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The Second Amendment: A Missing Transatlantic Context for the Historical Meaning of “the Right of the People to Keep and Bear Arms”

Published online by Cambridge University Press:  28 October 2011

Extract

The present essay seeks to work at the intersection of law and history, a meeting point where interpretation of the Second Amendment has been more characterized by collision than confluence. Analysis brought to bear on the historical meaning of “the right of the people to keep and bear arms” has coalesced around two competing normative interpretations: either that the amendment guarantees a personal, individual right to bear arms, or that it applies only collectively to the effectiveness of the militia. It is a premise of this essay that both these models are historically unsatisfactory, the products of present-day normative agendas that have polarized the debate into two competing and largely ahistorical models—a type of historians' fallacy that David Hackett Fischer has labeled the “fallacy of false dichotomous questions.” Fischer's description aptly describes the current controversy over the historical meaning of the Second Amendment: in addition to being “grossly anachronistic,” its two opposing positions “are mutually exclusive, and collectively exhaustive, so that the there is no overlap, no opening in the middle, and nothing is omitted at either end.” It is not without challenge on just these grounds, however, as a recent call for a “new more sophisticated paradigm” attests. This essay seeks to provide that new model and to do so by grounding the “right of the people to keep and bear arms” in eighteenth-century concepts of rights, not those of the twenty-first century, and to contextualize the right to bear arms in an eighteenth-century political struggle now largely ignored but well known to constitutional polemicists framing the Constitution and the Bill of Rights: Parliament's rebuilding of an English militia while denying the Scots the right to do so, despite Scotland's history and its claimed constitutional rights according to its coequal status in Great Britain. That struggle nevertheless remains a missing context that prefigured American debates over constituting and guaranteeing local militias in the coequal states of the federal union established by the United States Constitution in 1787 and 1788. Once the time came for seeking a written guarantee of local militia effectiveness in the federal Constitution, the language and substance of this transatlantic legacy had great influence. As experience, they gave political urgency to the drafting and ratification of the Second Amendment; as a theory of rights, they embodied an eighteenth-century individual right exercised collectively.

Type
Forum: Reconsidering the Second Amendment
Copyright
Copyright © the American Society for Legal History, Inc. 2004

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References

1. “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” (U.S. Constitution, amend. 2; ratified December 15, 1791).

2. Fischer, David Hackett, Historians' Fallacies: Toward a Logic of Historical Thought (New York: Harper & Row, 1970), 912.Google Scholar

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4. Quentin Skinner has ably explained how apparent historical paradoxes can deflect us from unspoken but fundamental underlying political beliefs and lead us to fail “to identify some local canon of rational acceptability.” Skinner, Quentin, “A Reply to My Critics,” in Meaning and Context: Quentin Skinner and His Critics, ed. Tully, James (Princeton: Princeton University Press, 1988), 244.Google Scholar

5. Ibid. Emphasis added.

6. Neil Richards warns against such a fallacy and expressly eschews capitalizing “framers” (“Clio and the Court: A Re-Assessment of the Supreme Court's Uses of History,” Journal of Law & Politics 13 [1997]: 845). For a succinct summary of the way the plurality of viewpoints among both Federalists and Antifederalists has undergone “homogenizing” into two distinct groups, see Cornell, Saul A., The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788–1828 (Chapel Hill: University of North Carolina Press, 1998), 68.Google Scholar

7. A Discourse upon the Exposicion & Understanding of Statutes: With Sir Thomas Egerton's Additions, ed. Thorne, Samuel E. (San Marino: Huntington Library, 1942), 151.Google Scholar Lesione be guilty of an ahistorical use of Egerton, it must be noted that his work referred to “the Exposicion and Understanding of Statutes,” and not to their “interpretation,” a term that connoted far more judicial authority than he or anyone else at the time would have accepted.

8. The term “originalism” dates from 1980, when Paul Brest introduced it in a strenuous critique of “the familiar approach to constitutional adjudication that accords binding authority to the text of the Constitution or the intentions of the adopters.” Brest was responding, of course, to an argument already “familiar,” and since 1980 the debate over that term has generated a vast literature of articles, books, and law review symposia. See, for example, Rakove, Jack N., Original Meanings: Politics and Ideas in the Making of the Constitution (New York: A. A. Knopf, 1996)Google Scholar, esp. chap. 1, “The Perils of Originalism,” 3–22; also, his collection of a range of opinions on both sides of the controversy in Interpreting the Constitution (Boston: Bedford Books, 1990). See also the special symposium issue, “Fidelity in Constitutional Theory,” Fordham Law Review 65 (1997).

