"Uviller and Merkel offer a very valuable legal history of the militia and its relationship to the standing army. That history is the heart of this book, as their reading of the Second Amendment grows directly out of it. I have read accounts of these events dozens of times, but this one may be the best of all. It covers an enormous amount of ground in an astonishingly short space, in glorious prose, with a narrative flow that pulls the whole story together and sweeps the reader along."--David C. Williams, Indiana University School of Law

H. Richard Uviller is Arthur Levitt Professor of Law at Columbia University William G. Merkel has a J.D. from Columbia University and is completing his doctorate in History at Oxford University

Acknowledgments

ix

Introduction

1

(8)

PART I. ARMS, THE MAN, AND THE MILITIA: THE HISTORY OF A CONCEPT

The Gun in the American Self-Portrait

9

(28)

The Militia Ideal in the American Revolutionary Era

37

(32)

Madisonian Structuralism: The Place of the Militia in the New American Science of Government

69

(40)

PART II. FROM MILITIA TO NATIONAL GUARD

The Decay of the Old Militia, 1789--1840

109

(16)

The Era of the Volunteers, 1840--1903

125

(8)

The United States Army and the United States Army National Guard in the Twentieth Century

133

(14)

PART III. THE MEANING OF MEANING

Text and Context

147

(21)

Other Theories of Meaning Considered

168

(44)

The Emerson Case

212

(15)

Conclusion

227

(4)

Notes

231

(86)

Index

317

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The Gun in the American Self-Portrait

Owning and carrying personal firearms-or at least the unbridled right to do so-has become a freighted metaphor of American individualism with obvious linkage to the muscular frontier hero of myth and experience. To survive, the pioneer required self-sufficiency and self-protection. Thus, survival meant having the instruments of the hunt as well as the means to repel the occasional invading bandit or savage. On the supposition that they were the most effective and available weapons, our imagination has provided this American prototype with unrestricted access to firearms. Assisted by visual myth-enhancers, our folklore has etched on our national self-image the lone explorer, trapper, or adventurer, along with the stalwart farmer and family guardian who kept his powder dry and his flintlock well-oiled for regular employment to protect and provide for self, dependents, and neighbors. That image of the eighteenth- or nineteenth-century man-or woman-with the gun continues to exert considerable influence on many twenty-first-century Americans as they expound the meaning of the Second Amendment entitlement to arms.

However well this picture may accord with the history of early American settlers, the legacy of our pioneer heritage transmits a surge of national pride in the virtues of individual enterprise and mutual assistance. These virtues draw nourishment also from a largely unsuspected source far from the supposed-or actual-life of the pioneers spread across the wilderness. A message was heard by American colonists that can be traced to Renaissance Florence and the English revolution of the mid-seventeenth century. Renaissance versions of classical Greek and Roman society were adopted by pamphleteers in John Locke's time, and, nearly a century later, their pamphlets became popular in Revolutionary America. These political tracts extolled the incorruptibly independent citizen-in-arms serving public purposes. The only durable classical republics, these political prophets asserted, were founded on the virtue of the citizen, voluntarily contributing his energy to the common weal and, by his courage and personal armament, assuring the safety of all. Personal arms, in the classical configuration, served community interests of order and stability when the able-bodied amateurs assembled in military ranks as a militia.

Today, when we think of "the militia," we cannot put from our minds the little we know of the small armed bands of libertarians and self-styled patriots. In some ways, today's phantom of the armed pioneer limns the true American patriot as loyal to great quasi-religious principles thought to be the Founders' creed. Emboldened by his proclaimed stance of sturdy independent autonomy, this present-day hero is scornful of the accretions of social enlightenment of the past 200 years and is animated by a hearty distrust of government, which he sees as having betrayed the grand design of the sainted Founders in favor of a debilitating social ethic. The modern militiamen have reinvented personal responsibility and taken upon themselves the basic obligation of defense of body, land, and family against vaguely defined intruders of any stripe-including the forces of government itself. In notable contrast with the classical republican militia, however, today's neo-frontiersmen do not profess to even rudimentary communitarian ideals in taking up arms. They are insular cells of self-righteousness. Among other things, it is the absence of a settled, broad-scale, socially rooted public dimension to their arms-bearing that separates today's armed autonomists from the militia contemplated in the Second Amendment.

