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                     The Embarrassing Second Amendment
                                    by
                             Sanford Levinson

                   From The Yale Law Journal, Volume 99



                                - FORWARD -

          I am a Charles Tilford McCormick Professor of Law at the
     University of Texas Law School. This essay was initially prepared
     for delivery at a symposium on Interpretation and the Bill of
     Rights at Williams College on November 4, 1988. I am grateful for
     the thought and effort put into that conference by its organizer,
     Professor Mark Taylor. It was he who arranged for Wendy Brown,
     then a member of the Williams Department of Political Science, to
     deliver the excellent response that can be found following this
     article. A timely letter from Linda Kerber contributed to the
     reorganization of this article. Two long-distance friends and
     colleagues, Akhil Reed Amar and Stephen Siegel, contributed
     special and deeply appreciated insights and encouragement.
     Finally, as always, I took full advantage of several of my
     University of Texas Law School colleagues, including Jack Balkin,
     Douglas Laycock, and Lucas Powe.

          I should note that I wrote (and titled) this article before
     reading Nelson Lund's The Second Amendment, Political Liberty,
     and the Right to Self-Preservation, 39 Ala. L. REV. 103 (1987),
     which begins, "The Second Amendment to the United States
     Constitution has become the most embarrassing provision of the
     Bill of Rights." I did hear Lund deliver a talk on the Second
     Amendment at the University of Texas Law School during the winter
     of 1987, which may have penetrated my consciousness more than I
     realized while drafting the article.

     Sanford Levinson


                               -=-=-=-=-=-=-


          One of the best known pieces of American popular art in this
     century is the New Yorker cover by Saul Steinberg presenting a
     map of the United States as seen by a New Yorker. As most readers
     can no doubt recall, Manhattan dominates the map; everything west
     of the Hudson is more or less collapsed together and minimally
     displayed to the viewer. Steinberg's great cover depends for its
     force on the reality of what social psychologists call "cognitive
     maps." If one asks inhabitants ostensibly of the same cities to
     draw maps of that city, one will quickly discover that the images
     carried around in people's minds will vary by race, social class,
     and the like. What is true of maps of places--that they differ
     according to the perspectives of the mapmakers--is certainly true
     of all conceptual maps.

          To continue the map analogy, consider in this context the
     Bill of Rights: Is there an agreed upon "projection" of the
     concept? Is there even a canonical text of the Bill of Rights?
     Does it include the first eight, nine, or ten Amendments to the
     Constitution?[1] Imagine two individuals who are asked to draw a
     "map" of the Bill of Rights. One is a (stereo-) typical member of
     the American Civil Liberties Union (of which I am a cardcarrying
     member); the other is an equally (stereo-) typical member of the
     "New Right." The first, I suggest, would feature the First
     Amendment [2] as Main Street, dominating the map, though more,
     one suspects, in its role as protector of speech and prohibitor
     of established religion than as guardian of the rights of
     religious believers. The other principal avenues would be the
     criminal procedure aspects of the Constitution drawn from the
     Fourth, [3] Fifth, [4] Sixth, [5] and Eighth [6] Amendments. Also
     depicted prominently would be the Ninth Amendment, [7] although
     perhaps as in the process of construction. I am confident that
     the ACLU map would exclude any display of the just compensation
     clause of the Fifth Amendment [8] or of the Tenth Amendment.[9]

          The second map, drawn by the New Rightist, would highlight
     the free exercise clause of the First Amendment, [10] the just
     compensation clause of the Fifth Amendment, [11] and the Tenth
     Amendment.[12] Perhaps the most notable difference between the
     two maps, though, would be in regard to the Second Amendment: "A
     well regulated Militia being necessary to the security of a free
     State, the right of the people to keep and bear Arms shall not be
     infringed." What would be at most only a blind alley for the ACLU
     mapmaker would, I am confident, be a major boulevard in the map
     drawn by the New Right adherent. It is this last anomaly that I
     want to explore in this essay.


     I.   THE POLITICS OF INTERPRETING THE SECOND AMENDMENT

          To put it mildly, the Second Amendment is not at the
     forefront of constitutional discussion, at least as registered in
     what the academy regards as the venues for such discussion--law
     reviews, [13] casebooks, [14] and other scholarly legal
     publications. As Professor LaRue has recently written, "the
     second amendment is not taken seriously by most scholars."[15]

          Both Laurence Tribe [16] and the Illinois team of Nowak,
     Rotunda, and Young [17] at least acknowledge the existence of the
     Second Amendment in their respective treatises on constitutional
     law, perhaps because the treatise genre demands more encyclopedic
     coverage than does the casebook. Neither, however, pays it the
     compliment of extended analysis. Both marginalize the Amendment
     by relegating it to footnotes; it becomes what a
     deconstructionist might call a "supplement" to the ostensibly
     "real" Constitution that is privileged by discussion in the
     text.[18] Professor Tribe's footnote appears as part of a general
     discussion of congressional power. He asserts that the history of
     the Amendment "indicate[s] that the central concern of [its]
     framers was to prevent such federal interferences with the state
     militia as would permit the establishment of a standing national
     army and the consequent destruction of local autonomy."[19] He
     does note, however, that "the debates surrounding congressional
     approval of the second amendment do contain references to
     individual self-protection as well as to states' rights," but he
     argues that the presence of the preamble to the Amendment, as
     well as the qualifying phrase "'well regulated' makes any
     invocation of the amendment as a restriction on state or local
     gun control measures extremely problematic."[20] Nowak, Rotunda,
     and Young mention the Amendment in the context of the
     incorporation controversy, though they discuss its meaning at
     slightly greater length.[21] They state that "[t]he Supreme Court
     has not determined, at least not with any clarity, whether the
     amendment protects only a right of state governments against
     federal interference with state militia and police forces . . .
     or a right of individuals against the federal and state
     government[s]."[22]

          Clearly the Second Amendment is not the only ignored patch
     of text in our constitutional conversations. One will find
     extraordinarily little discussion about another one of the
     initial Bill of Rights, the Third Amendment: "No Soldier shall,
     in time of peace be quartered in any house, without the consent
     of the Owner, nor in time of war, but in a manner to be
     prescribed by law." Nor does one hear much about letters of
     marque and reprisal [23] or the granting of titles of
     nobility.[24] There are, however, some differences that are worth
     noting.

          The Third Amendment, to take the easiest case, is ignored
     because it is in fact of no current importance whatsoever
     (although it did, for obvious reasons, have importance at the
     time of the founding). It has never, for a single instant, been
     viewed by any body of modern lawyers or groups of laity as highly
     relevant to their legal or political concerns. For this reason,
     there is almost no case law on the Amendment.[25] I suspect that
     few among even the highly sophisticated readers of this Journal
     can summon up the Amendment without the aid of the text.

          The Second Amendment, though, is radically different from
     these other pieces of constitutional text just mentioned, which
     all share the attribute of being basically irrelevant to any
     ongoing political struggles. To grasp the difference, one might
     simply begin by noting that it is not at all unusual for the
     Second Amendment to show up in letters to the editors of
     newspapers and magazines.[26] That judges and academic lawyers,
     including the ones who write casebooks, ignore it is most
     certainly not evidence for the proposition that no one cares
     about it. The National Rifle Association, to name the most
     obvious example, cares deeply about the Amendment, and an
     apparently serious Senator of the United States averred that the
     right to keep and bear arms is the "right most valued by free
     men."[27] Campaigns for Congress in both political parties, and
     even presidential campaigns, may turn on the apparent commitment
     of the candidates to a particular view of the Second Amendment.
     This reality of the political process reflects the fact that
     millions of Americans, even if (or perhaps especially if) they
     are not academics, can quote the Amendment and would disdain any
     presentation of the Bill of Rights that did not give it a place
     of pride.

          I cannot help but suspect that the best explanation for the
     absence of the Second Amendment from the legal consciousness of
     the elite bar, including that component found in the legal
     academy, [28] is derived from a mixture of sheer opposition to
     the idea of private ownership of guns and the perhaps
     subconscious fear that altogether plausible, perhaps even
     "winning," interpretations of the Second Amendment would present
     real hurdles to those of us supporting prohibitory regulation.
     Thus the title of this essay--The Embarrassing Second Amendment--
     for I want to suggest that the Amendment may be profoundly
     embarrassing to many who both support such regulation and view
     themselves as committed to zealous adherence to the Bill of
     Rights (such as most members of the ACLU). Indeed, one sometimes
     discovers members of the NRA who are equally committed members of
     the ACLU, differing with the latter only on the issue of the
     Second Amendment but otherwise genuinely sharing the libertarian
     viewpoint of the ACLU.

