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Other history files in our archive:
John Kenneth Rowland, .../1197row.html, previously unpublished PhD dissertation, Ohio State, 1978.
John Kenneth Rowland, Appendix A, US v. Emerson,
Lawrence Cress, "An Armed Community: The Origins and the Meaning of the Right to Bear Arms," J. Am. Hist., 1984.
Don Higginbotham, "The Second Amendment in Historical Context", Constitutional Commentary, October, 1999.
Saul Cornell,"Commonplace or Anachronism," Constitutional Commentary, 1999.
John K. Mahon, History of the Militia and National Guard (1983), Chapters 3, 4, and 5
Garry Wills, "To Keep and Bear Arms", New York Review of Books, September 21, 1995.
Leon Friedman,"Conscription and the Constitution," Michigan Law Review, 1969.
©Constitutional Commentary, used with permission.
Michael A. Bellesiles *
Justice Robert H. Jackson 1
248 CONSTITUTIONAL COMMENTARY [Vol. 16:247
seeking supportive arguments and quotations to promote and enhance their case for the present. Like big game hunters they return from their safari with their prized quotes, having paid no attention to the wider environment or social context of their trophies. They rarely descend into a period to get a sense of the nuances and complexities; and they certainly never bother to count, to arrive at the aggregate rather than the exceptional. As Morton Horwitz put it, this “lawyer’s history... involves roaming through history looking for one’s friends.” 5
symmetry,” avoiding sharp dichotomies which misrepresent the past. 11 Put another way, professional historians immediately doubt any case for which all the evidence falls consistently on one side.
Almost no historian speaks any more of a uniform, cohesive American culture; there are too many strands to the fabric of early American society to maintain that just one speaks for all. But then that was exactly the point of federalism, and precisely the perspective offered by James Madison in the Federalist Papers. 16 So we now have the delicious irony of conservative legal scholars rejecting the vision of James Madison as inaccurate, and embracing the classic liberal ideal of a unifying American consensus. 17
the supposed right to insurrection imbedded in the Second Amendment offered by Sanford Levinson in his landmark article, The Embarrassing Second Amendment. 19 For those of you who have somehow managed to miss it, Joseph Story wrote in his Commentaries:
bellions or uprisings; the country was now stable and secure, and the people should remain orderly. To read the sources otherwise is to practice a twisted form of post-modernism. Or as Justice Story also wrote, “It is astonishing how easily men satisfy themselves that the Constitution is exactly what they wish it to be.” 34
That would seem evidence enough that this right was not truly individual but carefully constrained by legal category. There was nothing unusual in this formulation by Pennsylvania; the right to possess firearms had always been subject to government regulation under British common law and colonial practice. Pennsylvania retained a long tradition of controlling dangerous populations, rejecting, as Cornell writes, “the very right to armed resistance posited by the Standard Model.” 39 The framers of the United States Constitution drew upon the same legal heritage.
anachronistic. The Framers’ first concern was to create a country which would survive; that goal, in their eyes, required certain limitations on personal liberty. 43 Guns were to be used by those serving in the militia, as state laws made evident, and the militia’s duty was to maintain order. 44 Unlike during the American Revolution, when the crowd was the militia, in the early national period the crowd was repeatedly confronted by the militia. 45 Even Samuel Adams, one of America’s leading democrats, rejected pardons for the Shaysites: “the man who dares to rebel against the laws of a republic ought to die.” 46 Not a lot of support for the right of insurrection there.
is a natural right, a last resort when the Constitution itself has been contravened; it is not itself a part of the Constitution. 48 Such an extension of violent opposition to authority as a regular component of government would have destabilized the nation from the beginning and guaranteed its failure. Fortunately the framers were smarter than that.
remembering that several state governments were despotic in this period. Southern states viciously enforced a system of slavery, denying the most basic rights to millions of Americans. They also trampled on the individual rights of whites, giving postmasters the right to open mail searching for anti-slavery sentiment, forbidding the circulation of literature questioning slavery, outlawing public meetings of abolitionists, enforcing the most unrelenting intellectual conformity ever experienced in American history in gross violation of the Constitution. Did the Southern militia rise up to battle this tyranny? Of course not; they enforced it. 55 When the state of Georgia violated the rights of the Cherokee people and forced them off their lands in direct violation of the Supreme Court, did the militia of Georgia rush out, muskets in hand, to protect the rights of their fellow Americans? Obviously not; they joined with the Army in expelling the Cherokee from their property. When workers had their right of assembly taken from them, where was the militia? When women were jailed for attempting to exercise the right to vote, where was the militia? One could go on and on. The reality of American history is clear: the militia and its National Guard successor upholds the power of the state. The Standard Model operated only once in American history: in 1861.