9. 307 U.S. 174, at 178. In his opinion, Associate Justice James McReynolds cited “the debates in the [Constitutional] Convention, the history and legislation of Colonies and States, and the writings of approved commentators,” including one contemporary historian (ibid., 178–82). In 1983 the Supreme Court denied certiorari in Quilici v, Village of Morton Grove, holding that the Second Amendment did not apply to the possession of handguns at issue (695 F. 2d 261 [7th Cir. 1982], cert denied, 464 U.S. 863 [1983]). One cannot infer an opinion on the merits of a case from a denial of certiorari, however.

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18. On how colonial Americans recognized their role in the larger sweep of the history of liberty, see Konig, David Thomas, “Constitutional Contexts: The Theory of History and the Process of Constitutional Change in Revolutionary America,” in Constitutionalism and American Culture: Writing the New Constitutional History, ed. Van Burkleo, Sandra F., Hall, Kermit, and Kaczorowski, Robert J. (Lawrence: University Press of Kansas, 2002), 328.Google Scholar

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27. Malcolm, To Keep and Bear Arms, largely confines itself to the seventeenth century and then leaps forward in time to 1791 without mention of the profound eighteenth-century events and struggles that intervened and provided a powerful cautionary history lesson to those whose reservations about the Constitution led to the drafting and ratification of the Second Amendment. For a critique, see Schwoerer, Lois, “To Hold and Bear Arms: The English Perspective,” Chicago-Kent Law Review 76 (2000): 2760.Google Scholar

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37. Speck, The Butcher, 137–73 (quotations at 145, 169). Linda Colley more dispassionately describes the contemporary impact of this campaign and observes, that “the genocide that had reputedly followed the Battle of Culloden was reminder enough of the English capacity for racialism and hate” (Britons, 117).

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40. 29 Geo. II, c. 29 (1756).

41. 30 Geo. II, c. 25 (1757). The law required that “all the muskets delivered for the service of the militia, shall be marked distinctly in some visible place, with the letter M, and the name of the county, riding or place, to which they belong” (ibid., sec. 42). No weapons were to be issued until the unit had been constituted (sec. 35), and militiamen were to return them after exercises (sec. 36). Colonels or county lieutenants were authorized to seize weapons if “necessary to the peace of the kingdom” (sec. 33).

42. Gould, Persistence, 72–105. Parliament in 1759 had to respond to the “little progress” made in recruiting in some counties (32 Geo. II, c. 20 [1759]). A year later, Parliament was forced to act when recruitment was “suspended” in certain counties owing to a lack of those “qualified and willing to accept commissions” (33 Geo. II, c. 20 [1760]). Not all Scots favored the militia, and many—especially the poor—resented the possibility of enforced service; for the dissenters, see Gould, Persistence, 95–96. Nevertheless, the demand for a Scottish militia enjoyed broad support among Scots. Brown, History of Scotland, 3: 341–42, describes this support as existing despite lingering fears that a Scottish militia might be turned to Jacobite purposes.

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55. Adam Smith, for example, applied his belief in the superiority of the specialization of labor to argue that “the progress of manufactures, and the improvement in the art of war” made universal militia service harmful to the economy and produced a military force inferior to a standing army (An Inquiry into the Nature and Causes of the Wealth of Nations, ed. Campbell, R. H. and Skinner, Andrew S., 2 vols. [Indianapolis: Liberty Fund, 1981], 2: 689708Google Scholar).

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69. Like the Third Amendment, the second must be viewed within the context of federalism. The four states that dealt with the quartering of troops in their own constitutions or declarations of rights all banned it in peacetime but granted to their legislatures the authority to order it in wartime. Fields, William S. and Hardy, David T., “The Third Amendment and the Issue of the Maintenance of Standing Armies: A Legal History,” American Journal of Legal History 35 (1991): 419–20.CrossRefGoogle Scholar

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71. On the extent of this debate, see Robertson, Union for Empire, passim.

72. Journals of the Continental Congress, 5: 1082.

73. The Records of the Federal Convention of 1787, ed. Farrand, Max, rev. ed., (New Haven: Yale University Press, 1937), 1: 405.Google Scholar During this visit—he toured again in 1771—Franklin had been entertained by Lord Kames, David Hume, Adam Ferguson, Adam Smith, and William Robertson. Hook, Scotland and America, 18–19.

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75. Ibid., 3:319.

