Arms and the Right
Like the Third Amendment against the peacetime quartering of soldiers in private homes, the Second Amendment used to be one of those obscure constitutional provisions that Americans could safely ignore. Legal opinion was agreed: this relic of the late eighteenth century did not confer an individual right "to keep and bear arms," only a collective right on the part of the states to maintain well-regulated militias in the form of local units of the National Guard. While a few gun nuts insisted on their Second Amendment right to turn their homes into mini-arsenals, everyone else knew they were deluded. Everyone knew this because the Supreme Court had supposedly settled the matter by unanimously dismissing any suggestion of an individual right in 1939.
But now everyone knows something else. Ever since a University of Texas law professor named Sanford Levinson published a seminal article, "The Embarrassing Second Amendment," in the Yale Law Journal in 1989, the legal academy has had to take another look at a provision that Laurence Tribe, the doyen of liberal constitutionalists, described ten years earlier as having no effect on gun control and as "merely ancillary to other constitutional guarantees of state sovereignty." Now such comfy notions are out the window as the National Rifle Association's view that the Second Amendment confers an individual right to own guns gains ground. While some scholars, such as Mark Tushnet, author of the new study Out of Range, argue that an individual-rights reading still allows for extensive gun control, others are frank enough to admit they're not sure what this oddly constructed amendment does and does not allow (although they'll still hazard a guess). As a prominent constitutional scholar named William Van Alstyne once remarked, "No provision in the Constitution causes one to stumble quite so much on a first reading, or second, or third reading." It is as if the legal academy, shaking its head over the First Amendment, suddenly could not make up its mind as to whether that hallowed text protected free speech or prohibited it.
What's going on here? Surely a mere twenty-seven words, loosely tethered together by three commas and one period, can't be that impenetrable. But they are; and if ever there was a Churchillian "riddle wrapped in a mystery inside an enigma," the Second Amendment is it.
Perhaps the best way to begin unraveling this puzzle is to think of the amendment not as a law but, with apologies to Tom Peyer and Hart Seely, as a bit of blank verse:
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.
It's rhythmic and also somewhat strange, as proper modern verse should be. As to what it actually means, the questions begin with "well regulated" in line one. The phrase is confusing because when Americans hear the word "regulation" or any of its cognates, they usually think of government restrictions on individual liberty. But if a government-regulated militia is necessary for a free society (the meaning, presumably, of "a free State"), then how can the amendment mandate an individual right that the same government must not infringe? It is as if the amendment were telling government to intervene and not intervene at the same time.
This is certainly a head-scratcher. Yet the questions go on. Another concerns line two, which, while asserting that the militia is "necessary to the security of a free State," does not pause to explain why. Perhaps the connection was self-evident in the eighteenth century, but it is certainly not in the twenty-first. Today, we can think of a lot of things that are important to the survival of a free society: democratic expression, honest and fair elections, a good educational system, and a sound and equitable economy. So why does the amendment "privilege" a well-regulated militia above all others?
Finally, there are the questions posed by lines three and four. Why "keep and bear" rather than just "bear"? What does "Arms" mean--muskets, pistols, assault rifles, grenade launchers, nukes? Finally, concerning the phrase "the right of the people to keep and bear Arms," the individualist interpretation holds that eighteenth-century Anglo-Americans viewed this as part of a natural right of armed resistance against tyranny. But if this was the case, why put it in writing? After all, Americans were well armed in the aftermath of the Revolutionary War and hair-trigger sensitive to any new tyrannical threat. Why, then, approve an amendment acknowledging the obvious? After asking Americans to ratify a new plan of government, why did the founders then request that they assert their right to overthrow it?
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.
While one can quarrel about the details, it would thus appear that the NRA has been correct all along concerning the Second Amendment's original intent to guarantee an individual right to bear arms. But Tushnet adds that there is also the question of how the amendment has come to be understood in the years since. Once the Constitution was ratified and the new Republic began taking its first wobbly steps, three things happened: militias fell by the wayside as Americans discovered they had better ways to spend their time than drilling on the village green; politicians and the police took fright when guns began showing up in the hands of people they didn't like, such as newly freed blacks or left-wing radicals; and public safety became more and more of a concern as urbanization rose.
