The second amendment: Structure, history, and constitutional change

Michigan Law Review

Volumn 99, Issue 3, 2000, Pages 588-668

  Yassky, David ^a  

^a NONE

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EID: 0043196817     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: 10.2307/1290496     Document Type: Article

References (333)

1. 307 U.S. 174 (1939).
2. Courts have upheld federal laws regulating the private possession of short-barreled shotguns, see Miller, 307 U.S. at 174, machine guns, see, e.g., United States v. Rybar, 103 F.3d 273 (3d Cir. 1996), cert. denied, 522 U.S. 807 (1997); United States v. Hale, 978 F.2d 1016 (8th Cir. 1992); United States v. Oakes, 564 F.2d 384 (10th Cir. 1977); United States v. Warin, 530 F.2d 103 (6th Cir. 1976), cert. denied, 426 U.S. 948 (1976), and assault weapons, see San Diego Gun Rights Comm. v. Reno, 98 F.3d 1121 (9th Cir. 1996). They have also upheld laws prohibiting the possession of firearms by felons, see, e.g., United States v. Johnson, 497 F.2d 548 (4th Cir. 1974); United States v. Synnes, 438 F.2d 764 (8th Cir. 1971); Cases v. United States, 131 F.2d 916 (1st Cir. 1942), by persons convicted of domestic violence offenses, see, e.g., Fraternal Order of Police v. United States, 173 F.3d 898 (D.C. Cir. 1999), and by persons subject to restraining orders, see, e.g., United States v. Baker, 197 F.3d 211 (6th Cir. 1999); Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999); United States v. Spruill, 61 F. Supp. 2d 587 (W.D. Tex. 1999). But see United States v. Emerson, 46 F. Supp. 2d 598 (N.D. Tex. 1999) (striking down federal statute prohibiting the possession of firearms persons subject to restraining orders). Courts have also upheld extensive federal regulation of firearms dealers, see United States v. Decker, 446 F.2d 164 (8th Cir. 1971); cf. Cody v. United States, 460 F.2d 34 (8th Cir. 1972) (upholding requirement that gun purchasers accurately answer certain questions prior to purchase). Moreover, the Supreme Court has never held that the Second Amendment is "incorporated" in the Fourteenth Amendment's protections. Accordingly, courts have uniformly rejected Second Amendment challenges to state or local firearms regulations, see, e.g., Peoples Rights Org. v. City of Columbus, 152 F.3d 522 (6th Cir. 1998); Love v. Pepersack, 47 F.3d 120 (4th Cir. 1995), cert. denied, 516 U.S. 813 (1995); Thomas v. City Council of Portland, 730 F.2d 41 (1st Cir. 1984); Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983). The Supreme Court last addressed the question in 1886, holding that the Amendment does not apply to states - but of course this holding predates modern incorporation jurisprudence. See Presser v. Illinois, 116 U.S. 252 (1886); cf. infra Section IV.A.1.
3. This literature has now become quite large. For representative examples, see STEPHEN P. HALBROOK, THAT EVERY MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL RIGHT (1984); JOYCE LEE MALCOLM, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT (1994); Randy Barnett & Don B. Kates, Under Fire: The New Consensus on the Second Amendment, 45 EMORY L.J. 1139, 1141 (1996); Robert Dowlut, Federal and State Constitutional Guarantees to Arms, 15 U. DAYTON L. REV. 59 (1989); Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH. L. REV. 204 (1983) [hereinafter Kates, Jr., Original Meaning]; Don B. Kates, Jr., The Second Amendment: A Dialogue, 49 LAW & CONTEMP. PROBS. 143 (1986); Sanford Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637 (1989); Nelson Lund, The Past and Future of the Individual's Right to Arms, 31 GA. L. REV. 1 (1996); L.A. Powe, Jr., Guns, Words and Constitutional Interpretation, 38 WM. & MARY L. REV. 1311 (1997); Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 TENN. L. REV. 461 (1995); William Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 DUKE L.J. 1236 (1994); Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. REV. 793 (1998). For a complete bibliography, see David B. Kopel, The Supreme Court's Thirty-Five Other Gun Cases: What the Supreme Court Has Said About the Second Amendment, 18 ST. LOUIS U. PUB. L. REV. 99, 101 n.9 (1999). There