76. Ibid., 3: 196.

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78. Veit, Creating the Bill of Rights, 19. Though nodding to popular sentiment in this description, Hamilton was taking issue with the importance of the militia in this essay. Hamilton, The Federalist #25,161. A Citizen of the State of Maryland, “Remarks on a Standing Army,” April 12, 1787, in Documentary History of the Ratification of the Constitution, ed. Jensen, Merrill, Kaminski, John P., and Saladino, Gaspare J., 19 vols. (Madison: State Historical Society of Wisconsin, 1976-), 17: 89.Google Scholar The English Bill of Rights declared that “the Subjects which are protestants may have Arms for their Defence suitable to their Condition, and as allowed by law.”

79. Notes of Debates in the Federal Convention of 1787 Reported by James Madison (Athens: Ohio University Press, 1966), 483.

80. Ibid., 515. Mutinies by troops protesting the failure of their state governments to provision or pay them took place in 1777, 1780, 1781, and 1783. Higginbotham, Don, The War of American Independence: Military Attitudes, Policies, and Practice 1763–1789 (1971; reprint Boston: Northeastern University Press, 1983), 403–5.Google Scholar United States Constitution, art. 1, sec. 8, clause 16. In reciting the legislative history of the militia clauses, Jack Rakove concludes that the discussion surrounding them “explicitly recognized that the militia was to be the joint object of congressional and state legislation” (“The Second Amendment as the Highest State of Originalism,” Chicago-Kent Law Review 76 [2000]: 129–32).

81. Documentary History of the Ratification, 10: 1307.

82. The Federalist #73, 497. Publius did not specify the bill vetoed, however.

83. “To the Masachusetts Convention,” in The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification, comp. Bailyn, Bernard, 2 vols. (New York: Library of America, 1993), 2: 159Google Scholar, citing the Massachusetts Gazette, February 5, 1788. Elliot, Debates, 2: 403. The trope of “slavery” was “a central concept in the eighteenth-century discourse.” Bailyn, Ideological Origins, 234. It is worthy of note that the slave had been born free but had been degraded to unfree status. Documentary History, 10: 1306.

84. Madison, Notes, 485. Szatmary, David P., Shays' Rebellion. The Making of an Agrarian Insurrection (Amherst: University of Massachusetts Press, 1980), 7879.Google Scholar Whittemore, General of the Revolution, 204.

85. Pencak, William, “'The Fine Theoretic Government of Massachusetts is Prostrated to the Earth': The Response to Shays' Rebellion Reconsidered,” in In Debt to Shays: The Bicentennial of an Agrarian Rebellion, ed. Gross, Robert A. (Charlottesville: University Press of Virginia, 1993), 128–32, 142.Google Scholar

86. Ibid., 124. Cornell, Saul, The Other Founders. Antifederalism and the Dissenting Tradition in America, 1788–1828 (Chapel Hill: University of North Carolina Press, 1999), 109–14.Google Scholar George Washington referred to “combustibles in every State” endangering the republic with threats of violent insurrection. Higginbotham, “Federalized Militia Debate,” 43–14.

87. Madison, Notes, 513. Akhil Reed Amar recognizes the presence of a general, nonspecific fear of being disarmed: “The Second Amendment was designed to make clear that any such congressional action was off-limits” (Bill of Rights, 50). He provides no historical background or support for this claim, however. Debate on the Constitution, 2: 552.

88. Bailyn, Voyagers, 502–6, quotation at 503.

89. For an examination of these competing notions of the legitimate use of arms, see Lee, Wayne E., Crowds and Soldiers in Revolutionary North Carolina: The Culture of Violence in Riot and War (Gainesville: University Press of Florida, 2001), 4647, 72–73, 94.Google Scholar “An Act for Preventing Tumultuous and Riotous Assemblies” can be found in full in The Regulators in North Carolina: A Documentary History, 1759–1776, ed. Powell, William S., Huhta, James K., and Farnham, Thomas J. (Raleigh: [North Carolina] State Dept. of Archives and History, 1971), 327–32.Google Scholar Anyone opposing the militia and refusing to lay down his arms was declared a traitor.

