Published online by Cambridge University Press: 28 October 2011
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.
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), 9–12.Google Scholar
3. Cornell, Saul, “‘Don't Know Much About History’: The Current Crisis in Second Amendment Scholarship,” Northern Kentucky Law Review 29 (2002): 657.Google Scholar
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 : 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), 6–8.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 ). One cannot infer an opinion on the merits of a case from a denial of certiorari, however.
10. On the emergence of this controversy in the legal academy, see Bogus, Carl T., “The History and Politics of the Second Amendment: A Primer,” Chicago-Kent Law Review 76 (2000): 3–25.Google Scholar For a chronologically arranged bibliography of the competing interpretations, see the table and appendix to Robert J. Spitzer, “Lost and Found: Researching the Second Amendment,” in ibid., 384–401. Glenn Harlan Reynolds offers the term “Standard Model” in his “A Critical Guide to the Second Amendment,” Tennessee Law Review 62 (1995): 461–512.
11. Banner, Stuart, “Legal History and Legal Scholarship,” Washington University Law Quarterly 76 (1998): 37, 40.Google Scholar
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14. Malcolm, Joyce Lee, To Keep and Bear Arms: The Origins of an Anglo-American Right (Cambridge: Harvard University Press, 1994), xii.Google Scholar
15. John Phillip Reid, perhaps the most notable scholar of the transatlantic antecedents of American Revolutionary legal thought, notably discusses “The Britishness of Liberty” in his The Concept of Liberty in the Age of the American Revolution (Chicago: University of Chicago Press, 1988), 14–17. See, generally, Colley, Linda, Britons: Forging the Nation, 1707–1837 (New Haven: Yale University Press, 1992), 30–43.Google Scholar In recent years, historians have shown how a broadened “British” perspective illuminates the history of both the British Isles and its far-flung colonies. See “Forum: The New British History in Atlantic Perspective,” American Historical Review 104 (1999): 426–500. Especially pertinent are the contributions of David Armitage, Ned Landsman, and Eliga Gould.
16. Bailyn, Bernard and Clive, John, “England's Cultural Provinces: Scotland and America,” William and Mary Quarterly, 3d. ser., 11 (1954): 209–10.Google Scholar On the “‘country’ vision of English politics” held by “anti-Court independents within Parliament and the disaffected without,” see Bailyn, Bernard, Ideological Origins of the American Revolution (Cambridge: Harvard University Press, 1967): 35–36.Google Scholar Scottish radicals chafed at their country's subordination under what they sneeringly called “the celebrated Union,” and the American Revolution provided not only a democratizing example to emulate, but an argument that the Scots, too, should seek “a wise, virtuous, and independent government” for Scotland (Durey, Michael, Transatlantic Radicals and the Early American Republic (Lawrence: University Press of Kansas, 1997), 74Google Scholar; Oxford English Dictionary, http://dictionary.oed.com, s.v. “whig”).
17. Robbins, Caroline, The Eighteenth-Century Commonwealthman: Studies in the Transmission, Development and Circumstance of English Liberal Thought from the Restoration of Charles II until the War with the Thirteen Colonies (New York: Atheneum, 1959).CrossRefGoogle Scholar Robbins labels this group as small and ultimately unsuccessful in English politics, but important for having “served to maintain a revolutionary tradition there and to link the histories of English struggles against tyranny in one century with those of American efforts in another. The American constitution employs many of the devices the Real Whigs vainly besought Englishmen to adopt and in it must be found their abiding memorial” (ibid., 4). On “Power and Liberty: A Theory of Politics” in Revolutionary America, see Bailyn, Ideological Origins, chap. 3, 55–93.
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), 3–28.Google Scholar
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21. The Federalist #56. The edition cited herein is that of Cooke, Jacob E., The Federalist (Middletown: Wesleyan University Press, 1961)Google Scholar, citation at 382. Bailyn labels Burgh's work the “key book” of the Revolutionary generation (Ideological Origins, 41). Oscar, and Handlin, Mary, “James Burgh and Revolutionary Theory,” Proceedings of the Massachusetts Historical Society 73 (1961): 52.Google ScholarAdams, John, The Works of John Adams, Second President of the United States: with a Life of the Author, Notes and Illustrations by his Grandson Charles Francis Adams, 10 vols. (Boston: Little, Brown, 1850–1856), 9: 350–51.Google Scholar
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23. I am indebted to Prof. Richard Sher for bringing Bell's edition of Common Sense and the list of subscribers in the Philadelphia edition of the Disquisitions to my attention. The list can be found at the beginning of volume III. In advertising the American edition, Burgh announced that this newly completed third volume was “peculiarly necessary at this Time for all the Friends of CONSTITUTIONAL LIBERTY, whether Britons or Americans.” Jefferson, To Randolph, Thomas Mann, May 30, 1790, The Papers of Thomas Jefferson, ed. Boyd, Julian P. et al., 28 vols. (Princeton: Princeton University Press, 1950-), 16: 449.Google Scholar