is also a substantial body of work by both legal scholars and historians disputing the revisionists. The legal scholarship includes: Carl T. Bogus, Race, Riots, and Guns, 66 S. CAL. L. REV. 1365 (1993) [hereinafter Bogus, Race, Riots and Guns]; Carl T. Bogus, The Hidden History of the Second Amendment, 31 U.C. DAVIS L. REV. 309 (1998) [hereinafter Bogus, Hidden History]; Keith A. Ehrman & Dennis A. Henigan, The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?, 15 U. DAYTON L. REV. 5 (1989); Dennis A. Henigan, Arms, Anarchy and the Second Amendment, 26 VAL. U. L. REV. 107 (1991); Andrew D. Herz, Gun Crazy: Constitutional False Consciousness and Dereliction of Dialogic Responsibility, 75 B.U. L. REV. 57 (1995); John Dwight Ingram & Allison Ann Ray, The Right(?) to Keep and Bear Arms, 27 N.M.L. REV. 491 (1997); H. Richard Uviller & William G. Merkel, The Second Amendment in Context: The Case of the Vanishing Predicate, 76 CHI-KENT L. REV. 403 (2000); David C. Williams, Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101 YALE L.J. 551 (1991) [hereinafter Williams, The Terrifying Second Amendment]; David C. Williams, The Militia Movement and Second Amendment Revolution: Conjuring with the People, 81 CORNELL L. REV. 879 (1996) [hereinafter Williams, Conjuring with the People]; David C. Williams, The Unitary Second Amendment, 73 N.Y.U. L. Rev. 822 (1998). The historians' work includes: Michael Bellesiles, The Origins of Gun Culture in the United States 1760-1865, 83 J. AM. HIST. 425 (Sept. 1996) [hereinafter Bellesiles, Gun Culture]; Michael Bellesiles, Gun Laws in Early America: The Regulation Of Firearms Ownership 1607-1794, 16 LAW & HIST. REV. 567 (1998) [hereinafter Bellesiles, Gun Laws]; Michael Bellesiles, Suicide Pact: New Readings of the Second Amendment, 16 CONST. COMMENTARY 247 (1999) [hereinafter Bellesiles, Suicide Pact]; Saul Cornell, Commonplace or Anachronism: The Standard Model, the Second Amendment, and the Problem of History in Contemporary Constitutional Theory, 16 CONST. COMMENTARY 221 (1999); Lawrence D. Cress, An Armed Community: The Origins and Meaning of the Right to Bear Arms, 71 J. AM. HIST. 22 (1984); Don Higginbotham, The Second Amendment in Historical Context, 16 CONST. COMMENTARY 263 (1999).
4. Emerson, 46 F. Supp. at 600 (summarizing views of revisionist scholars). I distinguish below between two versions of the revisionist claim: a libertarian version expressed in this quotation, and an alternate, also far-reaching version that pictures the American citizenry as an "unorganized militia." See infra Sections II.B and II.C.
5. Note, however, that acceptance of the revisionist argument has for the most part been limited to legal scholars. For the most part, historians have rejected the revisionists' claims. See sources cited supra note 3. The impact of this work, in fact, has led to a partial recantation by leading revisionist historian Robert E. Shalhope. Compare Robert E. Shalhope, The Ideological Origins of the Second Amendment, 69 J. AM. HIST. 599 (1982), with Robert E. Shalhope, To Keep and Bear Arms in the Early Republic, 16 CONST. COMMENTARY 269 (1999).
6. Levinson, supra note 3. I should note that while The Embarrassing Second Amendment has been widely read as endorsing revisionist theories, Levinson was careful to stop short of concluding that the Second Amendment prohibits gun control legislation; he merely suggested that the revisionist arguments deserved a more respectful hearing than he believed they were getting. In a later essay, though, Levinson comes closer to stating outright that he believes current doctrine to be mistaken. Sanford Levinson, Is the Second Amendment Finally Becoming Recognized as Part of the Constitution? Voices from the Courts, 1998 BYU L. REV. 127.
7. Writing in 1989, Levinson noted that "no one recognized by the legal academy as a 'major' writer on constitutional law has deigned to turn his or her talents to a full consideration of the Amendment," Levinson, supra, note 3, at 639 n.13, and that "[o]ne will search the leading casebooks in vain for any mention of the Second Amendment," id. at 639 n.14. Those assertions are now obsolete.