90. Meyer, Duane, The Highland Scots of North Carolina (Raleigh: [North Carolina] State Department of Archives and History, 1963), 6568Google Scholar, notes that many Highlanders had come from Argyllshire, home of the Campbells and the Duke of Argyle, who had defeated the Jacobites in 1715. Elliot, Debates, 4: 203, 244–45. Compare with Veit et al., Creating the Bill of Rights, 12, 19–20. Congress submitted the Bill of Rights to the states in September 1789, and North Carolina ratified the Constitution in November. Trenholme, Louise Irby, The Ratification of the Federal Constitution in North Carolina, Columbia University Studies in History, Economics and Public Law #363 (New York: Columbia University, 1932), 233.Google Scholar

91. Mason to Jefferson, May 26, 1787, Documentary History of the Ratification, 18: 79. Elliot, Debates, 3: 378–80; Documentary History, 17: 252, 253.

92. Hamilton, The Federalist #25, 162; #29, 183–84. Madison, ibid., #46, 321. “Federal Farmer,” “An Additional Number of Letters to the Republican,” May 2, 1788, Documentary History, 17: 363; 2: 509.

93. Ibid., 10: 1314. “An Act for Forming and Regulating the Militia Within the State of New Hampshire” [1787].

94. Elliot, Debates, 3: 381. Documentary History, 17: 142. Some states, in fact, extended the right to vote to propertyless war veterans. Amar notes this fact (Bill of Rights, 48–49) but joins war service and voting as cause and effect, the latter being a reward for the former. They are more properly seen as substantively very similar rights deriving from the same principle. In fact, the act disarming the Highlands in 1715 allowed peers and any man possessing £400 “Scots, or more, or who is otherwise qualified to vote at elections of parliamentmen” to keep weapons. 1 Geo. I, c. 54. It repeated this qualification in the 1746 disarming statute. 19 Geo. II, c. 39.

95. U.S. Constitution, art. 1, sec. 4, clause 1; art. 1, sec. 8, clause 16.

96. Levinson, Sanford, “The Embarrassing Second Amendment,” Yale Law Journal 99 (1989): 644, 645.CrossRefGoogle ScholarVolokh, Eugene, “The Commonplace Second Amendment,” New York University Law Review 73 (1998): 793.Google Scholar Volokh argues that his interpretation of the meaning of the Preamble is “consistent with the general rules of statutory construction used in the late 1700s and 1800s,” but does not adduce any eighteenth-century authorities. He cites, instead, three sources from 1848, 1857, and 1882—authorities whose ideas of statutory construction reflected major changes that had taken place since the 1700s. Ibid., 808, and n. 51.

97. For discussions of this variety, as well as of the historical pressures acting on their construction in this period, see Popkin, William D., Statutes in Court: The History of Statutory Interpretation (Durham: Duke University Press, 1999), 757Google Scholar; and Lieberman, David, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (Cambridge: Cambridge University Press, 1989)CrossRefGoogle Scholar, passim.

98. Blackstone, William, Commentaries on the Laws of England [1755–69], facsimile, 4 vols. (Chicago: University of Chicago Press, 1979), 1: 5960.Google Scholar

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100. “Autobiography,” in The Writings of Thomas Jefferson, ed. Lipscomb, Andrew A. and Bergh, Albert Ellery, 20 vols. (Washington, D.C.: Thomas Jefferson Memorial Foundation, 19031904) 1:67.Google Scholar

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102. Lieberman, Province, 187. Blackstone, Commentaries, 1: 60. Jacob, Giles, A New Law-Dictionary…. The Sixth Edition. The Law-Proceedings being done into English, with Great Additions and Improvements, to this time (London, 1750)Google Scholar, s.v. “Statute.”

103. Blackstone, Commentaries, 1: 86. The Latin translates, “as a lasting testimony of the thing.” A Translation of All the Greek, Latin, Italian, and French Quotations which occur in Blackstone's Commentaries. …, ed. Jones, J. W. (Philadelphia: T & J. W. Johnson, 1889), 10.Google Scholar

104. Blackstone, Commentaries, 1: 138–39. Emden, Cecil S., The People and the Constitution: Being a History of the Development of the People's Influence in British Government, 2nd ed. (Oxford: Clarendon, 1956), 7576.Google Scholar

105. Documentary History, 10: 1306.

106. The final House version also contained several slight stylistic changes. The progress of textual change can be followed in The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins, ed. Cogan, Neil H. (New York: Oxford University Press, 1997), 169–76.Google Scholar

107. Rakove, “Highest Form of Originalism,” 126, 128–29, 159.

108. Primus, American Idea, 102–3.

109. Levinson describes each of these as an “ignored patch of text in our constitutional conversations” (“Embarrassing Second Amendment,” 640). See also Yassky, “Second Amendment,” 665.

110. Rakove, “Highest Form of Originalism,” 164–65. Richards, “Clio,” 859.