Basic con law classes are meant to teach students some fundamental legal
skills: Considering contentious moral questions from all sides, even those
sides for which one has a visceral revulsion. Using the various modalities
of interpretive argument -- interpretation focused on text, original meaning,
the interplay of political structures, changed circumstances, precedent, and the
the implications of "fundamental," though unwritten, values within the American
ethos. Thinking about how law can check power. Arguing articulately
about the clash between solemn constitutional guarantees and eminently worthy
countervailing government interests.
of our students will go on to spend much time litigating separation of powers
cases, or even equal protection or due process cases. We cannot plausibly
claim to choose the contents of our course based on the direct utility of
certain constitutional doctrines to a lawyer's everyday life, or even their
likely appearance on the bar exam. Rather, we try to find topics that help
sharpen students' habits of constitutional thought and, more broadly, legal
thought, and perhaps even help make them better citizens. 1
Second Amendment turns out to be a surprisingly useful tool for all these
purposes. This is not because "Second Amendment Law" is particularly
important -- in fact, if "law" is defined in its all too common conventional con
law class sense of "Supreme Court cases," then there's next to no Second
Amendment law to be taught. Rather, incorporating the Amendment as a small
part of the con law syllabus 2 helps serve
-- in a way that students will probably find immediately interesting -- some
important broader goals:
1. Teaching Students to See Things from the Other Side.
Second Amendment arguments tend to run counter to traditional political
divides. Liberals who usually try to read individual rights as broadly as
possible strain mightily to read this one narrowly. Conservatives who
generally defer to claims of government need are much more likely to resist such
Perhaps the experience of making what is usually "the other side's" argument
might make students more open to the other side's argument in other cases.
At least, it might remind them that not everyone who resists Individual Rights
is a closet fascist, and that not everyone who is skeptical of Government
Interests is a loony hippie.
2. Teaching Students Different Modalities of Constitutional
Argument. Con law classes, like con law cases, aren't mostly about
the Constitution; they're about the U.S. Reports. Most of the time is
spent parsing cases. Most of the remainder is spent making policy
Rarely do we focus predominantly on the text, on original meaning, on tradition,
on constitutional structure, on claims of changed circumstances, and on other
forms of interpretive argument. 3 We know
that in reality, to practicing lawyers, the Constitution is indeed what the
Court says it is. And influenced by this reality, we mostly teach and
critique the Court's pronouncements. Even when we ask our students to set
aside the caselaw and return to first principles, they often find it hard to put
the famous precedents out of their minds.
yet the lawyers we train will often have to deal with statutes and even
constitutional provisions -- especially state constitutional provisions -- that
have not yet been thoroughly glossed by the courts. They have to be able
to make arguments that rest on more than policy and precedent. 4 The
Second Amendment, unburdened as it is with much Supreme Court baggage, is a
particularly good tool for discussing the entire range of interpretive
3. Deepening Students' Understanding of Checks on Government
Power. The Framers' conception of "checks and balances" and
"divided powers" includes more than just each federal branch checking the
others, the states checking the federal government, and the Senate checking the
House and vice versa. Chairman Mao wasn't the first to think that all
power flows from the barrel of a gun -- the revolutionaries who founded this
nation took a similar view.
armed citizenry was for many of them the ultimate check on government
excess. The Second Amendment was aimed at preserving this armed citizenry;
the Militia Clauses set up a complex web of state and federal control over
it. Whether one reads the Second Amendment as creating an individual right
or a states' right, it has a huge importance for the con law issue:
the allocation of power.
4. Teaching Students How to Debate Clashes Between Constitutional
Guarantees and Powerful Government Interests. Likewise, the clash
between constitutional rights and government interests is rarely presented more
starkly than in the Second Amendment. The government interests (or, even
more to the point, public interests) are profound, and are clearly implicated by
the private conduct. And yet, whether we like it or not, the
constitutional text protects at least some sorts of conduct that inherently
jeopardizes these interests. (Even if one believes that the Second
Amendment protects only a states' right, one still has to consider what would
happen if a state in fact insists on arming its citizens and the federal
government claims a countervailing interest in disarming them. 5)
does one "weigh" this sort of right against the government interests? Does
it make sense to talk about, for instance, "strict scrutiny" when the most
obvious compelling government interest seems so directly in conflict with the
very essence of the right?
5. Enriching Understanding of Other Provisions. The
Second Amendment also casts extra light on the general matter of protection for
subversive activities, whether it's First Amendment protection for subversive
speech, or the barriers that the Fourth and Fifth Amendments place in the way of
suppression of antigovernment conspiracies.
Many have argued that constitutional protections can't extend to those who would
subvert constitutional government: In the words of one of the World War I
free speech cases, how could the Constitution, "that great ordinance of
government and orderly liberty," be "invoked to justify the activities of
anarchy or of the enemies of the United States, and by a strange perversion of
its precepts [be] adduced against itself"? 6 In
evaluating this argument, it's surely worth considering that Justice Joseph
Story, no wild-eyed revolutionary, described the "right of the citizens to keep
and bear arms" as "the palladium of the liberties of a republic[,] since it
offers a strong moral check against the usurpations and arbitrary power of
rulers[,] and it will generally, even if these are successful in the first
instance, enable the people to resist and triumph over them." 7
Likewise, Blackstone described even the more limited English right as a means
"of the natural right of resistance and self-preservation, when the sanctions of
society and laws are found insufficient to restrain the violence of oppression."
the Bill of Rights is more radical -- and more dangerous -- than people might at
6. Reminding Students That Constitutional Protections Needn't Be All
Good: Much public debate seems to take the view that all is for the
best under this, the best of all possible Constitutions. This veneration
of the Constitution and especially the Bill of Rights may have some social
utility, but it's not conducive to clear legal thinking. Sometimes it's
helpful to rub students' noses in the fact that the Bill of Rights might have
some provisions that are unsound or downright bad.
Obviously, many people believe the Second Amendment is actually quite a good
idea: Since 1970, 14 states enacted their own state constitutional rights
to keep and bear arms for the first time, or strengthened their existing rights;
a fifteenth state will vote on the matter in November 1998. 9 But our
sense is that many of the students who most revere the Bill of Rights take a
very different view of the Second Amendment (whether they conceive of it as
securing an individual right or as a states' right one). Confronting this
problem of possible "constitutional stupidity" 10 or even
"constitutional evil" 11 can be
generally valuable to such students; and it can shed light on specific
arguments, such as the notion that the Bill of Rights should never be amended.
the following pages, we will briefly describe our own approaches to using the
Second Amendment for all these pedagogical purposes; each of us has written one
of the following sections. We've also tried to gather, on a Web site that
should be easily accessible to any reader, some materials that could help people
use the Second Amendment as a tool in their own classes. None of these
materials aim to dispose of the hot questions about the Second Amendment's True
Meaning; they all raise more questions than they settle. But of course
that's one of the things that con law classes are supposed to do.
I. Intertwining the First and the Second (Scot
almost two decades I have taught an upper level Con Law II class, The First
Amendment. I noticed that as time wore on I had been introducing Second
Amendment asides into the class with increasing frequency, attempting to jar the
students into thinking about rights generally and whether it was appropriate to
embrace one, while simultaneously ignoring another. Eventually, a few
years ago, I changed the course name to The First Two Amendments and added a
two-week section on the Second Amendment. I assign five short cases:
United States v. Miller, 13
Presser v. Illinois, 14
Quilici v. Village of Morton Grove, 15 City
of Salinas v. Blakesly, 16 and
Watson v. Stone. 17 My
rather lengthy Guns, Words, and Constitutional Interpretation 18 lays out
much of what I am trying to accomplish in the six classes. While I use the
Second Amendment to go over modalities of constitutional interpretation, that is
secondary since students have a Con Law I course under their belts and already
saw a brief review with the First Amendment.
What does the Second Amendment mean? Students, like judges, always assume
that what a judge has said about a text is more authoritative than the text
itself, so I start with Miller. Did it kill the text as Erwin
Griswold and others claim 19 or did it
implicitly suggest that if the sawed-off shotgun had been a militia weapon, then
Miller and Layton would have had a constitutional right to possess it?