Thus, Supreme Court Justice Joseph Story complained in 1833 about "a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations." In 1879 the Illinois state legislature outlawed private militias after 400 or so German socialists paraded through Chicago with swords and guns, while the Supreme Court's 1939 decision United States v. Miller upheld a ban on sawed-off shotguns on the grounds that such weapons had nothing to do with maintaining a well-regulated militia. However scattershot, various gun-control measures have proliferated since the 1930s, prohibiting certain types of firearms (Tommy guns), forbidding certain people from owning them (felons and fugitives), establishing "gun-free school zones" and so on, all based on a collective-right reading holding that government has free rein to do what it wishes to maintain public safety. By the time Tribe published his famous textbook, American Constitutional Law, in 1978, any concept of an individual right to bear arms had effectively disappeared. The Second Amendment, American Constitutional Law announced, was irrelevant when it came to "purely private conduct" in the form of gun ownership. Gun control could therefore go forward unimpeded.
In retrospect, Tribe's textbook was plainly the high-water mark for the "collective right" interpretation. Eleven years later, Levinson published his Yale Law Journal article, complaining that "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." In fact, intellectual honesty dictated that they recognize there was more to the amendment than they had been willing to admit.
While Tribe has since come around to the individual-rights point of view (the 2000 edition of American Constitutional Law contains a ten-page reconsideration of the subject), he is now among those arguing that, notwithstanding such a right, firearms are still "subject to reasonable regulation in the interest of public safety" and that "laws that ban certain types of weapons, that require safety devices on others and that otherwise impose strict controls on guns can pass Constitutional scrutiny." Tushnet agrees, noting that the Pennsylvania State Constitutional Convention declared in 1788 that "no law shall be passed for disarming the people...unless for crimes committed, or real danger of public injury from individuals," a clear indication that public safety was a concern even in the Republic's earliest days. He observes that, in what has been called "America's first gun control movement," state legislatures followed up in the 1810s with laws against concealed weapons, bowie knives and the like for the same reason. Today, there is no shortage of gun-control laws even in states that recognize a constitutional right to bear arms, yet the courts have not seen a conflict. "Indeed," says Tushnet, "it's hard to identify a gun-control policy that has not been upheld against challenges based on state constitutional guarantees of an individual right to keep and bear arms."
In other words, we can all relax. Given its current conservative lineup, the Supreme Court will almost certainly uphold an individual right to bear arms in District of Columbia v. Heller. But while gun prohibition or equally sweeping licensing laws will probably not be permissible, lesser forms of gun control are still acceptable. Thus, things will continue pretty much unchanged. Lawyers will go back to arguing whether banning assault weapons passes constitutional muster, while the NRA will go back to complaining that we are all on a slippery slope to tyranny. Moms will march for gun control, hunters will campaign against it and "cold dead hands" bumper stickers will continue to proliferate on pickups. Plus ça change, plus c'est la même Scheiss.
Or so Tushnet suggests, although some of us may not be so sanguine. The problem may be an excessively narrow reading of the Second Amendment and the broader Constitution of which it is a part. Law professors, not surprisingly, tend to think of the Constitution as the law. But it is also a plan of government and a blueprint shaping American thought on such topics as democracy, civil liberties and popular sovereignty. Hence, while an individualist reading of the Second Amendment will certainly affect gun control in some fashion, that is not all it will affect. It will also send a powerfully coded message about the proper relationship between the people and their government and the nature of political authority. It is this aspect of the Second Amendment as opposed to its strictly legal dimension that seems most important.
Indeed, the closer one looks at the Second Amendment, the more significant its political ramifications seem. Its structure, for example, is oddly parallel to that of the larger Constitution, with a preamble (lines one and two) advancing a rationale of sorts and then a body, or gist (lines three and four), stating what is to be done. Other than the famous one beginning with "We the people," this is arguably the only such preamble in the entire document and certainly the only one in the Bill of Rights. The logical parallels are also curious. The larger Constitution opens by declaring that the people have unlimited power to alter their political circumstances so as to "promote the general welfare and secure the blessings of liberty to ourselves and our posterity." It seems that "we the people" can do whatever we want to improve our situation, including tossing out one constitution (the Articles of Confederation) and ordaining a new one. But the body of the Constitution goes on to say something completely different by declaring in Article V that a supposedly sovereign people is decidedly unsovereign when it comes to modifying the plan of government made in its name. (With just thirteen states representing as little as 5 percent of the US population able to veto any amendment, the US Constitution is among the hardest to change on earth.) By the same token, the mini-constitution that is the Second Amendment opens by declaring a people in arms to be the ultimate guarantor of freedom, but then it goes on to say that the people's government lacks the freedom to alter individual gun rights. Since the 1930s liberals have succeeded in circumventing the first restriction via the miracle of judicial interpretation, a modern form of transubstantiation that allows them to alter the essence of the Constitution without changing so much as a comma. But a return to an individual-rights reading of the Second Amendment would mean a rollback of free-form judicial review. By returning the amendment to its original meaning, such a reading couldn't help but strengthen the old civic-republican view of an expansive state as a threat to liberty.