ing the police powers of the state which have crushed every armed insurrection from the Whiskey Rebellion through the Civil War to the Rodney King riots. But honestly, that is not what the “Standard Modelers” are arguing for. They are not radicals taking to the streets and endorsing the people’s right to armed rebellion, whoever those people happen to be. They tend to be political conservatives seeking to negate the government’s authority to regulate firearms. But these are conservatives who offer a libertarian reading of society; rather than relying on the state for personal protection, the individual must protect himself. It is a view which accepts and fosters the atomistic nature of society and can conceive of no communal strategy for collective security. It is a view which would have baffled Madison, who sought social cohesion in a society which all too easily could fragment and collapse into chaos. And it is a perspective which carries a heavy and violent price tag.
tive and prescriptive” for example, the mythology of “courageous pioneers who won the West.” 63
tyranny and to overpower an abusive standing army or select militia.” 69 Yet consider the speech James Madison delivered when he introduced that same Second Amendment to the House of Representatives:
* Professor of History, Emory University. text@note*
1. Terminiello v. Chicago, 337 US 1, 37 (1949) (Jackson, J., dissenting). text@note1
2. Quoted in Nomi Maya Stolzenberg, A Book of Laughter and Forgetting: Kalman’s “Strange Career” and the Marketing of Civic Republicanism, 111 Harv. L Rev. 1025, 1027 (1998). text@note2
3. Laura Kalman, The Strange Career of Legal Liberalism (Yale U. Press, 1996). text@note3
4. Id. at 175. text@note4
5. Id. at 179 (quoting Morton Horwitz, Republican Origins of Constitutionalism, in Paul Finkleman and Stephen Gottlieb, eds., Toward a Usable Past: Liberty Under State Constitutions 148 (U. of Georgia Press, 1991)). text@note5
6. Kalman, Strange Career at 180 (cited in note 3). text@note6
7. Id.at185. text@note7
8. Andrew Kull, The Color Blind Constitution (Harvard U. Press, 1992). text@note8
9. William E. Leuchtenburg, The Historian in the Public Realm, 97 Am. Hist. Rev. 11(1992) text@note9
10. Kalman, Strange Career at 186 (cited in note 3). text@note10
11. Id. text@note11
12. Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461 (1995). This issue of the Tennessee Law Review offers a complete, unquali. fled, and uncritical overview of the “standard model,” or “individualist” reading of the Second Amendment. For claims that there is a “new consensus” and “virtual unanimity, that there is no tenable textual or historical argument against a broad individual right view of the Second Amendment,” see Randy E. Barnett and Don B. Kates, Under Fire: The New Consensus on the Second Amendment, 45 Emory L.J. 1139, 1141 (1996). text@note12
13. Recent works examining the historical context include Lawrence D. Cress, An Armed Community: The Origins and Meaning of the Right to Bear Arms, 71 J. of Am. Hist. 22 (1984) (examines the intellectual context of the Second Amendment); Carl T. Bogus, The Hidden History of the Second Amendment, 31 U.C. Davis L. Rev. 311 (1998) (looks at fears of slave insurrection among the Southern elite); Don Higginbotham, The Federalized Militia Debate: A Neglected Aspect of Second Amendment Scholarship, 55 Wm. & Mary 0. 39 (1998) (studies the first federal efforts to establish a “well regulated militia”); as well as two articles I have written looking at patterns of gun ownership and the nature of gun laws in early America: The Origins of American Gun Culture in the United States, 1760-1865, 83 J. of Am. Hist. 425 (1996); Gun Laws in Early America.: The Regulation of Firearms Ownership, 1607-1794, 16 L. & Hist. Rev. 567 (1998). The two leading historical works for the Standard Modelers are Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right (Harvard U. Press, 1994) and Robert E. Shalhope, The Ideological Origins of the Second Amendment, 69 J. of Am. Hist. 599 (1982). text@note13
14. Kalman, Strange Career at 176-80 (cited in note 3). text@note14
15. Saul Cornell, Commonplace or Anachronism: The Standard Model, The Second Amendment, and the Problem of History in Contemporary Constitutional Theory, 16 Const. Comm. 221 (1999). text@note15
