Arms and the Right
Questions like these are the subject of Tushnet's Out of Range. With the Supreme Court poised to issue its first gun-rights decision in nearly seven decades in District of Columbia v. Heller, a case the Court heard on March 18 and that involves one of the most sweeping citywide gun bans in the country, Tushnet's brief but dense primer on the Second Amendment and its relationship to the gun-control battles of the last quarter-century could not be more timely. Unfortunately, it also could not be more frustrating. Tushnet, a professor at Harvard Law School, suffers from an excess of caution. Understandably, he is determined not to be one of those overconfident types who, as he puts it, are just "blowing smoke" in claiming to know precisely what the Second Amendment means. As a consequence, he advances a couple of possibilities as to what it might mean, explains why one interpretation may have an edge over the other and then announces that the whole question may be beside the point, since it has little to do with reducing gun-related crime. In fact, he argues that the long-running debate over the Second Amendment may be
really about something else--not about what the Second Amendment means, or about how to reduce violence, but...about how we understand ourselves as Americans. Get that straight, and the fights over the Second Amendment would go away. But, of course, we can't get our national self-understanding straight, because we are always trying to figure out who we are, and revising our self-understandings. And so the battle over the Second Amendment will continue.
Like a patient on a psychiatrist's couch, Americans thus talk about the Second Amendment to avoid talking about peskier matters, in this case highly sensitive topics having to do with national identity and purpose. So we keep talking because we don't know how to stop.
But this is unfair, since Americans have no choice but to talk about a law they can neither change (thanks to the highly restrictive amending clause in Article V of the Constitution) nor even fully understand (thanks to the pervasive ambiguity of its twenty-seven words). Still, Out of Range attempts to explain the inexplicable by approaching the Second Amendment from two angles: its original meaning at the time of its adoption as part of the Bill of Rights in 1791 and the meaning it has acquired through judicial interpretation and political practice in the centuries since.
In purely historical terms, Tushnet says, the answer on balance seems more or less clear. Lines one and two, which compose something of a preamble, are plainly the product of an eighteenth-century ideology known as civic republicanism, a school of thought almost paranoid in its tendency to see tyranny forever lurking around the corner. Tushnet's discussion of this school is somewhat cursory (as he admits), but a host of historians, from Bernard Bailyn to Isaac Kramnick, have described it as consisting of a series of polarities between political power, on the one hand, and the people, on the other. If the people are soft, lazy and corrupt, they will easily succumb to a tyrant's rule. Conversely, if they are proud, brave and alert, then would-be oppressors, sensing that the people are keen to defend their liberties, will back off. While a popular militia is important in this respect, no less important are the values, habits and attitudes that accompany it--vigor, courage, a martial spirit ("keep and bear" turns out to be a military term), plus a steely determination born of the knowledge that "those who expect to reap the blessings of freedom," to quote Tom Paine, "must, like men, undergo the fatigue of supporting it."
All of which suggests a broad reading of the Second Amendment, one that holds that a well-regulated militia is not the only social benefit that arises from widespread gun ownership but merely one of many. As Tushnet puts it, "Once each of us has the right to keep and bear arms, we can use the right however we want--but always preserving the possibility that we will use it to defend against government oppression." Guns are good in their own right because guns, military training and liberty are all inextricably linked.
But what about "well regulated"--surely that phrase suggests a government-controlled militia along the lines of today's National Guard? Not quite. In eighteenth-century parlance, regulation could take the form of a militia either spontaneously created by individuals or decreed by the state. Tushnet points out that the financially distressed farmers who participated in Daniel Shays's agrarian uprising in western Massachusetts in 1786 called themselves "regulators." Even though Tushnet doesn't mention it, the North Carolina frontiersmen who rose up against unfair colonial tax policies some twenty years earlier did so as well. Hence, there was nothing strange or inconsistent about regulation mustered from below by individuals rather than enforced from above by the state. Indeed, the Virginia Ratifying Convention in 1788 implied as much when it declared "that the people have the right to keep and bear arms [and] that a well regulated militia composed of the body of the people trained to arms is the proper, natural, and safe defense of a free state." Such a militia would be well regulated to the degree it was composed of the people as a whole.
This is no doubt the sort of thinking one would expect of a postrevolutionary society in which the people had just used their weapons to overthrow one government and were leery of laying them aside as another was taking shape. But the notion that "we the people" would reserve the right to take up arms against a government that "we" had just created seems contradictory. After all, if it's a people's government, who would the people revolt against--themselves? Still, Americans clearly believed in a natural right of revolution in the event that power was misused or usurped, and they further believed that their Constitution should acknowledge as much. In a document festooned with checks and balances, this was to be the ultimate check, one directed against government tout court.