The Amazing Vanishing Second Amendment
Prof. Eugene Volokh, UCLA
(73 NYU L. Rev. 831 (1998))
deeply flattered that David Williams chose to reply to my article. His
response is thoughtful, gracious, and, most important, direct: It frankly
sets forth its conclusion, which is that the Second Amendment is "outdated" and
"meaningless." 1 This
part of the Bill of Rights has mysteriously vanished.
This is a remarkable proposition. After all, supposedly "The very purpose
of a Bill of Rights is to withdraw certain subjects from the vicissitudes of
political controversy, to place them beyond the reach of majorities and
officials and to establish them as legal principles to be applied by the
courts." 2 As the
Court said when defending another unpopular right, "If it be thought that [a
right] is outmoded in the conditions of this modern age, then the thing to do is
to take it out of the Constitution, not to whittle it down by the subtle
encroachments of judicial opinion. Nothing new can be put into the
Constitution except through the amendatory process. Nothing old can be
taken out without the same process." 3 And yet
by an interpretive feat, a right specifically guaranteed by the Bill of Rights
is gone. How is this vanishing act accomplished, and which rights can it
turn to next? 4
I. "The Body of the People" and the Operative Clause
Professor Williams begins by claiming that, even setting aside the
justification clause, 5 the Second
Amendment's operative clause -- "the right of the people to keep and bear arms
shall not be abridged" -- doesn't confer a right on individual persons.
Rather, he argues, it protects only "the right of `the Body of the People,´"
"the people considered as a unified, homogeneous, organic, collective body
devoted to the Common Good." And "[b]ecause we no longer have a Body of
the People, . . . the amendment simply cannot mean what once it meant." 6
That's a creative theory, but is it supported by the evidence? The clause
itself speaks of a "right of the people," the same language that's used
immediately before in the Petition Clause and shortly after in the Fourth
Amendment. This seems like a strong suggestion that the right to keep and
bear arms likewise belongs to each individual person.
course this suggestion might be rebutted by contrary evidence from other
sources, such as the operative clause's historical antecedents. None of
them, though, mention any "Body of the People." The English Bill of Rights
provision on which the clause is based speaks of the right of "subjects." 7 The
North Carolina (1776), Pennsylvania (1776), Vermont (1777), and Massachusetts
(1780) Constitutions speak simply of "the right of the people," with no hint of
a "Body of the People"; the Pennsylvania (1790) and Kentucky (1792)
Constitutions even more unambiguously speak of "the right of the citizens"; the
Tennessee (1796) Constitution speaks of "the right of the freemen"; the
Mississippi (1817), Connecticut (1818), Maine (1819), and Alabama (1819)
Constitutions refer to the right of "every citizen." 8
the material I've seen suggests that these provisions were considered at the
time to be basically similar. I know of no evidence that some were seen as
creating an individual right and some as creating a right of a "Body of the
People." 9 This
suggests that "the right of the people" means the same as the right of
"subjects" or "the citizens" or "every citizen" -- not of some "Body of the
What about the commentators? Sir William Blackstone (1765) described the
English right as the "right of the subject." 10 St.
George Tucker (1803) treats Blackstone's "right of the subject" as equivalent to
the Second Amendment's "right of the people." 11
William Rawle (1829) likewise treats the Second Amendment as an expansion of the
English right of "subjects," and implicitly assumes the right can be exercised
even "by a single individual." 12
Justice Joseph Story (1833) calls the American right a "right of the citizens."
Nowhere is there any hint that the right belongs not to each person, subject, or
citizen, but to some "Body of the People."
Finally, would it have made sense, in the legal environment of the time, for the
Framers to recognize a constitutional right possessed by a "Body of the
People"? Professor Williams admits, as he must, that the right does
not belong to the states. 14 He
claims it does not belong to individuals. But if that's so, how can some
intermediate entity -- an entity with no independent legal existence and no
official spokespeople who could assert the right -- have a constitutionally
guaranteed right that individual citizens do not have? I've seen no
evidence that the Framers envisioned constitutional rights operating this way.