16. To state the obvious, Federalist 10 (Madison) in ainton Rossiter, ed., The Federalist Papers 77 (Mentor, 1961); but see Federalist 6 (Hamilton), id. at 53; Federalist 9 (Hamilton), id. at 71; Federalist 15 (Hamilton), id. at 105; Federalist 70 (Hamilton), id. at 423; Federalist 39 (Madison), Id. at 240; Federalist 51 (Madison), id. at 320. See also Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 161- 202 (Alfred A. Knopf, 1996). text@note16
17. Louis Hartz, The Liberal Tradition in America: An Interpretation of American Political Thought Since the Revolution (Harcourt, Brace and Co., 1955). text@note17
18. David C. Williams, The Militia Movement and Second Amendment Revolution: Conjuring with the People, 81 Cornell L. Rev. 879, 894 (1996). text@note18
19. Sanford Levinson, The Embarrassing Second Amendment, 99 Yale U. 637, 649-50 (1989). Levinson also cited Thomas Cooley, The General Principles of Constitutional Law in the United States of America 298 (Little, Brown, 3d ed. 1898), and the early twentieth century lawyer, Theodore Schroeder, Free Speech for Radicals 104 (Burt Franklin, 1969). text@note19
20. Joseph Story, 2 Commentaries on the Constitution of the United States: With a Preliminary Review of the Constitutional History of the Colonies and States Before the Adoption of the Constitution 620 (Little, Brown, and Co., 1873). text@note20
21. “And yet, though this truth would seem so clear, and the importance of a wellregulated militia would seem so undeniable, it cannot be disguised that, among the American people, there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burdens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization it is difficult to see.” Id. at 620-21. text@note21
22. Joseph Story, The Miscellaneous Writings, Literary, Critical, Juridical, and Political (James Munroe and Co.. 1835). text@note22
23. William W. Story, ed., The Miscellaneous Writings of Joseph Story (Charles C. Little and James Brown, 1852). text@note23
24. William W. Story, ed., Life and Letters of Joseph Story (Charles C. Little and James Brown, 1851). text@note24
25. R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (U. of North Carolina Press, 1985); Gerald T. Dunne, Justice Joseph Story and the Rise of the Supreme Court (Simon and Schuster, 1970); James McClellan, Joseph Story and the American Constitution: A Study in Political and Legal Thought (U. of Oklahoma Press, 1971). text@note25
26. The entire thrust of McClellan, Joseph Story (cited in note 25). See also Newmyer, Supreme Court Justice Joseph Story at 84..88, 94.97, 155-81, 269.70, 313, 390-91 (cited in note 25). text@note26
27. Story, ed., Miscellaneous Writings at 761, 777 (cited in note 23); Newmyer, Supreme Court Justice Joseph Story at 356 (cited in note 25); Dunne, Justice Joseph Story at 338 (cited in note 25); McClellan, Joseph Story at 79-81 (cited in note 25). text@note27
28. Story, ed.,Miscellaneous Writings at 747 (cited in note 23); Newmyer, Supreme Court Justice Joseph Story at 357 (cited in note 25). text@note28
29. Newmyer, Supreme Court Justice Joseph Story at 360 (cited in note 25) (quoting Letter from Story to Webster, April 26, 1842, Webster Papers (New Hampshire Historical Society)). text@note29
30. Letter from Story to Judge Pitman (April 1, 1842), in Story, ed., 2 Life and Letters at 419 (cited in note 24). text@note30
31. Newmyer, Supreme Court Justice Joseph Story at 361 (cited in note 25) (quoting Letter from Story to Daniel Webster). text@note31
32. Id. at 362; Story, ed., 2 Life and Letters at 516 (cited in note 24). text@note32
33. Letter from Story to Judge Pitman (Feb. 10, 1842), in Story, ed., 2 Life and Letters at 416 (cited in note 24). text@note33
34. Letter from Story to Simon Greenleaf (Feb. 16, 1845), in Story, ed., 2 Life and Letters at 514 (cited in note 24). text@note34
35. Cornell, Commonplace or Anachronism at 225 (cited in note 15). text@note35
36. Bellesiles, Gun Laws in Early America at 587 (cited in note 13). text@note36
37. Higginbotham, The Federalized Militia Debate (cited in note 13); Lyle D. Brundage, The Organization, Administration, and Training of the United States Ordinary and Volunteer Militia, 1792-1861 (Ph.D. dissertation, University of Michigan, 1958); Martin K. Gordon, The Militia of the District of Columbia 1790-1815 (Ph.D. dissertation, George Washington University, 1975); Mark Pitcavage, An Equitable Burden: The Decline of the State Militias (Ph.D. dissertation, Ohio State University, 1995). text@note37
