New Scholarship on the 2nd Amendment
"A more balanced read of the evidence suggests that the civic right manifested properties of both an individual and a collective right, that it guaranteed a citizen's right to keep arms (full stop), and to bear those arms when called upon to fulfill their civic obligation to serve in the militia. The use of such weapons was subject to regulation under the police power, but their possession was not." The review appears below.
H-NET BOOK REVIEW
Published by H-SHEAR@h-net.msu.edu (September 2007)
Saul Cornell. _A Well-Regulated Militia: The Founding Fathers and the
Origins of Gun Control in America_. New York: Oxford University Press, 2006.
xvi + 218 pp. Illustrations, notes, index. $30.00 (cloth), ISBN
0-19-514786-3.
Reviewed for H-SHEAR by Robert H. Churchill, Department of Humanities,
University of Hartford
Three Steps Forward, One Step Back
Saul Cornell has written a very good book. The book will not bring an end
to the debate over the meaning of the Second Amendment (no book could), but
from now on scholars of the Second Amendment will begin by grappling with
Cornell's argument. By theorizing the civic-rights interpretation of the
Second Amendment, and historicizing the origins of the individual- and
collective-rights interpretations, Cornell has significantly advanced the
state of a very contentious field. Unfortunately, Cornell's presentation of
the underlying evidence sometimes lacks balance, and does not live up to the
quality of his interpretive contribution.
In the book Cornell builds upon work that he has published in law review
articles over the last five years. He argues that the "original
understanding" of the Second Amendment was that it articulated a "civic
right that guaranteed that citizens would be able to keep and bear those
arms needed to meet their legal obligation to participate in a
well-regulated militia" (p. 2). In Cornell's pluralist understanding of
eighteenth-century political theory, this civic conception of the right to
keep and bear arms sat alongside other, less resonant conceptions, including
early versions of the modern individual- and collective-rights
interpretations. Cornell argues that the individual-rights interpretation,
though articulated in the eighteenth century, blossomed into a coherent
constitutional doctrine during the Jacksonian era. As state legislatures,
in response to deadly public brawling, tightened regulations on the
possession and concealed carrying of deadly weapons, defendants framed
constitutional challenges by reinterpreting the right to bear arms as a
fully individual right to keep and carry arms for private purposes.
Nonetheless, Cornell argues, the civic-rights interpretation remained the
dominant understanding of the right to keep and bear arms as expressed in
antebellum state court decisions and legal commentaries.
As for the modern collective-rights interpretation that has, until recently,
dominated federal court decisions, Cornell finds a more curious genealogy.
He argues that the modern conception is rooted in the Anti-Federalist desire
to preserve state control over the militia as a bulwark against "federal
power if such power ran amok" (p. 5). Though Anti-Federalists largely
failed in their attempts to alter the amendment's language, Cornell argues
that they "clung tenaciously to their states' rights view of the Second
Amendment as providing the foundation for state resistance to the Federal
Government" (p. 65). Cornell highlights the irony posed by such radical
origins for the modern collective-rights interpretation. The interpretation
was drained of that radicalism, he argues, after the Civil War. Confronted
with Republican assertions that the Second Amendment had been incorporated
within the privileges and immunities clause of the Fourteenth Amendment and
was thus binding on the states, white southern conservatives responded by
arguing that the amendment protected only the state's right to arm its
militia. It thus did not protect the attempts by African Americans to arm
themselves and to organize militias to defend themselves against the Ku Klux
Klan. Finally, in the twentieth century, progressive lawyers and
legislators articulated a collective-rights interpretation that asserted
that the right to keep and bear arms was held only by enrolled members of
the state-sanctioned militia. With the reform of the militia system under
the Dick Act of 1903 and the National Defense Act of 1916, this formulation
stripped the right to keep and bear arms of much of its enforceable meaning
and opened the way to the vigorous expansion of the police power to regulate
the possession and use of guns (p. 6).