Once a close reading of Miller is over, it is time to go to text,
and the individual rights v. group rights positions come out depending on one's
predilections and one's interpretation of the relationship between the two
clauses. At this point I bring history in for the first time with
Salinas, because that is the first holding in favor of the group
also bring out my favorite piece of history, which is St. George Tucker's
explanation of the Second Amendment in his Blackstone's Commentaries. 20 In
his discussion of the First Amendment, Tucker offered the first clean,
unambiguous statement from a legal source that the First Amendment was intended
to go beyond the prior restraint/subsequent punishment dichotomy and to wholly
bar a federal seditious libel statute. 21 This
places Tucker on the side of the angels and gives him some credibility. In
that same first American edition of the Commentaries, Tucker, after quoting the
Second Amendment, writes: "This may be considered the true palladium of
liberty." 22 As
with the First Amendment, Tucker contrasts the situation in the United States
with that in Great Britain where he believed that "the right of keeping arms is
effectually taken away from the people." 23 This
could not happen in America because the people could bear arms "without any
qualification as to their condition or degree, as it the case in the British
Americans, accordingly, could exercise the "right of self-defence, the first law
of nature" 25 and also
protect their "liberty" which, in lands with standing armies but no individual
right to bear arms, "if not already annihilated, [was] on the brink of
destruction." 26 It is
hard to be more explicit on the supposed relationship between guns and liberty.
Even more than the speech materials, the Second Amendment materials generate a
full panoply of responses, many of which are intensely felt. The dominant
response is the well-known liberal reflex that speech is good and guns are bad,
though this view is probably less pervasively held in Texas than many other
venues. The second most likely response is that both speech and guns are
good. Some students, however, will prefer guns to speech on the grounds
that the latter necessarily inflicts harms. Finally, at least when
political correctness was flourishing, there were a few students who had little
use for either open debate or armed conservatives.
Once the possible interpretations are available, I turn to incorporation.
When doing the First Amendment I slight the issue, just as the Court did, so
that I can use Presser and Morton Grove to flush out
selective incorporation. This also allows a return to history, since the
Second Amendment claim to Fourteenth Amendment protection is historically
stronger than any other federal right save speech and jury trial. 27
Finally I open the question of why restrict weapons, but again I do so
historically. Why in 1840? 1866? 1876? 1900? 1933? Now? Of the cases
assigned only Salinas offers no help -- maybe it is just Marshal
Matt Dillon cleaning up Dodge City. But the others are terrific:
Presser, with gun controls targeting organized labor; Stone
v. Watson, African-Americans; Miller, gangsters;
Morton Grove, post Kennedy-King America.
incidental benefit from both the incorporation and the policy discussions is
that the Kansas, Florida, and Illinois cases open up twin issues of why state
constitutions so consistently protect some right as well as the actual varying
interpretations of those constitutions. For me, at least, this is the only
time in any of my courses where I say anything about a state constitution save
for expressly assuming they are always irrelevant (with appropriate apologies to
Hans Linde 28).
II. The Second Amendment as a Window on the Framers'
Worldview (Glenn Harlan Reynolds)
won't waste readers' time by revisiting the points offered by my coauthors
here: I too find it beneficial to teach the Second Amendment as a way of
focusing on the Constitution without dwelling on what the Court said about it
last week or last year, and of addressing a subject that is of considerable
popular interest. Instead, I'd like to talk about some things I do that
teach the Second Amendment as part of a fairly typical "Bill of Rights" course
in constitutional law. The course traditionally emphasizes First Amendment
free speech and press, free exercise, and establishment clause issues, as well
as rights to privacy and equal protection. I devote three or four class
sessions to the Second Amendment, and assign excerpts from historical and legal
commentary, 29 as well as
the leading federal cases of United States v. Cruikshank, 30
Presser v. Illinois, 31 and
United States v. Miller. 32 I
also assign two leading cases decided under the Tennessee Constitution's
right-to-bear-arms clause, Aymette v. State 33 and
Andrews v. State, 34 because the
Aymette case was relied on by the U.S. Supreme Court in
Miller, and the Andrews case answers some questions
that Aymette (and Miller) leave open. 35 (I
admit, I also do it because I think that state constitutional law is an
underemphasized subject in law school curricula, and this gives me an excuse to
sneak some in camouflaged as local color.)
of the major themes I emphasize in teaching constitutional law is the difference
between the Framers' whiggish suspicion of powerful elites (both governmental
and nongovernmental) and the much more favorable view of elites that has
characterized American constitutional thought since World War One. The
Second Amendment provides an excellent tool for examining this issue because it
embodies the Framers' suspicion of elites in the most inescapable of ways, by
proposing that it is necessary for the body of the people to be armed against
governmental power that might be deployed against the interest of the
people. This division of power not only within the federal government, but
also among the federal government, the states, and the people -- with the armed
populace serving as an ultimate check against tyranny -- strikes a dissonant
note when set beside contemporary European-influenced ideas of government and
find that a useful point. An important aspect of teaching the Second
Amendment in class is that it tends to upset preconceptions, and to cause
students to revisit things that "everyone knows." Many come to law school
from undergraduate political science courses that seem to teach the federal
constitution as a gloss on Max Weber, with any difference between the two to be
resolved in Weber's favor. 36 To
see that the Framers very arguably rejected as basic a Weberian notion as the
state's monopoly on legitimate violence encourages students to recognize what I
regard as an important point in teaching constitutional law: that the Framers
weren't late-twentieth-century Americans (much less late-twentieth-century
Europeans) and that their political philosophy and worldview were in many ways
This realization is every bit as difficult for Borkian conservatives as
traditional liberals to accept, though naturally the Second Amendment engages
them in different ways. This is made more striking through the use of the
Tennessee cases. Discussion of the Second Amendment and the role of an
armed populace as a check on potential tyranny inevitably produces discussion
about whether -- and if so when -- armed revolution is appropriate.
Tennessee's constitution, unlike the federal constitution, specifically
addresses this question in two provisions, which we also study:
Art. I sec. I: That all power is inherent in the people,
and all free governments are founded on their authority, and instituted for
their peace, safety, and happiness; for the advancement of those ends they
have at all times, an unalienable and indefeasible right to alter, reform, or
abolish the government in such manner as they may think proper.
Art. I sec. 2: That government being instituted for the
common benefit, the doctrine of nonresistance against arbitrary power and
oppression is absurd, slavish, and destructive of the good and happiness of
Tennessee courts have interpreted these provisions as having real significance,
using them as the underpinning of a right of privacy that has resulted in
striking down the state's sodomy law, 37 recognizing
a man's right not to be forced into parenthood, 38 and so
on. The reasoning, in essence, is that a Constitution that recognizes the
right of a populace to revolt against arbitrary power and oppression cannot be
interpreted to grant the state government authority to pass arbitrary and
oppressive legislation. Thus, the right of revolution -- a key Second
Amendment concept as well -- also works to forbid a Borkian majority's
outlawing, say, contraception or sodomy merely because such practices cause (in
Bork's words) "moral anguish" among the electorate. 39
connection between these two provides a good deal of interesting class
discussion, and serves to confound the usual, sterile "liberal vs. conservative"
split in constitutional debate. It brings home the point that the Framers
were neither liberal nor conservative in modern terms, but rather a peculiar
sort of traditionalist quasi-libertarian that has no real modern analog.
And -- as is all too often forgotten -- they were a bunch of revolutionaries,
not a collection of conventional-wisdom-spouting graybeards. Thus, to the
extent that one cares about how the Framers viewed things, one must look at the
world in a different way than television shows like "Crossfire" tend to
way in which the Second Amendment isn't as helpful in the classroom as I had
hoped is in focusing a debate on originalist versus nonoriginalist
methodologies. For some reason, virtually everyone on both sides of the
pro- and anti-gun Second Amendment debate tends to focus on text and
history: Only David Williams is willing to say that text and history point
one way, but he prefers to go another. 40
Although I try to prod students on this point, I find that it is rather
difficult to get them to step outside. Perhaps that is because other
modern frameworks don't work very well: Is an armed populace a
"representation reinforcing" technique? Or perhaps it is because, as Jeff
Rosen has said, 41 we are all
originalists now: To judge by the Supreme Court's recent output, and
especially that of the Court's more liberal members, arguments based on text and
history are very much part of the zeitgeist today.
