The Second Amendment and Gun Control:
An Email Dialogue between Mark Tushnet and Saul Cornell – Day 2

Mark Tushnet:
A couple of things occurred to me. The less important question is this: You say that the citizen-rights view you offer “would certainly mean much more rigorous gun regulation.” Do you think that, on the view you find in the founding era, such rigorous gun regulation was thought to be required, or simply a legislative option?

The more important question comes out of your reference to Shays and the Whiskey Rebellions. I understand that the fear of “anarchy” or self-declared militias resisting the government played an important part in the founding-era discourse, and was articulated on theoretical grounds as showing why, in the new democratic circumstances of the United States, the older notion of the unorganized popular militia has at least lost a great deal of cogency. You say that the Second Amendment right can only be claimed “when citizens are organized into a legally sanctioned body.” That does address the fear of anarchy. But why doesn’t it make the citizen-right approach identical (at least in legal content) to the so-called collective rights view? I suppose state governments might give legal sanction to entities other than the state-organized militia, but is there any indication that something along those lines was contemplated? Otherwise, it looks to me as if the citizen-right approach just is the collective-right approach, supplemented by a possible duty on state governments to ensure that those who have a Second Amendment right are well-trained, etc. (Presumably, states could allow people to own guns, outside the framework of the Second Amendment, and then wouldn’t have to require training, safe storage, and the like.)

Finally, given the evolution of thinking about the individual right to bear arms, provoked by the “first gun control movement,” isn’t it clear that if the Fourteenth Amendment incorporates the Bill of Rights, what it incorporated was the 1868 understanding of the Second Amendment, which is to say, the individual-rights understanding? So, for example, perhaps national legislation of the sort you describe — registration, inspection, and the like — is constitutionally permissible (and maybe even constitutionally mandatory), but state-level legislation is not, because it’s inconsistent with the individual right created by the Fourteenth Amendment.

Saul Cornell:

I think you are quite astute to distinguish between the Founding era’s policy preferences and constitutional ideals. The first important point is that they assumed the goal of policy was to get militia-style weapons into the hands of citizens and that the full weight of the state’s police powers could be used to accomplish this goal. This would have certainly meant something akin to registration, i.e., ¬muster roles and mandatory inspection. At one level it makes sense to view government policy as a form of taxation. Interestingly, the first state constitution to mention the right to bear arms was Pennsylvania which also exempted the obligation to bear arms from the prohibition on taking property without compensation .Unless you were a Quaker or other religious group opposed to bearing arms you could be forced to buy your own gun and shoot your own bullets without being compensated. (Quakers could be taxed for defense, but not made to bear arms. This was something of a sore point for them.) Civilian weapons were entirely within the scope of state police power with few limits apart from common law restraints which I think analogize well to rational basis and compelling state interest criteria.

Of course the introduction of handguns and the changes in society in the Jacksonian era created a new problem that the Founders had not anticipated. Could the state severely restrict non-military guns and even prohibit weapons such as pistols or Bowie-knives? Most courts drew a clear distinction between bearing arms such as musket and bearing a gun such as a pistol. One could prohibit the latter, but not the former. Muskets could be regulated, particularly bearing them in public. Keeping them, however, was subject to a different standard of review. Over the course of the next 150 years more state courts drifted to the idea that bearing arms and bearing a gun was the same, but most courts continued to apply some sort of rational basis review.

The second point you raise is really fascinating and demonstrates the complexity of the issue. Modern collective rights theory holds that only states have standing to bring a Second Amendment claim and that the Second Amendment is the constitutional equivalent of a coelacanth, a legal anachronism. This is a mistake both as a matter of history and as a matter of fostering a healthy attitude toward the Constitution. To paraphrase the great poet, I think the fault is not in our stars, but in ourselves. If we were to create a more Spartan and civic republican culture then the Second Amendment would suddenly bounce back to life. If the regulatory scheme were in place to restore the world of the Minuteman then any citizen would have a Second Amendment claim if a law unduly burdened their ability to practice or train with a weapon. So you could pass a safe storage law, but a legally owned and registered long gun would enjoy some form of constitutional protection. The prospect of unilateral domestic disarmament would be off the table.

As far as the 14th Amendment goes that story is even more complex than supporters of the individual rights view acknowledge. There were actually three theories of the 2nd Amendment vying with each other. There was a neo-abolitionist theory which was very individualistic. This view was about individual self defense and it had real influence in the framing of the Amendment, but little impact on ratification or the broader public understanding. When I looked at stump speeches, including Bingham’s in Ohio, Republicans abandoned the rhetoric of incorporation in favor of something closer to the idea of legal equality. When the executive branch tried to litigate the issue they developed a civic theory in which the the right to keep and bear arms in the militia was the privilege and immunity that needed protecting. Regulation was permissible but it had to be race neutral. The Klan’s disarmament of the Negro militias became the trigger for a militia-based theory of 2nd Amendment incorporation. The Democrats opposed this theory and refined their states’ rights theory in response to this version of incorporation. I was somewhat astonished that nobody in the South Carolina KKK trials raised anything like the individual rights theory of the 2nd Amendment. Indeed, the right of self defense was cited by the Klan as an argument against the militia view! The final nail in that theory was Cruikshank. In that case the individual rights theory was floated by one of the judges who first heard the case, but it was abandoned by the government and rejected by the Supreme Court when the case was finally heard. Rather than adopt a neo-abolitionist point of view and embrace the individual rights view, the Court embraced the views of the Democrats who opposed incorporation and viewed the Second Amendment as a right of the states.

I also want to take this opportunity to respond to Mark Graber’s thoughtful comment on yesterday’s post which raises several interesting issues. One can certainly ask why one would choose to interpret the First Amendment in expansive terms and the Second Amendment in narrow terms as civic right. Alternatively, one might ask a different question. What will Second Amendment originalists who support the individual rights view do now that the historical evidence clearly contradicts one of their most cherished beliefs. Will they abandon originalism or will they abandon their ahistorical claims about the Second Amendment?

Read the third part of the dialogue between Tushnet & Cornell – HERE.

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.