AMERICA - GUNS - SECOND CONSTITUTION
A Well-Regulated Militia:
The Founding Fathers and the Origin
of Gun Control in America
"This intelligent, carefully rendered history of gun policy in the United States ... is challenging but essential reading for scholars, specialized undergraduates, and readers interested in law, criminal justice, and public affairs."
"If proof were still needed that the study of the Second Amendment remains a fruitful source of inquiry, Saul Cornell's new book provides it. Crisply written and vigorously argued, A Well-Regulated Militia advances an often hackneyed debate by looking beyond the original concerns of the Revolutionary era. Cornell concisely demonstrates why so many of the contemporary fictions swirling around the meaning of this vexed clause depart from its real history."
—-Jack Rakove, author of the Pulitzer Prize-winning Original Meanings
"Saul Cornell provides a wonderful, original treatment of a much discussed subject. Based on a meticulous review of American history, Cornell shows that both sides of the debate over the Second Amendment are mistaken. This is a must-read."
—Erwin Chemerinsky, Duke University School of Law
"Jettisoning the rancorous partisanship and historical distortions of both advocates and opponents of gun control, Cornell recovers the lost civic dimension of the constitutional right to bear arms. The point of departure for any future, historically informed discussion of this most controversial amendment, A Well-Regulated Militia clears the way for fresh and constructive thinking about the rights/and responsibilities of gun ownership in America today." —Peter S. Onuf, author of Jefferson's Empire: The Language of American Nationhood
'A provocative alternative in the debate over the historical meaning of the Second Amendment. Anyone interested in how the right to bear arms was thought about in the early republic will need to take this book into account."
—Keith E. Whittington, author of Constitutional Interpretation
A WELL REGULATE MILITIA
The Founding Fathers and the Origins of gun Control in America
by SAUL CORNELL
Writing the history of a topic as divisive and emotionally charged as the Second Amendment and gun control has posed a number of unique challenges. If I had set out to write a historical justification of gun control or a defense of gun rights, I would have certainly written a different book and done so in far less time. In contrast to advocates engaged in promoting a particular agenda, historians have an obligation to place such agendas temporarily aside while they pursue their research. In the course of researching this project and writing this book, I had to jettison many of the assumptions I had originally brought to this study. The history of the Second Amendment and the struggle over gun regulation proved to be far more complicated and contentious than I had imagined. Rather than fit into either a simple gun control or gun rights framework, the story of the struggle over this issue was filled with innumerable ironies and unexpected historical twists and turns. Partisans on both sides of this controversial issue are likely to find a number of surprises in these pages. Readers who come to this book with an open mind will be gratified to learn that the current impasse over guns in America was not inevitable.
I stumbled into this topic quite by accident. While completing a book on the Anti-Federalists, I noticed that a handful of writings by the opponents of the Constitution were frequently cited by scholars and partisans in the contemporary gun rights movement. Having spent more than a decade working on Anti-Federalism, I found it hard to reconcile the claims being made about Anti-Federalist ideas with what I knew about the opponents of the Constitution. It seemed particularly odd to me that scholars who claimed to be seeking the original understanding of the Second Amendment would lavish so much attention on the losing side's thoughts in the original struggle over the Constitution. Even if one acknowledges that the Anti-Federalists were the other founders of the American constitutional tradition, it seems curious that their thinking should be accorded as much, if not more, authority than the Federalist Founders. I decided that I needed to write a short article on this subject and expected to quickly move on to another project on Thomas Jefferson and the Enlightenment. As I dug deeper into sources, however, I realized that not only was the individual rights model of the Second Amendment trumpeted by gun rights advocates deeply flawed, but that the rival collective rights model also seemed difficult to reconcile with many of the sources I encountered. As I struggled to make sense of the evidence, I began to think that a new paradigm was needed to explain the understanding of the right to bear arms dominant in the eighteenth century. What emerged from these efforts was a pluralist model that acknowledged that there were a number of different views of the right to bear arms in the Founding era. The dominant model fit neither the modern individual nor collective rights models, but seemed more civic in character. It is important to recall that the Second Amendment was drafted and ratified by a generation of Americans who feared standing armies and had witnessed a systematic policy to disarm their militias. With these concerns in mind, America's first constitutions explicitly protected the right of citizens to keep and bear those arms necessary to meet their militia obligation. Having discovered that the individual and collective rights models were minority views in the Founding era, I set out to discover when these two interpretations rose to prominence in American law. Although I found some scattered evidence for both of these theories during the Founding era, it became clear to me that both of these models gained a strong hold on American legal thinking only in the decades after the adoption of the Second Amendment.