          It is not my style to offer "correct" or "incorrect"
     interpretations of the Constitution.[29] My major interest is in
     delineating the rhetorical structures of American constitutional
     argument and elaborating what is sometimes called the "politics
     of interpretation," that is, the factors that explain why one or
     another approach will appeal to certain analysts at certain
     times, while other analysts, or times, will favor quite different
     approaches. Thus my general tendency to regard as wholly
     untenable any approach to the Constitution that describes itself
     as obviously correct and condemns its opposition as simply wrong
     holds for the Second Amendment as well. In some contexts, this
     would lead me to label as tendentious the certainty of NRA
     advocates that the Amendment means precisely what they assert it
     does. In this particular context--i.e., the pages of a journal
     whose audience is much more likely to be drawn from an elite,
     liberal portion of the public--I will instead be suggesting that
     the skepticism should run in the other direction. That is, we
     might consider the possibility that "our" views of the Amendment,
     perhaps best reflected in Professor Tribe's offhand treatment of
     it, might themselves be equally deserving of the "tendentious"
     label.


     II. THE RHETORICAL STRUCTURES OF THE RIGHT TO BEAR ARMS

          My colleague Philip Bobbitt has, in his book Constitutional
     Fate, [30] spelled out six approaches--or "modalities," as he
     terms them--of constitutional argument. These approaches, he
     argues, comprise what might be termed our legal grammar. They are
     the rhetorical structures within which "law-talk" as a
     recognizable form of conversation is carried on. The six are as
     follows:

          1)   textual argument--appeals to the unadorned
               language of the text;[31]

          2)   historical argument--appeals to the historical
               background of the provision being considered,
               whether the history considered be general, such as
               background but clearly crucial events (such as the
               American Revolution), or specific appeals to the
               so-called intentions of the framers;[32]

          3)   structural argument--analyses inferred from the
               particular structures established by the
               Constitution, including the tripartite division of
               the national government; the separate existence of
               both state and nation as political entities; and
               the structured role of citizens within the
               political order;[33]

          4)   doctrinal argument--emphasis on the implications
               of prior cases decided by the Supreme Court;[34]

          5)   prudential argument--emphasis on the consequences
               of adopting a proffered decision in any given
               case;[35] and, finally,

          6)   ethical argument--reliance on the overall "ethos"
               of limited government as centrally constituting
               American political culture.[36]

          I want to frame my consideration of the Second Amendment
     within the first five of Bobbitt's categories; they are all
     richly present in consideration of what the Amendment might mean.
     The sixth, which emphasizes the ethos of limited government, does
     not play a significant role in the debate of the Second
     Amendment.[37]


     A.   TEXT

          I begin with the appeal to text. Recall the Second
     Amendment: "A well regulated Militia, being necessary to the
     security of a free State, the right of the people to keep and
     bear Arms, shall not be infringed." No one has ever described the
     Constitution as a marvel of clarity, and the Second Amendment is
     perhaps one of the worst drafted of all its provisions. What is
     special about the Amendment is the inclusion of an opening
     clause--a preamble, if you will--that seems to set out its
     purpose. No similar clause is a part of any other Amendment,[38]
     though that does not, of course, mean that we do not ascribe
     purposes to them. It would be impossible to make sense of the
     Constitution if we did not engage in the ascription of purpose.
     Indeed, the major debates about the First Amendment arise
     precisely when one tries to discern a purpose, given that
     "literalism" is a hopelessly failing approach to interpreting it.
     We usually do not even recognize punishment of fraud--a classic
     speech act--as a free speech problem because we so sensibly
     assume that the purpose of the First Amendment could not have
     been, for example, to protect the circulation of patently
     deceptive information to potential investors in commercial
     enterprises. The sharp differences that distinguish those who
     would limit the reach of the First Amendment to "political"
     speech from those who would extend it much further, encompassing
     non-deceptive commercial speech, are all derived from different
     readings of the purpose that underlies the raw text.[39]

          A standard move of those legal analysts who wish to limit
     the Second Amendment's force is to focus on its "preamble" as
     setting out a restrictive purpose. Recall Laurence Tribe's
     assertion that that purpose was to allow the states to keep their
     militias and to protect them against the possibility that the new
     national government will use its power to establish a powerful
     standing army and eliminate the state militias. This purposive
     reading quickly disposes of any notion that there is an
     "individual" right to keep and bear arms. The right, if such it
     be, is only a state's right. The consequence of this reading is
     obvious: the national government has the power to regulate--to
     the point of prohibition--private ownership of guns, since that
     has, by stipulation, nothing to do with preserving state
     militias. This is, indeed, the position of the ACLU, which reads
     the Amendment as protecting only the right of "maintaining an
     effective state militia.... [T]he individual's right to bear arms
     applies only to the preservation or efficiency of a well-
     regulated [state] militia. Except for lawful police and military
     purposes, the possession of weapons by individuals is not
     constitutionally protected."[40]

          This is not a wholly implausible reading, but one might ask
     why the Framers did not simply say something like "Congress shall
     have no power to prohibit state-organized and directed militias."
     Perhaps they in fact meant to do something else. Moreover, we
     might ask if ordinary readers of late 18th Century legal prose
     would have interpreted it as meaning something else. The text at
     best provides only a starting point for a conversation. In this
     specific instance, it does not come close to resolving the
     questions posed by federal regulation of arms. Even if we accept
     the preamble as significant, we must still try to figure out what
     might be suggested by guaranteeing to "the people the right to
     keep and bear arms;" moreover, as we shall see presently, even
     the preamble presents unexpected difficulties in interpretation.


     B.   HISTORY

          One might argue (and some have) that the substantive right
     is one pertaining to a collective body--"the people"--rather than
     to individuals. Professor Cress, for example, argues that state
     constitutions regularly used the words "man" or "person" in
     regard to "individual rights such as freedom of conscience,"
     whereas the use in those constitutions of the term "the people"
     in regard to a right to bear arms is intended to refer to the
     "sovereign citizenry" collectively organized.[41] Such an
     argument founders, however, upon examination of the text of the
     federal Bill of Rights itself and the usage there of the term
     "the people" in the First, Fourth, Ninth, and Tenth Amendments.

          Consider that the Fourth Amendment protects " [t]he right of
     the people to be secure in their persons," or that the First
     Amendment refers to the "right of the people peaceably to
     assemble, and to petition the Government for a redress of
     grievances." It is difficult to know how one might plausibly read
     the Fourth Amendment as other than a protection of individual
     rights, and it would approach the frivolous to read the assembly
     and petition clause as referring only to the right of state
     legislatures to meet and pass a remonstrance directed to Congress
     or the President against some governmental act. The Tenth
     Amendment is trickier, though it does explicitly differentiate
     between "states" and "the people" in terms of retained
     rights.[42] Concededly, it would be possible to read the Tenth
     Amendment as suggesting only an ultimate right of revolution by
     the collective people should the "states" stray too far from
     their designated role of protecting the rights of the people.
     This reading follows directly from the social contract theory of
     the state. (But, of course, many of these rights are held by
     individuals.)

          Although the record is suitably complicated, it seems
     tendentious to reject out of hand the argument that one purpose
     of the Amendment was to recognize an individual's right to engage
     in armed self-defense against criminal conduct.[43] Historian
     Robert E. Shalhope supports this view, arguing in his article The
     Ideological Origins of the Second Amendment [44] that the
     Amendment guarantees individuals the right "to possess arms for
     their own personal defense."[45] It would be especially
     unsurprising if this were the case, given the fact that the
     development of a professional police force (even within large
     American cities) was still at least a half century away at the
     end of the colonial period.[46] I shall return later in this
     essay to this individualist notion of the Amendment, particularly
     in regard to the argument that "changing circumstances,"
     including the development of a professional police force, have
     deprived it of any continuing plausibility. But I want now to
     explore a second possible purpose of the Amendment, which as a
     sometime political theorist I find considerably more interesting.

          Assume, as Professor Cress has argued, that the Second
     Amendment refers to a communitarian, rather than an individual,
     right.[47] We are still left the task of defining the
     relationship between the community and the state apparatus. It is
     this fascinating problem to which I now turn.

          Consider once more the preamble and its reference to the
     importance of a well-regulated militia. Is the meaning of the
     term obvious? Perhaps we should make some effort to find out what
     the term "militia" meant to 18th century readers and writers,
     rather than assume that it refers only to Dan Quayle's Indiana
     National Guard and the like. By no means am I arguing that the
     discovery of that meaning is dispositive as to the general
     meaning of the Constitution for us today. But it seems foolhardy
     to be entirely uninterested in the historical philology behind
     the Second Amendment.

