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The Second Amendment and Gun Control:
A Dialogue between Mark Tushnet and Saul Cornell – Day 3

Mark Tushnet:
In reading over your responses, Saul, I was struck by the proposition that the Second Amendment, properly interpreted, would encompass only long guns – the equivalent of muskets – but not handguns. I think this is a non-starter. I begin with the question, “Why long guns – a general category – rather than muskets only?” The answers, I think, has to be along the lines that the category “muskets only” has become obsolete, and that, for the Second Amendment to be meaningful, it must encompass things in existence today that are roughly equivalent to muskets in 1791. Then, though, the question is, “’Roughly equivalent’ according to what criterion?” I would think that physical resemblance isn’t going to be a plausible candidate. Rather, you’d want equivalence according to some functional criterion: “What is it today that might play the same role in the citizen’s duty to serve in the militia – for anti-tyranny purposes – that muskets did in 1791?” It’s not clear to me that “handguns” wouldn’t fit that criterion. Gun-rights advocates have argued, with some plausibility I think, that possession of a citizen-militia carrying out guerilla-like operations against a tyrannical government might be quite valuable – indeed, they argue, again with some plausibility, perhaps more valuable than, for example, the possession of bazookas and Stinger missiles, which, I think, no one contends come within the coverage of the Second Amendment. So, it seems to me, your account of the Second Amendment really doesn’t limit its scope to long guns, but might well encompass handguns.

Saul Cornell:
Mark,

One of the things I find most fascinating about this debate is the way that most people default to an essentially Anti-Federalist vision of the Second Amendment. The ideal of bearing arms you describe really comes closer to the way the Anti-Federalists envisioned the Second Amendment. Indeed, if one looks closely at Anti-Federalism you see two notions of arms bearing each quite radical in spirit. Most Anti-Federalists articulated a robust states’ rights view that saw the right to bear arms as a check on federal power. There was also a more radical version of Anti-Federalism that was intensely localistic. According to this view local militia units acted as agents of popular constitutionalism. This radical idea was put into practice during Shays’s Rebellion and the Whiskey Rebellion. Both of these ideals are very collective—one notion looked to the states as the agents that would mobilize the militia and the other looked to the local community. You don’t really see an individualistic version of the right to bear arms as a revolutionary check on government authority emerge until the radical Abolitionist argument in the 19th century. The Federalists, by contrast, saw the right to bear arms and the militia as a means of putting down rebellions, not fomenting them. Hamilton was particularly dismissive of the notion that one might exercise some type of constitutional right of revolution.

One hears a lot about the right to bear arms as a popular check on despotism. While I think the evidence that citizens organized as militias have had a pretty significant impact as a military force, the notion that individuals acting in isolation would be very effective is more dubious. The evidence from the Founding era on this point does not support the individual rights view of the matter. The argument was really about control over the militia, not an individual right. Both of the main versions of the Anti-Federalist argument are focused on collective power—either at the state level or the local level. Federalists were even less sympathetic to the argument about an individual check on federal power. Consider Hamilton ’s comments in Federalist 28:


If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair. The usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo.

I think this passage is very revealing. Hamilton’s discussion of the original right of self defense is rather different than the constitutional right to bear arms. Indeed, as Hamilton makes clear, without government regulation, the exercise of this right is likely to be anarchic and ultimately unlikely to succeed. Madison’s discussion in Federalist 46 also makes clear the essential link between bearing arms and a well regulated militia:


To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.

Madison clearly saw the militia as an agent of government, not an entity acting independent of government.

Although it has become fashionable to attack the Miller case as vague, I think that the Miller decision was really pretty close to the Federalist ideal. The Second Amendment is about arming a militia. A weapon needs to be both of the type used by the militia and it has to be used during activity consistent with the idea of a well regulated militia to come under some type of Second Amendment protection.

I would like to thank Mark Tushnet and the other individuals who have responded to our discussion. I suspect that the debate over the civic model of the Second Amendment is only just beginining.


Well Regulated Militia: The Founding Fathers and the Origins of Gun Control in AmericaMark Tushnet is William Nelson Cromwell Professor of Law at Harvard Law School, a position he assumed in 2006 after teaching at Georgetown University Law Center for twenty-five years.

Saul Cornell is Associate Professor of History at Ohio State University and Director of the Second Amendment Research Center at the John Glenn Institute. His latest book is A Well-Regulated Militia.