Tracing the evolution of American thinking about the meaning of the right to bear arms in all its complexity required looking in places that previous scholars had ignored. I realized that I would need to unite the top-down perspective of traditional constitutional history with the bottom-up perspective of social and cultural history. In my story the perspective of the backcountry farmers who took up arms during Shays's Rebellion would have to be accorded the same respect as the learned disquisitions of Supreme Court justices. Having resolved to look beyond the traditional types of sources used by legal and constitutional historians, I discovered hundreds of new sources never before consulted by scholars interested in this topic.
It is impossible to write or talk about this topic without being asked where you stand on the gun issue today. I am always amazed when people ask me if I am pro-Second Amendment or anti-Second Amendment. It is hard to imagine anyone asking a scholar with a particular view of freedom of the press or federalism if he or she is pro-First Amendment or pro-Tenth Amendment. Although I am strongly in favor of gun regulation, I do not consider myself anti-gun. Growing up in Brooklyn I did not have that much experience with firearms. Most of the shooting I did was at arcades in Coney Island. Like so many young boys in America, I was fascinated by guns and played with every conceivable type of toy gun, including a collapsible AR-7 rifle with infrared scope that fit snugly in my James Bond attache case. As a teenager I even acquired my own BB gun (illegally purchased), during a vacation in the Catskills. Although I had great fun with the gun in upstate New York, once I got back to Brooklyn I realized that there was not much one could do safely with a gun in a crowded Brooklyn apartment building. Guns are deeply embedded in American culture and history, and one must respect that fact if one wishes to understand the complex history of gun regulation and gun rights. Since beginning my research on this topic I have tried to learn more about firearms and their hold on the American imagination. I owe a great debt to Captain Scott Dawson, USMC, for taking me down to the Ohio State firing range and teaching me something of the power and allure of guns. Sadly, learning that I was a left-eye dominant and right-handed shooter probably dashed the last remaining James Bond fantasies left over from my childhood. I think I now understand why most colonial militia statutes exempted college faculty from reporting to muster. My brother-in-law Bill Hill also took me out shooting on his farm and helped me understand the important role that firearms continue to play for those who live in rural areas of the country.
The research for this book fills an entire six-drawer lateral file cabinet, and it would have been impossible to undertake a project of this scope and complexity without generous financial support. Funding for this project was provided by the National Endowment for the Humanities, the American Council of Learned Societies, and the Gilder Lehrman Institute. Much of the research for this book was done in conjunction with my work as director of the Second Amendment Research Center at the John Glenn Institute of Public Service and Public Policy Generous funding for the center was provided by grants from the Joyce Foundation. Roseanna Ander, program officer at Joyce, has been an enthusiastic supporter of the center's work and of my scholarship. I would also like to thank Ellen S. Alberding, the president of the Joyce Foundation, for recognizing the need for high-quality historical research on the role of guns in American law and society. The staff of the John Glenn Institute provided a congenial home to work on this project. Particular thanks are due Larry Libby Deborah Jones Merritt, Don Stenta, Deanna Stewart, Senator John Glenn, and Annie Glenn. Invaluable research assistance was provided by a number of graduate students at Ohio State University and elsewhere: David
Bernstein, Nathan Dedino, David Dzurec, Amber Esplin, Steve Garabedian, Nathan Kozuskanich, John Maass, and Joe Stewart-Pirone.