          I, for one, have been persuaded that the term "militia" did
     not have the limited reference that Professor Cress and many
     modern legal analysts assign to it. There is strong evidence that
     "militia" refers to all of the people, or at least all of those
     treated as full citizens of the community. Consider, for example,
     the question asked by George Mason, one of the Virginians who
     refused to sign the Constitution because of its lack of a Bill of
     Rights: "Who are the Militia? They consist now of the whole
     people."[48] Similarly, the Federal Farmer, one of the most
     important Anti-Federalist opponents of the Constitution, referred
     to a "militia, when properly formed, [as] in fact the people
     themselves."[49] We have, of course, moved now from text to
     history. And this history is most interesting, especially when we
     look at the development of notions of popular sovereignty. It has
     become almost a cliche of contemporary American historiography to
     link the development of American political thought, including its
     constitutional aspects, to republican thought in England, the
     "country" critique of the powerful "court" centered in London.

          One of this school's important writers, of course, was James
     Harrington, who not only was influential at the time but also has
     recently been given a certain pride of place by one of the most
     prominent of contemporary "neo-republicans," Professor Frank
     Michelman.[50] One historian describes Harrington as having made
     "the most significant contribution to English libertarian
     attitudes toward arms, the individual, and society."[51] He was a
     central figure in the development of the ideas of popular
     sovereignty and republicanism.[52] For Harrington, preservation
     of republican liberty requires independence, which rests
     primarily on possession of adequate property to make men free
     from coercion by employers or landlords. But widespread ownership
     of land is not sufficient. These independent yeoman should also
     bear arms. As Professor Morgan puts it, "[T]hese independent
     yeomen, armed and embodied in a militia, are also a popular
     government's best protection against its enemies, whether they be
     aggressive foreign monarchs or scheming demagogues within the
     nation itself."[53]

          A central fear of Harrington and of all future republicans
     was a standing army, composed of professional soldiers.
     Harrington and his fellow republicans viewed a standing army as a
     threat to freedom, to be avoided at almost all costs. Thus, says
     Morgan, "A militia is the only safe form of military power that a
     popular government can employ; and because it is composed of the
     armed yeomanry, it will prevail over the mercenary professionals
     who man the armies of neighboring monarchs."[54]

          Scholars of the First Amendment have made us aware of the
     importance of John Trenchard and Thomas Gordon, whose Cato's
     Letter's were central to the formation of the American notion of
     freedom of the press. That notion includes what Vincent Blasi
     would come to call the "checking value" of a free press, which
     stands as a sturdy exposer of governmental misdeeds.[55] Consider
     the possibility, though, that the ultimate "checking value" in a
     republican polity is the ability of an armed populace,
     presumptively motivated by a shared commitment to the common
     good, to resist governmental tyranny.[56] Indeed, one of Cato's
     letters refers to "the Exercise of despotick Power [as] the
     unrelenting War of an armed Tyrant upon his unarmed
     Subjects...."[57]

          Cress persuasively shows that no one defended universal
     possession of arms. New Hampshire had no objection to disarming
     those who "are or have been in actual rebellion," just as Samuel
     Adams stressed that only "peaceable citizens" should be protected
     in their right of "keeping their own arms."[58] All these points
     can be conceded, however, without conceding as well that
     Congress--or, for that matter, the States--had the power to
     disarm these "peaceable citizens."

          Surely one of the foundations of American political thought
     of the period was the well-justified concern about political
     corruption and consequent governmental tyranny. Even the
     Federalists, fending off their opponents who accused them of
     foisting an oppressive new scheme upon the American people, were
     careful to acknowledge the risks of tyranny. James Madison, for
     example, speaks in Federalist Number Forty-Six of "the advantage
     of being armed, which the Americans possess over the people of
     almost every other nation."[59] The advantage in question was not
     merely the defense of American borders; a standing army might
     well accomplish that. Rather, an armed public was advantageous in
     protecting political liberty. It is therefore no surprise that
     the Federal Farmer, the nom de plume of an anti-federalist critic
     of the new Constitution and its absence of a Bill of Rights,
     could write that "to preserve liberty, it is essential that the
     whole body of the people always possess arms, and be taught
     alike, especially when young, how to use them...."[60] On this
     matter, at least, there was no cleavage between the pro-
     ratification Madison and his opponent.

          In his influential Commentaries on the Constitution, Joseph
     Story, certainly no friend of Anti-Federalism, emphasized the
     "importance" of the Second Amendment.[61] He went on to describe
     the militia as "the natural defence of a free country" not only
     "against sudden foreign invasions" and "domestic insurrections,"
     with which one might well expect a Federalist to be concerned,
     but also against "domestic usurpations of power by rulers."[62]
     "The right of the citizens to keep and bear arms has justly been
     considered," Story wrote, "as the palladium of the liberties of a
     republic; since it offers a strong moral check against the
     usurpation and arbitrary power of rulers; and will generally,
     even if these are successful in the first instance, enable the
     people to resist and triumph over them."[63]

          We also see this blending of individualist and collective
     accounts of the right to bear arms in remarks by Judge Thomas
     Cooley, one of the most influential 19th century constitutional
     commentators. Noting that the state might call into its official
     militia only "a small number" of the eligible citizenry, Cooley
     wrote that "if the right [to keep and bear arms] were limited to
     those enrolled, the purpose of this guaranty might be defeated
     altogether by the action or neglect to act of the government it
     was meant to hold in check."[64] Finally, it is worth noting the
     remarks of Theodore Schroeder, one of the most important
     developers of the theory of freedom of speech early in this
     century.[65] "[T]he obvious import [of the constitutional
     guarantee to carry arms]," he argues, "is to promote a state of
     preparedness for self-defense even against the invasions of
     government, because only governments have ever disarmed any
     considerable class of people as a means toward their
     enslavement."[66]

          Such analyses provide the basis for Edward Abbey's revision
     of a common bumper sticker, "If guns are outlawed, only the
     government will have guns."[67] One of the things this slogan has
     helped me to understand is the political tilt contained within
     the Weberian definition of the state--i.e., the repository of a
     monopoly of the legitimate means of violence [68]--that is so
     commonly used by political scientists. It is a profoundly statist
     definition, the product of a specifically German tradition of the
     (strong) state rather than of a strikingly different American
     political tradition that is fundamentally mistrustful of state
     power and vigilant about maintaining ultimate power, including
     the power of arms, in the populace.

          We thus see what I think is one of the most interesting
     points in regard to the new historiography of the Second
     Amendment--its linkage to conceptions of republican political
     order. Contemporary admirers of republican theory use it as a
     source both of critiques of more individualist liberal theory and
     of positive insight into the way we today might reorder our
     political lives.[69] One point of emphasis for neo-republicans is
     the value of participation in government, as contrasted to mere
     representation by a distant leadership, even if formally elected.
     But the implications of republicanism might push us in
     unexpected, even embarrassing, directions: just as ordinary
     citizens should participate actively in governmental decision
     making through offering their own deliberative insights, rather
     than be confined to casting ballots once every two or four years
     for those very few individuals who will actually make decisions,
     so should ordinary citizens participate in the process of law
     enforcement and defense of liberty rather than rely on
     professionalized peacekeepers, whether we call them standing
     armies or police.


     C. Structure

          We have also passed imperceptibly into a form of structural
     argument, for we see that one aspect of the structure of checks
     and balances within the purview of 18th century thought was the
     armed citizen. That is, those who would limit the meaning of the
     Second Amendment to the constitutional protection of state-
     controlled militias agree that such protection rests on the
     perception that militarily competent states were viewed as a
     potential protection against a tyrannical national government.
     Indeed, in 1801 several governors threatened to call out state
     militias if the Federalists in Congress refused to elect Thomas
     Jefferson president.[70] But this argument assumes that there are
     only two basic components in the vertical structure of the
     American polity--the national government and the states. It
     ignores the implication that might be drawn from the Second,
     Ninth, and Tenth Amendments: the citizenry itself can be viewed
     as an important third component of republican governance insofar
     as it stands ready to defend republican liberty against the
     depredations of the other two structures, however futile that
     might appear as a practical matter.

          One implication of this republican rationale for the Second
     Amendment is that it calls into question the ability of a state
     to disarm its citizenry. That is, the strongest version of the
     republican argument would hold it to be a"privilege and immunity
     of United States citizenship"--of membership in a liberty-
     enhancing political order--to keep arms that could be taken up
     against tyranny wherever found, including, obviously, state
     government. Ironically, the principal citation supporting this
     argument is to Chief Justice Taney's egregious opinion in Dred
     Scott, [71] where he suggested that an uncontroversial attribute
     of citizenship, in addition to the right to migrate from one
     state to another, was the right to possess arms. The logic of
     Taney's argument at this point seems to be that, because it was
     inconceivable that the Framers could have genuinely imagined
     blacks having the right to possess arms, it follows that they
     could not have envisioned them as being citizens, since
     citizenship entailed that right. Taney's seeming recognition of a
     right to arms is much relied on by opponents of gun control.[72]
     Indeed, recall Madison's critique, in Federalist Numbers Ten and
     Fourteen, of republicanism's traditional emphasis on the
     desirability of small states as preservers of republican liberty.
     He transformed this debate by arguing that the states would be
     less likely to preserve liberty because they could so easily fall
     under the sway of a local dominant faction, whereas an extended
     republic would guard against this danger. Anyone who accepts the
     Madisonian argument could scarcely be happy enhancing the powers
     of the states over their own citizens; indeed, this has been one
     of the great themes of American constitutional history, as the
     nationalization of the Bill of Rights has been deemed necessary
     in order to protect popular liberty against state depredation.