While I don't revisit the Second Amendment per se that often later
in the semester, some of the notions behind it, such as distrust of powerful
elites and a belief in the right of revolution, do come up in a number of other
circumstances (for example, free speech and sedition): Many students, for
example, wonder how -- if there's a right to revolution, even only under some
circumstances -- the concept of sedition can possibly have any meaning given
that people must talk about whether circumstances justify a revolt
or not; thus, a Second Amendment argument for free speech? I find that
teaching the Second Amendment enriches the entire course by helping students to
look at issues from a perspective that gets less attention today than it should.
III. The Second Amendment as Course Summary
spend less time on the Second Amendment than I would like to, but, then again,
that is the way I feel about every aspect of my course. Two weeks on
McCulloch v. Maryland, 42 for
example, is scarcely enough to do justice to the issues it raises. What I
have done is assigned the Amendment at the very end of the course as a way of
summarizing what I think to be its central issues.
Probably more than anyone else in this group, I emphasize, from literally the
very first day, that the Constitution -- if it has ascertainable meaning at all
-- can be understood by any conscientious member of the constitutional community
(including ordinary citizens), and not only by courts. I thus begin my
course by asking whether there really is a Twenty-Seventh Amendment to the
Constitution, or whether it is simply a pretender. 43 I
want students from the first day of the course to engage in what might be termed
"first-order" constitutional interpretation, rather than assuming that the
Constitution is simply whatever the Supreme Court says it is.
Ascertaining the validity of the purported Twenty-Seventh Amendment requires
paying close attention to constitutional text, history, and the other
"modalities" of constitutional analysis, including, of course, judicial
doctrine. Thus, part of what is assigned for the first day includes
paragraphs from the Supreme Court's opinion in Dillon v. Gloss, 44 which
strongly suggested that an amendment proposed by Congress can "die" if it does
not gain ratification within a sufficiently short time to be deemed
"contemporaneous" with the proposal. Whatever "contemporaneous
ratification" might mean, no one can plausibly believe that the 203-year-long
interval between proposal and ratification of the purported Twenty-Seventh
Amendment is it.
What I always find interesting is that few students seem to feel bound to the
Court's view, so almost literally their very first experience is to exhibit
interpretive independence vis-a-vis the Court. I usually point out that,
unlike William Van Alstyne, for example, they don't seem to be giving much
deference to an opinion joined by Holmes and Brandeis; 45 and most
say, perhaps correctly, that they are more persuaded by Laurence Tribe's Wall
Street Journal essay defending the legitimacy of the 1992 ratification of an
amendment first proposed in 1789. 46
Given my overriding interest in making my students understand, and feel
comfortable using, all of the modalities, I find it especially useful to end the
course by returning to an issue that calls upon students to engage in the same
basic first-order interpretation as at the beginning of the course. My
hope, of course, is that they will demonstrate added sophistication garnered
from our semester together in regard to such issues as the relevance of text,
history, sensitivity to political structure, doctrine, political tradition, and,
last but not least, the practical consequences for the polity.
Second Amendment is a professorial godsend for such purposes, in part because
there are so few Supreme Court utterances to blind the students to the
independent importance of the other modalities. Also, most students
actually care about the issue of the role of guns in american society. No
serious adult could really care about state regulation of mudflaps or, for that
matter, whether Congress can add to the original jurisdiction of the supreme
court. This is obviously not the case with the availability of
firearms. Given my own view that a constitutional law course ought to be
about morally and politically serious issues, there are few better "closers"
than the Second Amendment.
Even more particularly, I also use this as the opportunity to focus on the
"incorporation" debate, itself a standard part of most constitutional law
courses. The Court has, in this century, incorporated most of the various
requirements of the Bill of Rights into the Fourteenth Amendment as limits on
state governments. The Second Amendment, of course, stands, with the
Seventh, outside of the incorporationist embrace. Why?
answer seems deceptively easy if the Amendment is only, as some argue, a
protection of state governments themselves. But an obvious embarrassment,
for some, is that one can easily argue that the original meaning of the First
Amendment's Establishment Clause was a similar protection of state
establishment, even as it rigorously forbade any national establishment. 47 Few
scholars today, though, reject the incorporation of the Establishment Clause on
such grounds -- so why should this argument work in regard to the Second
Amendment? It should be clear, incidentally, that the argument about
incorporation is independent of the extent to which one reads the Amendment as a
significant limit on governmental regulation of firearms, at least if one
rejects the view that the Amendment is just a simple federalism provision.
am also tempted to teach the Second Amendment in the context of the free speech
provisions of the First Amendment, given my own view that the two should be read
together as protections for dissenters. I have not, however, actually done
so, though I commend those, like Scot Powe, who have.
Finally, I bring up the Second Amendment in my second-year course on the
constitution and the welfare state, within the context of affirmative
rights. That is, if one views the right to possess arms as a "fundamental
right" -- and if it isn't, what is it doing in the Bill of Rights? -- then does
this imply any duty of the state to make firearms available to those who cannot
afford to purchase them through the market? The issue of affirmative
rights is, after all, presented by such cases as Gideon v.
Wainwright, involving the supply of legal services to the indigent, or
Maher v. Roe, in which several Justices (and many students) argue
that the Constitution requires subsidized abortions for women who cannot
otherwise afford them. So why not subsidized guns?
question also can resonate in regard to the DeShaney case: If
one views guns as a practical way of protecting oneself from criminal violence,
and if, as a practical matter, one cannot always rely on public police forces to
offer such protection, then why doesn't the state have a duty to provide this
form of protection to those who would otherwise remain vulnerable, such as those
honest citizens unfortunate enough to be living in high-crime areas who are too
poor to buy firearms? I confess that most students laugh when I present
such an argument, though I'm not sure why this is a laughing matter, whatever
one's views are about the overall legitimacy of widespread availability of
guns. In any event, I hope all this makes clear why I find the Second
Amendment useful for a variety of important exercises in constitutional
IV. Using the Second Amendment in Teaching Various
Modalities of Constitutional Interpretation (Eugene Volokh)
Throughout my first-year con law class, I focus on the various modalities of
constitutional interpretation. One of my goals is to teach students how to
argue from text, from original meaning, from precedent, from changed
circumstances, from constitutional structure, and so on, and how to respond to
such arguments. This focus helps students understand existing federal
constitutional law, and teaches them how to make such arguments for other state
and federal constitutional provisions and even statutes, many of which aren't as
encrusted with case law as are the constitutional provisions we generally teach.
the first day of class, I tell students that we will discuss whether a
hypothetical federal statute -- "It shall be a felony for anyone to own a
handgun without having a handgun license" -- violates the Second
Amendment. I assign them a bit of background reading material; in the
past, it's been just an excerpt from United States v. Miller, the
main 20th-century case dealing with the Second Amendment, though the next time I
teach this I'll also include some other materials, such as related early state
constitutional provisions or excerpts from early treatises. 48 I
also assign a handout that briefly lays out the various modalities of
constitutional interpretation, and gives examples of each. 49
then ask students to give arguments for and against the constitutionality of the
statute. As they give the arguments, I point out what sorts of arguments
they are making. I then ask other students to make counter-arguments using
that very same kind of argument, just to show how the same modality can often be
used to support opposite conclusions. This also highlights to people that
there are certain standard responses to, say, textual arguments or changed
circumstances arguments, responses that I list on my handout and that we return
to throughout the semester.
do I use the Second Amendment for this?
1. It's rich in the ingredients needed for the various kinds of
arguments. It's relatively textually complex, so students can easily make
even purely textual arguments that go both ways. Because "militia" means
something different to many students today than it did in 1787 (and than it
still does in modern technical usage), 50 the Second
Amendment lends itself well to a discussion about original meaning. People
quickly make "changed circumstances" arguments with regard to the Second
Amendment, more so than for most other constitutional provisions. Even the
main precedent (Miller) is deliciously and usefully ambiguous; at
the same time, because there is no dispositive Supreme Court precedent, the
discussion doesn't turn into a solely doctrinal debate. Of course, all
constitutional provisions are susceptible to all these sorts of arguments --
that's the very point I try to convey to the students. The mix of
arguments just seems to come particularly easily with the Second Amendment.
2. The Second Amendment is sexy; people like to discuss it, and tend to
have strong opinions about it -- the class discussion is always lively. At
the same time, the students are unlikely to have investigated the Amendment in
depth in a college political science class, or to have talked about it much with
friends (at least in Los Angeles). This makes it easier for students to
take a fresh look at the matter.