38. Cornell, Commonplace or Anachronism at 228 (cited in note 15) (quoting Pennsylvania Convention, Declaration of Rights, August 21, 1776). text@note38
39. Id.at229. text@note39
40. Letter from Washington to Madison (Nov. 5, 1786), in John C. Fitzpatrick, ed., 29 The Writings of George Washington 29,51 (Government Printing Office, 1939). text@note40
41. Id. at 26-28 (Letter from Washington to David Humphreys, Oct. 22, 1786); Id. at 33-35 (Letter from Washington to Henry Lee, Oct. 31, 1786); Letter from Knox to Congress, (Oct. 18, 1786), in John Fitzpatrick, ed., 31 Journals of the Continental Congress 887 (Government Printing Office, 1934); Letter from Knox to Washington (Oct. 23, 1786), Henry Knox Papers, Massachusetts Historical Society (Boston). text@note41
42. David P. Szatmary, Shays’ Rebellion: The Making of an Agrarian Insurrection 127-34 (U. of Massachusetts Press, 1980); Stephen E. Patterson, The Federal Reaction to Shays’s Rebellion, in Robert A. Gross, ed., In Debt to Shays: The Bicentennial of an Agrarian Rebellion 101-18 (U. Press of Virginia, 1993); Michael Lienesch, Reinterpreting Rebellion: The Influence of Shays’s Rebellion on American Political Thought, in Gross, ed., In Debt to Shays at 161 -82; Richard D. Brown, Shays’s Rebellion and the Ratification of the Federal Constitution in Massachusetts, in Richard Beeman, et al., eds., Beyond Confederation: Origins of the Constitution and American National Identity 113 (U. of North Carolina Press, 1987). text@note42
43. Federalist 6 (Hamilton) at 53 (cited in note 16); Federalist 15 (Hamilton) at 105 (cited in note 16); Federalist 70 (Hamilton) at 423 (cited in note 16); Federalist 10 (Madison) at 77 (cited in note 16); Letter from James Madison to Thomas Jefferson (Oct. 24, 1787), in Robert A. Rutland, et al., eds., 10 The Papers of James Madison 212-14 (U. of Chicago Press, 1977); Letter from Madison to Jefferson (Oct. 17, 1788), in Robert A. Rutland, et al., eds., 11 The Papers of James Madison 297-300 (U. Press of Virginia, 1977). text@note43
44. Clarence C. Ferguson, The Inherent Justiciability of the Constitutional Guaranty Against Domestic Violence, 13 Rutgers L. Rev. 407 (1959). text@note44
45. On Colonial and revolutionary traditions of crowd action see Pauline Maier, From Resistance to Revolution: Colonial Radicals and the Development of American Opposition to Britain, 1756-1776 (Alfred A. Knopf, 1972); Dirk Hoerder, Crowd Action in Revolutionary Massachusetts, 1765-1780 (Academic Press, 1977); Edward Countryman, A People in Revolution: The American Revolution and Political Society in New York, 1760-1790 (Johns Hopkins U. Press, 1981); Michael A. Bellesiles, Revolutionary Outlaws: Ethan Allen and the Struggle for Independence on the Early American Frontier (U. Press of Virginia, 1993). On crowds in the constitutional period opposed by militia, see William Slade, ed., Vermont State Papers 475-82 (J.W. Copeland, 1823); Pennsylvania Packet, and Daily Advertiser, Dec. 27, 1786; Vermont Journal, and the Universal Advertiser, Dec., 1783; Alan Taylor, Liberty Men and Great Proprietors: The Revolutionary Settlement on the Maine Frontier, 1760-1820 (U. of North Carolina Press, 1990). On the crowd in the early national period facing militia, see Paul A. Gilje, The Road to Mobocracy: Popular Disorder in New York City, 1763-1834 (U. of North Carolina Press, 1987), and David Gnmsted, 1American Mobbing, 1828-1861: Toward Civil War (Oxford U. Press, 1998). text@note45
46. John H. Lockwood, et al., eds., 1 Western Massachusetts: A History, 1636-1925 at 183 (Lewis Historical Publishing Co., 1926). George Washington wrote Benjamin Lincoln, Jr., that the insurgents “had by their repeated outrages forfeited all right to Citizenship.” Fitzpatrick, ed., 29 Writings of Washington at 168 (cited in note 40). text@note46
47. Madison, Vices of the Political System of the U. States, in Marvin Meyers, ed., The Mind of the Founder: Sources of the Political Thought of James Madison 59 (U. Press of New England, 1981); Letter from Madison to Washington (April 16, 1787), id. at 6669; Federalist 8 (Hamilton), at 66 (cited in note 16); Federalist 32 (Hamilton), at 197 (cited in note 16); Federalist 43 (Madison), at 271 (cited in note 16); Federalist 45 (Madison), at 288 (cited in note 16); Federalist 46 (Madison), at 294 (cited in note 16); Rakove, Original Meanings, at 34,48-56, 334-36 (cited in note 16). text@note47
