The Second Amendment & Gun Control:
An Email Dialogue between Mark Tushnet & Saul Cornell

Mark Tushnet:
Hi Saul –
First, let me say that I look forward to debating the arguments in your new book on the Second Amendment, A Well-Regulated Militia. As I read it, you make two “large” arguments, backed up of course with a lot of detail and qualifications. I’m going to sketch those arguments here, and in this post raise some questions about the first argument. When we’ve exhausted ourselves on that one, I’ll shift discussion to the second one.

Your book is written against this background. Scholarship on the original meaning or understanding of the Second Amendment’s protection of a right to keep and bear arms falls into two camps. One, which prevailed in the academy until recently and which still holds sway in the courts (with one aberrational decision to the contrary from the Fifth Circuit Court of Appeals), is generally called the “collectivist” or militia-related interpretation. This interpretation stresses the Amendment’s preamble – “A well-regulated militia being necessary to the security of a free state.” It argues that the right protected by the Amendment is one held exclusively by members of the militia, and specifically by members of the state-organized militia. So, on the collectivist interpretation, if you’re not a member of the state-organized militia participating in its organized activities, you don’t have any right protected by the Second Amendment. On this view, maybe the Second Amendment prohibits the national government from disarming state-organized militias, but it doesn’t do much else.

The second camp, which now is probably dominant among legal scholars who have studied the Second Amendment in detail, is usually called the “individual rights” interpretation (or, in a triumph of spin, the “Standard Model”). According to this interpretation, the preamble explains why it’s important for every person in the United States to have a right to keep and bear arms, but doesn’t impose any conditions on who has the right. Individuals entirely without connection to the militia have a right to keep and bear arms, for purposes of self-defense, hunting, or anything else.

Your first argument, as I understand it, is that these two camps overlook a third possibility, the interpretation actually revealed by the history. You might not put it this way, but I read your argument as being that individuals have a right to keep and bear arms because of their relation to the militia, understood not as the state-organized militia but rather as the unorganized “body of the people” available to be mobilized by local notables when the prospect of tyranny loomed. You call this a “citizen-oriented” interpretation of the Second Amendment, because the right to keep and bear arms was something all good republican citizens should have so as to protect republican institutions against deterioration.

Your second argument is that, during the first half-century or so after the Constitution was adopted, when what you call the first gun-control movement developed, the individual-rights interpretation got increasing purchase. People started to argue that the right to keep and bear arms was important, indeed, for purposes of individual self-defense (and hunting), and actually was not that important for the older, citizen-oriented purposes. The reasons were negative and positive: on the negative side, citizen rebellions like the Whiskey Rebellion and experience with the actual operation of the nation’s new institutions demonstrated the risks associated with the citizen-oriented interpretation and suggested that it really wasn’t needed in the new nation; positively, the increasing population on the nation’s frontier increased both the danger of and the need for possession of weapons. People began to think that the Second Amendment, and parallel state guarantees, was the right way to reconcile those two concerns, by means of an individual-rights interpretation.

It seems to me that your citizen-oriented interpretation amounts to this: We (that is, the Second Amendment’s adopters) distribute a right to keep and bear arms to every individual in the society, because we think that’s the best way to ensure that people will be in a position to perform their duties as good republican citizens. You want to divorce the citizen-oriented right from membership in the state-organized militia, but in doing so, haven’t you re-created the individual-rights interpretation? A related but subsidiary point is this: Why shouldn’t we expand the citizen-oriented interpretation to include the citizen’s duty to preserve a well-organized society when the government defaults on its duty to provide the basic elements of personal security? And, if we do so, don’t we have a Second Amendment right to keep and bear arms for purposes of protecting ourselves and our communities? This looks to me a lot like the individual-rights interpretation.

Saul Cornell:
Mark,

Thanks so much for taking part in this effort to raise the level of debate on this issue! Although I myself would frame my argument in different terms, I can see how you would have construed the argument in the terms you set out. Many audiences have responded to the book in precisely the way you have. Indeed, half of those who have read the book think it demolishes the individual rights view, while the other half think it vindicates it in forceful terms. Here is how I see it—but in our post-modern age I realize that authors may not always control the meaning of their text.

My conception of the original understanding is informed by the idea of well regulated liberty and the related notion that a civic right was as much an obligation as it was a trump. Government could not compel individuals to publish; they could compel them to bear arms. Indeed, this power led many states to protect the right of religious groups such as the Quakers (religious pacifists) not to be forced to bear arms! You can’t be forced to bear arms in self defense. The dominant meaning of this phrase was clearly military in the Founding era. Indeed, I have tracked almost every use of the term from this period and military meanings outnumber non-military usages in every type of print source from this period. The most important difference between the civic right and the modern collective rights argument is that I accept that the right is held by citizens, a category rather different than individuals in the Founding era, and this distinction becomes a key to understanding how the 14th changes the impact, not the meaning of the 2nd Amendment. Contrary to the claims of individual rights advocates and scholars, there was considerable division over the impact of the 14th on the 2nd. Although Republicans were divided, the view that won the day for them was the civic view. The key to Reconstruction became protecting the Negro militias and the right to bear arms in a government organized militia.

The militia functioned much like the jury. Citizens came together within a legal framework to act for the public good. One can only claim the right when citizens are organized into a legally sanctioned body—otherwise you have the Shays/Whiskey Rebellion scenario that most of the Founders dreaded.

The other aspect of well regulated liberty that needs to be stressed is that the right only makes sense in the context of robust gun regulation. Without musters, inspection, and accountability there is no well regulated militia. The collective rights argument, at least its radical progenitor, was Anti-Federalist in spirit, but it was quickly revived by the Jeffersonians. I do see it as different from this civic right.

Your account of the profound shift in the perception of the right mirrors my own thinking. The market revolution, Jacksonian democracy, and the creation of a culture that was more individualistic did transform the meaning of arms bearing for many Americans. The modern conflation of the right to bear arms and the right to bear a gun in self defense was a product of this later period.

As for the question of what the potential jurisprudential difference between a civic right and an individual right is I think it could be quite significant. For one thing it would certainly mean much more rigorous gun regulation—registration, inspection, safe storage, and mandatory safety training. It would also mean that hand guns would have no constitutional protection in contrast to long guns which would enjoy protection as long as they were brought within a robust regulatory scheme. Gun owners get greater protection but they accept much greater levels of regulation. Finally, it would almost certainly mean that the constitutional scrutiny of gun laws would trigger a rational basis review and not strict scrutiny. (Perhaps one might argue an undue burden standard, but this is a pretty underdeveloped area of the law.) The Founders clearly thought that some types of prior restraints were fine so the words and guns analogy is way off.

Part 2 of the dialogue between Tushnet & Cornell is available 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.