3. I also do find, as I expected, that students who later prove to be
broad constructionists for most other constitutional rights try to read this one
narrowly, and vice versa. I hope, though I obviously can't tell for sure,
that this experience of sincerely arguing "the other side" will make the
students more open to understanding that side when the tables are turned.
try to foster this by explicitly getting students to come up with
counterarguments for each point, so students can't get away with just saying
"Sure I read the Second Amendment narrowly [or broadly], because it's written
narrowly [or broadly]; the Equal Protection Clause is an entirely different
story." The existence of facially plausible readings of the Amendment that
go either way should show students that this is far from an easy call, and that
their impulsive reaction one way or the other was likely based on political
preconceptions at least as much as on "objective" interpretation.
generally take the first two class sessions to talk about all this. In the
second and third sessions I also use Miller to teach another skill
-- extracting as many propositions of potential precedential value as possible
out of each case, something I find many students have a hard time doing.
Miller, as I mentioned, is a complex and ambiguous case, with
several holdings and some more implications, all of them tied to the
interpretive points that I began with. The case held, for
instance, that "militia" must be interpreted to have a particular meaning -- the
adult able-bodied male citizenry. In the process, though, it also held
that original meaning is a proper tool for constitutional interpretation, and a
number of other things that most students would at first miss. I list all
these propositions in a handout that I distribute to the students, and that I
have made available online. 51
don't return much to the Second Amendment as such throughout the semester; I
instead focus on more traditional elements of the con law curriculum. But
I constantly return to the interpretive and analytic lessons that (I hope) the
students began to learn in the first few class sessions.
V. Using the Second Amendment to Teach Lawyering
Skills (Bob Cottrol)
Despite all that my coauthors say above, many con law teachers might see the
Second Amendment as just too far away from the practical business of training
lawyers. I want to suggest that the Second Amendment might prove quite
valuable in an unexpected venue -- by providing an important case study for
those who teach and write on subjects related to practical lawyering skills.
Second Amendment reminds us that legal history, which tells us about the
strategic choices and blunders made by lawyers in the past, can do much to
inform the business of training lawyers for the future. And the history of
the Second Amendment in the twentieth century can also provide an excellent case
study on the sociology of public interest litigation, the role a movement's
constituencies can have in shaping and constraining litigation -- a valuable
lesson for future litigators.
order to see these lessons, we have to expand our discussion of the legal
history of the Second Amendment away from the familiar debate over late
eighteenth century intentions. If I could encapsulate the twentieth
century history of the Second Amendment and its interpretation it would go
something like this: There was generally widespread agreement as Americans
entered the twentieth century that the Second Amendment prevented the federal
government from infringing on the right of individuals to keep and bear
arms. There was further agreement that this right was an important
one. Americans, including American jurists and legal scholars, were in
essential agreement with their forebears in the late eighteenth century who saw
the right as one that helped guarantee individual liberty. 52
Insofar as people viewed the amendment as having a connection to the militia, it
was a connection to the militia of the whole, staffed by individuals who would
bear their own arms. Michigan jurist Thomas Cooley's 1898 commentary
captures what was the received wisdom concerning the Amendment:
The Right is General. -- It may be supposed from the
phraseology of the provision that the right to keep and bear arms was only
guaranteed to the militia; but this would be an interpretation not warranted
by the intent. The militia, as has been elsewhere explained, consists of
those persons who, under the law, are liable to the performance of military
duty, and are officered and enrolled for service when called upon. But
the law may make provision for the enrolment of all who are fit to perform
military duty, or of a small number only, or it may wholly omit to make any
provision at all; and if the right were limited to those enrolled, the purpose
of this guaranty might be defeated altogether by action or neglect to act of
the government it was meant to hold in check. The meaning of the
provision undoubtedly is, that the people from who the militia must be taken,
shall have the right to keep and bear arms, and they need no permission or
regulation of law for the purpose. But this enables the government to
have a well regulated militia; for to bear arms implies something more than
the mere keeping; it implies the learning to handle and use them in a way that
makes those who keep them ready for their efficient use; in other words, it
implies the right to meet for voluntary discipline in arms, observing in doing
so the laws of public order. 53
though Cooley's discussion reflected the common understanding of the Second
Amendment at the beginning of the twentieth century, that understanding came
under increasing challenge among legal and later media elites during the course
of the century. Even as late as the early 1960s, Supreme Court Justices 54 and an
article selected by the American Bar Foundation as the winner of its
Constitutional Law Essay competition 55 were
willing to acknowledge the essentially individual nature of the right protected
by the Second Amendment, but that changed by the end of the 1960s. With
the closing of the decade that had included traumatic assassinations and
explosive urban unrest, the national gun control movement was launched.
With it came the passage of the 1968 Gun Control Act, far-reaching legislation
by American standards. The national gun control movement also brought with
it an effort to alter the previous common understanding of the meaning of the
Second Amendment, an effort to interpret the provision as only protecting a
right of states to organize militias and not a right of individuals to keep and
bear arms. 56
is fair to say that by the 1970s the collective or states' rights theory had won
the day with most jurists and legal and lay commentators who opined on the
issue. A number of lower federal court cases, brought in response to the
provision in the 1968 Gun Control Act making it a crime for felons to possess
firearms, rejected the individual rights view of the Second Amendment. 57
Throughout the 1970s and 1980s, expressed opinion on the part of the elite bar,
the bench and the legal academy was firmly on the side of those who denied the
existence of an individual right to arms. The National Rifle Association,
58 of course,
continued to maintain that the Second Amendment protected an individual right;
interestingly enough, public opinion polls indicated that this continued to be
the view of the majority of Americans, 59 and
Congress also adhered to the individual rights view. 60 Still
it is safe to say that throughout the 1970s and 1980s, the kind of opinionmakers
likely to influence Supreme Court decisionmaking were firmly on the side of the
collective rights interpretation.
the beginning of the 1990s the collective rights interpretation was coming under
increasing attack in an unexpected venue, the legal academy. Starting with
Sanford Levinson's The Embarrassing Second Amendment in 1989, the
last decade has been witness to a steady stream of law review literature, much
of it from somewhat chagrined liberals, 61
rediscovering the case for the individual rights view of the Second Amendment.
should be noted that the intellectual reconsideration of the issue really began
in the 1980s with the work of practicing attorneys involved in the gun owners'
rights movement, 63 and with
the writings of historians Joyce Lee Malcolm and Robert Shallope. 64 The
scholarship supporting the individual rights view of the amendment has to date
dominated the literature. 65
With this new scholarly consensus has also come a renewed recognition, at times
reluctant, that the Second Amendment must be taken into account in the gun
control debate. It has not been uncommon in recent years for writers, even
those who have supported far-reaching gun control measures, to reluctantly
acknowledge the validity of the individual rights position. 66 Even
an increasing number of federal jurists seem persuaded that the individual
rights view of the Second Amendment cannot be easily dismissed. 67 While
this view is probably still a minority view in the intellectual and judicial
communities, the developments stand in marked contrast to the conventional
wisdom less than a generation ago. Today, it might be fairly said that
neither side of the Second Amendment debate could approach the Supreme Court
with great confidence in the outcome.
This thumbnail intellectual history of the Second Amendment in the twentieth
century might prove useful both for those concerned with the teaching of
lawyering skills and for those who teach about public interest litigation.
This history illustrates the relative roles of felt deprivations and strategic
choices in shaping not only litigation strategies but also resulting legal, or
in this case constitutional, doctrine.
Briefly put, it is reasonable to hypothesize that at several key points during
the course of this century the protagonists on both sides of the debate missed
major opportunities to get the Supreme Court to make definitive, favorable
pronouncements concerning the meaning and scope of the amendment. If we
accept this hypothesis, then the history of the Second Amendment in the
twentieth century might be seen as a history of strategic miscalculations,
miscalculations that may ultimately play a major role in the fashioning of
might start such a line of pedagogical inquiry with a look at
Miller. If the McReynolds opinion is better read as
supportive of the individual rights view -- and it is 68 -- the
opinion has nonetheless left enough room for lower federal courts to essentially
eviscerate the individual rights component of the Second Amendment. 69 This
may have happened in part because the Miller Court conducted an
essentially ex parte hearing -- only the federal government was represented. 70
From a teaching perspective, Miller raises two fascinating
questions. First, what might have happened if the National Rifle
Association had filed an amicus brief in the case? Second, and perhaps
more important for these purposes, why didn't the NRA do so? The first
question is the more difficult to answer. Certainly our intuitive
assumption would be that the failure to vigorously champion the individual
rights view of the amendment was a costly omission, particularly since the
government's representative, Solicitor General Robert Jackson, did argue the
collective rights position. 71 It is
an open and interesting question whether intervention by the National Rifle
Association, or some other entity, would have created a different result.