     D. Doctrine

          Inevitably one must at least mention, even though there is
     not space to discuss fully, the so-called incorporation
     controversy regarding the application of the Bill of Rights to
     the states through the Fourteenth Amendment. It should be no
     surprise that the opponents of gun control appear to take a "full
     incorporationist" view of that Amendment.[73] They view the
     privileges and immunities clause, which was eviscerated in the
     Slaughterhouse Cases,[74] as designed to require the states to
     honor the rights that had been held, by Justice Marshall in
     Barron v. Baltimore in 1833,[75] to restrict only the national
     government. In 1875 the Court stated, in United States v.
     Cruikshank,[76] that the Second Amendment, insofar as it grants
     any right at all, "means no more than that it shall not be
     infringed by Congress. This is one of the amendments that has no
     other effect than to restrict the powers of the national
     government. . ." Lest there be any remaining doubt on this point,
     the Court specifically cited the Cruikshank language eleven years
     later in Presser v. Illinois, [77] in rejecting the claim that
     the Second Amendment served to invalidate an Illinois statute
     that prohibited "any body of men whatever, other than the regular
     organized volunteer militia of this State, and the troops of the
     United States. . .to drill or parade with arms in any city, or
     town, of this State, without the license of the Governor
     thereof...."[78]

          The first "incorporation decision," Chicago, B. & Q. R. Co.
     v. Chicago, [79] was not delivered until eleven years after
     Presser; one therefore cannot know if the judges in Cruikshank
     and Presser were willing to concede that any of the amendments
     comprising the Bill of Rights were anything more than limitations
     on congressional or other national power. The obvious question,
     given the modern legal reality of the incorporation of almost all
     of the rights protected by the First, Fourth, Fifth, Sixth, and
     Eighth Amendments, is what exactly justifies treating the Second
     Amendment as the great exception. Why, that is, should Cruikshank
     and Presser be regarded as binding precedent any more than any of
     the other "pre-incorporation" decisions refusing to apply given
     aspects of the Bill of Rights against the states?

          If one agrees with Professor Tribe that the Amendment is
     simply a federalist protection of state rights, then presumably
     there is nothing to incorporate.[80] If, however, one accepts the
     Amendment as a serious substantive limitation on the ability of
     the national government to regulate the private possession of
     arms based on either the "individualist" or "neo-republican"
     theories sketched above, then why not follow the
     "incorporationist" logic applied to other amendments and limit
     the states as well in their powers to regulate (and especially to
     prohibit) such possession? The Supreme Court has almost
     shamelessly refused to discuss the issue, [81] but that need not
     stop the rest of us.

          Returning, though, to the question of Congress' power to
     regulate the keeping and bearing of arms, one notes that there
     is, basically, only one modern case that discusses the issue,
     United States v. Miller, [82] decided in 1939. Jack Miller was
     charged with moving a sawed-off shotgun in interstate commerce in
     violation of the National Firearms Act of 1934. Among other
     things, Miller and a compatriot had not registered the firearm,
     as required by the Act. The court below had dismissed the charge,
     accepting Miller's argument that the Act violated the Second
     Amendment.

          The Supreme Court reversed unanimously, with the arch-
     conservative Justice McReynolds writing the opinion. [83]
     Interestingly enough, he emphasized that there was no evidence
     showing that a sawed-off shotgun "at this time has some
     reasonable relationship to the preservation or efficiency of a
     well regulated militia."[84] And "[c]ertainly it is not within
     judicial notice that this weapon is any part of the ordinary
     military equipment or that its use could contribute to the common
     defense."[85] Miller might have had a tenable argument had he
     been able to show that he was keeping or bearing a weapon that
     clearly had a potential military use.[86]

          Justice McReynolds went on to describe the purpose of the
     Second Amendment as "assur[ing] the continuation and render[ing]
     possible the effectiveness of [the Militia]."[87] He contrasted
     the Militia with troops of a standing army, which the
     Constitution indeed forbade the states to keep without the
     explicit consent of Congress. "The sentiment of the time strongly
     disfavored standing armies; the common view was that adequate
     defense of country and laws could be secured through the Militia-
     -civilians primarily, soldiers on occasion."[88] McReynolds noted
     further that "the debates in the Convention, the history and
     legislation of Colonies and States, and the writings of approved
     commentators [all] [s]how plainly enough that the Militia
     comprised all males physically capable of acting in concert for
     the common defense."[89]

          It is difficult to read Miller as rendering the Second
     Amendment meaningless as a control on Congress. Ironically,
     Miller can be read to support some of the most extreme anti-gun
     control arguments, e.g., that the individual citizen has a right
     to keep and bear bazookas, rocket launchers, and other armaments
     that are clearly relevant to modern warfare, including, of
     course, assault weapons. Arguments about the constitutional
     legitimacy of a prohibition by Congress of private ownership of
     handguns or, what is much more likely, assault rifles, might turn
     on the usefulness of such guns in military settings.


     E. Prudentialism

          We have looked at four of Bobbitt's categories--text,
     history, structure, and case law doctrine--and have seen, at the
     very least, that the arguments on behalf of a "strong" Second
     Amendment are stronger than many of us might wish were the case.
     This, then, brings us to the fifth category, prudentialism, or an
     attentiveness to practical consequences, which is clearly of
     great importance in any debates about gun control. The standard
     argument in favor of strict control and, ultimately, prohibition
     of private ownership focuses on the extensive social costs of
     widespread distribution of firearms. Consider, for example, a
     recent speech given by former Justice Lewis Powell to the
     American Bar Association. He noted that over 40,000 murders were
     committed in the United States in 1986 and 1987, and that fully
     sixty percent of them were committed with firearms. England and
     Wales, however, saw only 662 homicides in 1986, less than eight
     percent of which were committed with firearms.[90] Justice Powell
     indicated that, "[w]ith respect to handguns," in contrast "to
     sporting rifles and shotguns[,] it is not easy to understand why
     the Second Amendment, or the notion of liberty, should be viewed
     as creating a right to own and carry a weapon that contributes so
     directly to the shocking number of murders in our society."[91]

          It is hard to disagree with Justice Powell; it appears
     almost crazy to protect as a constitutional right something that
     so clearly results in extraordinary social costs with little, if
     any, compensating social advantage. Indeed, since Justice
     Powell's talk, the subject of assault rifles has become a staple
     of national discussion, and the opponents of regulation of such
     weapons have deservedly drawn the censure even of conservative
     leaders like William Bennett. It is almost impossible to imagine
     that the judiciary would strike down a determination by Congress
     that the possession of assault weapons should be denied to
     private citizens.

          Even if one accepts the historical plausibility of the
     arguments advanced above, the overriding temptation is to say
     that times and circumstances have changed and that there is
     simply no reason to continue enforcing an outmoded, and indeed
     dangerous, understanding of private rights against public order.
     This criticism is clearest in regard to the so-called
     individualist argument, for one can argue that the rise of a
     professional police force to enforce the law has made irrelevant,
     and perhaps even counterproductive, the continuation of a strong
     notion of self-help as the remedy for crime.[92]

          I am not unsympathetic to such arguments. It is no purpose
     of this essay to solicit membership for the National Rifle
     Association or to express any sympathy for what even Don Kates, a
     strong critic of the conventional dismissal of the Second
     Amendment, describes as "the gun lobby's obnoxious habit of
     assailing all forms of regulation on 2nd Amendment grounds."[93]
     And yet ....

          Circumstances may well have changed in regard to individual
     defense, although we ignore at our political peril the good-faith
     belief of many Americans that they cannot rely on the police for
     protection against a variety of criminals. Still, let us assume
     that the individualist reading of the Amendment has been vitiated
     by changing circumstances. Are we quite so confident that
     circumstances are equally different in regard to the republican
     rationale outlined earlier?