Recent Comments

  1. David Cavanagh

    I browsed Professor Cornell’s book as soon as I spotted it in the Harvard Coop. I think it is a valuable contribution to the debate over the Second Amendment. However, I also think it understates the significance of the relation between a right to self-defense and the right to bear arms as it was seen by the framers of various state bills of rights and the federal Bill of Rights. Any educated framer would have been familiar with Blackstone’s arguments on this issue. Blackstone listed the primary common law rights of Englishmen as a right to life and a right to property. According to Blackstone, ancillary rights, neccessary to support these basic rights included such things as a right to representation and a right to bear arms. Blackstone’s justification for this was essentially that the right to have and bear arms was needed to ensure an effective defense of one’s life and property. English high courts, in fact, found that certain sections of the Test Acts were in violation of basic Common Law principles precisely because by denying Catholics and other dissenters the right to own and bear arms, they were implicitly denying them a right to defend their life and property. Am I wrong in making any of these assertions?

  2. John_R

    Professor Cornell,

    “The argument was really about control over the militia, not an individual right.”

    Precisely, so, since they didn’t specifically talk about an individual right, that means that they didn’t think there was one? What specific individual rights did they argue over in the Federalist Papers? All I recall are vague phrases such as “the peoples rights” or ” minority rights”, there is little, if any, enumeration of specific rights. Which, of course, was a leifmotif of the Federalists, once you begin enumerating rights, you exclude others.
    They may also not have discussed it as an individual right because, to them, it so obviously is an individual right.

    There is an interesting point that I haven’t seen addressed and that is the meaning of “regulated”. You assume that regulated is a verb, “to control” but it could just as easily be read as an adjective meaning “accurate” or “correct”, which, I’m told, but would have to verify, has historically been a common British usage of the term in connection with firearms.

  3. John_R

    Professor Cornell,

    “The argument was really about control over the militia, not an individual right.”

    Precisely, so, since they didn’t specifically talk about an individual right, that means that they didn’t think there was one? What specific individual rights did they argue over in the Federalist Papers? All I recall are vague phrases such as “the peoples rights” or ” minority rights”, there is little, if any, enumeration of specific rights. Which, of course, was a leifmotif of the Federalists, once you begin enumerating rights, you exclude others.
    They may also not have discussed it as an individual right because, to them, it so obviously is an individual right.

    There is an interesting point that I haven’t seen addressed and that is the meaning of “regulated”. You assume that regulated is a verb, “to control” but it could just as easily be read as an adjective meaning “accurate” or “correct”, which, I’m told, but would have to verify, has historically been a common British usage of the term in connection with firearms.

  4. Saul Cornell

    Mr. Cavanagh-
    While the Framers of the Second Amendment would have been well aware of Blackstone’s discussion of the 5th Auxiliary right and his discussion of the common law right of self defense I think most would have viewed these two doctrines as distinct.These two rights are discussed in separate parts of his Commentaries and in his footnote annotations for these two different sections St. George Tucker makes clear that the rights were not the same. As my book shows, Blackstone and Tucker have each been misinterpreted by modern gun rights advocates. The two men have also not figured prominently in accounts of modern collective rights theorists. One of the many advantages of the civic paradigm is that it helps make sense of Tucker and other individuals whose thought does not really fit either of the modern theories of the Second Amendment.

  5. Saul Cornell

    John

    I deal with both of the issues you mention at some length in the book. In the Founding era there was a big difference between the rights enjoyed by citizens and those enjoyed by individuals. While both of these groups enjoyed religious freedom, only one of these groups could legally claim to bear arms. Also, the modern idea of individual rights does not capture the degree to which the right to bear arms was tied to a particular civic obligation. Government could force citizens to bear arms. We don’t normally think of rights in the modern era as something that gives government such power over their citizens

    As far as regulation is concerned, I would suggest you look at how it is used in The Federalist. A well regulated militia was one that was regulated by law.

  6. Andre Mayer

    The framers of the early state constitutions believed that, with the dissolution of royal government, they were in a state of civil society, not a state of nature. Churches (even “established” ones), schools, and militias were regarded basically as civil entities, not branches of the government.

    The rights and duties of civil society were collective and this distinct from individual rights. The Massachusetts Constitution of 1780, for example, treats the individual right to freedom of religion separately from the rights and duties pertaining to churches.