8. See, e.g., PAUL BREST, SANFORD LEVINSON, J.M. BALKIN & AKHIL REED AMAR, PROCESSES OF CONSTITUTIONAL DECISION MAKING 410-13 (4th ed. 2000); DANIEL A. FARBER, WILLIAM N. ESKRIDGE, JR., & PHILLIP P. FRICKEY, CONSTITUTIONAL LAW THEMES FOR THE CONSTITUTION'S THIRD CENTURY 416-18 (2nd ed. 1998); GEOFFREY R. STONE, LOUIS M. SEIDMAN, CASS R. SUNSTEIN & MARK V. TUSHNET, CONSTITUTIONAL LAW 287 (1998 Supplement). Many leading casebooks, however, continue to omit any discussion of the Second Amendment. See, e.g., DAAN BRAVEMAN, WILLIAM C. BANKS & RODNEY A. SMOLLA, CONSTITUTIONAL LAW: STRUCTURE AND RIGHTS IN OUR FEDERAL SYSTEM (4th ed. 2000); GERALD GUNTHER & KATHLEEN M. SULLIVAN, CONSTITUTIONAL LAW (13th ed. 1997); RONALD D. ROTUNDA, MODERN CONSTITUTIONAL LAW (6th ed. 2000).
9. See AKHIL AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 46-59, 257-66 (1998); LAURENCE H. TRIBE, 1 AMERICAN CONSTITUTIONAL LAW 894-903 (3d ed. 2000).
10. See AMAR, supra note 9, at 46-59, 257-66.
11. See Printz v. United States, 521 U.S. 898, 938 (1997) (Thomas, J., concurring) (emphasis in original). Justice Scalia has expressed similar views in a speech. See Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 3, 43 (Amy Gutmann ed., 1997) ("We may like the . . . elimination of the right to bear arms; but let us not pretend that these are not reductions of rights.").
12. Emerson, 46 F. Supp. 2d at 598. Other federal courts, however, have upheld the statute. See, e.g., Baker, 197 F.3d at 211; Gillespie, 185 F.3d at 693; Spruill, 61 F. Supp. 2d at 587.
13. United States v. Miller, 26 F. Supp. 1002 (W.D. Ark.), rev'd 307 U.S. 174 (1939).
14. See, e.g., William Glaberson, Dueling Scholars Join Fray Over a Constitutional Challenge to Gun Control Laws, N.Y. TIMES, Sept. 21, 2000, at A26; David E. Rovella, Circuit Sights Gun Rights, NAT. L. J., June 5, 2000, at 1; Richard B. Schmitt, The 2nd Amendment: It's a Constant - and Confusing - Refrain, WALL ST. J., May 25, 1999, at A1; Richard Willing, Texas Case Could Shape the Future of Gun Control, USA TODAY, Aug. 27, 1999, at 1A.
15. In the interest of full disclosure, I note that I do believe stronger regulation of firearms would be sound public policy. I make this unusual (for a law review article) comment only because it is common for participants in the scholarly debate over the Second Amendment to suggest that other participants' views on the Amendment are determined by their views on the wisdom of firearms regulations. As I hope will be clear from my arguments in this Article, however, I believe that one's judgment as to the constitutionality of a given public policy ought to be independent of one's views as to the soundness of that policy.
16. Levinson, supra note 3, at 642.
17. See Randy E. Barnett, An Originalism for Nonorginalists, 45 LOY. L. REV. 611, 613 (1999) (suggesting that "Originalism is now the prevailing approach to constitutional interpretation").
18. Or at least one version of the revisionists' historical account is accurate. I will distinguish below between two different versions of the revisionist argument - what I call the Libertarian Approach and the Unorganized Militia Approach - and argue that the latter is supported by the historical record, while the former is not. See infra Sections II.B and II.C.
19. According to the most recent FBI statistics, firearms are used in sixty-five percent of murders and thirty-eight percent of robberies in the United States. See FEDERAL BUREAU OF INVESTIGATION, U.S. DEP'T OF JUSTICE, CRIME IN THE UNITED STATES (1999) at 18, 29. There is considerable debate among government officials, scholars and the public as to whether the overall level of gun ownership in the United States has any causal relationship to the incidence or lethality of crime, and if so whether gun control statutes can affect this relationship. Compare, e.g., FRANKLIN E. ZIMRING & GORDON HAWKINS, CRIME IS NOT THE PROBLEM 122-23 (1997) ("Current evidence suggests that a combination of the ready availability of guns and the willingness to use maximum force in interpersonal conflict is the most important single contribution to the high U.S. death rate from violence.") and Mark Duggan, More Guns, More Crime, National Bureau of Economic Research, Working Paper 7967 (October 2000), available at http://www.nber.org/papers/w7967 (arguing that increases in gun ownership result in increases in homicides), with JOHN R. LOTT, JR., MORE GUNS, LESS CRIME (1998) (arguing that regulatory regimes encouraging private gun ownership reduce the incidence of crime victimization).