This is profoundly reactionary and profoundly confusing. Are the people sovereign or not? Are they the protectors of liberty or a threat? The answer, according to the Big-C and little-c constitution, is both. Although legal academics like to think of the Constitution as a model of reason and balance, the Second Amendment puts us in touch with the document's inner schizophrenic--and, consequently, our own. Thanks to it, we the people know that the people are dangerous. Therefore, we must take up arms against our own authority. We are perennially at war with ourselves and are never more alarmed than when confronted by our own power. The people are tyrannized by the fear of popular tyranny.
Richard Feldman's Ricochet, an insider account of how conservatives have used the Second Amendment to clobber liberals on gun control and more, is evidence of what this schizophrenia means on the most down-to-earth political level. Ricochet is long--too long--on details about the inner workings of the NRA, the purges, the plots and the Machiavellian maneuvers of executive vice president Wayne LaPierre. Still, it has its moments. The most relevant concerns a campaign Feldman helped engineer in New Jersey in July 1990 to punish then-Governor Tom Florio, a Democrat, for pushing through a ban on assault weapons a few months earlier. When Florio announced a major tax increase to plug a deficit in the state budget, a Pat Buchanan-style "pitchfork rebellion"--led by a letter carrier named John Budzash and a title searcher named Pat Ralston--erupted across the middle of the state. Feldman, eager for revenge and experienced as a field operative when it came to populist campaigns of this type, sprang into action. Working behind the scenes, he established contact with Hands Across New Jersey, as the tax protesters called themselves, funneling them money, advising on strategy and grooming their press releases. "But unlike what I'd helped produce for the NRA, we had to give the Hands documents a rough edge," he recalls. "I always made sure to misspell at least one word, 'frivilous' or 'wastefull.'" The group's biggest PR coup was distributing thousands of rolls of "Flush Florio" toilet paper to protest the governor's proposal to slap a 7 percent sales tax on such items, a tactic that frightened the state's Democratic establishment to the core. Senator Bill Bradley did his best to duck the controversy but barely squeaked through to re-election, while Florio lost to Republican Christine Todd Whitman three years later. It was an example of the sort of right-wing populism that would continue to build throughout the 1990s, crippling the Clinton Administration and paving the way for the Bush/Cheney coup d'état in December 2000.
Hands Across New Jersey could not have done it without the NRA, and the NRA could not have done it without the Second Amendment. On the surface, tax hikes and gun control would seem to have as little to do with each other as horticulture and professional wrestling. But eighteenth-century civic republicanism, the ideology bound up with an individualist reading of the Second Amendment, provided the necessary link by portraying both as the products of overweening government. In the face of such "tyranny," the message to protesters was plain: take down those muskets, so to speak, and sally forth to meet the redcoats. Don't think, don't analyze, don't engage in any of the other sober measures needed to sort out the fiscal mess. Just turn the clock back to the eighteenth century, pack your musket with "Flush Florio" wadding and fire away! Needless to say, atavistic protests like these were sadly irrelevant in terms of the financial pressures that, in a politically fragmented, traffic-bound state like New Jersey, were growing ever more acute. Yes, the protesters succeeded in throwing out some bums (and ushering in even worse ones). But with the current governor, Democrat Jon Corzine, now struggling to resolve a 10 percent budget gap, the crisis has only deepened.
After the disaster of the Bush years, it would seem that the right-wing populism embodied by Hands Across New Jersey has burned itself out. But given the collapse of the liberal-collectivist reading of the Second Amendment and the Supreme Court's likely embrace of an individual right, it could conceivably gain a new lease on life--just as the country is grappling with a major recession, the worst housing crisis since the 1930s and a wave of municipal bankruptcies, all problems that call for a collective government response. But an incoherent Constitution dating from the days of the French monarchy, the Venetian republic and the Holy Roman Empire is now sending an increasingly strong message that firm and concerted action of this sort is the very definition of tyranny and must be resisted to the hilt. Once again, Americans must take aim--at themselves! Tushnet's question concerning "how we understand ourselves as Americans" thus becomes somewhat easier to answer: Americans are people at the mercy of eighteenth-century attitudes they don't know how to escape.