II. "The Body of the People" and the Justification Clause
where does this "Body of the People" come from? Well, it does appear in
one related state constitutional provision of the time, the Virginia Militia
Clause: "That a well-regulated militia, composed of the body of the
people, trained to arms, is the proper, natural, and safe defence of a free
State." 15 The
Virginia Constitution lacked a right to keep and bear arms until 1971, but the
Virginia Militia Clause indeed seems to have been a forebear of the Second
Amendment's justification clause. The Virginia ratifying convention
included it in its proposals for a federal Bill of Rights, and the North
Carolina, New York, and Rhode Island proposals -- which were generally based on
the Virginia proposal -- copied this provision. 16
not persuaded that the "Body of the People" here means "the people considered as
a unified, homogeneous, organic, collective body, devoted to the Common Good."
seems to me to stand only for the bulk or great majority of the people. 18 But in
any event, these provisions merely show that the militia consists
of the body of the people. And the operative clause speaks of a "right of
the people," not a right of the militia.
to get to his conclusion, Professor Williams must take two extra steps:
(1) He must conclude that the operative clause, which recognizes a right
of "the people" (equivalent, as I argue above, to a right of each citizen or
subject), should be read in light of the justification clause as creating a
right of "the body of the people." (2) He must conclude that, though
the body of the people still literally exists, it no longer serves the purpose
that was supposedly envisioned by the framers of the justification clause:
Arming the body of the people is no longer necessary, or even helpful, to the
security of a free state.
Thus, the argument must go, because the assumptions underlying the justification
clause are no longer true, the right created by the operative clause has
disappeared. This is basically the argument I attribute to Professor
Williams in my article: 19
Professor Williams does indeed argue, under his "unitary" method of
interpretation, that the right exists only so long as the justification remains
Here is where I would have liked to see Professor Williams confront my core
observation -- the existence of the other state constitutional provisions that
contain justificatory clauses. Would his "unitary framework" apply to the
state Speech and Debate Articles or the New Hampshire Venue Article? Are
they also "meaningless" now because their justifications are no longer
valid? Do the state Liberty of the Press Articles vanish because we no
longer have a virtuous, republican press? 20
Madison's original draft of the Seventh Amendment's Civil Jury Trial Clause read
"In suits at common law, between man and man, the trial by jury, as one of the
best securities to the rights of the people, ought to remain inviolate." 21 Has
this right also become "meaningless" or "outdated" as enlightened opinion has
retreated from the premise that the civil jury trial is indeed "one of the best
securities to the rights of the people"? 22 After
all, if the people have lost the virtue needed to possess arms, maybe they've
also lost the virtue needed to serve on juries. 23
I argue in my article, the state constitutional provisions show that many
operative clauses will be overinclusive and underinclusive with respect to their
justificatory clauses: Checks on government authority often take the form
of bright-line rules that don't perfectly fit their justifications. 24 If I'm
right in this, then a "unitary" framework that insists on trying to "make the
two clauses as consistent as possible" 25 -- thus
ignoring the possibility of intentional over- and underinclusiveness -- is the
wrong way to deal with justification clauses.
even if I'm wrong, it might have been profitable for Professor Williams to
"test [his] interpretive approach [by] applying it to a wide array of texts of
different political valences. It's easy enough to craft an interpretive
trick which reaches the result one wants in the case for which it was
crafted. But when one tests it against other provisions, one sees more
clearly whether it's a sound interpretive method." 26
III. The Unchanged Changed Circumstances
Professor Williams conjures with more than just the text and original meaning;
he also makes a changed circumstances argument. The Second Amendment, he
concedes, once recognized a right that was a potent check on the government, but
today, things are different. The Second Amendment "by its own terms . . .
makes sense only so long as pretty much everyone has arms, and so long as the
arms-bearers are virtuous," because otherwise the arms will "necessarily be
[used] in the interests of a slice of the population, rather than for the common
good." And "today, the American citizenry is so fractured that [a true]
Revolution [made by the Body of the People for the common weal] is impossible."