Cornell's contributions to the field in this volume are significant. First,
he has set a standard of research against which further contributions will
be measured. Utilizing the new tools for keyword searching in the digital
edition of the Evans and Shaw-Shoemaker Collections and in Early American
Newspapers, Cornell has brought to light many new texts bearing on early
American understandings of the Second Amendment. He has also extensively
mined legislative debates at the state and federal level and the writings of
lesser-known constitutional theorists. Cornell has incorporated plebeian
perspectives, discussing the understandings of the right to keep and bear
arms and the right of resistance held, for example, by Shaysites, Whiskey
Rebels, and Baltimore rioters. In his introduction, Cornell calls for
scholars to approach the topic of the Second Amendment in a rigorous manner.
In terms of research, he has met that test.
A second contribution to the field lies in Cornell's discussion of the place
of the right of revolution in early American political theory. It was not
that long ago that scholars offering what has been dubbed the
insurrectionary interpretation of the Second Amendment were publicly
denounced as "academic insurrectionists" and fellow travelers of Timothy
McVeigh. Cornell in this volume acknowledges that early American political
theorists offered a multiplicity of theories of legitimate resistance to
acts of domestic tyranny, and that political actors adopted ever-shifting
stances on the legitimacy of resistance at specific moments. Cornell argues
that the period between the framing of the Constitution and the War of 1812
was remarkable for the "fluidity of American constitutional thought" as
Americans grappled with the militia's role as a check on the constitutional
abuses of a republican government (p. 83). That formulation largely
vindicates the work of Sanford Levinson and David Williams, two of the
scholars derided by collective-rights interpreters in the mid-1990s.[1] I
think perhaps Cornell might have cited these two scholars in the footnotes
as the first on the ground.
I also wish Cornell had not attempted to divvy up this theoretical fluidity
into mainstream and extremist pots. For example, he contrasts the
"mainstream" Republican adherence to the "peaceful defense of states'
rights" in the Virginia and Kentucky Resolutions with the "radical" fixation
of "rough-hewn" Republicans on popular nullification (p. 94). Such a
formulation does not capture the minute distinctions among the positions
staked out by a variety of Democratic-Republicans in 1798 as they grappled
with the limits of legitimate resistance. Cornell also seems to want to
find an early end to this period of fluidity, though it continued right
through the Civil War.
On the whole, however, I think Cornell's basic chronological framework is
correct. His account of the emergence of a fully individual right to keep
and carry arms for private purposes in the Jacksonian period adds an
important milestone to the story. His discussion of the post-Civil War
debate over the incorporation of the Second Amendment is the most careful
that I have read. Finally, his suggestion that the twentieth-century
jurisprudence of the Second Amendment is based not on _U.S. v. Miller_, but
on a misreading of the case that unduly privileges the collective-rights
interpretation offered in Lucilius Emery's 1914 _Harvard Law Review_
article, is positively fascinating (p. 203-204).
My central criticism of the book rests on Cornell's conceptualization of the
civic right to keep and bear arms. In Cornell's view, the dominant early
American interpretation of that right was as a guarantee "that citizens
would be able to keep and bear those arms needed to meet their legal
obligation to participate in a well-regulated militia" (p. 2). He asserts
that most early Americans believed the right was "inextricably linked" (p.
65) to a "specific legal obligation" and applied only to "militia weapons
owned for this purpose" (p. 27). It did not include the right "to keep or
use firearms outside the context of the militia," a common-law right that
was subject to reasonable regulation (p. 59). If I am reading Cornell
correctly, he is arguing that early Americans believed that the right to
keep and bear arms was guaranteed only to enrolled militiamen, and that it
applied only to a single weapon per militiaman. If I have misunderstood
him, I hope he will use part of his response to clarify. But if I have
understood him correctly, then I think he has mis-conceptualized the civic
right at the heart of the Second Amendment.
