Magazine | August 27, 2018, Issue

The Truth about the Second Amendment

It was always meant to protect an individual right

Stop me if you’ve heard this one before. In 1791, the Founding Fathers placed into the U.S. Constitution a set of ten amendments that we refer to collectively as the “Bill of Rights.” Among them was an innocuous measure designed to protect state militias against federal overreach. Until the 1970s, nobody believed that this meant anything important, or that it was relevant to modern American society. But then, inspired by profit and perfidy, the dastardly National Rifle Association recast the provision’s words and, sua sponte, brainwashed the American public into believing that they possessed an individual right to own firearms.

Right?

Wrong.

Simply put, the above charge, which is popular in the press and in some quarters of the academy, is not true. In fact, it’s farcical. Certainly, the last few decades have brought with them a sea change in both the jurisprudence and the academic literature that undergird the Second Amendment. And certainly, there has been a move away from the mid-20th-century consensus that the Second Amendment was either meaningless — in 1975, the American Bar Association proclaimed bizarrely that “it is doubtful that the Founding Fathers had any intent in mind with regard to the meaning of this Amendment” — or wholly without teeth as a protector of individual rights. And yet, contrary to popular claims, these transformations did not represent a novel revolution in meaning or interpretation but rather a much-needed restoration of what for most of American history was supremely, even mundanely, obvious: that “the right of the people to keep and bear arms” means “the right of the people to keep and bear arms.

Commenting in 2007 on Parker v. District of Columbia — in which the United States Court of Appeals for the District of Columbia Circuit held that the Second Amendment protected an individual right — the New York Times’ Adam Liptak explained that we had reached a turning point in the dispute. “Only a few decades ago,” wrote Liptak, this “decision would have been unimaginable.” Indeed, he confirmed, “there used to be an almost complete scholarly and judicial consensus that the Second Amendment protects only a collective right of the states to maintain militias. That consensus no longer exists.” And yet, as Liptak went on plainly to record, that was not because the bogeymen had successfully peddled a lie before a parade of activist judges, but because the consensus of the mid 20th century had finally been exposed as a mistake.

In fact, Liptak explained, a good deal of the spadework that led us to Parker, Heller, and the rest was done on the left — by “leading liberal law professors” such as Sanford Levinson, Laurence Tribe, and Akhil Reed Amar, all of whom came gradually “to embrace the view that the Second Amendment protects an individual right to own guns.” Bit by bit, and in concert with the crucial work of figures such as Don Kates, Joyce Lee Malcom, Stephen Halbrook, and Glenn Reynolds, many of America’s “liberal” academics came to understand that, far from being an aberration, the “Standard Model” of the Second Amendment, as this view is known, was just that: standard. Moreover, as Liptak noted, they came to believe that “the earlier consensus reflected received wisdom and political preferences rather than a serious consideration of the amendment’s text, history and place in the structure of the Constitution.” Or, as Levinson had put it in 1989 in his influential Yale Law Journal article “The Embarrassing Second Amendment,” “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, 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.” 

Once that “serious consideration” was undertaken, the house of cards fell, and Americans got back their right to keep and bear arms. Perhaps the neatest illustration of the change can be found in the work of Harvard’s Laurence Tribe. In the 1978 edition of his American Constitu­tional Law textbook, the Second Amendment is mentioned only in a footnote, and cast solely as a means by which “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.” The 1988 revision contains the same characterization. The 2000 edition, by contrast, confirms that the provision represents an individual right. “The amendment achieves its central purpose,” Tribe maintained, “by assuring that the federal government may not disarm individual citizens without some unusually strong justification. . . . That assurance in turn is provided through recognizing a right . . . on the part of individuals to possess and use firearms in defense of themselves and their homes.”

What a difference a decade can make.

Given the way the Second Amendment is written, it is perhaps unsurprising that the confusion came to pass. Indeed, in 1880, the great scholar Thomas Cooley all but anticipated it in what was likely the most widely read legal textbook of the era. “It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia,” Cooley noted in his General Principles of Constitutional Law. “But this,” he explained, “would be an interpretation not warranted by the intent.”

The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right 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. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose.


Given changing sensibilities; the evolving meaning of words; the decline of a shared republican worldview that regarded government as an auxiliary, not all-conquering, domestic force; and a healthy helping of cynical gamesmanship from the gun-control movement and its allies in the press, one can comprehend how we went from a widespread understanding that Americans enjoyed the right to keep and bear arms to breathless online headlines insisting that the “gun lobby” has “rewritten the Second Amend­ment!” “Arms,” “state,” “militia,” “well-regulated” — these terms have all changed in the popular imagination in the years since 1791, as have what we would now refer to as America’s “gun politics.” For many unfamiliar with the history, the mistake is a forgivable one. 

For those who are familiar, however, it is most decidedly not. Indeed, to be cognizant of the history is to arrive at one clear and unmistakable conclusion: that the “collective right” theory is just nuts. As a 1982 Senate report on the meaning of the Second Amendment concluded bluntly, it is “inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.” 

That word, “inescapable,” is a good one, for it is simply impossible to review the post-Revolution era and come away with the impression that the Second Amendment protects some convoluted state-led right. Even if we ignore that the word “people” is used in the self-evidently individual protections that surround the Second Amendment — and even if we ignore that James Madison proposed to insert the “right to bear arms” next to the other individual rights listed in Article I, Section 9, and not next to the militia clause in Article I, Section 8, clause 16 — a brief audit of contemporary interpretations tells us all we need to know.