Rather than "pretty much everyone [having] arms," 28 "gun
ownership today is markedly demographically skewed." "Today, because of
social changes, we can see [as the Framers did not] the possible contradiction
between [the people as individuals and the Body of the People], as American
citizens are more individual than ever, but they have given up aspirations to
peoplehood in the strong republican sense." Today, "we no longer possess"
the "organic collectivity" on which the Second Amendment is based. "[T]he
Framers did intend to guarantee a right for all Americans to own guns, but . . .
they presupposed that Americans would have a collective identity that they do
not now have." 29
Americans once had this right, but things are different today, so the right is
Professor Williams provides no evidence that the circumstances on which he
relies have actually changed. Sure, American society today is to some
extent fractured. So was American society in the late 1700s, when
Americans divided in their loyalties in the Revolutionary War, 30 in their
private economic and religious interests, 31 along
geographical lines, and in other ways. 32 Now as
then, many look out for the common good, and aspire to "peoplehood in the strong
republican sense." Then as now, many people instead focused on individual
or factional interests. The notion of a virtuous "organic" republican
past, as contrasted to a fragmented collective-identity-less present, is myth.
Likewise, gun ownership today is indeed not universal -- about 35-50% of all
households now have guns 34 -- but
Professor Williams gives no evidence that things were ever different. In
fact, historian Michael Bellesiles (who opposes the individual rights theory of
the Second Amendment) has estimated that gun ownership levels in the late 1700s
were lower than today, perhaps 15% of all households. 35
Professor Bellesiles estimates that in 1810, no more than 5% of Americans, or
20% of adult white males, were armed. 36 Today,
25-30% of adult Americans, and about 40-50% of adult males, own guns. 37 And
even without these estimates, is it likely that more than 35-50% of late 1700s
households would have possessed what was at the time quite an expensive piece of
Similarly, gun ownership today is indeed demographically skewed; for instance,
48% of white households and only 30% of black households own guns. 38 But we
have no reason to believe ownership wasn't skewed in the late 1700s, whether by
race, ethnicity, or geography. 39
Framers well understood human selfishness and the tendency of society to
"fracture." The drafter of the Second Amendment, after all, also wrote
about the inevitability of "faction" -- "citizens . . . united and actuated by
some common impulse of passion, or of interest, adverse to the rights of other
citizens, or to the permanent and aggregate interests of the community." 40 I
suspect the Framers knew that their neighbors were not "a unified, homogeneous,
organic, collective body, devoted to the Common Good," 41 and saw that
they did not all own guns. How then can it be said that the Second
Amendment "by its own terms . . . makes sense only so long as pretty much
everyone has arms, and so long as the arms-bearers are virtuous" 42 -- a
supposed condition precedent that was false even when the Amendment's "own
terms" were written? 43
Professor Williams' argument reinforces my skepticism about reading
justification clauses as excuses to nullify rights. If we authorize judges
to conclude that, because of some supposed historical change, a constitutionally
guaranteed right is "outdated," we seriously jeopardize all constitutional
liberties -- including those secured by the Speech and Debate Articles, the
Liberty of the Press Articles, the Civil Jury Trial Clause, and any other
constitutional provision which indicates, explicitly or even implicitly, 44 its
justification. Is this how a Bill of Rights should be read?
IV. Avoiding Amazing Vanishing Acts
interpretive approach is built on the notion that Bills of Rights are aimed at
constraining the government. This is why operative clauses are often
overinclusive and underinclusive with regard to their justifications; and why we
shouldn't adopt interpretive methods that let courts read justification clauses
as implicit authorizations for making rights vanish. 45 I try
to support my approach by giving examples from other constitutional provisions,
ones I like and ones I dislike, ones that appeal to the Left and ones that
appeal to the Right. There's a certain discipline that comes from
recognizing that the interpretive method we sow today for one provision might be
reaped by us tomorrow for another.
approach, as my article concedes, has its difficulties. 46 But at
least it doesn't lead to a right mysteriously vanishing on the grounds that
certain people find it "meaningless" and "outdated." That, it seems to me,
is a point in favor of my method -- especially when there are other rights that
many would happily read out of our Constitution.
David C. Williams, The Unitary Second Amendment, 73 NYU L. Rev.
___, *6 (1998). See also David C. Williams, Civic
Republicanism and the Citizen Militia: The Terrifying Second Amendment,
101 Yale L.J. 551, 615 (1991) (arguing that because of changed circumstances,
"the Amendment has little or no direct meaning for judges"; "[a]t most, it can
influence the interpretation of other provisions"); id. at 555
(contending that the Amendment has been "effective[ly] nullifi[ed]" by changing
West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943).