The Miller Court did not adopt Jackson's proffered collective
rights reasoning, and it did seem open to an overturning or narrowing of the
1934 Act in the event a sawed-off shotgun could be shown to be a suitable
militia weapon. 72
Still, a more vigorous challenge to the 1934 legislation might have led
to a decision that was more clearly protective of individual rights, and that
would have been harder for lower courts to misread or overread.
our hypothetical counterfactual history of Miller yields somewhat
unclear lessons, an examination of why the NRA did not mount a serious challenge
to the 1934 Act could prove quite valuable. Briefly stated, because before
the Second World War there was little in the way of a serious challenge to
either gun ownership or the notion of a constitutional right to arms, neither
the NRA nor any other group was seriously concerned with the Second Amendment as
a constitutional issue. 73 While
the NRA had played a role in preventing the adoption of a provision in the 1934
Act that would have required the registration and licensing of pistols, 74 the
organization was primarily a nonpolitical group of sportsmen, and interestingly
enough one that had historically had a close working relationship with the U.S.
Army. 75 The
organization had little ongoing interest in legislative affairs, and even less
of a tendency to consider litigation strategy.
This stands in marked contrast to the histories of the National Association for
the Advancement of Colored People and the American Civil Liberties Union.
By the 1930s, both groups were home to highly sophisticated strategists and
tacticians of the art of litigation. 76 Both
groups would, of course, reap the fruits of previously developed litigation
skills and institutional memories in their advocacies before the post-war Warren
and Burger Courts. By way of contrast the NRA did not even have an
in-house general counsel's office until 1975. 77
in part the underdevelopment of Second Amendment doctrine and judicially
enforced Second Amendment protection might be seen as a lesson in the role of
relative deprivation or felt need in the development of both litigation efforts
and resulting court doctrine. The kinds of civil rights and civil
liberties issues that have traditionally concerned the NAACP and the ACLU were
in far worse shape than the right to arms before the Second World War. The
Fourteenth and Fifteenth Amendments were dead letters in huge sections of the
nation, a fact that was approvingly admitted by the courts and even a federal
Restrictions on free speech were routine, and the procedural protections of the
Fourth, Fifth, and Sixth Amendments were regularly denied criminal defendants in
state courts. With that background it is no mystery why the NAACP and the
ACLU honed litigation skills at a time when the NRA scarcely considered the
notion of judicial definition and clarification of the Second Amendment.
This neglect would continue in the immediate postwar era. Although the
Supreme Court in the nineteenth century had used the Second Amendment as a
vehicle to reject the view that the Fourteenth Amendment applied the Bill of
Rights to the states, 79 the NRA
would remain silent during the incorporation controversy of the 1950s.
Thus, while the Hugo Black dissent in Adamson v. California
implicitly offered strong support for the individual rights view of the Second
Amendment as well as the view that the amendment limited state as well as
federal action, the issue was not buttressed by supporting arguments from the
NRA. 80 The
total incorporation argument was largely made by those concerned with
incorporation as a more general matter. 81 Again
the lack of a perceived threat insured the continued underdevelopment of the
would take the development of a national gun control movement in the 1960s and
the attempt to redefine the right to arms, or perhaps more accurately to read it
out of the Constitution, to transform the NRA from an almost purely hobbyist
organization into a political entity, and one that would be forced into the
unaccustomed role of civil liberties and civil rights advocate. 82
Although the NRA's political strength coupled with the sheer ubiquity of
firearms in American society would by and large prevent outright prohibitions of
firearms, by the 1980s there were a few jurisdictions where such prohibitions
existed, providing a potential occasion for a possible definitive Supreme Court
decision on the Second Amendment.
Here the history of Second Amendment advocacy took yet another ironic
turn. Beginning with the passage of an ordinance in Morton Grove
(Illinois) in 1981 prohibiting the possession of handguns, 83 some
supporters of the individual rights view have been eager to bring a case before
the Supreme Court. This happened with the Morton Grove restriction, 84 and
responses arguing for a denial of certiorari were filed by gun control advocacy
Ironically, though, it was quite likely that the Court in 1984 would have ruled
in favor of the collective rights view, which means the individual rights
advocates were probably courting judicial disaster while the collective rights
advocates probably avoided a definitive victory.
Similarly, in the 1992 case United States v. Hale, 86 the Eighth
Circuit rejected a Second Amendment challenge to a ban on the sale of automatic
weapons manufactured after 1986. Again the NRA sought certiorari, and the
gun control groups -- most notably Handgun Control, Inc. -- argued against the
Court's hearing the case. 87 Even
in 1993, though, the Court would probably have been likely to rule against the
Second Amendment claim, whereas today it would probably be fair to say that the
odds are more even.
then we end the twentieth century with very much an open question as to what the
Supreme Court would do if squarely presented with a Second Amendment case.
Each side in the debate missed strong opportunities to fashion favorable
precedents in this area earlier in the century. Are there any lawyering
lessons to be learned from this history?
history can tell us much about the role of error and misperception in the
development of legal doctrine. It can also inform us of the importance of
both complacency and desperation in fashioning legal strategy. For
teachers concerned with lawyering it might be instructive to treat the Second
Amendment as an exercise in the comparative sociologies of litigation
movements. To what extent are litigation strategies constrained by
dependent and supporting constituencies? Was the NAACP, for example, able
to develop a sophisticated, long range strategy that would ultimately destroy
Plessy 88 precisely
because of its dependent constituency, the largely poor, disenfranchised black
population of the South? Did that constituency dictate the need for
litigation precisely because electoral remedies were unavailable? And was
the NAACP able to formulate effective litigation strategies because it could
pick the best postured cases free from concern that its constituency might
create bad precedents with poorly postured ones?
Similarly, has the NRA been hampered in developing effective litigation
strategies precisely because it represents large, powerful, and in many
communities majority constituencies? Has that made electoral strategies
more attractive? Has it made litigation harder to control? Has it
been harder for the NRA to stop the poorly postured case from arriving in court
precisely because its constituencies are less dependent?
These questions could provide an interesting lens from which to view public
interest litigation. Such litigation may ultimately owe as much to the
sociologies of the movements that have produced a particular lawsuit as it does
to the lawyering skills of selected advocates. If a study of the fate of
the Second Amendment in the twentieth century teaches our students that, then it
will have taught them a great deal.
lecture, the old joke goes, is the process by which the teacher's notes become
the student's notes, without passing through the mind of either. We law
teachers try hard to avoid this. We try to teach our students to think
critically, to struggle with the material, to challenge preconceptions and
conventional wisdom -- the courts', the students' own, and (unfortunately rarest
of all) the Framers'.
Second Amendment, with its odd political valences, with its sparse and
inconclusive Supreme Court case law, with its connections to both the structural
provisions and other rights provisions, and with its downright scary
implications, is a powerful tool for this purpose. Some call it a
"palladium of liberty," 89 others a
"dangerous anachronism." 90 Some
see it as protection for a "fundamental right," 91 others as a
"nulli[ty]," 92 a provision
with "no real meaning" that Madison used to "do in the Antifederalists with
sweet talk." 93 It
arouses passionate debate even among the general public, probably even more than
the Free Speech Clause or the Free Exercise Clause do. It should arouse
similar passions among your students. Better yet, it might even arouse
Copyright 1998 by Eugene Volokh, Robert J. Cottrol, Sanford Levinson, L.A. Powe,
Jr., and Glenn Harlan Reynolds. Eugene Volokh (email@example.com) is
Acting Professor of Law, UCLA Law School. Robert J. Cottrol is Professor
of Law and History and Harold Paul Green Research Professor of Law, George
Washington University. Sanford Levinson is W. St. John Garwood and W. St.
John Garwood Jr. Regents Chair in Law, University of Texas Law School. L.A.
Powe, Jr. is Anne Green Regents Chair, University of Texas Law School.
Glenn Harlan Reynolds is Professor of Law, University of Tennessee.
