A WELL REGULATED MILITIA
The Founding Fathers and the Origins of Gun Control in America
A NEW PARADIGM FOR THE SECOND AMENDMENT
Given the profound transformations that have altered the political, social, and constitutional landscape in the two hundred years since the Second Amendment was adopted one might reasonably ask whether or not there is still anything practical to be gleaned from its history. The collective and individual rights theories that have long dominated public debate over this contentious topic were not bequeathed to us by the Founding generation, but were the products of a struggle at the end of the nineteenth century. Can the constitutional framework established more than a hundred years ago provide a workable jurisprudence for dealing with the complex problems posed by guns in contemporary America? Historians, of course, need not worry about such matters. For historians, simply uncovering the unexpected twists and turns in this convoluted history and relishing the many ironies in this story are reward enough. Yet, while historians may revel in the richness of the history and marvel at the ironies that permeate it, lawyers, judges, and policy makers are faced with the difficult task of learning from the past and shaping the future. Moving from history to constitutional theory is always tricky. One must approach such a task with a good deal of constitutional humility a far cry from the constitutional hubris that characterizes so much constitutional scholarship in an originalist vein.1
The most important consequence of recovering the original understanding is that it demonstrates that both of the modern interpretations of the Second Amendment do great violence to the text, effectively erasing half of its meaning. Modern collective rights theorists believe that the meaning of the amendment can be encapsulated by its first clause, which affirms the need for a well-regulated militia. According to this view the Second Amendment protects the right of states, not individuals, to maintain a well-regulated militia. For most modern collective rights theorists the amendment is an artifact of the eighteenth century, a time when the fear of standing armies and faith in a militia exercised a powerful hold on American culture. In essence, this states' rights approach asserts that the Second Amendment is a constitutional anachronism, a historical relic with little contemporary relevance. In place of the well-regulated militias venerated by the Founders, Americans now depend on organized police forces and highly trained professional armies. This view is an anathema to gun rights advocates, who focus on the final clause of the amendment that affirms the right of the people to keep and bear arms. Partisans of this individual rights interpretation do not believe that the right to bear arms is-a relic of lost revolutionary heritage. They read the amendment as protecting a right of individuals to keep arms and when necessary to bear them for individual self-defense, or recreation, or to wage revolution when government threatens liberty.
The one interpretation that has been lost, buried at the end of the nineteenth century, is the civic view of arms bearing. Rather than give greater weight to only part of the amendment's text, as both modern interpretations do, the original civic rights interpretation of the Second Amendment demands that the text be read holistically. The Second Amendment serves as a reminder that the right to bear arms is as much an obligation owed to government as it is a claim against government interference. Moreover, the original civic conception of the Second Amendment emphasizes that there can be no right to bear arms without extensive regulation.2
Some scholars have argued that whatever the history of the Second Amendment might have been, the reality is that most Americans believe it protects an individual right. While the notion may have started out as a minority view in the Founding era, it gradually evolved into the majority view in America. The National Rifle Association (NRA) and other gun rights organizations have not only helped bring about this transformation, but they also have exploited it, attacking any who disagree with their interpretation of this provision of the Constitution as somehow anti-Second Amendment. There is no doubt that the Second Amendment has been swept up in the modern rights revolution. Accepting this fact graciously, some argue, might even make gun control laws more palatable to many gun rights supporters. While such a view makes for good sociology, it makes for bad law. One can certainly make a plausible argument that under a living constitution the Second Amendment ought to be treated as an individual right. Still, there is a big difference between treating the text of the Constitution as a living document and turning the Bill of Rights into an Etch-a-Sketch in which some clauses can be simply erased by judicial or legislative fiat.
If we really wish to amend the Constitution and get rid of the preamble of the Second Amendment, we ought to be honest and do so. As a practical matter there is no reason to believe that the most ardent gun rights advocates would ever accept robust gun regulation even if the courts suddenly reversed themselves and declared that the Second Amendment was an individual right. The only people clamoring for recognition of an individual right before the courts are adamantly opposed to the most modest types of gun regulation. The idea that the courts ought to engage in judicial activism to protect one of the most powerful lobbies in America seems odd to say the least. Given that the federal courts, with one notable exception, have rejected the individual rights view and given the obvious fact that America is awash in guns, recognition of an individual right hardly seems necessary to protect gun owners. Despite an effective rhetorical campaign by gun rights advocates, gun rights are not under siege in America, which has the most lax gun laws of any industrial democracy The individual rights theory of the Second Amendment is not only unnecessary, but it also feeds the mistaken notion that the only way to protect our rights is to amend the Constitution, a dubious proposition at best. As long as guns are deeply woven in the fabric of American life, there is little danger of gun prohibition and no need to tinker with the Second Amendment.3
The greatest failing of both the modern collective rights and individual rights paradigms is that they have obscured the link between citizenship and bearing arms in the Founding era. In this regard, each of these modern interpretations of the Second Amendment reflects the precipitous decline in the ideal of civic participation in American culture, an idea that was central to the Founding era's conception of arms bearing. The original vision of a well-regulated militia was premised on the notion that rights and obligations were inseparable. Arms bearing was a public activity, a way of nurturing and demonstrating one's capacity for virtue. The militia was viewed by the Founders as a vital political and social institution, part of a seamless web that knit the locality the state, and the national government together into a cohesive political community.4
While the ideal of the Founders' militia functioned as a means of producing a common civic culture, modern gun rights ideology has largely worked to undermine this goal. Gun rights ideology has fostered an anti-civic vision, not a vision of civic-mindedness. In this ideology guns are primarily viewed as a means of repulsing government or other citizens, not a means for creating a common civic culture. Modern gun control ideology has also failed to create a positive constitutional vision in which the Second Amendment is more than a vestigial part of our legal culture. Indeed, to achieve the goal of sensible gun regulation, proponents of gun control have abandoned the language of constitutionalism entirely and adopted an epidemiological discourse, warning Americans of the very real dangers guns pose to American society. Supporters of the collective rights theory have failed to articulate a compelling theory of the role of the Second Amendment in contemporary American constitutionalism. Instead, confident that precedent supports their policy objectives, partisans of gun control have devoted scant energy to creating a theory of the Second Amendment that could inspire public support. This is a grave political mistake that only contributes to the impoverishment of constitutional discourse in America. Neither side in the contemporary debate has risen to the challenge of finding a way to imbue the Second Amendment with a positive vision that enriches American constitutional life. Currently, the Second Amendment is a source of division, not a means for uniting Americans.5
Ultimately the only way to revitalize the civic conception of the Second Amendment is to transform public culture. While reinstating the draft seems ill advised given the increasingly complicated nature of modern warfare, some form of required public service for young Americans might help restore part of this lost world of civic obligation and community. One might imagine some sort of government-sponsored program for high school students in which students were given a civilian or military option. Young citizens could work on rebuilding our cities, reclaiming some of the environmentally ravaged countryside, or mastering some of the skills routinely instilled in basic training in the military, including the safe use of firearms. Recreating a vital civic culture will not be easy but the alternative is far worse.