48. Cornell, Commonplace or Anachronism at 237.38 (cited in note 15). text@note48
49. Gordon S. Wood, The Creation of the American Republic, 1776-1787, at 19, 396-429 (U. of North Carolina Press, 1969). text@note49
50. Bellesiles, Origins of American Gun Culture at 428-35 (cited in note 13). text@note50
51. Thomas P. Slaughter, The Whiskey Rebellion: Frontier Epilogue to the American Revolution 190-204 (Oxford U. Press, 1986). text@note51
52. William C. diGiacomantonio, Ct al., eds., 14 Documentary History of the First Federal Congress 1789-1791 at 56 (Johns Hopkins U. Press, 1996). text@note52
53. Id. at 84. text@note53
54. Id. at 93-94. text@note54
55. On the government protecting itself against such threats, see Federalist 21 (Hamilton), at 138 (cited in note 16); Federalist 28 (Hamilton), at 178 (cited in note 16); Federalist 74 (Hamilton), at 447 (cited in note 16); St. George Tucker, 1 Blackstone’s Commentaries: With Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States 366-67 (W.Y. Birch and A. Small, 1803); Story, 2 Cornmentaries at 546-47, 559 (cited in note 20). That Madison in fact saw a threat from an excess of democratic action is evidenced in a letter he wrote his father, in which he stated that the Shaysites sought “an abolition of debts, public and private, and a new division of property.” Isaac Kramnick, ed., The Federalist Papers 28 (P. Smith, 1995). text@note55
56. See for instance, L.A. Powe, Jr., Guns, Words, and Constitutional Interpretation, 38 Wm. & Mary L. Rev. 1311 (1997); and the exchange between Dennis A. Henigan,Arms, Anarchy and the Second Amendment, 26 Val. U. L. Rev. 107 (1991), and Stephen P. Halbrook, The Right of the People or the Power of the State: Bearing Arms, Arming Militias, and the Second Amendment, 26 Val. U. L. Rev. 131 (1991). text@note56
57. David Williams evades this problem by declaring that the Second Amendment did indeed originally grant an insurrectionary right; but not now! Williams, The Militia Movement and the Second Amendment Revolution at 948-52 (cited in note 18). text@note57
58. J.M. Balkin and Sanford Levinson, The Canons of Constitutional Law, 111 Harv. L. Rev. 963 (1998). text@note58
59. Id. at 985. text@note59
60. Id. at 985. See also Pierre Schlag, Normativity and the Politics of Form, 139 U. Pa. L. Rev. 801 (1991). text@note60
61. Levinson and Balkin, Canons of Constitutional Law at 987 (cited in note 58). text@note61
62. Id. at 992. text@note62
63. Id.at987. text@note63
64. See particularly id. at 1021-24. text@note64
65. Id. at 1013 n.157. text@note65
66. Id. Levinson specifically cites pages 648-50 of The Embarrassing Second Amendment, where Story, Cooley, and Schroeder are cited in support of this right to insurrection. text@note66
67. See, for instance, Malcolm, To Keep and Bear Arms at 8, 125 (cited in note 13). Malcolm does not actually quote or cite Machiavelli when discussing his ideas and influence. She does however quote J.G.A. Pocock’s judgment that “[t]he rigorous equation of arms-bearing with civic capacity is one of Machiavelli’s most enduring legacies to later political thinkers.” Id. at 8 (quoting J.G.A. Pocock, The Political Works of James Harrington 18-19 (Cambridge U. Press, 1977)). Curiously, she does not quote or comment upon the immediately preceding sentences in which Pocock writes that Machiavelli insisted that “an armed people” acted to “extend[ ] her [the city-state’s] power abroad” and were “subject to none but the public power.” Id. at 18. text@note67
68. Wendy Brown, Guns, Cowboys, Philadelphia Mayors, and Civic Republicanism On Sanford Levinson’s The Embarrassing Second Amendment, 99 Yale L.J. 661, 662-63 (1989). Among Niccolo Machiavelli’s many writings on this point, see for instance The Prince 231 (Bobbs-Merrill, 1976); History of Florence and of the Affairs of Italy: From the Earliest Times to the Death of Lorenzo the Magnificent 180 (M.W. Dunne, 1901); Discourses on the First Decade of Titus Livius 410 (1965). text@note68
69. Stephen P. Halbrook, That Every Man be Armed: The Evolution of a Constitutional Right 77 (U. of New Mexico Press, 1984). text@note69
70. Jack N. Rakove, ed., Declaring Rights:
A Brief History with Documents 176-77
(Bedford Books, 1998).
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