20. A recent symposium issue of the Yale Law Journal contains several fascinating and provocative reflections on the difficulty of accounting for change in constitutional doctrine. See Symposium, Moments of Change: Transformation in American Constitutionalism, 108 YALE L.J. 1917 (1999).
21. TRIBE, supra note 9, at 900.
22. See Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 31-35 (1959).
23. The phrase is Professor Ely's (although he used it, of course, to characterize a general tendency among constitutional scholars, and not with reference to the Second Amendment debate). JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 12 (1980).
24. In Bolling v. Sharpe, 347 U.S. 497 (1954), for example, the Supreme Court held that the Due Process Clause of the Fifth Amendment prohibits racial discrimination by the federal government - in effect, reading the Fourteenth Amendment's Equal Protection Clause into the Fifth Amendment. Another, perhaps less obvious, example is modern incorporation doctrine, which holds not only that the Fourteenth Amendment "incorporates" the Bill of Rights, but also that the incorporated amendments should be applied identically against the states and the federal government. See, e.g., Malloy v. Hogan, 378 U.S. 1 (1964). The result is that doctrinal developments in criminal procedure jurisprudence that are motivated primarily by concerns about state practices wind up constraining the federal government as well. Cf. AMAR, supra note 9, at 257-83 (describing how the content of rights granted under the Bill of Rights has been "refined" by the Supreme Court as a result of the Fourteenth Amendment).
25. This Article is written from an originalist perspective; it presupposes that constitutional meaning should be drawn largely from the understandings of those who wrote and ratified the Constitution, and of the citizens those writers and ratifiers represented. I hope, however, that it will be useful even to those who reject this perspective, by showing that originalism need not bind us to constitutional meanings established 210 years ago. For twenty-first century constitutional interpreters, the relevant writers, ratifiers and citizens include not only the 1790s Founders, but certainly also the 1860s Reconstruction Republicans, and perhaps the 1930s New Dealers as well. See BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 105-58 (1991) (describing the New Deal as an episode of "higher lawmaking" that changed the Constitution) [hereinafter ACKERMAN, FOUNDATIONS]; Bruce Ackerman, We the People: Transformations 255-382 (1998) (same) [hereinafter ACKERMAN, TRANSFORMATIONS].
26. I do not claim that this method is original to me in any way. Rather, holistic interpretation - defined by Charles Black as "the method of inference from the structures and relationships created by the constitution in all its parts," CHARLES L BLACK, JR., STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW 7 (reprint ed. 1985) - is well-established among constitutional scholars. Many scholars also precede me in seeking to integrate historical change into Black's model, prominent examples being Bruce Ackerman, see ACKERMAN, FOUNDATIONS, supra note 25; ACKERMAN, TRANSFORMATIONS, supra note 25, and Akhil Amar, see AMAR, supra note 9. Indeed, readers who are familiar with the work of Ackerman and Amar will immediately recognize this Article as an attempt to build on that work. I do believe, however, that while holism and historicism are in theory standard operating procedures, in practice much constitutional interpretation is clause-bound and ahistorical. The Second Amendment revisionists are particularly salient examples, but the roots of these problematic tendencies reach deeply into mainstream scholarship. Consider, for example, efforts to understand constitutional interpretation as an act of "translation." See Lawrence Lessig, Fidelity as Translation: Fidelity and Constraint, 65 FORDHAM L. REV. 1365 (1997) [hereinafter Lessig, Fidelity as Translation]; Lawrence Lessig, Fidelity in Translation, 71 TEXAS L. REV. 1165 (1993) [hereinafter Lessig, Fidelity in Translation]; Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 STAN. L. REV. 395 (1995) [hereinafter Lessig, Understanding Changed Readings]; see also Steven G. Calabresi, The Tradition of the Written Constitution: A Comment on Professor Lessig's Theory of Translation, 65 FORDHAM L. REV. 1435 (1997); Bradford R. Clark, Translating Federalism: A Structural Approach, 66 GEO. WASH. L. REV. 1161 (1998); Abner S. Greene, Discounting Accountability, 65 FORDHAM L. REV. 1489 (1997); Sanford Levinson, Translation: Who Needs It?, 65 FORDHAM L. REV. 1457 (1997); Deborah Jones Merritt, The Third Translation of the Commerce Clause: Congressional Power to Regulate Social Problems, 66 GEO. WASH. L. REV. 1206 (1998); Jeffrey Rosen, Translating the Privileges or Immunities Clause, 66 GEO. WASH. L. REV. 1241 (1998). While the metaphor of interpretation-as-translation offers valuable insights, it also encourages an interpretive practice that overemphasizes specific pockets of text and leaps from ratification to the present with insufficient regard for the texture of intervening developments. I consider, and reject, the view that modern Second Amendment doctrine is an acceptable "translation" of the Amendment's original meaning infra at Section II.D. More broadly, my hope is to persuade judges and other scholars not only that my account of the Second Amendment is better than that of the revisionists, but that commitment to a genuinely holistic and historicized practice will yield more satisfying results than competing methods offer.