See Jack M. Balkin & Sanford Levinson, The Canons of
Constitutional Law, 111 Harv. L. Rev. 963, 977 (1998).
Some con law casebooks have in fact begun to include the Second Amendment,
mostly in the last few years. See, e.g., Paul Brest &
Sanford Levinson, Processes of Constitutional Decisionmaking 550-54 (3d ed.
1992); David Crump, Eugene Gressman & David S. Day, Cases and Materials on
Constitutional Law 1073-77 (3d ed. 1988); Daniel A. Farber, William N. Eskridge,
Jr. & Philip P. Frickey, Constitutional Law 416-18 (2d ed. 1998); Geoffrey
R. Stone, Louis M. Seidman, Cass R. Sunstein, Mark V. Tushnet, Constitutional
Law 38, 53-54 (3d ed. Supp. 1997).
See Philip Bobbitt, Constitutional Interpretation (1991) (giving a
morphology of interpretive "modalities").
See, e.g., State v. Gunwall, 106 Wash. 2d 54, 58 (1986) (stating
that litigants who want to argue that a state constitutional provision provides
more protection than the corresponding federal provision must discuss "(1) the
textual language; (2) differences in the texts; (3) constitutional history; (4)
preexisting state law; (5) structural differences; and (6) matters of particular
state or local concern").
Cf. N.H. Proposed House Joint Resolution 3 (proposing "That the
[New Hampshire] attorney general be required to bring suit against the United
States Government for violations of the United States Constitution and the New
Hampshire constitution in enacting the assault weapons ban, which prevents
United States citizens from owning military firearms.").
Schaefer v. United States, 251 U.S. 466, 477 (1920) (holding that
the First Amendment didn't protect publication of false war reports).
Joseph Story, Familiar Exposition of the Constitution of the United States § 451
(1840); see also id. § 450 (discussing the right as a "powerful
check upon the designs of ambitious men," and a means of preventing "tyrants
[from] accomplish[ing] their purposes").
1 Sir William Blackstone, Commentaries on the Laws of England §§ 143-144, at 93
(Thomas M. Cooley ed. 1884).
New: Ill. Const. art. I, § 22 (1970); Va. Const. art. I, § 13
(1971); Nev. Const. art. I, § 11(1) (1982); N.H. Const. pt. 1, art. 2-a (1982);
N.D. Const. art. I, § 1 (1984); W. Va. Const. art. III, § 22 (1986); Del. Const.
art. I, § 20 (1987); Neb. Const. art. I, § 1 (1988).
Strengthened: N.M. Const. art. II, § 6 (1971 and 1986); La.
Const. art. I, § 11 (1974); Idaho Const. art. I, § 11 (1978); Utah Const. art.
I, § 6 (1984); Maine Const. art. I, § 16 (1987); Alaska Const. art. I, § 19
November 1998, Wisconsin voters will decide whether to add an
individual-right-to-keep-and-bear-arms amendment to their state constitution,
which is now one of only seven that doesn't contain such a provision. The
proposal was placed on the ballot by an overwhelming vote of both houses of the
state legislature. Voters Will Decide in November Whether to Add . .
., AP, Apr. 29, 1998 (27-5 Senate); Assembly OKs Gun
Amendment, Ariz. Republic, Jan. 30, 1997 (84-13 Assembly).
See, e.g., J.M. Balkin, Agreements With Hell and Other
Objects of Our Faith, 65 Fordham L. Rev. 1703, 1706 (1997) (discussing
problems created by the possibility of "constitutional evil"); Mark A. Graber,
Desperately Ducking Slavery: Dred Scott and Contemporary Constitutional
Theory, 14 Const. Comment. 271, 274 (1997) (discussing "constitutional
evils"); Michael J. Klarman, Fidelity, Indeterminacy, and the Problem of
Constitutional Evil, 65 Fordham L. Rev. 1739 (1997) (discussing how
courts avoid constitutional evil by interpreting vague provisions in accordance
with their own predilections); Henry P. Monaghan, Our Perfect
Constitution, 56 N.Y.U. L. Rev. 353 (1981) (discussing the common
assumption that the Constitution is supposed to provide the just answer to all
significant legal problems).
See, e.g., Statement of Sen. George Mitchell, 136 Cong. Rec. S8212
(daily ed. June 19, 1990) ("I do not believe we should ever, under any
circumstances, for any reason, amend the Bill of Rights. The Bill of
Rights is so effective in protecting individual liberty of Americans precisely
because of its unchanging nature. Once that is unraveled, its
effectiveness will be forever diminished. If the Constitution is amended
to prohibit the burning of a flag, where do we stop?"); Louis Lusky, Our Nine
Tribunes: The Supreme Court in Modern America 65 (1993) (condemning the proposed
anti-flag-burning amendment because it would begin "the dismal enterprise of
amending the Bill of Rights -- which by definition, is the least popular, and
therefore the most vulnerable, part of the Constitution because it restricts
majority rule"); Robert H. Giles, Don't Amend Bill of Rights to Protect
Flag, Detroit News, Jan. 19, 1997 (condemning the proposed
anti-flag-burning amendment because "it would establish a precedent for
tinkering with the Bill of Rights"); Editorial, Peoria J. Star,
Jan. 5, 1997 (quoting Sen. Paul Simon as saying "Because I disagree with an
unpopular decision of the Supreme Court [upholding the First Amendment right to
burn a flag] doesn't mean that we ought to rush in and for the first time in 200
years amend the Bill of Rights").
Symposium on the Work of Justice Hans Linde, 70 Ore. L. Rev. 679
Since, alas, no constitutional law casebook discusses the Second Amendment at
any length, I use photocopied materials. The content of these varies from
year to year but typically includes excerpts from Joyce Lee Malcolm, To Keep and
Bear Arms: The Origins of an Anglo-American Right (1994); Don
Kates, Handgun Prohibition and the Original Meaning of the Second
Amendment, 82 Mich. L. Rev. 204 (1983); Robert J. Cottrol & Raymond
T. Diamond, The Second Amendment: Toward an Afro- Americanist
Reconsideration, 80 Geo. L.J. 309 (1991); Sanford Levinson, The
Embarrassing Second Amendment, 99 Yale L.J. 637 (1989); William Van
Alstyne, The Second Amendment and the Personal Right to Arms, 43
Duke L.J. 1236 (1994); L.A. Powe, Jr., Guns, Words, and Constitutional
Interpretation, 38 Wm. & Mary L. Rev. 1311 (1997); Dennis A. Henigan,
Arms, Anarchy and the Second Amendment, 26 Val. U. L. Rev. 107
(1991); David C. Williams, Civic Republicanism and the Citizen Militia:
The Terrifying Second Amendment, 101 Yale L.J. 551 (1991); David C.
Williams, The Militia Movement and Second Amendment Revolution: Conjuring
with the People 81 Cornell L. Rev. 879 (1996); David C. Williams,
The Constitutional Right to "Conservative" Revolution, 32 Harv.
C.R.-C.L. L. Rev. 413 (1997); Brannon Denning, Can the Simple Cite Be
Trusted?: Lower Court Interpretations of United States v. Miller
and the Second Amendment, 26 Cumb. L. Rev. 961 (1996).
In Andrews, for example, Tennessee's Attorney General argued that
the right to bear arms was a mere "political" right that existed for the benefit
of the state and hence could not be asserted by individuals against the
state. This argument was rejected by the Tennessee Supreme Court.
Andrews also held that the type of weapon protected by the right to
bear arms was determined by its purpose -- arming the citizenry to enforce the
law and protect against state tyranny -- meaning that weapons not suited for
such purposes (brass knuckles, derringers, etc.) were not
protected. 50 Tenn. at 156-57, 159-60. For more on the Tennessee
constitutional issues see Glenn Harlan Reynolds, The Right to Keep and
Bear Arms Under the Tennessee Constitution: A Case Study in Civic Republican
Thought, 61 Tenn. L. Rev. 647 (1994). For a discussion of how
Miller relates to Aymette, see Glenn Harlan Reynolds,
A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461,
496-504 (1995). For a suggestion that I may read too much into
Miller's discussion of Aymette, see Powe,
supra 29, at 1329-32.