    The US Constitution is just not very good on civil society (and wasn’t intended to be). The 14th amendment, in effect, threw into question the locus of what had originally been intended as a collective right: If you don’t recognize civil society, does the right revert to the individual, or is the collectivity subsumed in the political state (and if so, which one)?

  7. John Noble

    The 2d Amendment is an unambiguous limitation on the powers of the national government. It is an explicit denial of federal authority to interfere with the individual right to bear arms. It presumes the need of a well-organized militia, and the militia’s need of individuals who have a right to bear arms, but it does not foreclose state or local regulation of the individual right to bear arms. There is no illogic in the proposition that the security of a free State might depend on the exercise of state police powers to regulate the possession of weapons that might threaten its security, concomitant with the authority to raise a well-organized militia. There is considerable illogic to the notion that the security of a free State might be subordinated to an insurgent militia’s equally protected right to bear arms. Uniquely among the first ten Amendments, the language and meaning of the 2d Amendment defies application of the incorporation doctrine to create an individual right as against state regulation.

    The 2d Amendment, at least in some part, was meant to protect dual sovereignty. Even if the right to revolt is an anachronism, it would be the height of irony if the 14th Amendment was applied to the task of revitalizing the 2d Amendment by repurposing it to the subordination of state law to federal authority. If the incorporation doctrine creates an individual right to bear arms that is co-extensive as against both state and federal authority, then its contours are defined by line-drawing whim of the Supreme Court on the inside, and the Commerce Clause authority of Congress on the outside. Or perhaps Congress could hold hearings, with testimony from the Departments of Defense and Homeland Security, before enacting sec. 5 legislation upon findings that the well-organized militia necessary to the security of a free State protects only the right to bear arms under federal command.

    If we can unleash the 2d Amendment from the 14th, we don’t need to torture its language, and caricature originalism by limiting its meaning to the right to carry a musket. We can trust the States to ban tactical nuclear weapons.

    We might also have a greater regard for the role of local government, the wellspring of civil society. In the history of politics, it is the first and once primary repository of individual liberty surrendered to the collective. Dillon’s Rule notwithstanding, it must be some consolation to Judge Cooley that local governments still play a role, and hold some ground, in constitutional government. Perhaps I’m over-sensitive because I represent local governments in challenges to their regulatory authority based on state and federal preemption, but I get the impression that the one thing Profs. Tushnet and Cornell agree on is that nothing stands between the right to bear arms and general anarchy except a well-organized state militia.

    But while our state militias have already been repurposed, found necessary to the security of a free Iraq, we aren’t defenseless against threats to the security of a free State. Our local militias are pretty well-organized; and if armed demonstrators marched on the Springfield Courthouse, the local police department wouldn’t wait on the approval of the Massachusetts General Court to raise a militia. Our “first-responders” are organized under the authority of local governments, and financed by local taxpayers, who might be entitled to some consideration in the matter of local gun control regulation. I’m going to resist the temptation to quote Cooley at length, and settle for his summation in People v. Hurlbut, 24 Mich. 44 (1871): “First, that the constitution has been adopted in view of a system of local government, well understood and tolerably uniform in character, existing from the very earliest settlement of the country, never for a moment suspended or displaced, and the continued existence of which is assumed; and, second, that the liberties of the people have generally been supposed to spring from, and be dependent upon that system.”

    The historical distribution of state and local authority to regulate the possession of weapons allowed for a uniformed and uniformly armed militia, or a rag-tag band of self-armed citizen-soldiers. It allowed the sheriff to require cowpokes passing through town to leave their guns in his office while they visited the saloon, and pick them up on the way out of town . Today, it would allow for state or local regulation appropriate to state or local circumstances. New York City might ban high-powered rifles because there’s nothing to hunt, but find a rational basis for allowing residents to keep shotguns in their homes for self-defense. Montanans might divide the regulatory authority between the State and local governments, banning automatic weapons statewide because they don’t want them used for hunting, while Missoula prohibits carrying concealed handguns within city limits.

    If anything needs fixing, it is only what we broke – the presumptive right to exercise political authority at the level of government where it can be most effectively exercised and directly controlled by the People from whom it springs.

  8. gene copeland

    I have stumbled upon this debate at a very late date. Might I still be able to offer a comment on the subject? Thanks.