27. Although, it may be needless to say, there are millions of Americans to whom this equivalence makes perfect sense.
28. See Lessig, Fidelity in Translation, supra note 26; Lessig, Fidelity as Translation, supra note 26; Lessig, Understanding Changed Readings, supra note 26.
29. See AMAR, supra note 9.
30. Throughout this Article, I will attribute various beliefs to "the Founders." The eminent historian Michael Bellesiles has pointed out to me that such language implies a unity of ideology among the men who drafted and ratified the Constitution and the Bill of Rights -not to mention the citizens who those men claimed to represent - that simply did not exist. I certainly do not mean to obscure the endlessly fascinating diversity of views within this group. See generally, e.g., SAUL CORNELL, THE OTHER FOUNDERS (1999) (describing competing strands of political theory within the beliefs of both Federalists and Anti-Federalists). I nonetheless think that reducing the historical complexity to simple statements of the form "The Founders believed . . ." is not only justifiable shorthand, but is necessary for constitutional interpretation - at least for those who believe, as I do, that constitutional interpretation must be constrained by what Justice Scalia has termed the "'objectified' intent" of the Constitution. See SCALIA, supra note 11, at 17.
31. No fewer than eight of the Federalist Papers are devoted in whole or in part to defending the Philadelphia Convention's decision to authorize Congress to "raise and support Armies." See THE FEDERALIST Nos. 8, 23, 24, 25, 26, 28 (Alexander Hamilton), NOS. 41, 46 (James Madison).
32. For good descriptions of the Founding-era military, see JOHN WHITECLAY CHAMBERS II, TO RAISE AN ARMY: THE DRAFT COMES TO MODERN AMERICA 13-30 (1987); JOHN K. MAHON, HISTORY OF THE MILITIA AND THE NATIONAL GUARD 1-62 (1983); CHARLES ROYSTER, A REVOLUTIONARY PEOPLE AT WAR: THE CONTINENTAL ARMY AND AMERICAN CHARACTER, 1775-1783 (1979).
33. THE FEDERALIST NO. 24, at 161 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
34. See CHAMBERS II, supra note 32, at 13-30; MAHON, supra note 32, at 1-62; Alan Hirsch, The Militia Clauses of the Constitution and the National Guard, 56 U. CIN. L. REV. 919, 940 n.116 (1988) ("The Constitution recognized two military forces: the militia and the regular army. Service in the militia was compulsory at the time of the Constitution, whereas the regular army was to be raised by enlisting volunteers.").
35. AMAR, supra note 9, at 53, 55.
36. Id. at 53.
37. Bellesiles' study of probate records show that fewer than fifteen percent of probate inventories from the period 1765-1790 listed firearms; as these probate inventories were generally exhaustive, and as they describe the possessions of wealthier males - precisely the people most likely to own firearms - they suggest an overall level of gun ownership below ten percent. See Michael Bellesiles, Gun Culture, supra note 3, at 426-28. Bellesiles' estimates are confirmed by other contemporaneous data. See id. at 428-32, 438-47. Bellesiles also demonstrates that many firearms in circulation during this period were either permanently nonfunctional or were kept in a state of disrepair such that making them functional would require substantial effort, and that militiamen typically trained only one day a year and were often poor marksmen. See id. at 433-38; see also Michael Bellesiles, Gun Laws, supra note 3; Michael Bellesiles, Suicide Pact, supra note 3.