For an excellent and provocative discussion of this topic, going far beyond the
Second Amendment, see Brannon Denning, Constitutional Decadence (unpublished
work in progress). The point regarding Weber, however, was originally
raised by Sandy Levinson in his The Embarrassing Second Amendment,
supra note 29, at 650.
Campbell v. Sundquist, 926 S.W.2d 250, 261 (Tenn. App. 1996),
quoting Davis v. Davis, 842 S.W.2d 588, 599 (Tenn. 1992) ("Indeed,
the notion of individual liberty is so deeply imbedded in the Tennessee
Constitution" as to grant "the people, in the face of governmental oppression,
the right to resist that oppression even to the extent of overthrowing the
Robert Bork, The Tempting of America: The Political Seduction of the Law 257-58
(1990). For an extensive critical view of Bork's characterization see
Glenn Harlan Reynolds, Sex, Lies and Jurisprudence: Robert Bork,
Griswold, and the Philosophy of Original Understanding, 24 Ga. L.
Rev. 1045 (1990).
See David C. Williams, Civic Republicanism and the Citizen
Militia, supra note 29.
Jeffrey Rosen, Original Sin, New Republic, May 5, 1997, at 26.
William Van Alstyne, What Do You Think About the Twenty-Seventh
Amendment?, 10 Const. Comment. 9 (1993).
Laurence H. Tribe, Rule of the 27th Amendment Joins the
Constitution, Wall St. J., May 13, 1992, at A15.
See, e.g., Akhil Reed Amar, The Bill of Rights as a
Constitution, 100 Yale L.J. 1131, 1157-58 (1991); Chris Bartolomucci,
Note, Rethinking the Incorporation of the Establishment Clause: A
Federalist View, 105 Harv. L. Rev. 1700 (1992).
"Militia" in the 1790s quite clearly referred to pretty much the entire adult
male white citizenry (age 18 to 45). See United States v.
Miller, 307 U.S. 174 (1939). This is still the definition under the
Militia Act of 1956, 10 U.S.C. § 311, though of course extended
beyond whites (and probably extended to women by the Court's recent equal
protection cases); and it's one of the definitions given in the dictionary,
see, e.g., Random House Dictionary 1220 defn. 3 (2d ed. unabridged
1987). Of course, most students first interpret the word in the more
common modern meaning of a National Guard-like body.
See David B. Kopel, The Second Amendment in the 19th
Century (manuscript) (concluding that before 1900, the collective rights
view made no appearance in any constitutional law treatises, and appeared only
once in a judicial opinion, a concurrence in an 1842 Arkansas Supreme Court
Thomas M. Cooley, The General Principles of Constitutional Law in the United
States of America 298 (1898).
See, e.g., Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J.,
dissenting). Hugo Black also seems to have rejected the states' rights
view: His 1860 The Bill of Rights, he stated that "Although
the Supreme Court has held [the Second] Amendment to include only arms necessary
to a well-regulated militia, as so construed, its prohibition is absolute," 35
N.Y.U. L. Rev. 865, 873 (1960), and he had earlier suggested that all the first
eight Amendments are binding on the states, which is inconsistent with the
notion that the Second Amendment only protects states. See
Adamson v. California, 332 U.S. 46, 71-72, 78 (1947) (concluding that the
Fourteenth Amendment was meant "to make the Bill of Rights applicable to the
states," citing Presser v. Illinois -- which refused to incorporate
"the Second Amendment's `right of the people to keep and bear arms * * *´" -- as
expressing the opposite view, and approvingly quoting many late 1860s sources
that spoke of the Fourteenth Amendment making "the first eight amendments"
applicable to the states).
See, e.g., Robert Strecher, The Lost Amendment, 57 ABA
J. 554, 665 (1965).
It should, of course, be noted that the states' right or collective right view
of the Second Amendment existed before the 1960s. Thomas Cooley's
discussion, see supra text accompanying note 53, was clearly in
response to people who suggested such a view, and in 1905 the Kansas Supreme
Court interpreted the right to keep and bear arms of the state constitution as a
collective right. See City of Salinas v. Blaksley, 72 Kan.
230 (1905). When Solicitor General argued the government's case in
United States v. Miller, he offered the collective rights theory of
the Second Amendment as one possible theory that might make the 1934 Federal
Firearms Act constitutional. Cottrol, Invitation to a
Multi-Dimensional Debate, supra note 62, at xxvii. But
despite this, the individual rights view prevailed even among the elite bar well
into the early 1960s, see supra notes 54 and 55.
See also Cottrol, Invitation to a Multi-Dimensional
Debate, supra note 62, at xxxviii-xxix. Also
instructive in this regard is the casual way Justice Harlan assumed a
constitutional right to arms in Poe v. Ullman in 1961.
For a good discussion of the lower federal courts and their treatment of the
Miller precedent, see Denning, supra note 29.
Throughout this section, the National Rifle Association will be discussed as if
it were the most logical body to either bring a Second Amendment case before the
Supreme Court, or to file an amicus curiae brief in a case where Second
Amendment interests are implicated. There is no inherent reason why this
should be the case. Certainly it would not be hard to envision other
groups championing a Second Amendment claim earlier in the century. We
might, for example, imagine the American Civil Liberties Union having argued for
incorporation of the Second Amendment as part of an overall argument in favor of
total incorporation. Or we might imagine the National Association for the
Advancement of Colored People having made a Second Amendment claim in a case
contesting discriminatory application of laws restricting the carrying of
concealed firearms, see Robert J. Cottrol & Raymond T. Diamond, "Never
Intended to be Applied to the White Population": Firearms Regulation and Racial
Disparity -- The Redeemed South's Legacy to a National Jurisprudence, 70
Chi. Kent. L. Rev. 1307 (1995). Similarly we might imagine an alternative
twentieth century history where the NRA, despite a sporting interest in
shooting, never mobilized as a political or legal entity to fight gun control
legislation -- by and large the story of the British shooting sports community.
any event, the history of the century unfolded in the way it did, and the NRA
has become a political and to a lesser extent litigation community mobilized to
fight gun control measures. I thus use the NRA as a proxy in this
discussion for those likely to be interested in contesting restrictive firearms
regulation through Second Amendment claims.
See, e.g., Gordon Witkin, Katia Hetter, Michael Barone & Dorian
Friedman, The Fight to Bear Arms, U.S. News & World Rep., May
22, 1995 ("A new U.S. News poll shows that 75 percent of all American voters
believe the Constitution guarantees them the right to own a gun.").
See, e.g., The Right to Keep and Bear Arms: Report of the
Subcommittee on the Constitution of the Committee on the Judiciary, 97th Cong.,
2nd sess. (1982).
As a case in point, of the five coauthors of this article, two are Democrats
(not a perfect proxy for liberalism, of course, but at least a fairly simple and
objective one), two are independents, and one is a Republican.
See, e.g., Glenn Harlan Reynolds & Don B. Kates, Jr., The
Second Amendment and State's Rights: A Thought Experiment, 36 Wm. &
M. L. Rev. 1737 (1995); William Van Alstyne, The Second Amendment and the
Personal Right to Arms, 43 Duke L.J. 1236 (1994); Robert J. Cottrol &
Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist
Reconsideration, 80 Geo. L.J. 309 (1991); Sanford Levinson, The
Embarrassing Second Amendment, 99 Yale L.J. 637 (1989); Don B. Kates Jr.,
Handgun Prohibition and the Original Meaning of the Second
Amendment, 82 Mich. L. Rev. 204 (1983); Glenn Harlan Reynolds, A
Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461 (1995);
David T. Hardy, The Second Amendment and the Historiography of the Bill of
Rights, 4 J. L. & Pol. 1 (1987); Nelson Lund, The Second
Amendment, Political Liberty and the Right of Self Preservation, 39 Ala.
L. Rev. 103 (1987); Stephen P. Halbrook, Encroachments of the Crown on the
Liberty of the Subject: Pre-Revolutionary Origins of the Second
Amendment, 15 U. Dayton L. Rev. 91 (1989); Nicholas J. Johnson,
Beyond the Second Amendment: An Individual Right to Arms Viewed through
the Ninth Amendment, 24 Rutgers L.J. 1 (1992); Don B. Kates Jr.,
The Second Amendment and the Ideology of Self-Protection, 9 Const.