          One would, of course, like to believe that the state,
     whether at the local or national level, presents no threat to
     important political values, including liberty. But our propensity
     to believe that this is the case may be little more than a sign
     of how truly different we are from our radical forbearers. I do
     not want to argue that the state is necessarily tyrannical; I am
     not an anarchist. But it seems foolhardy to assume that the armed
     state will necessarily be benevolent. The American political
     tradition is, for good or ill, based in large measure on a
     healthy mistrust of the state. The development of widespread
     suffrage and greater majoritarianism in our polity is itself no
     sure protection, at least within republican theory. The
     republican theory is predicated on the stark contrast between
     mere democracy, where people are motivated by selfish personal
     interest, and a republic, where civic virtue, both in citizens
     and leadership, tames selfishness on behalf of the common good.
     In any event, it is hard for me to see how one can argue that
     circumstances have so changed as to make mass disarmament
     constitutionally unproblematic.[94]

          Indeed, only in recent months have we seen the brutal
     suppression of the Chinese student demonstrations in Tianamen
     Square. It should not surprise us that some N.R.A. sympathizers
     have presented that situation as an object lesson to those who
     unthinkingly support the prohibition of private gun ownership.
     "[I]f all Chinese citizens kept arms, their rulers would hardly
     have dared to massacre the demonstrators .... The private keeping
     of hand-held personal firearms is within the constitutional
     design for a counter to government run amok .... As the Tianamen
     Square tragedy showed so graphically, AK-47s fall into that
     category of weapons, and that is why they are protected by the
     Second Amendment."[95] It is simply silly to respond that small
     arms are irrelevant against nuclear-armed states: Witness
     contemporary Northern Ireland and the territories occupied by
     Israel, where the sophisticated weaponry of Great Britain and
     Israel have proved almost totally beside the point. The fact that
     these may not be pleasant examples does not affect the principal
     point, that a state facing a totally disarmed population is in a
     far better position, for good or for ill, to suppress popular
     demonstrations and uprisings than one that must calculate the
     possibilities of its soldiers and officials being injured or
     killed.'[96]


     III. TAKING THE SECOND AMENDMENT SERIOUSLY

          There is one further problem of no small import: If one does
     accept the plausibility of any of the arguments on behalf of a
     strong reading of the Second Amendment, but, nevertheless,
     rejects them in the name of social prudence and the present-day
     consequences produced by finicky adherence to earlier
     understandings, why do we not apply such consequentialist
     criteria to each and every part of the Bill of Rights?[97] As
     Ronald Dworkin has argued, what it means to take rights seriously
     is that one will honor them even when there is significant social
     cost in doing so. If protecting freedom of speech, the rights of
     criminal defendants, or any other part of the Bill of Rights were
     always (or even most of the time) clearly cost less to the
     society as a whole, it would truly be impossible to understand
     why they would be as controversial as they are. The very fact
     that there are often significant costs--criminals going free,
     oppressed groups having to hear viciously racist speech and so
     on--helps to account for the observed fact that those who view
     themselves as defenders of the Bill of Rights are generally
     antagonistic to prudential arguments. Most often, one finds them
     embracing versions of textual, historical, or doctrinal argument
     that dismiss as almost crass and vulgar any insistence that times
     might have changed and made too "expensive" the continued
     adherence to given view. "Cost-benefit" analysis, rightly or
     wrongly, has come to be viewed as a "conservative" weapon to
     attack liberal rights.[98] Yet one finds that the tables are
     strikingly turned when the Second Amendment comes into play. ere
     it is "conservatives" who argue in effect that social costs are
     irrelevant and "liberals" who argue for a notion of the "living
     Constitution" and "changed circumstances" that would have the
     practical consequence of removing any real bite from the Second
     Amendment.

          As Fred Donaldson of Austin, Texas wrote, commenting on
     those who defended the Supreme Court's decision upholding flag-
     burning as compelled by a proper (and decidedly non-prudential)
     understanding of the First Amendment, "[I]t seems inconsistent
     for [defenders of the decision] to scream so loudly" at the
     prospect of limiting the protection given expression "while you
     smile complacently at the Second torn and bleeding. If the Second
     Amendment is not worth the paper it is written on, what price the
     First?"[99] The fact that Mr. Donaldson is an ordinary citizen
     rather than an eminent law professor does not make his question
     any less pointed or its answer less difficult.

          For too long, most members of the legal academy have treated
     the Second Amendment as the equivalent of an embarrassing
     relative, whose mention brings a quick change of subject to
     other, more respectable, family members. That will no longer do.
     It is time for the Second Amendment to enter full scale into the
     consciousness of the legal academy. Those of us who agree with
     Martha Minow's emphasis on the desirability of encouraging
     different "voices" in the legal conversation [100] should be
     especially aware of the importance of recognizing the attempts of
     Mr. Donaldson and his millions of colleagues to join the
     conversation. To be sure, it is unlikely that Professor Minow had
     those too often peremptorily dismissed as "gun nuts" in mind as
     possible providers of "insight and growth," but surely the call
     for sensitivity to different or excluded voices cannot extend
     only to those groups "we" already, perhaps "complacent[ly],"
     believe have a lot to tell "us."[101] I am not so naive as to
     believe that conversation will overcome the chasm that now
     separates the sensibility of, say, Senator Hatch and myself as to
     what constitutes the "right[s] most valued by free men [and
     women]."[102] It is important to remember that one will still
     need to join up sides and engage in vigorous political struggle.
     But it might at least help to make the political sides appear
     more human to one another. Perhaps "we" might be led to stop
     referring casually to "gun nuts" just as, maybe, members of the
     NRA could be brought to understand the real fear that the
     currently almost uncontrolled system of gun ownership sparks in
     the minds of many whom they casually dismiss as "bleeding-heart
     liberals." Is not, after all, the possibility of serious, engaged
     discussion about political issues at the heart of what is most
     attractive in both liberal and republican versions of politics?

                              -= APPENDIX =-

     1.   It is not irrelevant that the Bill of Rights submitted to
          the states in 1789 included not only what are now the first
          ten Amendments, but also two others. Indeed, what we call
          the First Amendment was only the third one of the list
          submitted to the states. The initial "first amendment" in
          fact concerned the future size of the House of
          Representatives, a topic of no small importance to the Anti-
          Federalists, who were appalled by the smallness of the House
          seemingly envisioned by the Philadelphia framers. The second
          prohibited any pay raise voted by members of Congress to
          themselves from taking effect until an election "shall have
          intervened." See J. GOEBEL, 1 THE OLIVER WENDELL HOLMES
          DEVISE HISTORY OF THE SUPREME COURT OF THE UNITED STATES:
          ANTECEDENTS AND BEGINNINGS TO 1801, at 442 n.162 (1971). Had
          all of the initial twelve proposals been ratified, we would,
          it is possible, have a dramatically different cognitive map
          of the Bill of Rights. At the very least, one would neither
          hear defenses of the "preferred" status of freedom of speech
          framed in terms of the "firstness" of (what we know as) the
          First Amendment, nor the wholly invalid inference drawn from
          that "firstness" of some special intention of the Framers to
          safeguard the particular rights laid out there.

     2.   "Congress shall make no law respecting an establishment of
          religion . . . or abridging the freedom of speech, or of the
          press; or the right of the people peaceably to assemble, and
          to petition the Government for a redress of grievances."
          U.S. CONST. amend. 1.

     3.   "The right of the people to be secure in their persons,
          houses, papers, and effects, against unreasonable searches
          and seizures, shall not be violated; and no Warrants shall
          issue but upon probable cause, supported by Oath or
          affirmation, and particularly describing the place to be
          searched, and the persons or things to be seized." U.S.
          CONST. amend. IV.

     4.   "No person shall be held to answer for a capital, or
          otherwise infamous crime, unless on a presentment or
          indictment of a Grand Jury, except in cases arising in the
          land or naval forces, or in the Militia, when in actual
          service in time of War or public danger; nor shall any
          person be subject for the same offense to be twice put in
          jeopardy of life or limb; nor shall be compelled in any
          criminal case to be a witness against himself, nor be
          deprived of life, liberty, or property, without due process
          of law ...." U.S. CONST. amend. V.

     5.   "In all criminal prosecutions, the accused shall enjoy the
          right to a speedy and public trial, by an impartial jury of
          the State and district wherein the crime shall have been
          committed, which district shall have been previously
          ascertained by law, and to be informed of the nature and
          cause of the accusation; to be confronted with the witnesses
          against him; to have compulsory process for obtaining
          witnesses in his favor, and to have the Assistance of
          Counsel for his defense." U.S. CONST. amend VI.

     6.   "Excessive bail shall not be required, nor excessive fines
          imposed, nor cruel and unusual punishments inflicted." U.S.
          CONST. amend. VIII.

     7.   "The enumeration in the Constitution, of certain rights,
          shall not be construed to deny or disparage others retained
          by the people." U.S. CONST. amend. IX.

     8.   "[N]or shall private property be taken for public use,
          without just compensation." U.S. CONST. amend. IV.

     9.   "The powers not delegated to the United States by the
          Constitution, nor prohibited by it to the States, are
          reserved to the States respectively, or to the people." U.S.
          CONST. amend. X.