It may seem remarkable to modern sensibilities, but it was not at all unusual in the 19th century to read politicians and scholars openly worrying that the people might be left unable to remove their government should the course of human events run sour. In Letters from the Federal Farmer 53, Richard Henry Lee proposes that “to preserve liberty, it is essential that the whole body of people always possess arms, and be taught alike, especially when young, how to use them.” You will notice, I assume, that Lee’s purpose in hoping that “the whole body of people always possess arms” is “to preserve liberty” rather than, say, to “defend the country” or to “prevent domestic insurrection.” That matters a great deal, demonstrating as it does that we are talking here about something other than a proto–National Guard.

Lee’s view was neither outré nor limited to his particular anti-Federalist worldview. On the contrary: His assumptions were echoed across the political spectrum and throughout the century that followed. Explaining the unamended Constitution in the Pennsylvania Gazette in February 1788, the Federalist Tench Coxe celebrated that “the unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.” A year later, in the course of endorsing the proposed Bill of Rights, Coxe confirmed that the Second Amendment was designed not to protect the nation, the states, or the federal government, but to protect the people: “Whereas civil-rulers,” he wrote, “not having their duty to the people duly before them, may attempt to tyrannize, and as 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 article in their right to keep and bear their private arms.” It would, of course, be preposterous to suggest that such a rebellion would be carried out under the auspices of a federal government that enjoyed plenary power over the militias.

Coxe’s understanding was common. In his 1803 edition of Blackstone’s Commentaries, the jurist St. George Tucker proposed that Americans “may reasonably hope that the people will never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty,” and recorded that in America “the right of the people to keep and bear arms shall not be infringed; . . . and this without any qualification as to their condition or degree, as is the case in the British government.” The Second Amend­ment, Tucker suggested, was “the true palladium of liberty.”

In the reference book that replaced Tucker’s, William Rawle’s 1825 A View of the Constitution of the United States of America, it is emphatically stated that the Second Amendment’s “prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people.” This fact, Rawle reasoned, would give Americans a better chance at staying free, for while in Europe “the prevention of popular insurrections and resistance to government” is achieved “by disarming the people,” Americans had a constitutional prophylactic that “may be appealed to as a restraint.”

Nor did the third great book of the era dissent one iota from this understanding. In his Commentaries on the Constitution of the United States (1833), Joseph Story channeled Tucker in affirming that “the right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic” and summed up the spirit of the age by insisting that, in addition to the benefits it conferred upon the militias that were drawn from those citizens, the amendment offered “a strong moral check against the usurpation and arbitrary power of rulers.”

Indeed, so obvious was it to the people of the United States that the right came glued to liberty and citizenship that it was referenced by both sides during the explosive fight over slavery and its aftermath. In his abhorrent majority opinion in Dred Scott v. Sanford, Justice Roger B. Taney simply assumed that citizens were able to carry firearms and then used that dreadful prospect as a reason why blacks must never be afforded citizenship. Should Dred Scott prevail, Taney wrote, blacks would be “entitled to the privileges and immunities of citizens,” which would “give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.”

After the Civil War, the Republicans amended the Constitution to ensure that another Dred Scott decision would be impossible. Introducing his proposed 14th Amendment to Congress, John Bingham explained that he hoped to guarantee to freed blacks the “privileges and immunities” of which Taney had spoken, which, he recorded, were “chiefly defined in the first eight amendments to the constitution.” Jacob Howard, a key sponsor of Bingham’s proposal, told the Senate explicitly that this included the “right to keep and bear arms.” Somewhere, Lysander Spooner must have smiled.

Alas, things did not quite pan out that way. In Texas, as in so many other former slave states, the judiciary joined with legislators in denying freedmen their birthrights — at the cost of the plain meaning of the law if necessary. In 1859, before the Civil War, the Texas supreme court had ruled in Cockrum v. State that both the Second Amendment and its equivalent in the state constitution protected an “absolute” right to keep and bear arms. “A law cannot be passed to infringe upon or impair it,” the court determined, “because it is above the law, and independent of the law-making power.” In 1871, however, the same court — with some of the same members! — argued precisely the opposite when upholding a law that made it illegal for any Texan to carry “on or about his person, saddle, or in his saddle-bags, any pistol.” Nothing had changed in the text in the interim. How powerful a force is motivated reasoning.

For a while, such reasoning prevailed. But as with all great untruths, it was eventually done in by the weight of its contradictions and the scale of its delusions. The aberration in American history was not Heller but what immediately preceded Heller and passed for academic scholarship and judicial rigor in the middle of the 20th century. It was clear in the 18th century what the Second Amendment meant. It was clear in the 19th century, too. It was clear before ratification, at the time of ratification, and after ratification. It was clear before the Civil War, and during the drafting of the 14th Amendment, and to the postbellum segregationists who undermined it whenever they could. It was clear when almost every state added its own protections of the right to keep and bear arms and, in so doing, made a mockery of the idea that the right they were emulating had been born of a desire to limit federal power. There has been precisely one plot to recast the Second Amendment and, in the words of Thomas Jefferson, to “make it a blank paper by construction,” and that was the plot that flowered briefly in the middle of the 20th century. We must resolve to make sure that it never does so again.

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