Comment. 87 (1992); L.A. Powe, Jr., Guns, Words, and Constitutional
Interpretation, 38 Wm. & M. L. Rev. 1311 (1997); David E. Vandercoy,
The History of the Second Amendment, 28 Val. U. L. Rev. 1007
(1994); Robert E. Shalhope, The Ideological Origins of the Second
Amendment, 69 J. Am. Hist. 599 (1982); Robert J. Cottrol, The
Second Amendment: Invitation to a Multi-Dimensional Debate, in Gun
Control and the Constitution: Sources and Explorations on the Second Amendment
ix (1994); Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an
Anglo-American Right (1994); Robert J. Cottrol & Raymond T. Diamond,
The Fifth Auxiliary Right, 104 Yale L.J. 995 (1995) (reviewing
views hostile to the individual rights theory, see Carl T. Bogus,
The Hidden History of the Second Amendment, 31 U.C. Davis L. Rev.
309 (1998); Lawrence Delbert Cress, An Armed Community: The Origins and
Meaning of the Right to Bear Arms, 71 J. Am. Hist. 22 (1984); Keith A.
Ehrman & Dennis A. Henigan, The Second Amendment in the Twentieth
Century: Have You Seen Your Militia Lately?, 15 U. Dayton L. Rev. 5
(1989); cf. David C. Williams, Civic Republicanism and the
Citizen Militia: The Terrifying Second Amendment, 101 Yale L.J. 551
(1991) (concluding that the Second Amendment was originally a strong restraint
on government power, but that changed circumstances should lead us to read it
today as essentially a nullity).
See, e.g., Don B. Kates Jr., Handgun Prohibition and the Original Meaning
of the Second Amendment, 82 Mich. L. Rev. 204 (1983); Stephen P.
Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right
(1984); Hardy, supra note 62.
See, e.g., Joyce Lee Malcolm, The Right of the People to Keep
and Bear Arms: The Common Law Tradition, 10 Hastings Con. L.Q. 285
(1983); Shalhope, The Ideological Origins of the Second Amendment,
supra note ?.
See Reynolds, A Critical Guide to the Second
Amendment, supra note 35.
See, e.g., Michael Kinsley, Slicing Up the Second
Amendment, Wash. Post, Feb. 8, 1990, at A25; George Will, Oh That
Annoying Second Amendment, Phila. Inq., Mar. 22, 1991; Nat Hentoff,
A Second Look at the Second Amendment, Wash. Post, Mar. 9, 1996, at
See, e.g., Printz v. United States, 117 S. Ct. 2365,
2386 (1997) (Thomas, J., concurring); United States v. Verdugo-Urquidez, 490
U.S. 259, 264 (1989) (Rehnquist, J.) (majority opinion); Antonin Scalia et. al.,
A Matter of Interpretation: Federal Courts and the Law (1997); United States v.
Lopez, 2 F.3d 1347, 1364 n.46 (5th Cir. 1994), aff'd on other
grounds, 514 U.S. 549 (1995); see Sanford Levinson, Is
the Second Amendment Becoming Recognized as Part of the Constitution?
Voices from the Supreme Court, 1998 BYU L. Rev. 127.
See Cottrol, Invitation to a Multi-Dimensional Debate,
supra note 62, at xxvi-xxix; Kates, supra note 29, at
249-50; Reynolds, supra note 35, at 499-500.
Miller, 307 U.S. at 175; Powe, supra note 18, at 1331
See Cottrol, Invitation to a Multi-Dimensional Debate,
supra note 62, at xxvii. Jackson offered the collective or
state's right view of the Second Amendment as one of three alternative theories
as to why the 1934 Firearms Act did not violate the guarantees of the Second
Amendment. Jackson's brief also argued (1) that the Second Amendment
simply provided constitutional recognition of the common law right to have arms
-- a right that was always subject to regulation and limitations -- and (2) that
even, granting a right to arms, the government still had the right to control
those weapons that were peculiarly usable for criminal purposes. Powe,
supra note 18, at 1330-31. The Miller case
involved unlicensed transportation of an unregistered sawed-off shotgun.
There were of course state and local regulations concerning firearms ownership,
but even these rarely rose to the levels of prohibitions, the New York Sullivan
law being one of the more glaring exceptions. See Robert J.
Cottrol & Raymond T. Diamond, Public Safety and the Right to Bear
Arms, in The Bill of Rights in Modern America: After 200 Years 81 (David
J. Bodenhamer & James W. Ely, Jr. eds. 1993). Local regulations were
not perceived as a threat to the protections provided by the Second Amendment in
part because even local regulations were relatively mild and because the process
of the incorporation of the Bill of Rights had really not picked up steam.
Cottrol, Invitation to a Multi-Dimensional Debate,
supra note 62, at xxvi.
See, e.g., Gavett v. Alexander, 477 F. Supp. 1035 (D.D.C. 1979)
(discussing 10 U.S.C. § 4308(a), a then-existing statute which gave preferential
treatment to NRA members in sales of surplus Army rifles).
See, e.g., Mark V. Tushnet, Making Civil Rights Law: Thurgood
Marshall and the Supreme Court, 1936-1961 (1994).
Conversation with Robert Dowlut, Deputy General Counsel, National Rifle
See Robert Dowlut, Federal and State Constitutional
Guarantees to Arms, 15 U. Dayton L. Rev. 59, 83 n.169 (1989).
See, e.g., Presser v. Illinois, 116 U.S. 252 (1886).
Adamson v. California, 332 U.S. 46, 68 (1947) (Black, J., dissenting).
See, e.g., William Crosskey, Politics and the Constitution in the
History of the United States (1953).
An important hallmark of civil rights and civil liberties organizations is the
felt need to vindicate constitutional and legal principle beyond the simple
support of one's core constituency. Thus, the ACLU has traditionally had a
policy of supporting First Amendment free speech, press, and assembly rights for
a wide variety of groups right, left, and center, even those that they may
sharply disagree with. Similarly, the NAACP and the Legal Defense Fund has
supported challenges to the death penalty even when the individuals condemned to
death have been white, even whites hostile to blacks. In recent decades
the NRA has also fought to vindicate the principle of a right to arms that went
beyond its core constituency of rural, working-class and middle-class white
men. Thus, since the late 1960s the group has fought efforts to ban
so-called Saturday Night Specials, essentially most inexpensive handguns,
although the stereotypical customers for that type of firearm are allegedly
inner city blacks. Also, within the last decade the NRA has led the fight
against bans on guns in public housing, see, e.g., Doe v.
Portland Housing Authority, 656 A. 2d 1200 (Me. 1995), even though such
measures are not targeted at the NRA's core constituency, because it felt that
such measures violated its notion of a constitutional right to arms. One
might also ask why such measures have not been attacked with equal vigor by more
conventional civil rights and civil liberties organizations on the theory that,
regardless of one's views concerning the Second Amendment, measures designed to
single out largely poor and minority communities for gun prohibition represent a
threat to the principle of equal protection.
should also be noted that the National Rifle Association's expanded
constitutional interest extended beyond the Second Amendment. The
organization has for example filed amicus briefs in cases where it perceives
potential damage to first amendment principle that might impinge on its ability
to organize politically, see, e.g., Brief for the National Riffle
Association of America as Amicus Curiae, Federal Election Commission v.
Massachusetts Citizens for Life Inc. (1986).
Morton Grove, Ill., ord. 81-11 (June 8, 1981).
See, e.g., Printz v. United States, 117 S.Ct. 2365, 2386 (1997)
(Thomas, J., concurring) (suggesting this without entirely endorsing it --
"Perhaps, at some future date, this Court will have the opportunity to determine
whether Justice Story was correct when he wrote that the right to bear arms `has
justly been considered, as the palladium of the liberties of a republic´");
Betty Howard, 2nd Amendment; The True Intent, Orlando Sentinel,
Dec. 19, 1997, at A23.
See, e.g., Thomas J. Baldino, Time to Repeal 2nd
Amendment, Arizona Republic, Dec. 30, 1993, at B5.
See, e.g., The 1997 Elections, N.Y. Times, Oct. 25,
1997, at B4 (quoting Libertarian Party gubernatorial candidate).
David C. Williams, Civic Republicanism and the Citizen Militia: The
Terrifying Second Amendment, 101 Yale L.J. 551, 555 (1991) (contending
that the Second Amendment has been "effective[ly] nullifi[ed]" by changing
Garry Wills, To Keep and Bear Arms, The New York Review of Books,
Sept. 21, 1995, at 62, 72.