Ullmann v. United States, 350 U.S. 422, 427 (1956) (Frankfurter, J.) (internal
quotation marks and citation deleted) (writing about the privilege against
self-incrimination). See also Parklane Hosiery Co. v. Shore,
439 U.S. 322, 338 (1979) (Rehnquist, J., dissenting) ("It may be that if this
Nation were to adopt a new Constitution today, the Seventh Amendment
guaranteeing the right of jury trial in civil cases in federal courts would not
be included among its provisions. But any present sentiment to that effect
cannot obscure or dilute our obligation to enforce the Seventh Amendment, which
was included in the Bill of Rights in 1791 and which has not since been repealed
in the only manner provided by the Constitution for repeal of its provisions.").
If it's time for rights to vanish, I vote for the right defended in the
Ullmann quote: the privilege against self-incrimination, in my view
an unjustified and anachronistic restraint on accurate fact-finding.
See David Dolinko's excellent Is There a Rationale for the
Privilege Against Self-Incrimination?, 33 UCLA L. Rev. 1063 (1986).
Williams, The Unitary Second Amendment, supra note 1,
Id. at *4, *6.
1 W. & M. sess. 2, c. 2, § 7 (1689) ("That the subjects which are
protestants may have arms for their defence suitable to their conditions and as
allowed by law.").
Ala. Const. art. I, § 23 (1819); Conn. Const. art. I, § 17 (1818); Mass. Const.
pt. 1, art. 17 (1780); Ky. Const. art. XII, § 23 (1792); Maine Const. art. I, §
16 (1819); Miss. Const. art. I, § 23 (1817); N.C. Const. Bill of Rights § 17
(1776); Penn. Const. Decl. of Rights, cl. XIII (1776); Penn. Const. art. IX, §
21 (1790); Tenn. Const. art. XI, § 26 (1796); Vt. Const. ch. I, art. 15 (1777).
Professor Williams himself implicitly suggests the same, at least as to the
pre-1791 provisions, when he says "the Second Amendment was copied from right to
arms provisions in state constitutions, and the debates at the time reveal no
suggestion that the scope of the right changed when adopted into the federal
Bill of Rights." Williams, Civic Republicanism and the Citizen
Militia, supra note 1, at 590 (footnote omitted).
1 William Blackstone, Commentaries on the Laws of England *143, *144 (1765).
St. George Tucker, Blackstone's Commentaries: With Notes of Reference 143 &
William Rawle, A View of the Constitution of the United States of America 126
(1829). Rawle says the law may properly punish "the carrying of arms
abroad by a single individual, attended with circumstances giving just reason to
fear that he purposes to make an unlawful use of them"; but he does so by
pointing out that "This right ought not . . . be abused to the disturbance of
the public peace," rather than by arguing that the right belongs only to
collective bodies. Had Rawle viewed the right as being collective, then
the question of "a single individual" "carrying . . . arms abroad" would
presumably have been easily settled on that basis.
3 Joseph Story, Commentaries on the Constitution § 1890 (1833).
See Williams, Civic Republicanism and the Citizen
Militia, supra note 1, at 590; Volokh, supra
note 16, at *10 n.28 (pointing out that the Second Amendment is based on
"right[s] of the people" in state constitutions, rights that restrain state
governments and thus cannot belong to the states themselves). Professor
Williams has also described the right as "a right of the militia," Williams,
supra, at 590, but I take it this means a right of the "Body of the
People," not a right of the state-run and state-organized entity: If it
were the latter, then the right would be a right of the state,
because the Governor was generally the commander-in-chief of the militia.
See, e.g., Penn. Const. art. II, § 7 (1790); Va. Const. Form of
Government, ¶ 34 (1776).
I believe Professor Williams is mistaken in claiming that one can "read `People´
[to mean the `Body of the People'] for reasons independent of the purpose
clause: for example, state provisions on which the amendment was based referred
to the `Body of the People,´ as did draft versions of the Second Amendment
itself." Williams, The Unitary Second Amendment,
supra note 1, at *5. Only one state provision included this
term, and both it and the draft versions were sources for the Militia Clause,
not the operative clause. How is this "reasons independent of the purpose
[i.e., Militia] clause"?
