and bear arms, even as an individualist right, no longer exists. The local militia was already giving way to the vastly superior – in terms of training, preparedness and fighting ability – professional army at the time of the Revolution. State militia were replaced by volunteer state guard and, eventually, National Guard units, that were gradually co-opted by the national military. Today, the National Guard is equipped by the government and in virtually all respects serves as an adjunct to the professional army. Nor are there any other plausible substitutes for the extinct citizen militia that would serve to animate the 2nd Amendment. Police forces are, for the most part, full-time, government-equipped professional organizations. Private citizen militias, according to the authors, are a threat to the founding era collectivist notion of the militia rather than a legacy of that tradition. Therefore, as a matter of constitutional law, the 2nd Amendment is irrelevant today. To the individualists, who read the Amendment as a personal right to possess firearms, rather than merely a collective right to organize into militias, the authors’ message is not quite the typical “you are wrong,” but rather “you were right, sort of, a long time ago, but today you’re wrong.”
The intellectual champions of the individualist camp do not fare well against this exhaustive historical analysis. Joyce Lee Malcolm’s argument that the 1689 English Declaration of Rights, from which our Bill of Rights borrowed extensively, was more concerned with a personal right to possess weapons than protecting the militia, is criticized for its piecemeal approach to the text and history of the Declaration. Specifically, Malcolm relies on a handful of passages deleted from the final version of the Declaration, while ignoring the plain meaning of the language ultimately adopted and the social/political context of the drafting. She also ignores the fact that the framers did not use the language of the English Declaration in drafting the 2nd Amendment. Attorney General Ashcroft’s justification for the Justice Department’s recent defection to the individualist camp is more vehemently attacked. His interpretation of “keep and bear” as being outside the military context; his claim that the framers “all but unanimous[ly]” viewed the right as a personal right; his assertion that the Supreme Court “routinely” embraced the individualist approach; and his representation that the four scholars he cites constitute a “preponderance of legal scholarship” are decried as historically inaccurate, analytically flawed and quite obviously politically motivated. Even the venerable Sanford Levinson’s oft-cited work on the Amendment, premised on the need for potential armed insurrection against a tyrannical government, is exposed as “sketchy” and plainly politically motivated. It is “regrettable,” the authors conclude, “that his unpersuasive thesis has lent respectability to the outlaw libertarians who claim to be the legitimate guardians of American freedom” (p.178).
I am curious why the authors are so adamant in their expressions of neutrality regarding the politics of gun control. I do not doubt the sincerity of statements, such as “For our part, we take no position on the question of whether guns in private hands are good or bad for society as a whole” (p.1). But given the centrality of the 2nd Amendment to the gun-control debate, taking a clearly defined position on constitutional interpretation is inevitably an exercise in political judgment. Applying this mode of interpretation painstakingly to the heart of the individualist reading of the 2nd Amendment, and concluding that said reading must be rejected outright, is to undercut the heart of a legal and political argument. Few would assert, for example, that those arguing for reversal of ROE v. WADE on constitutional grounds have no political agenda other than a belief that the issue is one for the states to decide. Moreover, the authors’ asserted ambivalence to the political debate over gun control suffers from the occasional lapse, particularly when modern-day “libertarian militias” are mentioned:
And if today’s National Guard fails to fit the concept of a militia, the notion is little short of ludicrous that the constitutional term applies to the scattered, small, unregulated bands of fatigue-clad, gun-loving, self-appointed libertarians taking secret target practice in the woods while underwriting one another’s bigotry (p. 157-8).
The evidence in support of the authors’ reading of the 2nd Amendment is overwhelming, and their rhetoric rarely clouds their legal and historical arguments so as to undermine their credibility. I simply suggest that it is unnecessary to assert political neutrality in what is quite clearly a work of advocacy, particularly given their periodic colorful statements such as the quoted passages.
Otherwise, my quibbles with the authors are few in number and minor in scope. First, although several prominent proponents of the individualist approach are identified, and their positions considered and persuasively rejected throughout the text, it would have been helpful to introduce in greater detail the individualist position and its major proponents in Chapter 1. Second, although the writing is overall quite clear and persuasive, the authors’ elaborate word choice and sentence structure occasionally become a distraction. (Perhaps this is due to my own experience with legal and academic writing—I was once presented a copy of Professor Wydick’s PLAIN ENGLISH FOR LAWYERS as a gift). I am sure, for example, that Professor Ackerman would be flattered by the authors’ reference to “Ackermanian notions” of constitutional transformation, but I found such phrasing a bit overdone, not to mention the potential for hurt feelings (the authors refer to Madisonian, Lockean and Ackermanian concepts, but not to the “Levinsonian” reading of the 2nd Amendment).
Third, I appreciate the authors’ loyalty to their preferred interpretive model, which they describe as “close” to Justice Scalia’s originalism, “inferred from text according to a hypothetical contemporary understanding . . . insofar as critical assumed underlying social and technological factors remain fundamentally unchanged” (p.36). This model works particularly well with the 2nd Amendment which, after all, contains an express social/historical condition for the right to keep and bear arms. It does, however, seem a bit unnecessary to at once oversimplify and belittle alternative modes of interpretation – “we depart from those who would revise an ancient, authoritative text on no better pretext than the promotion of present-day social preference” (p.147). I will leave the debate over constitutional interpretation for another time and place, except to note that (1) the authors admit that the text frequently lends itself to the very fluidity of meaning they criticize; and (2) caricatures of “non-interpretivists” as unprincipled judicial activists imposing their own values on ancient text are no less misguided than caricatures of “interpretivists” imposing their contemporary values on the ancient text in order to assert the legitimacy of those values (Justice Brennan rightfully deemed this practice “arrogance cloaked in humility”).
In sum, THE MILITIA AND THE RIGHT TO ARMS is an excellent work of constitutional history. It is meticulously researched, clearly and persuasively argued, and highly relevant to the contemporary debate over the 2nd Amendment and gun control. Anyone serious about the history and/or contemporary value of the 2nd Amendment needs to read this book. I do not know if Uviller’s and Merkel’s interpretation of the Amendment will ultimately prevail before the judiciary, but in light of their evidence advocates of an individual right to bear arms, independent of the militia clause, will need to do a much better job.
REFERENCES:
Brennan, William J., Jr. 1990. “The Constitution of the United States: Contemporary Ratification,” in Jack N. Rakove (ed.), INTERPRETING THE CONSTITUTION: THE DEBATE OVER ORIGINAL INTENT. Boston: Northeastern University Press.
Levinson, Sanford. 1991. “The Embarrassing Second Amendment,” 99 YALE LAW JOURNAL 637.
Malcolm, Joyce Lee. 1983. “The Right of the People to Keep and Bear Arms: The Common
Law Tradition,” 10 HASTINGS CONSTITUTIONAL LAW QUARTERLY 285.
Wydick, Richard C. 1978. “Plain English For Lawyers,” 66 CALIFORNIA LAW REVIEW 727.
CASE REFERENCES:
ROE v. WADE, 410 US 113 (1973).
U S. v. EMERSON, 270 F.3d 203 (5th Cir. 2001).
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Copyright 2003 by the author, Daniel E. Smith.