Several colleagues in the history department at Ohio State read the manuscript and provided thoughtful suggestions, including Michael Les Benedict, John Brooke, and Geoffrey Parker. Randy Roth shared with me evidence drawn from his own forthcoming study on the history of violence in America. My thinking about the historical issues relevant to this project has benefited from the comments and insights of a number of scholars: Robert Churchill, Jan Dizard, Carole Emberton, Paul Finkelman, Robert M Goldman, Leslie Goldstein, James Henretta, Don Higginbotham, David Konig, Peter Onuf, Jack Rakove, Lois Schwoerer, Robert Shalhope, and Lou Falkner Williams.
In the age in which the Second Amendment was drafted most lawyers obtained their legal education by pouring over classic texts such as Blackstone's Commentaries and serving long apprenticeships. Although I have never attended law school formally, I have spent hours reading Blackstone and other eighteenth-century legal texts. I have also sought counsel from a number of legal scholars on the fine points of constitutional law and interpretation, and particular thanks are due to them: Akhil Amar, Erwin Chemerinsky Michael Kent Curtis, Michael Dorf, Bernard Harcourt, Kurt Lash, Sandy Levinson, James Lindgren, Frank Michelman, Bryan Wildenthal, David Williams, and Adam Winkler. I owe a particular debt to Dean Larry Kramer of Stanford Law School for his support and guidance on many issues of constitutional law and interpretation.
A number of the ideas developed in chapters 5 and 6 were refined in papers presented at conferences at Fordham Law School and Stanford Law School. I would like to thank James Fleming and Martin Flaherty of Fordham and Bob Weisberg of Stanford for their help in Organizing these two events and for advice on a multitude of issues. Dave Douglas kindly invited me to present my research on St. George Tucker at William and Mary Law School. Kenneth Katkin of Northern Kentucky Law School hosted a lively conference on the Second Amendment, during which several ideas in the book were formulated. Kate Desbarats, Jim Rice, and the members of the St. Lawrence Early American Seminar offered thoughtful suggestions about chapter 4. Andrew Burstein and Nancy Isenberg generously invited me to give the Settle-Cadenhead Memorial Lecture at the University of Tulsa. I profited enormously from their generosity and thoughtful suggestions. A talk on the changing iconography of the armed citizen in American history at Georgetown yielded a host of insights, and I am indebted to Michael Kazin for this opportunity. Jack Censer's invitation to give the Finlay Lecture at George Mason University provided another excellent venue to try out the ideas in this book.
Given the prominence of the Second Amendment in recent legal scholarship I was extremely fortunate to have had the opportunity to present drafts of nearly every chapter in the book manuscript at a series of faculty workshops at some of the nation s premier law schools. I would like to thank the following scholars for providing me with opportunities to try out earlier versions of my argument: Stuart Banner, University of California, Los Angeles; Jim Chen, University of Minnesota; Howard Erlanger, University of Wisconsin, Madison; Gerald Leonard, Boston University; Daniel Polsby, George Mason Law School; Chris Tomlins, American Bar Foundation/Northwestern University. I owe a special debt to Bill Nelson of New York University School of Law, who hosted me for two weeks and whose wonderful legal history seminar read an earlier draft of the. entire manuscript and offered innumerable suggestions.
Although this manuscript deals with a host of important issues in American constitutional and legal history-—-including the right of revolution, popular constitutionalism, the evolution of the common law, federalism, the scope of the early American police power-—-it would be extremely naive to think that readers will not be curious about the connection between this history and the modern struggle over gun regulation. These issues are dealt with explicitly in the conclusion, which attempts to offer some suggestions about how an appreciation for history can raise the level of public discourse on this issue. In thinking about the contemporary resonances of my work I have benefited from lively exchanges with scholars and activists on both sides of this issue. Among the scholarly proponents of robust gun regulation who have generously shared their knowledge of this topic with me I would like to thank Carl Bogus, Phil Cook, John Donhue, David Hemenway Jens Ludwig, and Robert Spitzer. Proponents of gun rights have also generously shared their point of view with me, including Randy Barnett, Bob Cottrol, Jim Jacobs, Abigail Kohn, Nelson Lund, Joyce Lee Malcolm, and Eugene Volokh.