25. Burgh, Political Disquisitions, 2: vii; “Conclusion,” 279, 3: 336.
26. John Jay, The Federalist #5, 24.
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): 27–60.Google Scholar
28. Daniel Walker Howe argues for a Scottish social and intellectual, though less explicitly political, perspective in “Why the Scottish Enlightenment Was Useful to the Framers of the American Constitution,” Comparative Studies in Society and History 31 (1989): 572–87. For Scottish Enlightenment influence on state constitutions, see Durey, Transatlantic Radicals, 51. Scottish radicals chafed at their country's subordination under “the celebrated Union,” and the American Revolution provided not only a democratizing example to emulate, but an argument that the Scots, too, should seek “a wise, virtuous, and independent government” for Scotland (ibid., 74). Also useful is Hook, Andrew, Scotland and America: A Study of Cultural Relations, 1750–1835 (Glasgow and London: Blackie, 1975).Google Scholar
29. James Madison's education at Princeton, whose president the Scot John Witherspoon exerted enormous influence over students, is but one example. Brant, Irving, James Madison. The Virginia Revolutionist, 6 vols. (Indianapolis: Bobbs-Merrill, 1941), 1: 77.Google Scholar Witherspoon suggested readings that were heavily weighted toward the Scottish Enlightenment. William Smith of Aberdeen became the first provost of the College of Philadelphia, and fellow Aberdonian William Small was Thomas Jefferson's mentor at the College of William and Mary. Robbins, Commonwealthman, 194. Born and educated in Scotland, James Wilson was deeply influenced by the education he received at St. Andrews and Edinburgh. Hall, Mark David, The Political and Legal Philosophy of James Wilson, 1742–1798 (Columbia: University of Missouri Press, 1997), 8–9.Google Scholar For a survey of the importance accorded this connection in American historiography, see Richard Sher's remarks in Sher, Richard B. and Smitten, Jeffrey R., eds., Scotland and America in the Age of the Enlightenment (Princeton: Princeton University Press, 1990), 1–13.Google Scholar
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32. 19 Geo. II, c. 39 (1746).
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36. Burgh, Political Disquisitions, 3: 351; 2: 412, 417. John Robertson, Scottish Enlightenment and the Militia, 9. Robertson provides other examples of British writers whose works enjoyed a wide readership and powerful influence in the American Revolution, especially in the shared opposition to a standing army. Among them were Andrew Fletcher of Saltoun, whose impact will be discussed below.
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).
38. Carlyle, Alexander, The Question Relating to a Scots Militia Considered in a Letter to the Lords and Gentlemen who have Concerted the Form of a Law for that Establishment (Edinburgh, 1760), 12–13.Google ScholarA True Account of the Behaviour and Conduct of Archibald Stewart, Esq.; late Provost of Edinburgh (1748), cited by Raynor, David R., ed., “Sister Peg”: A Pamphlet Hitherto Unknown by David Hume (Cambridge: Cambridge University Press, 1982), 2.Google Scholar Hume's authorship of “Sister Peg” is open to serious doubt, and Adam Ferguson is the more likely author; on this question, see n. 46, below.
39. Critchley, T. A., The Conquest of Violence: Order and Liberty in Britain (London: Constable, 1970), 59–67.Google ScholarGould, Eliga, The Persistence of Empire: British Political Culture in the Age of the American Revolution (Chapel Hill: University of North Carolina Press, 2000), 72–105.Google Scholar
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 ). 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 ). 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.
43. Robertson, Militia Issue, 143, 157, 108–12. Western, English Militia, 167. Carlyle, Scots Militia, 19, 29, 30–31, 36. See also “Abstract of a plan for a militia for Scotland,” Edinburgh Chronicle, March 17 to 19, 1760, at 9.
44. 30 Geo. II, c. 25, Preamble, continuing, “and whereas the laws now in being for the regulation of the militia are defective and ineffectual. … ” Robertson, Militia Issue, 100–101. Ferguson, Adam, An Essay on the History of Civil Society, ed. Forbes, Duncan (1767; reprint Edinburgh: Edinburgh University Press, 1966), 271.Google Scholar The importance of the civic humanist tradition of virtue in the militia cause is the subject of Robertson, Militia Issue. Additional discussion can be found in Sher, Richard B., “Adam Ferguson, Adam Smith, and the Problem of National Defense,” Journal of Modern History 61 (1989): 242–43.CrossRefGoogle 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.
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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 : 129–32).
81. Documentary History of the Ratification, 10: 1307.
82. The Federalist #73, 497. Publius did not specify the bill vetoed, however.
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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), 46–47, 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.
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93. Ibid., 10: 1314. “An Act for Forming and Regulating the Militia Within the State of New Hampshire” .
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.
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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.