     10.  "Congress shall make no law ... prohibiting the free
          exercise thereof [religion]...." U.S CONST. amend 1.

     11.  See supra note 8.

     12.  See supra note 9.

     13.  There are several law review articles discussing the
          Amendment. See, e.g., Lund, supra note *, and the articles
          cited in Dowlut & Knoop, State Constitutions and the Right
          to Keep and Bear Arms, 7 OKLA. CITY U.L. REV. 177, 178 n.3
          (1982). See also the valuable symposium on Gun Control,
          edited by Don Kates, in 49 LAW & CONTEMP. PROBS. 1-267
          (1986), including articles by Shalhope, The Armed Citizen in
          the Early Republic, at 125; Kates, The Second Amendment: A
          Dialogue, at 143; Halbrook, What the Framers Intended: A
          Linguistic Analysis of the Right to "Bear Arms," at 151. The
          symposium also includes a valuable bibliography of published
          materials on gun control, including Second Amendment
          considerations, at 251-67. The most important single article
          is almost undoubtedly Kates, Handgun Prohibition and the
          Original Meaning of the Second Amendment, 82 MICH. L. REV.
          204 (1983). Not the least significant aspect of Kates'
          article is that it is basically the only one to have
          appeared in an "elite" law review. However, like many of the
          authors of other Second Amendment pieces, Kates is a
          practicing lawyer rather than a legal academic. I think It
          is accurate to say that no one recognized by the legal
          academy as a "major" writer on constitutional law has
          deigned to turn his or her talents to a full consideration
          of the Amendment. But see LaRue, Constitutional Law and
          Constitutional History, 36 BUFFALO L. REV. 373, 375-78
          (1988) (briefly discussing Second Amendment). Akhil Reed
          Amar's reconsideration of the foundations of the
          Constitution also promises to delve more deeply into the
          implications of the Amendment. See Amar, Of Sovereignty and
          Federalism, 96 YALE L.J. 1425, 1495-1500 (1987). Finally,
          there is one book that provides more in-depth treatment of
          the Second Amendment: S. HALBROOK, THAT EVERY MAN BE ARMED,
          THE EVOLUTION OF A CONSTITUTIONAL RIGHT (1984).

          George Fletcher, in his study of the Berhard Goetz case,
     also suggests that Second Amendment analysis is not frivolous,
     though he does not elaborate the point. G. FLETCHER, A CRIME OF
     SELF-DEFENSE 156-58, 210-11 (1988).

          One might well find this overt reference to "elite" law
     reviews and "major" writers objectionable, but it is foolish to
     believe that these distinctions do not exist within the academy
     or, more importantly, that we cannot learn about the sociology of
     academic discourse through taking them into account. No one can
     plausibly believe that the debates that define particular periods
     of academic discourse are a simple reflection of "natural"
     interest in the topic. Nothing helps an issue so much as its
     being taken up as an obsession by a distinguished professor from,
     say, Harvard or Yale.

     14.  One will search the "leading" casebooks in vain for any
          mention of the Second Amendment. Other than its being
          included in the text of the Constitution that all of the
          casebooks reprint, a reader would have no reason to believe
          that the Amendment exists or could possibly be of interest
          to the constitutional analyst. I must include, alas, P.
          BREST & S. LEVINSON, PROCESSES OF CONSTITUTIONAL DECISION
          MAKING (2d ed. 1983), within this critique, though I have
          every reason to believe that this will not be true of the
          forthcoming third edition.

     15.  LaRue, supra note 13, at 375.

     16.  L. TRIBE, AMERICAN CONSTITUTIONAL LAW (2d ed. 1988).

     17.  J. NOWAK, R. ROTUNDA & J. YOUNG, CONSTITUTIONAL LAW (3d ed.
          1986).

     18.  For a brilliant and playful meditation on the way the legal
          world treats footnotes and other marginal phenomena, see
          Balkin, The Footnote, 83 NW. U.L. REV. 275, 276-81 (1989).

     19.  TRIBE, supra note 16, at 299 n. 6.

     20   Id.; see also J. ELY, DEMOCRACY AND DISTRUST 95 (1980)
          ("[T]he framers and ratifiers . . . opted against leaving to
          the future the attribution Of [other] purposes, choosing
          instead explicitly to legislate the goal in terms of which
          the provision was to be interpreted."). As shall be seen
          below, see infra text accompanying note 38, the preamble may
          be less plain in its meaning than Tribe's (and Ely's)
          confident argument suggests.

     21.  J. NOWAK, R. ROTUNDA & J. YOUNG, supra note 17, at 316 n.4.
          They do go on to cite a spate of articles by scholars who
          have debated the issue.

     22.  Id. at 316 n. 4.

     23.  U.S. CONST. art. I, 10.

     24.  U.S. CONST. art. I, 9, cl. 8.

     25.  See, e.g., LEGISLATIVE REFERENCE SERV., LIBRARY OF CONGRESS,
          THE CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS
          AND INTERPRETATION 923 (1964), which quotes the Amendment
          and then a comment from MILLER, THE CONSTITUTION 646 (1893):
          "This amendment seems to have been thought necessary. It
          does not appear to have been the subject of judicial
          exposition; and it is so thoroughly in accord with our
          ideas, that further comment is unnecessary." Cf. Engblom v.
          Carey, 724 F.2d 28 (2d Cir. 1983), aff'g 572 F. Supp. 44
          (S.D.N.Y. 1983). Engblom grew out of a "statewide strike of
          correction officers, when they were evicted from their
          facility-residences . . . and members of the National Guard
          were housed in their residences without their consent." The
          district court had initially granted summary judgment for
          the defendants in a suit brought by the officers claiming a
          deprivation of their rights under the Third Amendment. The
          Second Circuit, however, reversed on the ground that it
          could not "say that as a matter of law appellants were not
          entitled to the protection of the Third Amendment." Engblom
          v. Carey, 677 F.2d 957, 964 (2d (Cir. 1982). The District
          Court on remand held that, as the Third Amendment rights had
          not been clearly established at the time of the strike, the
          defendants were protected by a qualified immunity, and it is
          this opinion that was upheld by the Second Circuit. I am
          grateful to Mark Tushnet for bringing this case to my
          attention.

     26.  See, e.g., The Firearms The Second Amendment Protects, N.Y.
          Times, June 9, 1988, at A22, col. 2 (three letters); Second
          Amendment and Gun Control, L.A. Times, March 11, 1989, Part
          II, at 9 col. 1 (nine letters); What 'Right to Bear Arms'?,
          N.Y. Times, July 20, 1989, at A23, col. 1 (national ed.)
          (op. ed. essay by Daniel Abrams); see also We Rebelled To
          Protect Our Gun Rights, Washington Times, July 20, 1989, at
          F2, col. 4.

     27.  See SUBCOMMITTEE ON THE CONSTITUTION OF THE COMM. ON THE
          JUDICIARY, THE RIGHT TO KEEP AND BEAR ARMS, 97th Cong., 2d
          Sess. viii (1982) (preface by Senator Orrin Hatch)
          [hereinafter THE RIGHT TO KEEP AND BEAR ARMS].

     28.  See supra notes 13-14.

     29.  See Levinson, Constitutional Rhetoric and the Ninth
          Amendment, 64 CHI.-KENT L. REV. 131 (1988).

     30.  P. BOBBITT, CONSTITUTIONAL FATE (1982).

     31.  Id. at 25-38.

     32.  Id. at 9-24.

     33.  Id. at 74-92.

     34.  Id. at 39-58.

     35.  Id. at 59-73.

     36.  Id. at 93-119.

     37.  For the record, I should note that Bobbitt disagrees with
          this statement, making an eloquent appeal (in conversation)
          on behalf of the classic American value of self-reliance for
          the defense of oneself and, perhaps more importantly, one's
          family. I certainly do not doubt the possibility of
          constructing an "ethical" rationale for limiting the state's
          power to prohibit private gun ownership. Nonetheless, I
          would claim that no one unpersuaded by any of the arguments
          derived from the first five modes would suddenly change his
          or her mind upon being presented with an "ethical" argument.

     38.  Cf., e.g., the patents and copyrights clause, which sets out
          the power of Congress "[t]o promote the Progress of Science
          and useful Arts, by securing for limited Times to Authors
          and Inventors the exclusive Right to their respective
          Writings and Discoveries." U.S. CONST. art. I., 8.

     39.  For examples of this, see F. SCHAUER, FREEDOM OF SPEECH: A
          PHILOSOPHICAL ENQUIRY (1982); Levinson, First Amendment,
          Freedom of Speech, Freedom of Expression: Does It Matter
          What We Call It? 80 NW. U.L. REV. 767 (1985) (reviewing M.
          REDISH, FREEDOM OF EXPRESSION: A CRITICAL ANALYSIS (1984)).

