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