Cornell makes several arguments supporting this conception of the civic
right. First, he asserts that colonial and state governments exercised a
police power to regulate the possession of guns. Here, I submit, he has
exaggerated the reach of the police power. For example, Cornell notes that
early American law empowered constables to "take away the arms" of those
guilty of the common-law crime of affray (p. 30). But the disarmament in
question was authorized only temporarily for the purpose of bringing the
offenders before a justice of the peace.[2] When discussing regulation in
the Jacksonian era, Cornell argues that several states expanded their use of
the police power to prohibit "the sale or possession of certain weapons,"
and suggests that these weapons included both guns and knives. He
specifically claims that Georgia and Tennessee passed "wide-ranging laws
prohibiting the sale of pistols, dirks, and sword canes" (p. 142). There
are two problems with Cornell's presentation of this material. The first is
that Tennessee's statute applied only to Bowie knives, which clearly fell
outside the scope of the right to keep and bear arms. The second problem is
that Georgia's statute, which did apply to small pistols, was struck down as
an unconstitutional infringement of the right to keep and bear arms in the
1846 case _Nunn v. Georgia_. Because Cornell never cites the case, it is
difficult for a lay reader to discern the lack of balance in his
presentation of the evidence. Cornell's assertions aside, there is little
evidence that any colony or state exercised a police power to disarm
citizens prior to the Civil War.
Cornell also asserts that pistols clearly fell outside of the constitutional
protection afforded by the Second Amendment. He rests this assertion on the
1840 Tennessee Supreme Court Case _Aymette v. State_ upholding the
aforementioned statute banning Bowie knives. Cornell declares that "in the
view of the _Aymette_ court, the legislature enjoyed the widest possible
latitude to regulate pistols" including the right to ban their possession
(p. 146). But no such suggestion appears in the court's opinion. The court
in _Aymette_ declared that "the object for which the right to keep and bear
arms is secured, is of general and public nature, to be exercised by the
people in a body, for their _common defence_, so the _arms_, the right to
keep which is secured, are such as are usually employed in civilized
warfare, and that constitute the ordinary military equipment.Š The citizens
have the unqualified right to _keep_ the weapon, it being of the character
before described, as being intended by this provision."[3] The court found
that Bowie knives were not of a military character, but made no mention or
suggestion as to the status of pistols. Postbellum legal commentaries and
judicial decisions applied _Aymette's logic in support of the argument that
some small pocket pistols lacked military utility and thus fell outside the
Second Amendment's protection, but Cornell has read this postbellum
doctrinal development into an earlier text.
Cornell's most important supporting argument is that most early Americans
rejected a right to keep arms for private purposes, and that they did not
understand the right to keep and bear arms articulated in the Second
Amendment to incorporate such a right. This argument rests on what I
believe is a misreading of some key texts, combined with the omission of an
extremely important early commentary on the Second Amendment, that of St.
George Tucker.
Tucker's 1803 edition of _Blackstone's Commentaries_ has long been discussed
by scholars of the Second Amendment. That volume contained an appendix
entitled "A View of the Constitution of the United States." Cornell
discovered some years ago that a manuscript draft of this text existed among
Tucker's law lectures in the Tucker-Coleman papers at the Swem Library. He
is to my knowledge the first to use this text, which dates from the early
1790s and is the most informed commentary on the Second Amendment dating
from the period immediately after ratification. As is true of the revised
version published in 1803, the manuscript draft is organized as an
article-by-article commentary on the Constitution of 1787, followed by the
amendments.
Cornell professes to offer an analysis of Tucker's "earliest gloss on the
Second Amendment" and quotes passages from the manuscript draft suggesting
that Tucker saw the amendment as guaranteeing the right of states to arm
their militias (p. 74). But the passages of the manuscript draft that
Cornell discusses are not Tucker's gloss on the Second Amendment. They are
instead his gloss on the militia clauses of the original Constitution. On
Tucker's gloss on the Second Amendment itself, both in the 1790s manuscript
and in the 1803 published version, Cornell is silent. I hope Cornell will
take the opportunity to explain his decision to pass over this material.