The Brady Center to Prevent Gun Violence invited me to participate in a forum at the National Press Club on the subject "Guns and the Second Amendment." I benefited from my discussions with several lawyers at the Brady campaign: Dennis Henigan, Jon Lowy Tony Orza, and Brian Seibel. Mat Nosanchuk, formerly of the Violence Policy Center (VPC), and Kristin Rand and Josh Sugerman, also of the VPC, took time out of their busy schedules to chat with me about the current state of the debate on this issue. Sue Ann Schiff of Legal Community against Violence was a great source of information about contemporary litigation in this area. An invitation from the Students for the Second Amendment and the National Rifle Association s Institute for Legislative Action to participate in a Second Amendment symposium provided me with another wonderful opportunity to discuss the meaning of this provision of the Bill of Rights. A number of the leading gun rights lawyers in the nation attended that event. In particular I would like to acknowledge David Kopel, Stephen Halbrook, Richard Gardner, Don Kates, and David Hardy for sharing their passionate interest in this issue with me.
Shaping this manuscript into a book that could appeal to an audience beyond the academy required the efforts of many fine editorial pens. Heather Miller and Lauren Osborne gave earlier drafts of the manuscript a close and thoughtful reading. Charlie Finlay up-and-coming novelist, read the manuscript and offered excellent stylistic advice.
Michele Bove and Lelia Mander at Oxford University Press guided the manuscript through the production process. My brilliant and charming editor at Oxford University Press, Dedi Felman, read so many drafts of this manuscript that I feared this book on the Second Amendment may have violated Dedfs Eighth Amendment rights to be free from cruel and unusual punishment. The unbridled enthusiasm for this project emanating from Niko Pfund, the academic publisher at Oxford University Press, was also a great source of inspiration.
My wife, Susan, and my daughters, Emma and Julia, endured too many hours with me at the computer screen. I appreciate their patience with a project that always seemed to take just a little bit longer to complete than I had hoped. I have dedicated this book to Emma and Julia. I hope that when they start their families someday this issue will no longer be so divisive and America will no longer be plagued by the problem of gun violence. Perhaps with a better sense of the - history of this issue Americans can create the kind of society in which schools will no longer need metal detectors in their doorways.
A well regulated militia, being necessary to the security of a free State, the right of the people to keep and hear arms, shall not he infringed.
Second Amendment, U.S. Constitution
Whipping the crowd into a frenzy at the National Rifle Association annual convention, Charlton Heston, the group's charismatic president, raised an antique rifle above his head and challenged gun control proponents to pry his weapon from his "cold, dead hands." This defiant gesture, repeated on numerous occasions by the chisel-jawed actor known for his portrayals of key figures in history, has become a powerful symbol in America's bitter debate over the right to bear arms. To dramatize his rebellious stance, Heston did not wave a modern assault rifle, but a Revolutionary-era rifle, an iconic symbol that adorns pro-gun Web sites, tee shirts, and bumper stickers.
History is at the very heart of the rancorous debate over guns in America, and no issue is more controversial than the original meaning of the Second Amendment. Partisans of gun rights argue that the Second Amendment protects an individual right to keep and bear arms for self-defense, recreation, and, if necessary, to take up arms against their government. Gun control advocates also claim to have history on their side and maintain with equal vigor that the Second Amendment simply protects a collective right of the states. Both sides have the history wrong.1
The original understanding of the Second Amendment was neither an individual right of self-defense nor a collective right of the states, but rather 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. Nothing better captured this constitutional ideal than the minuteman. Citizens had a legal obligation to outfit themselves with a musket at their own expense and were expected to turn out at a minute's notice to defend their community, state, and eventually their nation. The minuteman ideal was far less individualistic than most gun rights people assume, and far more martial in spirit than most gun control advocates realize.2
Although each side in the modern debate claims to be faithful to the historical Second Amendment, a restoration of its original meaning, re-creating the world of the minuteman, would be a nightmare that neither side would welcome. It would certainly involve more intrusive gun regulation, not less. Proponents of gun rights would not relish the idea of mandatory gun registration, nor would they be eager to welcome government officials into their homes to inspect privately owned weapons, as they did in Revolutionary days. Gun control advocates might blanch at the notion that all Americans would be required to receive firearms training and would certainly look askance at the idea of requiring all able-bodied citizens to purchase their own military-style assault weapons. Yet if the civic right to bear arms of the Founding were reintroduced, this is exactly what citizens would be obligated to do. A restoration of the original understanding of the Second Amendment would require all these measures and much more.3