See Eugene Volokh, The Commonplace Second Amendment,
73 NYU L. Rev. ___, *11 n.30 (1998).
Williams, The Unitary Second Amendment, supra note 1,
Cf. David C. Williams, The Militia Movement and Second
Amendment Revolution: Conjuring with the People, 81 Cornell L. Rev. 879,
908 (1996) (discussing use of "the term `Body of the People´ as a synonym for `a
majority of the people´ or the `greater part of the people´"); Mass. Const. pt.
II, ch. V, § II ("Wisdom and knowledge, as well as virtue, diffused generally
among the body of the people, being necessary for the preservation of their
rights and liberties" -- this suggests that "the body of the people," whatever
that may be, is not considered to be innately virtuous or "devoted to the Common
Good," though of course it would be good if it were).
Volokh, supra note 16, at *5 n.11.
See Volokh, supra note 16, at *2-*3 (discussing these
Id. at *4 n.9. This was in turn based on the Virginia and
North Carolina proposals, see id. at *23 n.68.
The Seventh Amendment's justificatory clause never made its way into the final
text, but the term "the body of the people," so relied on by Professor Williams,
never made its way into the text either.
Cf. David B. Kopel & Christopher Little, Communitarians,
Neorepublicans, and Guns: Assessing the Case for Firearms Prohibition, 56
Md. L. Rev. 438, 486 (1997); Glenn Harlan Reynolds, A Critical Guide to
the Second Amendment, 62 Tenn. L. Rev. 461, 486-87 (1996).
Volokh, supra note 16, at *14.
Williams, The Unitary Second Amendment, supra note 1,
Volokh, supra note 16, at *21.
Williams, The Unitary Second Amendment, supra note 1,
at *5, *6, *11.
Id. at *6. Here Professor Williams is quoting my words, but
he adopts them as his own. "Volokh is right that I find the amendment
`meaningless' and `outdated,´ because by its own terms it makes sense `only so
long as pretty much everyone has arms, and so long as the arms-bearers are
Id. at *6, *7, *11.
See Howard Zinn, A People's History of the United States 76 (1980)
(recounting John Adams' estimate that one third of the population supported the
Revolution, one third opposed it, and the remaining third was neutral);
Williams, The Militia Movement and Second Amendment Revolution,
supra note 18, at 922 ("Even in 1776, the people might not have
been unified; Americans disagreed viciously over the wisdom of the War for
Independence itself, that great icon of American unity.").
One of The Federalist's chief arguments in favor of the
Constitution rested precisely on the fact that the nation consisted of
disharmonious factions. "Whilst all authority in [the United States] will
be derived from and dependent on the society, the society itself will be broken
into so many parts, interests and classes of citizens, that the rights of
individuals, or of the minority, will be in little danger from interested
combinations of the majority. In a free government the security for civil
rights must be the same as that for religious rights. It consists in the
one case in the multiplicity of interests, and in the other in the multiplicity
of sects." The Federalist No. 51, at 350 (usually attributed to Madison)
(Carl van Doren ed. 1945).
See David B. Kopel & Christopher Little, supra
note 23, at 483 n.237. See also X The Works of John Adams,
Second President of the United States: With a Life of the Author 283 (Charles
Francis Adams ed. 1850-56) ("The Colonies had grown up under constitutions of
government so different, there was so great a variety of religions, they were
composed of so many different nations, their customs, manners, and habits had so
little resemblance, and their intercourse had been so rare, and their knowledge
of each other so imperfect, that to unite them in the same principles in theory
and the same system of action, was certainly a very difficult enterprise.").
Elsewhere, Professor Williams suggests that, while the Framers believed this
myth and "felt [that] American citizens were a republican People -- homogeneous,
virtuous, and committed to the common good," they "may have been wrong" in this
belief. Williams, The Militia Movement and Second Amendment
Revolution, supra note 18, at 949. I strongly doubt
that the pragmatic politicians who designed our Constitution were so deluded
about their countrymen; consider the material from The Federalist
quoted in notes 31 and 40, and cf. The Federalist No. 6, at 33
(Carl Van Doren ed. 1945) ("Is it not time to awake from the deceitful dream of
a golden age, and to adopt as a practical maxim for the direction of our
political conduct that we, as well as the other inhabitants of the globe, are
yet remote from the happy empire of perfect wisdom and perfect virtue?").
in any event, surely a court may not refuse to enforce a constitutional right on
the grounds that its framers were deluded about human nature, and that, now that
the wise among us know better, the amendment should be ignored.