     40.  ACLU Policy #47. I am grateful to Joan Mahoney, a member of
          the national board of the ACLU, for providing me with a text
          of the ACLU's current policy on gun control.

     41.  Cress, An Armed Community: The Origins and Meaning of the
          Right to Bear Arms, 71 J. AM. HIST. 22, 31 (1984).

     42.  See U.S. CONST. amend. X.

     43.  For a full articulation of the the [sic] individualist view
          of the Second Amendment, see Kates, Handgun Prohibition and
          the Original Meaning of the Second Amendment, 82 MICH. L.
          REV. 204 (1983). One can also find an efficient presentation
          of this view in Lund, supra note *, at 117.

     44.  Shalhope, The Ideological Origins of the Second Amendment,
          69 J. AM. HIST. 599 (1982).

     45.  Id. at 614.

     46.  See Daniel Boorstin's laconic comment that "the requirements
          for self-defense and food gathering had put firearms in the
          hands of nearly everyone" in colonial America. D. BOORSTIN,
          THE AMERICANS--THE COLONIAL EXPERIENCE 353 (1958). The
          beginnings of a professional police force in Boston are
          traced in R. LANE, POLICING THE CITY: BOSTON 1822-1855
          (1967). Lane argues that as of the earlier of his two dates,
          "all the major eastern cities . . . had several kinds of
          officials serving various police functions, all of them
          haphazardly inherited from the British and colonial past.
          These agents were gradually drawn into better defined and
          more coherent organizations." Id. at 1. However, as Oscar
          Handlin points out in his introduction to the book, "to
          bring into being a professional police force was to create
          precisely the kind of hireling body considered dangerous by
          conventional political theory." Id. at vii.

     47.  See Cress, supra note 41.

     48.  3 J. ELLIOT, DEBATES IN THE GENERAL STATE CONVENTIONS 425
          (3d ed. 1937) (statement of George Mason, June 14, 1788),
          reprinted in Kates, supra note 13, at 216 n.51.

     49.  LETTERS FROM THE FEDERAL FARMER TO THE REPUBLICAN 123 (W.
          Bennett ed. 1978) (ascribed to Richard Henry Lee), reprinted
          in Kates, supra note 13, at 216 n. 51.

     50.  Michelman, The Supreme Court 1985 Term--Foreword: Traces of
          Self-Government, 100 HARV. L. REV. 4, 39 (1986) (Harrington
          is "pivotal figure in the history of the 'Atlantic' branch
          of republicanism that would find its way to America").

     51.  Shalhope, supra note 44, at 602.

     52.  Edmund Morgan discusses Harrington in his recent book,
          INVENTING THE PEOPLE 85-87 (1988) (analyzing notion of
          popular sovereignty in American thought).

     53.  Id. at 156.

     54.  Id. at 157. Morgan argues, incidentally, that the armed
          yeomanry was neither effective as a fighting force nor
          particularly protective of popular liberty, but that is
          another matter. For our purposes, the ideological
          perceptions are surely more important than the "reality"
          accompanying them. Id. at 160-65.

     55.  Blasi, The Checking Value in First Amendment Theory, 1977
          AM. B. FOUND. RES. J. 521.

     56.  See Lund, supra note *, at 111-16.

     57.  Shalhope, supra note 44, at 603 (quoting 1755 edition of
          Cato's Letters). Shalhope also quotes from James Burgh,
          another English writer well known to American
          revolutionaries: The possession of arms is the distinction
          between a freeman and a slave. He, who has nothing, and who
          himself belongs to another, must be defended by him, whose
          property he is, and needs no arms. But he, who thinks he is
          his own master, and has what he can call his own, ought to
          have arms to defend himself, and what he possesses; else he
          lives precariously, and at discretion.

          Id. at 604. To be sure, Burgh also wrote that only men of
     property should in fact comprise the militia: "A militia
     consisting of any others than the men of *property* in a country,
     is no militia; but a mungrel army." Cress, supra note 41, at 27
     (emphasis in original) (quoting J. BURGH, 2 POLITICAL
     DISQUISITIONS: OR, AN ENQUIRY INTO PUBLIC ERRORS, DEFECTS, AND
     ABUSES (1774-75). Presumably, though, the widespread distribution
     of property would bring with it equally widespread access to arms
     and membership in the militia.

     58.  See Cress, supra note 41, at 34.

     59.  THE FEDERALIST NO. 46, at 299 (J. Madison) (C. Rossiter ed.
          1961).

     60.  LETTERS FROM THE FEDERAL FARMER TO THE REPUBLICAN 124 (W.
          Bennett ed. 1978).

     61.  3 J. STORY, COMMENTARIES 1890 (1833), quoted in 5 THE
          FOUNDERS' CONSTITUTION 214 (P. Kurland & R. Lerner eds.
          1987).

     62.  Id.

     63.  Id. Lawrence Cress, despite his forceful critique of
          Shalhope's individualist rendering of the Second Amendment,
          nonetheless himself notes that "[t]he danger posed by
          manipulating demagogues, *ambitious rulers*, and foreign
          invaders to free institutions required the vigilance of
          citizen-soldiers cognizant of the common good." Cress, supra
          note 41, at 41 (emphasis added).

     64.  T. COOLEY, THE GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN
          THE UNITED STATES OF AMERICA 298 (3d ed. 1898): The right of
          the people to bear arms in their own defence, and to form
          and drill military organizations in defence of the State,
          may not be very important in this country, but it is
          significant as having been reserved by the people as a
          possible and necessary resort for the protection of self-
          government against usurpation, and against any attempt on
          the part of those who may for the time be in possession of
          State authority or resources to set aside the constitution
          and substitute their own rule for that of the people. Should
          the contingency ever arise when it would be necessary for
          the people to make use of the arms in their hands for the
          protection of constitutional liberty, the proceeding, so far
          from being revolutionary, would be in strict accord with
          popular right and duty. Cooley advanced this same idea in
          The Abnegation of Self-Government, 12 PRINCETON REV. 213-14
          (1883).

     65.  See Rabban, The First Amendment in Its Forgotten Years, 90
          YALE L.J. 514, 560 (1981) ("[P]rodigious theoretical
          writings of Theodore Schroeder . . . were the most extensive
          and libertarian treatments of freedom of speech in the
          prewar period"); see also GRABER, TRANSFORMING FREE SPEECH
          (forthcoming 1990) (manuscript at 4-12; on file with
          author).

     66.  T. SCHROEDER, FREE SPEECH FOR RADICALS 104 (reprint ed.
          1969).

     67.  Shalhope, supra note 44, at 45.

     68.  See M. WEBER, THE THEORY OF SOCIAL AND ECONOMIC ORGANIZATION
          156 (T. Parsons ed. 1947), where he lists among "[t]he
          primary formal characteristics of the modern state" the fact
          that: to-day, the use of force is regarded as legitimate
          only so far as it is either permitted by the state or
          prescribed by it .... The claim of the modern state to
          monopolize the use of force is as essential to it as its
          character of compulsory jurisdiction and of continuous
          organization.

     69.  See, e.g., Symposium: The Republican Civil Tradition, 97
          YALE L.J. 1493-1723 (1988).

     70.  See D. MALONE, 4 JEFFERSON AND HIS TIMES: JEFFERSON THE
          PRESIDENT: FIRST TERM, 1801-1805, at 7-11 (1970) (republican
          leaders ready to use state militias to resist should lame
          duck Congress attempt to violate clear dictates of Article
          II by designating someone other than Thomas Jefferson as
          President in 1801).

     71.  Scott v. Sanford, 60 U.S. (19 How.) 393, 417 (1857).

     72.  See, e.g., Featherstone, Gardiner & Dowlut, The Second
          Amendment to the United States Constitution Guarantees an
          Individual Right to Keep and Bear Arms, in THE RIGHT TO KEEP
          AND BEAR ARMS, supra note 27, at 100.

     73.  See, e.g., Halbrook, The Fourteenth Amendment and the Right
          to Keep and Bear Arms: The Intent of the Framers, in THE
          RIGHT TO KEEP AND BEAR ARMS, supra note 27, at 79. Not the
          least of the ironies observed in the debate about the Second
          Amendment is that N.R.A.-oriented conservatives like Senator
          Hatch could scarcely have been happy with the wholesale
          attack leveled by former Attorney General Meese on the
          incorporation doctrine, for here is one area where some
          "conservatives" may in fact be more zealous adherents of
          that doctrine than are most liberals, who, at least where
          the Second Amendment is concerned, have a considerably more
          selective view of incorporation.

     74.  83 U.S. 36 (1873).

     75.  32 U.S. (7 Pet.) 243 (1833).

     76.  92 U.S. 542, 553 (1875).