Most Americans no longer live in the small rural communities that nurtured the minuteman ideal. Regulation in modern America is typically seen as antithetical to rights. The opposite was the case for the colonists, who believed that liberty without regulation was anarchy. Without government regulation there would have been no minutemen to muster on the town greens at Lexington and Concord. The state's coercive authority over citizens could be significant. Failure to appear properly armed at a muster resulted in stiff penalties, and government kept close tabs on the weapons citizens owned to meet this vital public obligation. Although ardent in their love of freedom, Americans feared anarchy as much as they dreaded tyranny. An armed body of citizens unregulated by law was a mob, not a militia. The golden mean between the two extremes of anarchy and tyranny was the idea of well-regulated liberty, and nothing better captured this ideal than the militia.4
The militia statutes each colony enacted tell only part of the story of how this vital institution was enmeshed in the everyday lives of most colonists. If history taught Americans any lesson, it was that a standing army of professional soldiers presented a perpetual threat to freedom. A well-regulated militia was the only form of defense compatible with liberty. Only when the role of citizen and soldier were united could freedom be preserved. The militia not only protected Americans from external threats such as hostile Indians and rival European powers, but in an era before organized police forces it also provided the only means to protect communities from civil unrest. Before the rise of modern political parties, militia units provided an essential means for organizing citizens for political action. Muster days were important festive occasions that drew citizens together for celebration and revelry.5
The Americans who enshrined the right to bear arms in the first state constitutions were haunted by a fear of disarmament, but this fear "was quite different than the fears of gun confiscation that cloud contemporary debates over firearms. The Concord minutemen who fired the shots heard round the world had been mustered on that fateful day to prevent British regular troops from confiscating the militia's powder and arms. The first statements of the right to bear arms in American constitutional law were clearly aimed at protecting the militia against the danger of being disarmed by the government, not at protecting individual citizens' right of personal self-defense.
Although most eighteenth-century Americans did not fear that the individual right of self-defense might be threatened, this fear did eventually take hold decades after Americans wrote their first constitutions. In the early nineteenth century some Americans did come to believe this right was under assault. The threat these Americans felt did not come from a despotic monarch or an omnipotent Parliament, but from their own state legislatures. A profound shift in the character of firearms regulation occurred in the early decades of the nineteenth century In response to widespread fears that handguns and bowie knives posed a serious threat to social stability, legislatures enacted the first comprehensive laws prohibiting handguns and other concealed weapons. Then, as now, the enactment of gun control laws prompted a backlash that led to an intensified commitment to gun rights. One of the many embarrassing truths about the debate over the right to bear arms that neither side wishes to admit is that gun rights ideology is the illegitimate and spurned child of gun control. These early efforts at gun control spawned the first legal challenges to these types of laws premised on the idea of a constitutional right to bear arms for individual self-defense. While most courts upheld gun control laws and continued to assert a civic conception of the right to bear arms, a few courts embraced the new ideology of gun rights. One of the principal confusions in the modern debate over gun regulation, the blurring of the distinction between the constitutional right to bear arms for public defense and the individual right to bear a gun in self-defense, crystallized in the Jacksonian era. Public debate over gun control has stumbled over this issue ever since.6
If the debate over the right to bear arms had remained simply a matter of state constitutional law, then the story would be quite straightforward: the growth of an individual rights view and its ongoing struggle against the original civic vision of arms bearing. The only problem with this story is that it tells us nothing about the Second Amendment, which emerged out of the divisive struggle between Federalists and Anti-Federalists over the new Constitution. To understand this history one must deal with the way that this right became embroiled in the bitter debate over federalism. No issue in early American constitutional law was more contentious than the battle between proponents of states' rights and supporters of national power. While the language of the provision on arms bearing that Congress drafted, which eventually became the Second Amendment, was closer in spirit to the civic model embodied in the first state constitutions, Anti-Federalists and their Jeffersonian heirs came to interpret the Second Amendment within an evolving theory of states' rights. The right to bear arms in a well-regulated militia controlled by the states would provide the ultimate check on federal power if such power ran amok. The original Anti-Federalist understanding of the Second Amendment was revolutionary, assigning to the state militias the awesome power to resist federal authority by force of arms.7
The modern gun control movement's embrace of the collective rights theory of the Second Amendment is laden with irony. Contemporary gun control theory rests on a strong commitment to a powerful federal regulatory state. Few partisans of this theory realize that its constitutional roots may be found in a radical states' rights ideology that advanced a revolutionary .challenge to federal power. Of course the version of states' rights that lies at the heart of modern gun control ideology only faintly resembles its radical ancestor. To understand how states' rights theory was drained of its revolutionary potential we must examine the pivotal role that the Civil War and Reconstruction played in transforming the meaning of the Second Amendment. The foundation for the modern collective rights theory was forged in the carnage of the Reconstruction era.