  9. gene copeland

    Lets take another look at the 2d 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 did the authors of this Amendment have in mind? The States remaining free. They had a fear of the newly formed Federal government. How might a State secure their freedom? By the raising of a militia; well regulated. Where might they raise this militia? The only source was the body of the people. And, this body of the people would be ineffective unless they were suitably armed. At this point in time the body of the people were suitably armed. How might the framers of this Amendment assure that the people might be suitably armed if called into a militia? Here is the crucial part; they stated that the natural right of the people to keep and bear arms shall not be infringed. Infringed by whom? It does not say, hence no person nor entity is entitled to infringe upon the right of the people to keep and bear arms. This specifically includes government and the judiciary. No one is allowed to infringe upon this right held by the people. What does it mean to infringe? Infringe means: to encroach upon in a way that violates law or the rights of another. Okay, what does encroach mean? Encroach means: to enter by gradual steps or by stealth into the possessions or rights of another. That seems pretty clear to me. Some say the thinking of the framers of the Bill of Rights are obsolete. I question and doubt that. I am ready to debate and defend the thinking of those men who laid their life and property on the line for our freedoms set out boldly in the Constitution and the Bill of Rights. But, you say, only the militia can bear arms and they must be well regulated. How did you come to that conclusion? Which came first, the chicken or the egg? What comes first, the armed people or the militia? Common sense says that the armed people are necessary in order to form a militia. Notice the common logic that a well-regulated militia would, of necessity, follow the assembling of a militia. But, you say, States have the National Guard and do not need a militia. Who told you that? The Federal government has, from time to time, set forth the draft to assemble enough military personnel to defend the USA. However, do you believe the National Guard would suffice to quell the onslaught against a State from a tyrannical oligarchy? Not hardly. A militia of the people might be needed. This is the essence of the 2d Amendment. Then there is the underlying base of personal safety that was used in the drafting of this Amendment. It was, and is, common knowledge that the police have no legal mandate to protect the individual citizen. The individual citizen has the right and must defend his or her own person, and those around them, plus personal property. The individual citizen also has the inherent right to equip themselves, and use the state-of-the-art in arms. Who has the right to force me to defend my very life with nothing more than my bare hands? The founders of this nation believed I had a right to bear adequate arms, either openly or concealed, to protect myself and others from predators, either human or otherwise. I encourage everyone to educate themselves to the true meaning of the 2d Amendment and then defend it at every opportunity. May God bless the USA!

  10. gene copeland

    Recently a Mr. Fincher in Fayetteville Arkansas was found guilty of possessing a machine gun that had not been registered with the federal government. He had planned to cite the 2d Amendment as his defense but the judge refused to allow him to do so. My brother, commenting on the case, said, “Well, he broke the law didn’t he?”. My response was that no, he did not. Why, my brother asked? The reason is that the law he supposedly broke was no law at all. Here’s why:
    Many believe any law passed by legislators that appears to be a law, constitutes the law of the land. The US Constitution is the supreme law of this land, and any law, to be valid, must be in accord with the Constitution. It is impossible for both the Constitution and a law violating it to be valid. One must prevail. “The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted. Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it. A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supercede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it is superceded thereby. No one is bound to obey an unconstitutional law and no courts are bound to enforce it”. (Sixteenth AMERICAN JURISPRUDENCE, Second Section, Page 177).
    The federal judge in this case openly stated that he believed the 2d Amendment referred to an individual right. But, several days later he reversed himself and said that he now believed the 2d Amendment to be a collective right and therefore, he would not allow Mr. Fincher to plead the 2d Amendment. Do you think some feds whispered in the ear of the judge? To stand on “collective right” is like standing on quicksand (unless you are a federal judge and have the POWER to deny the supreme law of the land). Listen carefully, a collective right can only exist as underpinned by individual rights. Individual rights can exist without collective rights. But, collective rights cannot exist without individual rights. Arguing that the 2d Amendment refers to collective rights only is HOGWASH.

  11. Jeff Conforti, DPM

    The second ammendment is the the SECOND ammendment because it guarantees the citizens their MOST important right that is spelled out in the first ammendment which is freedom of speeech. The framers of the constitiution were not stupid. They knew then what we all know now. There is always a possibility of despotic behavior by those in power. The government can never take power away from an armed citizenry. Today, militias (The Guard, The Reserves), are extensions of the Government. This was not the case in the 1700′s. They were truly groups of independent, armed citizens then, as they should be now.

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