|
 f
all the intellectuals who endorse gun prohibition, none is more
eminent that Garry Wills. It is therefore especially
interesting
to note what kinds of contortions Wills must perform in order to
support his wish that the federal government may confiscate handguns
from law-abiding citizens.
Wills made a big splash with a 1995 article in the New York Review
of Books, titled "Why We Have No Right to Bear Arms." (Sept.
21, 1995). Acknowledging that the "Standard Model" of contemporary
legal scholarship recognized the Second Amendment as guaranteeing
an individual right, Will countered that the Second Amendment "had
no real meaning." Thus, according to Wills, only "wacky scholars"
and their dupes believe that the Second Amendment affirms a right
of individuals to own firearms for protection against tyranny. The
Wills article has been cited by Federal District Judge Jack Weinstein,
and is perhaps the most-cited professorial article used in arguments
against the Second Amendment as protecting a meaningful right of
the people.
One of Wills's main points is that the language of the Second Amendment
itself is contrary to an individual right. This is a particularly
tough point for Wills to make, since — as the Supreme Court
has written — the phrase "right of the people" appears several
times in the Constitution, and appears to be a "term of art" having
a consistent meaning. [United States v. Verdugo-Urquidez,
494 U.S. 259, 265 (1990).]
Could it really be that Madison meant to guarantee a meaningful
individual right in the First Amendment (which protects "the right
of the people" peaceably to assemble), but in the very next Amendment,
Madison used "the right of the people" to create an Amendment that
had no real meaning? Then, in the Fourth Amendment, Madison reverted
to his former draftsmanship, and guaranteed "the right of the people"
to be free from unreasonable searches — and he meant this right
to be a meaningful right of individuals. Then, in the Ninth Amendment,
rights were reserved to "the People" — again referring to ordinary
Americans.
Wills does not attempt to prove that Madison kept changing his mind
about whether "the people" mean "people" or "nobody at all." Nor
does Wills attempt to refute the Supreme Court's recognition of
the common meaning of "right of the people" throughout the Bill
of Rights.
Nor does Wills carefully examine all of what Noah Webster —
the foremost authority on early American usage — has to teach
about the Second Amendment. If you look up every word from the Second
Amendment in Webster's American Dictionary of the English Language,
then you get a rather plain statement of the Standard Model of the
Second Amendment. Using Webster's definitions, the Second Amendment
would read: "The good order of able-bodied men required to attend
military exercises on certain days being indispensably requisite
to the protection of a not-enslaved body politic, the just claim
of the body of persons who compose the United States to retain and
wear weapons and armor shall not be violated."
While hardly as elegant as the Second Amendment, Webster's dictionary
does point us in the same direction as did the many 19-century legal
commentators who explained that the militia (an essential institution
of a free society) will only be effective as long as the people
are guaranteed the ownership of arms. In fact, Noah Webster himself,
during the ratification debates, provided a concise summary of why
the entire population should be armed:
"Before a standing army can rule, the people must be disarmed; as
they are in almost every kingdom in 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 band of regular troops that can be, on any pretence, raised
in the United States." [Noah Webster, "An Examination into the leading
principles of the Federal Constitution."]
Since Garry Wills argues that resistance of a tyrannical government
would be treason, it is not surprising that Wills prefers not to
engage Noah Webster in much detail.
Wills takes a rather different approach to language. He translates
various terms from the Second Amendment into Latin, announces that
all the terms — in Latin — have a military connotation,
and therefore the Second Amendment is a meaningless platitude about
the military and not an affirmation of the people's legal right
to have weapons. The most obvious objection to this approach is
that the Constitution was written in English, and intended to be
comprehensible to the entire American population, much of which
did not speak Latin. Nor is there any historical evidence that Madison
hinted about a secret non-meaning of the Second Amendment which
could be uncovered by translating the Amendment into Latin.
Of course many of the Founders, Madison included, were college-educated,
and could read Latin fluently. But many of them could also read
Greek, which was an essential part of the college curriculum of
the time. Madison also knew French, Spanish, and Hebrew, as did
many other educated men of the period. So why not translate the
Constitution into Greek, French, Spanish, or Hebrew, and find what
meaning could thus be invented against the plain meaning of the
text in English?