The evolution of modern Second Amendment theory is closely bound up with the debate over the Fourteenth Amendment. Republican framers of the Fourteenth Amendment intended to give the federal government the power to incorporate the fundamental liberties protected by the Bill of Rights. According to incorporation theory, Congress and the courts would be given the authority to guard basic liberties, including the right to bear arms. Democrats argued against incorporation and claimed that the Second Amendment was a right of the states, not a right of citizens. In the Democrats' narrow states' rights theory the amendment did no more than restrain Congress from disarming the state militias. Ultimately, the courts rejected the Republican theory of incorporation and embraced the Democratic states' rights theory of the Second Amendment.8
The transformation of this late nineteenth-century states' rights theory into the modern collective rights theory was accomplished early in the twentieth century as judges, lawyers, and reformers grappled with the new problems posed by organized crime and gun violence. If the Second Amendment was merely a right of the states designed to prevent federal disarmament of the state militias, then, gun control proponents claimed, it posed no barrier to state or federal gun control laws. One additional change in American law and society facilitated the final transformation of the Second Amendment into a collective right: Congress replaced the Founding era's universal militia with the modern National Guard. Ordinary citizens could no longer make a claim to keep and bear private arms to meet their public obligation to participate in the militia. The connection between arms bearing and civic participation had been effectively severed. Only the participants in legally sanctioned military organizations could now make Second Amendment claims.9
Neither of the two modern theories that have defined public debate over the right to bear arms is faithful to the original understanding of this provision of the Bill of Rights. Previous scholarship oh this history has been warped by the ideological needs of the modern debate over gun control. Only by casting aside the ideology of gun rights and gun control can one discern the real and previously hidden history of the great American gun debate. While no scholar writing about this contentious issue can claim to be completely above the fray or entirely neutral, it is possible to approach this issue in a rigorous and balanced manner, focusing on the hopes and fears that drove earlier generations of Americans to venerate the right to bear arms and not confusing these debates with the modern conflict over gun control.
One need not deny gun rights advocates and gun control proponents their history. While each side attacks the other for being a recent invention, the truth is that both sides have a rich history that has much to teach anyone interested in the role of guns in American society. While these opposing theories have deep roots in American history there is little evidence that either theory was part of the original civic understanding that guided the framers of America's first constitutions. The individual rights and collective rights theories were products of later struggles in American history. Individual rights theory was born in the Jacksonian era as a response to America's first efforts at gun control. Collective rights theory emerged slowly at the end of Reconstruction and only crystallized in its modern form in the early twentieth century. The one theory absent from current debate over the Second Amendment is the original civic interpretation. The virtual extinction of this conception was not inevitable but was a product of a long and complex history. Although the story of the decline of the civic conception of the right to bear arms has never been told, this history is vital to understanding our current predicament over guns in American society.
The tangled history of the struggle to define the right to bear arms ought to serve as a cautionary warning to both sides in this debate. If history seems to provide clear and unambiguous support for one's ideological preferences in the great American gun debate, then the history is likely wrong. While history may not help us chart a clear path toward a solution to America's bitter conflict over the role of guns in American society, some appreciation for how we have arrived at our current deadlock is an important first step to moving forward in this debate.10
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