     77.  116 U.S. 252, 267 (1886). For a fascinating discussion of
          Presser, see Larue, supra note 13, at 386-90.

     78.  116 U.S. at 253. There is good reason to believe this
          statute, passed by the Illinois legislature in 1879, was
          part of an effort to control (and, indeed, suppress)
          widespread labor unrest linked to the economic troubles of
          the time. For the background of the Illinois statute, see P.
          AVRICH, THE HAYMARKET TRAGEDY 45 (1984):

     79.  166 U.S. 226 (1897) (protecting rights of property owners by
          requiring compensation for takings of property).

          As early as 1875, a small group of Chicago socialists, most
     of them German immigrants, had formed an armed club to protect
     the workers against police and military assaults, as well as
     against physical intimidation at the polls. In the eyes of its
     supporters . . . the need for such a group was amply demonstrated
     by the behavior of the police and [state-controlled] militia
     during the Great Strike of 1877, a national protest by labor
     triggered by a ten percent cut in wages by the Baltimore and Ohio
     Railroad, which included the breaking up of workers' meetings,
     the arrest of socialist leaders, [and] the use of club, pistol,
     and bayonet against strikers and their supporters .... Workers
     ... were resolved never again to be shot and beaten without
     resistance. Nor would they stand idly by while their meeting
     places were invaded or their wives and children assaulted. They
     were determined, as Albert Parsons [a leader of the anarchist
     movement in Chicago] expressed it, to defend both "their persons
     and their rights."

     80.  My colleague Douglas Laycock has reminded me that a similar
          argument was made by some conservatives in regard to the
          establishment clause of the First Amendment. Thus, Justice
          Brennan noted that "[it] has been suggested, with some
          support in history, that absorption of the First Amendment's
          ban against congressional legislation 'respecting an
          establishment of religion' is conceptually impossible
          because the Framers meant the Establishment Clause also to
          foreclose any attempt by Congress to *disestablish* the
          existing official state churches." Abington School Dist. v.
          Schempp, 374 U.S. 203, 254 (1963) (Brennan, J., concurring)
          (emphasis added). According to this reading, it would be
          illogical to apply the establishment clause against the
          states "because that clause is not one of the provisions of
          the Bill of Rights which in terms protects a 'freedom' of
          the individual," id. at 256, inasmuch as it is only a
          federalist protection of states against a national
          establishment (or disestablishment). "The fallacy in this
          contention," responds Brennan, "is that it underestimates
          the role of the Establishment Clause as a co-guarantor, with
          the Free Exercise Clause, of religious liberty." Id.
          Whatever the sometimes bitter debates about the precise
          meaning of "establishment," it is surely the case that
          Justice Brennan, even as he almost cheerfully concedes that
          at one point in our history the "states-right" reading of
          the establishment clause would have been thoroughly
          plausible, expresses what has become the generally accepted
          view as to the establishment clause being some kind of
          limitation on the state as well as on the national
          government. One may wonder whether the interpretive history
          of the establishment clause might have any lessons for the
          interpretation of the Second Amendment.

     81.  It refused, for example, to review the most important modern
          gun control case, Quilici v. Village Of Morton Grove, 695
          F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983),
          where the Seventh Circuit Court of Appeals upheld a local
          ordinance in Morton Grove, Illinois, prohibiting the
          possession of handguns within its borders.

     82.  307 U.S. 174 (1939).

     83.  Justice Douglas, however, did not participate in the case.

     84.  Miller, 307 U.S. at 178.

     85.  Id. at 178 (citation omitted).

     86.  Lund notes that "commentators have since demonstrated that
          sawed-off or short-barreled shotguns are commonly used as
          military weapons." Lund, supra note *, at 109.

     87.  307 U.S. at 178.

     88.  Id. at 179.

     89.  Id.

     90.  L. Powell, Capital Punishment, Remarks Delivered to the
          Criminal Justice Section, ABA 10 (Aug. 7, 1988).

     91.  Id . at 11.

     92.  This point is presumably demonstrated by the increasing
          public opposition of police officials to private possession
          of handguns (not to mention assault rifles).

     93.  D. Kates, Minimalist Interpretation of the Second Amendment
          2 (draft Sept. 29, 1986) (unpublished manuscript available
          from author).

     94.  See Lund, supra note *, at 116.

     95.  Wimmershoff-Caplan, The Founders and The AK-47, Washington
          Post, July 6, 1989, at A18, col. 4, reprinted as Price of
          Gun Deaths Small Compared to Price of Liberty, Austin
          American-Statesman, July 11, 1989, at All. Ms. Wimmershoff-
          Caplan is identified as a "lawyer in New York" who is "a
          member of the National Board of the National Rifle
          Association." Id. One of the first such arguments in regard
          to the events at Tianamen Square was made by William A.
          Black in a letter, Citizens Without Guns, N.Y. Times, June
          18, 1989 at D26, col. 6. Though describing himself as
          "find[ing] no glory in guns [and] a very profound anti-
          hunter," he nonetheless "stand[s] with those who would
          protect our right to keep and bear arms" and cited for
          support the fact that "none [of the Chinese soldiers] feared
          bullets: the citizens of China were long ago disarmed by the
          Communists." "Who knows," he asks, "what the leaders and the
          military and the police of our America will be up to at some
          point in the future? We need an armed citizenry to protect
          our liberty."

          As one might expect, such arguments draw heated responses.
     See Rudlin, The Founders and the AK-47 (Cont'd), Washington Post,
     July 20, 1989, at A22, col. 3. Jonathan Rudlin accused Ms.
     Wimmershoff-Caplan of engaging in Swiftian satire, as no one
     could "take such brilliant burlesque seriously." Neal Knox,
     however, endorsed her essay in full, adding the Holocaust to the
     list of examples: "Could the Holocaust have occurred if Europe's
     Jews had owned thousands of then-modern military Mauser bolt
     action rifles?" See also Washington Post, July 12, 1989, at A22,
     for other letters.

     96.  See Lund, supra note *, at 115: The decision to use military
          force is not determined solely by whether the contemplated
          benefits can be successfully obtained through the use of
          available forces, but rather is determined by the ratio of
          those benefits to the expected costs. It follows that any
          factor increasing the anticipated cost of a military
          operation makes the conduct of that operation incrementally
          more unlikely. This explains why a relatively poorly armed
          nation with a small population recently prevailed in a war
          against the United States, and it explains why governments
          bent on the oppression of their people almost always disarm
          the civilian population before undertaking more drastically
          oppressive measures.

     97.  See D. Kates, supra note 93, at 24-25 n.13, for a discussion
          of this point.

     98.  See, e.g., Justice Marshall's dissent, joined by Justice
          Brennan, in Skinner v. Railway Labor Executive Ass'n, 109 S.
          Ct. 1402 (1989), upholding the government's right to require
          drug tests of railroad employees following accidents. It
          begins with his chastising the majority for "ignor[ing] the
          text and doctrinal history of the Fourth Amendment, which
          require that highly intrusive searches of this type be based
          on probable cause, not on the evanescent cost-benefit
          calculations of agencies or judges," id. at 1423, and
          continues by arguing that "[t]he majority's concern with the
          railroad safety problems caused by drug and alcohol abuse is
          laudable; its cavalier disregard for the Constitution is
          not. There is no drug exception to the Constitution, any
          more than there is a communism exception or an exception for
          other real or imagined sources of domestic unrest." Id. at
          1426.

     99.  Donaldson, Letter to the Editor, Austin American-Statesman,
          July 8, 1989, at A19, col. 4.

     100. See Minow, The Supreme Court 1986 Term--Foreword: Justice
          Engendered, 101 HARV. L. REV. 10, 74-90 (1987). "We need
          settings in which to engage in the clash of realities that
          breaks us out of settled and complacent meanings and creates
          opportunities for insight and growth." Id. at 95; see also
          Getman, Voices, 66 TEX. L. REV. 577 (1988).

     101. And, perhaps more to the point, "you" who insufficiently
          listen to "us" and to "our" favored groups.

     102. See supra note 27 and accompanying text.

                              -=-=-=-=-=-=-

     Note from the Combat Arms BBS SysOp:

          This concludes the article. Each of the references in the
     appendix is noted within the text by brackets (such as [23]).
     Reading this article, along with many others on the Combat Arms
     BBS, should help you to better understand the Second Amendment
     and be better skilled in arguing its support. Other articles are
     also available for downloading that you should carefully read as
     well. Lastly, if you do not already have a copy of "That Every
     Man Be Armed" by Stephen P. Holbrook, get a copy. The cost is
     $14.95. This book will provide you with a lot of background on
     the Second Amendment. You are also invited to download a copy
     of my master's thesis. The file is entitled BASH.ZIP and contains
     a lot of research on the Second Amendment.


     Richard Bash
     Combat Arms BBS SysOp


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