Making a Hash of the Second Amendment

The New Yorker ignores the Founders on gun rights.

By Robert VerBruggen

http://www.nationalreview.com

April 25, 2012

Harvard historian Jill Lepore has a piece attacking gun rights in the latest New Yorker, and a follow-up post on the magazine’s website. Most of it is basically what you’d expect: some numbers about gun violence, some horrifying anecdotes about people who’ve misused guns, some reporting from a gun range, some artsy writing (“a gun is a machine made to fire a missile that can bore through flesh”), and an overarching history of the gun-rights movement.

More irksome, however, is Lepore’s analysis of the Second Amendment’s meaning. By leaving out or misrepresenting key historical details, she shortchanges the idea that the Second Amendment protects an individual right.

There are three theories that have played a significant role in the debate on the Second Amendment. One holds that the Second Amendment protects an individual right to keep and bear arms. Another might be called the “limited individual right” or “civic right” theory, which holds that even though individuals have the right to bear arms, the right applies only in the context of militia service. (Some advocates of this theory compare the right to bear arms with the right to serve on a jury.) The third, the “collective right” theory, posits that “the right of the people to keep and bear arms” refers to the right of state governments to form militias.

This last idea is patently ridiculous, suggesting as it does that the Founders used the word “people” when they meant “states.” And yet this was the theory that swept through the appeals courts in the decades leading up to the 2008 Heller decision, in which the Supreme Court endorsed the individual-right theory. The source of the confusion seems to be the 1939 Supreme Court case United States v. Miller — and Lepore doesn’t help to clarify matters.

In Miller, the court ruled that because a sawed-off shotgun serves no militia purpose, the right to keep and bear one is not covered by the Second Amendment. It did not rule that the Second Amendment applies only to militia members. In fact, it noted that the “militia” mentioned in the Second Amendment comprised all able-bodied males, not only those called into military service. But Miller has often been cited as an endorsement of the collective-right view.

Lepore completely botches this history. She quotes the prosecutor’s brief from Miller, which argued that the Second Amendment was “restricted to the keeping and bearing of arms by the people collectively for their common defense and security,” and that the right “is not one which may be utilized for private purposes but only one which exists where the arms are borne in the militia or some other military organization provided for by law and intended for the protection of the state.”
She claims that the Court “agreed, unanimously.” And in her follow-up post, she implies that it was the individual-right interpretation, not the collective-right interpretation, that was invented out of whole cloth in the 20th century:

The assertion that the Second Amendment protects a person’s right to own and carry a gun for self-defense, rather than the people’s right to form militias for the common defense, first became a feature of American political and legal discourse in the wake of the Gun Control Act of 1968, and only gained prominence in the nineteen-seventies.

In fact, the notion of a constitutionally protected individual right to keep and bear arms has been “a feature of American political and legal discourse” since the Founding. I suggest readers look through these sources rounded up by constitutional scholar Eugene Volokh, but here are some of the most striking examples.

Some state-level precursors to the Second Amendment clearly protected an individual right. The constitutions of Pennsylvania and Vermont, for example, protected the people’s right to bear arms “for the defence of themselves and the state.” In several drafts of the Virginia constitution, Thomas Jefferson included a provision that “no freeman shall be debarred the use of arms.”

When states held their constitutional conventions, New Hampshire suggested an amendment stating that “Congress shall never disarm any citizen, unless such are or have been in actual rebellion.” In the Massachusetts convention, Samuel Adams unsuccessfully suggested an amendment that Congress shall not “prevent the people of the United States, who are peaceable citizens, from keeping their own arms.” In Pennsylvania, an unsuccessful proposal from Robert Whitehill held that “the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals.”

In defending the proposed Constitution, the popular Federalist commentator Tench Coxe claimed that a Second Amendment wasn’t even necessary: “Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American.” In 1789 he wrote of the Second Amendment itself: “The people are confirmed by the next article in their right to keep and bear their private arms.”

In 1803, American legal scholar St. George Tucker said of the Second Amendment, “The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.” He also criticized the British government for taking away its citizens’ guns under the pretext of preserving animal populations; he saw it as problematic that few people were allowed to keep guns in their homes.

And in the 19th century, when the Second Amendment came up in constitutional debates, it was typically treated as an individual right. The notorious 1857 Dred Scott decision warned ominously that if blacks were recognized as citizens, they would have a right to “keep and carry arms wherever they went.” In demonstrating the need for the Fourteenth Amendment, some advocates cited the disarming of blacks in the South as a violation of basic constitutional rights. In 1886’s Presser v. Illinois, the Court declined to strike down a state law against privately organized militias, but nonetheless wrote that “it is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states.”

The individual-right interpretation of the Second Amendment is a lot of things — the law of the land in the wake of Heller, for one. But it is not new.

— Robert VerBruggen is a deputy managing editor of National Review.