Translating a document from its original language into a second
language inevitably creates distortions based on the cultural differences
between the two languages. There is no word for "privacy" in Russian,
so trying to understand the U.S. Supreme Court's landmark privacy
case Griswold v. Connecticut by first translating
the case into Russian is likely to impede, rather than enhance,
understanding. That is why scholars trying to analyze the intended
meaning of Bible passages read those passages in the language in
which they were written.
The Roman Empire where Latin existed as a living language was, for
its last five centuries, ruled by a standing army increasingly dominated
by conscripts and mercenaries; the Empire was a military dictatorship
which had fallen away from republican virtue. The Founders were
familiar with Edward Gibbon's The Decline and Fall of the Roman
Empire, and thus with Gibbon's observation, early in the first
volume, that "A martial nobility and stubborn commons, possessed
of arms, tenacious of property, and collected into constitutional
assemblies, form the only balance capable of preserving a free constitution
against the enterprises of an aspiring prince."
By looking through the lens of a language from a society that embodied
what the Second Amendment was intended to prevent, Wills obscures
his vision.
Consider, for example, the totally different meanings of "liberty"
and "freeman" in Rome and in the United States, as explained by
Francis Lieber, one of the most important political scientists of
early America:
"The Roman lawyers say that liberty is the power (authority) of
doing that which is not forbidden by law...The same lawyers say:
Whatever may please the ruler has the force of law. They might say
with equal correctness: Freeman is he who is directly subject to
the emperor; slave, he who is subject to the emperor through an
intermediate and individual master. It settles nothing as to what
we call liberty, as little as the other dictum of the civil law,
which divides all men into freemen and slaves. The meaning of freeman,
in this case, is nothing more than non-slave; while our word freeman,
when we use it in connection with civil liberty, means not merely
a negation of slavery, but the enjoyment of positive and high civil
privileges and rights."
Winston Churchill once suggested that the most significant fact
of the twentieth century was that Great Britain and the United States
spoke the same language. Churchill's point was that a common language
creates a host of common assumptions about society. If we want to
understand the Second Amendment and the rest of the Constitution,
then we must start by using the language in which those documents
are written: English.
One might ask why Wills bases his theory of the Second Amendment
on a methodology only slightly more useful than translating the
Constitution into computer programming languages like C++ or BASIC.
The answer may be that building a case for a meaningless Second
Amendment is impossible if one relies primarily on normal sources,
such as the text of the Constitution as written in English.
All of the legislative history of the Second Amendment indicates
that the Americans who put it into the Constitution thought that
it meant something. Congress debated the particular language
of the Amendment; several states which ratified the Constitution
simultaneously adopted resolutions demanding a Bill of Rights, and
containing language which was eventually incorporated in the Second
Amendment. Yet Wills would have us ignore the obvious intentions
of all the people from the Founding Era who thought that the Second
Amendment had meaning; instead, we are supposed to rely on the alleged
secret intentions of James Madison, having first discerned those
intentions by translating his words into Latin.
That someone as smart as Wills can make such preposterous arguments
shows how desperate are the emotional needs, in some quarters, to
make the Second Amendment disappear by sheer will-power. Garry Wills
despises "the sordid race of gunsels" and "gun fetishists" whose
mere ownership of defensive firearms makes them "traitors, enemies
of their own patriae." [Garry Wills, "Gun Rules...or Worldwide
Gun Control?" Phil. Inq., May 17, 1981, page 8E; Garry Wills,
"John Lennon's War," Chi. Sun-Times, Dec. 12, 1980.]
Wills' problem is he believes, as he wrote in 1981, "Every civilized
society must disarm its citizens against each other" Unfortunately
for Wills, he lives in a nation whose Supreme Court has declared
that the right to keep and bear arms "is found wherever civilization
exists." [United States v. Cruikshank, 92 U.S. 542,
551 (1876).]
|