Gary Kleck, Point Blank tbl. 2.2 (1991) (describing surveys from 1959 to 1990,
all giving results in the range of 40% to 52%, and most in the range of 45% to
50%); Philip J. Cook & Jens Ludwig, Guns in America: National Survey
on Private Ownership and Use of Firearms (Police Foundation 1997) (giving
estimate of 35%).
Michael Bellesiles, The Origins of Gun Culture in the United States, 1760
-- 1865, 83 J. Am. Hist. 425, 427 (1996). Professor Bellesiles
deduces this number from probate records; he concedes that "probate records are
not a perfect source for information," but believes that "they do provide much
information on common household objects and can be used as a starting point for
determining the level of gun ownership" -- he points out, for instance, that
probate records of the time tended to include "everything from acreage to broken
cups." Id. at 427, 428.
Id. at 431 (using estimates from a census by the
then-Secretary of War).
Kleck, supra note 34, tbl. 2.5 (50%); Cook & Ludwig,
supra note 34 (42%).
Kleck, supra note 34, tbl. 2.5 (data from 1980-94); see
also Cook & Ludwig, supra note 34 (27% of whites and 16%
of blacks -- individuals rather than households -- own guns).
Professor Williams asserts that the significant difference isn't just in the
fraction of owners, but in "white gun owners . . . outnumber[ing] black gun
owners in absolute terms." Williams, Civic Republicanism and the
Citizen Militia, supra note 1, at 591 & n.217. If
that's so, then the absence of demographic skewing -- the supposed precondition
of the Second Amendment -- is actually mathematically impossible: Gun
owners in some larger demographic groups would always outnumber in absolute
terms the gun owners in some small demographic groups.
The Federalist No. 10, at 55 (Madison) (Carl Van Doren ed. 1945). "The
latent causes of faction," Madison wrote, are "sown in the nature of man . . .
. A zeal for different opinions concerning religion, concerning government
. . .; an attachment to different leaders ambitiously contending for
pre-eminence and power; . . . have . . . divided mankind into parties, inflamed
them with mutual animosity, and rendered them much more disposed to vex and
oppress each other than to co-operate for their common good."
Id. at 56. "It is of great importance in a republic not only
to guard the society against the oppression of its rulers, but to guard one part
of the society against the injustice of the other part." The Federalist
No. 51, at 349 (usually attributed to Madison) (Carl Van Doren ed. 1945).
Not much faith there in "a unified, homogeneous, organized, collective body [of
the People], devoted to the Common Good."
Curiously, Professor Williams acknowledges that James Madison, among others,
"recognized that the American people were dividing into what we would today call
interest groups"; but, anthropomorphizing, Professor Williams concludes that "It
[the Second Amendment] does not, however, seriously examine whether a [virtuous
and united] People actually does exist in America." Williams, The
Militia Movement and Second Amendment Revolution, supra note
18, at 908-09 & n.128. Omitted is any acknowledgement that the first
point undercuts the second -- that the Second Amendment's drafter didn't share
the naiveté that Professor Williams ascribes to the Amendment and its supposedly
"nostalgic" civic republican enthusiasts.
Williams, The Unitary Second Amendment, supra note 1,
Id. at *6.
One could, of course, argue (but Professor Williams in his response to me does
not focus on this argument) that another circumstance has changed -- that today
the government no longer maintains the militia. But in addition to the
fact that the right still remains a right of the people, not of the
militia, it strikes me as unsound to conclude that a right can vanish because of
the government's own dereliction. See David B.
Kopel & Christopher Little, supra note 23, at 480-81. Nor
can one argue that the right is only a right against the federal government, and
that the failure to maintain the militia was the fault of the states: It
is quite clearly part of Congress's role "To provide for organizing, arming, and
disciplining, the Militia." U.S. Const. art. I, § 8, cl. 16.
Professor Williams' argument doesn't rest solely on the text of the
justification clause, but imports language -- "the body of the people" -- from
the provision's history. One can make a similar argument about the First
Amendment, by just importing justification language from its antecedents, such
as the various state Liberty of the Press Articles. See
Volokh, supra note 16, at *22-*23.
Id. at *12-*13.
See, e.g., id. at *15.