It is clear from the Tucker's gloss on the Second Amendment in the
manuscript draft that he saw in the amendment a guarantee that extended well
beyond the concern over federalism that Cornell discusses. Tucker noted
that "in England the people have been disarmed under the specious precept of
preserving the game." In a note on the facing page, Tucker commented that
in England, "the right of the people to bear arms" was by the inclusion of
limiting language "entirely done away." In this gloss Tucker suggested that
the passage of England's game laws had in England eliminated the
constitutional protection that the Second Amendment was intended to
guarantee. Tucker reiterated this view in 1803, noting that under the game
laws in England, "the right of keeping arms is effectually taken away,"
while expressing his hope that in America, "the people will never cease to
regard the right of keeping and bearing arms as the surest pledge of their
liberty."[4]
The problem for Cornell's argument is that England's game laws prohibited
citizens, the vast majority not enrolled in the militia, from possessing
firearms for private purposes. That Tucker saw the game laws as a
contravention of the right protected by the Second Amendment is clear
evidence that he understood that right to apply in America to all citizens
and to weapons owned for both public and private purposes. Tucker's view
mirrors that of Samuel Nasson and Saumel Latham Mitchel, cited by Cornell,
and of a supporter of Samuel Adams in August 1789 who interpreted the House
draft of the Second Amendment as a vindication of Adams's earlier proposed
amendment that prohibited Congress from preventing "the people of the United
States, who are peaceable citizens, from keeping their own arms."[5] All of
these early interpreters of the language embedded in the Second Amendment
understood it to guarantee a right to keep arms that transcended "the
inextricable connection" to militia service that Cornell posits.
In the end, in juxtaposing the civic right to keep and bear arms with an
individual right to keep arms for private purposes, Cornell risks collapsing
the civic-rights paradigm back into what has been termed the sophisticated
collective-rights interpretation. To support this position he must also
offer a less balanced presentation of the evidence than the quality of his
research merits. A more balanced read of the evidence suggests that the
civic right manifested properties of both an individual and a collective
right, that it guaranteed a citizen's right to keep arms (full stop), and to
bear those arms when called upon to fulfill their civic obligation to serve
in the militia. The use of such weapons was subject to regulation under the
police power, but their possession was not. I think this formulation better
captures the way Americans viewed the right to keep and bear arms from the
Revolution through the end of the nineteenth century.
Were Cornell to accept this broader understanding of the civic right, there
is little else in his argument that would need to be revised to accommodate
it. That is a testament to the breadth of the contribution that he has made
on this subject.
Notes
[1]. Sanford Levinson, "The Embarrassing Second Amendment," _Yale Law
Journal_ 99 (1989): 637-59; and David C. Williams, _The Mythic Meanings of
the Second Amendment: Taming Political Violence in a Constitutional
Republic_ (New Haven: Yale University Press, 2003).
[2]. Cornell quotes from the 1721 edition of the Henry Care's _English
Liberties, or The free born subject's inheritance_. The full quote reads as
follows: "Constables may take away the arms of them who ride or go armed in
terror of the people, and may bring these persons before a justice of the
peace to find sureties for their good behavior." Care, _English Liberties_
(Boston, 1721), 248. See also _The Office and Authority of a Justice of the
Peace_ (Newbern: James Davis, 1774), 5.
[3]. Aymette v. The State, 21 Tenn. 154 (1840), 158-160.
[4]. St. George Tucker Notebooks, Box 63, Volume 4, Tucker-Coleman Papers,
Swem Library, College of William and Mary, 143-44; and St. George Tucker,
_Blackstone's Commentaries_, 5 vols. (Philadelphia: William Young Birch and
Abraham Small, 1803), I: 272-74 and 300; II: 143; and III: 414.
[5]. Samuel Nasson to George Thatcher, July 9, 1789, in _The Complete Bill
of Rights: The Drafts, Debates, Sources, and Origins_, ed. Neil H. Cogan
(New York: Oxford University Press, 1997), 261; Samuel Latham Mitchell, _An
Oration, Pronounced before the Society of Black Friars_ (New York, 1793);
and Boston _Independent Chronicle_, August 6, 1789.
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