Despite his disturbing xenophobia, however, our contemporary miltiaman marches to a drumbeat not altogether repugnant to patriotic American values. We do, as a nation, extol the principle of individual responsibility. Indeed, an argument might be made that we have maintained democracy as successfully as we have because of the egalitarian ideals and skeptical attitudes toward authority that derive in part from the colonial and early national experience. While our idea of the frontier has been colored by generations of Hollywood scriptwriters, the legend remains a vital component of contemporary notions of civic courage and individual virtue. And, to the extent that the gun figures in our image of the responsible, liberty-loving, family protector who stands at the center of our cherished self-image today, it cannot be lightly dismissed. Symbols count.

With the resurgence of the militant individualist, interest has been rekindled in the constitutional precept most closely associated with the credo: the Second Amendment. Roused from a peaceful rest alongside its slumbering companion, the Third Amendment (which forbids the government to quarter troops in private homes), the proclaimed right of the individual to keep and bear arms has been stitched like an icon into the center of the banner around which our contemporary frontiersmen rally. Largely ignoring the introductory language: "A well-regulated Militia being necessary to the security of a free state," the individual rights brigade emphasizes the ringing language of the main clause: "the right of the people to keep and bear Arms, shall not be infringed." These people see in the provision, engraved in parchment, a recognition of the basic liberty of each individual citizen, in his or her private capacity, to possess lethal weapons without government interference. It is, they claim, an entitlement written into the text of the fundamental civic charter to add a stroke to the definition of the freedom of the individual citizen, a stroke every bit as important as the security against unreasonable searches and seizures or the right not to be forced to cooperate in one's own prosecution.

Opposed to the individualists, another contingent takes the position that the Second Amendment was adopted only to assure the states control over their local militias. Their position was aptly summarized by Laurence Tribe: "The central concern of the Second Amendment's framers was to prevent such federal interferences with the state militias as would permit the establishment of a standing national army and the consequent destruction of local autonomy." This cohort refuses to acknowledge any purpose or effect in the provision to assure individuals the absolute right to keep guns. They argue that the newly liberated colonists, still mistrustful of central government and its standing armies, wrote the Second Amendment into the Bill of Rights out of concern over the powers granted the new federal government in Article 1, Section 8, powers expressly allowing Congress to "call forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions" as well as to organize, arm, and discipline the citizen soldiery. It was not enough that Clause 16 of Section 8 expressly reserves to the states the "Appointment of the Officers" and the "Authority of training the Militia according to the discipline prescribed by Congress." Fearing federal control-even use of state militias against rebellious citizens-anti-federalists insisted on the Second Amendment (so this contingent insists) to make sure Congress would not take away the essential power of the local troops by depriving them of their weapons. This take on the Second Amendment is often labeled the "collectivist" approach by adherents and detractors alike. As will become apparent, we are not insensitive to the primacy accorded to the militia in the phrasing and the explicit purpose of the Second Amendment. But we find ourselves unable to ignore the clear language concerning the "right of the people," or to deem the reference to "the people" to be but an alternate phrasing of "the militia."

THE SUPREME COURT SPEAKS (FAINTLY)

In this raging hermeneutic controversy, the Supreme Court has been, if not silent, strangely Delphic. In recent decades, there have been some stray comments from individual Justices. For example, back in 1974, Justice William O. Douglas had this to say in a dissent:

A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment.... There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted.... There is no reason why all pistols should not be barred to everyone except the police. The leading case is United States v. Miller , 307 U.S. 174 [discussed below] upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun.... The Second Amendment, it was held, "must be interpreted and applied" with the view of maintaining a "militia...." Critics say that proposals [for gun control] water down the Second Amendment. Our decisions belie that argument, for the Second Amendment, as noted, was designed to keep alive the militia.