The other important lesson to be gleaned from understanding the history of the Second Amendment is the centrality of regulation to the Founders' vision of the right to bear arms. The idea of well-regulated liberty is alien to modern Americans. Regulation has come to be seen as the antithesis of liberty, not the necessary precondition for the exercise of liberty. The most pressing task facing Americans is how to create a body of firearms law and develop a firearms jurisprudence that fit within the scheme of well-regulated liberty. Whatever the Second Amendment might have meant historically, or whatever it now means, the reality is that many Americans believe they have some sort of right to own firearms. Fashioning a regulatory system for guns that honors the Second Amendment and recognizes the complex and deeply contested role of guns in contemporary America must do several things.
First, it must not demonize gun owners or proponents of gun regulation. Both sides have a long history that needs to be recognized as legitimate. Registration, safe storage laws, and limited bans on certain types of weapons with no connection to the goal of supporting a well-regulated militia are all consistent with this original vision; wholesale gun prohibition or domestic disarmament is not. The common-law right of self-defense is no less valid today than it was in the era of the Second Amendment. Yet, the problems of balancing the individual right of self-defense with the requirements of public safety are no less complicated than they were in Jacksonian America.6
At various moments in America's long argument over the role of guns in our society there have been those who have claimed that there exists a right to be free of the fear of gun violence. Although this type of constitutional argument has dropped ;out of American public debate, it is at least as old as the individual rights ideology that fuels the gun rights movement. Supporters of gun rights need to recognize that this concern also has a long history. Formulating an effective regulatory scheme that can promote public safety and that recognizes the radically different roles guns play in different American subcultures will not be easy. We currently have a national market in which guns sold in Virginia easily find their way to the Bronx. The gun cultures of Virginia and the Bronx, however, are radically different, and restrictions that might be prudent in one region might seem intrusive in the other. The nature of the American federal system and incredible diversity of American regional subcultures continue to complicate the task for formulating an effective set of policies to deal with the gun issue.
The simplest way to regulate firearms would be to return to the original model used by the Founders. Originally, militia laws served as a form of taxation, requiring citizens to pay the costs of public defense and providing a regulatory framework to monitor compliance with this system of taxation. Creating some type of national firearms tax would allow society to shift part of the cost of gun violence back to those gun owners who do not act responsibly. Taxation would also provide a simple, relatively nonintrusive means of registering firearms. To dispel the notion that such a policy would be anti-gun or part of some nefarious plan to confiscate firearms, Congress could provide a series of generous tax incentives for those who take gun safety courses and encourage sensible gun storage by giving"a tax break to those who lock up their guns, giving new incentives to those who don't.7
Another approach to gun regulation that might achieve some results is mandatory gun insurance. The federal government might tie state and local medical and police funding to requirements that states enact their own schemes for gun insurance. Such an approach would acknowledge that owning a hunting rifle in Alaska poses a far lower risk to society than owning a handgun in Philadelphia. This approach would shift part of the social cost of gun violence, something borne by responsible gun owners and non-gun owners alike, back to irresponsible gun owners, those who stockpile arms or who keep their guns loaded and unlocked. Sensible gun owners, the vast majority of gun owners, already lock up their weapons and would pay negligible amounts for such insurance. Another advantage of using insurance markets to achieve reasonable gun regulation would be that information about gun ownership would remain in private hands, not the government's. Given the profoundly antigovernment ideology associated with modern gun rights theory, such a system is probably more plausible. A firewall could exist separating insurance company records from government prying. Obtaining such information would require a court order. Given the vast amount of information already in the hands of insurance companies, it is hard to argue that additional information about gun ownership would pose any greater threat to individual rights.
The intellectual poverty of the current debate over the Second Amendment ought to serve as a wake-up call to Americans. It is unrealistic to imagine a gun-free America. Nor is it realistic to expect Americans simply to accept that inordinately high levels of gun violence are simply the price of freedom. Both sides in this debate need to back away from extremist rhetoric. The notion that the Second Amendment somehow belongs to a small number of gun rights advocates is simply wrong. The Second Amendment belongs to all Americans. Defining and implementing a new paradigm for the Second Amendment is something all Americans have a stake in.
THE END NOTES IN THIS BOOK COVER FROM PAGES 219 - 261 IN SMALL PRINT; VERY DETAILED AND EXTENSIVE.