In a PBS television interview in 1991, Chief Justice Warren Burger was uncharacteristically outspoken (though his feelings may have messed up his syntax somewhat). He said:

If I were writing the Bill of Rights now there wouldn't be any such thing as the Second Amendment.... This has been the subject of one of the greatest pieces of fraud, I repeat the word "fraud," on the American public by special interest groups that I have ever seen in my lifetime. Now just look at those words. There are only three lines to that amendment. A well regulated militia-if the militia, which was going to be the state army, was going to be well regulated, why shouldn't 16 and 17 and 18 or any other age persons be regulated in the use of arms the way an automobile is regulated? It's got to be registered, that you can't just deal with at will.... I don't want to get sued for slander, but I repeat that they [the NRA] have had far too much influence on the Congress of the United States than as a citizen I would like to see-and I am a gun man. I have guns. I've been a hunter ever since I was a boy.

In a concurrence in 1997, Justice Clarence Thomas became the only Justice of the Supreme Court to reject in an opinion the collectivist reading of the Second Amendment, supporting his position by noting that the "growing body of scholarly commentary" favors an individual rights approach.

But apart from these occasional-and individual-comments, the Court as such has spoken only four times on the subject of the Second Amendment. The decisions, Cruikshank (1876), Presser (1886), Miller v. Texas (1894), and United States v. Miller (1939), are old, flawed in some respects, and, in the most critical instance (and the most recent), insolubly ambiguous. Yet, until the recent decision in a maverick Texas case called United States v. Emerson , federal courts have read the opinions consistently down to the present day.

The single exception to this virtual unanimity upheld a constitutional challenge to a federal gun law. The United States District Court opinion and the opinion of the United States Court of Appeals for the Fifth Circuit are discussed more fully in chapter 9. Apart from the Fifth Circuit, every federal circuit court has relied on United States v. Miller at least once in rejecting a Second Amendment challenge to firearms regulations. No fewer than seven circuits have done so since 1995.

The two Supreme Court cases exercising the most influence on lower courts have been the first and last in the series, United States v. Cruikshank and United States v. Miller . In essence Cruikshank teaches that the Second Amendment is not binding on the states, and United States v. Miller that the Second Amendment does not invalidate all federal laws prohibiting weapons.

The principal holding of Cruikshank -notwithstanding problems discussed below-continues to make sense to today's courts. As written, the Second Amendment protected the military forces of the co-sovereign states against federal encroachment. Regarding the Second Amendment, the Cruikshank Court wrote

[t]he right ... of "bearing arms for a lawful purpose" ... is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government.

It should probably be noted here (for fuller discussion later) that some scholars, most notably Professor Akhil Amar, have argued that the meaning of the Second Amendment was transformed by the adoption of the Fourteenth Amendment in 1868. They contend that the Framers of this Reconstruction Amendment intended the phrase "privileges and immunities of citizens of the United States" to include the right to keep and bear arms, which was thus explicitly placed beyond "abridgment" by the states. So, they say, in our time, the "privilege" to keep guns and the "immunity" against state regulation thereof supersede the Cruikshank doctrine. Moreover, according to Amar, the rebirth of the Second Amendment as an injunction against state action liberated it from its obsolete link to the militia. Thus magically reborn, the Amendment now expressed a personal right designed primarily to protect individuals and informal collectives of recently liberated slaves.

Perhaps a more sensible construction of the incorporationist thesis would hold that the Fourteenth Amendment applied the Second Amendment, intact, against state governments to assure the newly emancipated citizens that their right to serve in, and be protected by an integrated state militia (in those days the militia was still the state's primary law enforcement mechanism), would not be thwarted by any measure adopted by a state government to disqualify people from militia duty on account of race. It is conceivable, after all, that state governments could by selective arms regulation undermine the democratic base of local militias. And to the extent that there is an implicit right to serve, or at least to have an integrated militia, applying the Second Amendment as written against state governments might further that end. But alas, we are still not persuaded. First, by the Reconstruction period, the idea that militia service required the troops to supply their own arms was long out of date.

Continues...

Excerpted from The Militia and the Right to Arms, OR, HOW THE SECOND AMENDMENT FELL SILENT by H. Richard Uviller and William G. Merkel Copyright © 2002 by Duke University
Excerpted by permission. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.