38. See Cornell, supra note 3.
39. Id. at 228.
40. See CHAMBERS II, supra note 32, at 20-21; ERIC FONER, TOM PAINE AND REVOLUTIONARY AMERICA 63-66 (1976); MAHON, supra note 32, at 19, 37-38.
41. See CHAMBERS II, supra note 32, at 21-22 ("the rank and file of the Continental Army . . . eventually became composed overwhelmingly of the young and the poor whites and blacks - the sons of marginal farmers, laborers, drifters, indentured servants - and recent immigrants without roots in America"); see also ROYSTER, supra note 32, at 37 ("Early in the war some revolutionaries argued that the militia, which had proven its competence at Lexington and Bunker Hill, could sustain a large part of the resistance to the British. By late 1776, little attachment to this idea remained.").
42. See MAHON, supra note 32, at 41.
43. Cf. CHAMBERS II, supra note 32, at 15 ("Even as it atrophied as a fighting system, however, the militia remained important as a politico-military concept."); ROYSTER, supra note 32, at 360 (arguing that even though the Revolutionary War was fought and won largely by professional soldiers rather than militiamen, the Founding generation retained its ideological hostility to standing armies and preference for militia: "The popular interpretation of victory in the Revolutionary War rejected the officers' pretensions, abolished the army, and in doing so restored the citizens to their original and vital stature as the pillars of America's future glory.").
44. 2 ADAM SMITH, AN INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH OF NATIONS 698 (R.H. Campbell, A.S. Skinner, & W.B. Todd eds., Clarendon Press 1976). On the influence of Adam Smith in particular on the Founders, see FONER, supra note 40, at 153-58.
45. LEE A. WALLACE, JR., THE PETERSBURG VOLUNTEERS, 1812-1813, 82 VA. MAG. OF HIST. & BIOGRAPHY 460 (1974).
46. In a recent, short article, Edmund Morgan suggests that the discrepancy between the actual strength of the militia and its ideological significance is explained by Founding-era Americans' desire to identify themselves with the British yeomanry, and to distinguish themselves from the French. See Edmund Morgan, In Love with Guns, N.Y. REV. BOOKS, Oct 19, 2000, at 30.
47. 3 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION, AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA IN 1787, at 389 (Jonathan Elliot ed., 2d ed. 1866) (statement of George Nicholas) [hereinafter ELLIOT'S DEBATES].
48. THE FEDERALIST NO. 29, at 183 (Alexander Hamilton) (Clinton Rossiter ed., 1961). See also 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 329 (Max Farrand ed., 1911) (statement of Elbridge Gerry) [hereinafter FARRAND]; RICHARD H. KOHN, EAGLE AND SWORD: THE FEDERALISTS AND THE CREATION OF THE MILITARY ESTABLISHMENT IN AMERICA, 1783-1802, at 2 ("No principle of government was more widely understood or more completely accepted by the generation of Americans that established the United States than the danger of a standing army in peacetime."); ROYSTER, supra note 32, at 35 ("The political ideology that Americans adapted from the English Commonwealth writers warned that a standing army in time of peace was an engine of oppression.").
49. 3 THE COMPLETE ANTI-FEDERALIST 164 (Herbert J. Storing, ed. 1981) (statement by Pennsylvania minority) [hereinafter THE COMPLETE ANTI-FEDERALIST]; see also 2 id. at 375 ("as standing armies in time of peace are dangerous, they are not to be kept up") (Brutus II, New York Journal, Nov. 1, 1787); id. at 409 ("standing armies in times of peace . . . generally prove the destruction of the happiness and liberty of the people") (Brutus IX, Jan. 17, 1788); 3 ELLIOT'S DEBATES, supra note 47, at 380 ("But when once a standing army is established in any country, the people lose their liberty.") (statement of George Mason at Virginia ratifying convention); 3 id. at 389 ("If a standing army were alone to be employed, such an army must be kept up in times of peace as would be sufficient in times of war. The dangers of such an army are so striking that every man would oppose the adoption of this government, had it been proposed by it as the only means of defence.") (statement of George Nicholas).
50. GORDON S. WOOD, THE RADICALISM OF THE AMERICAN REVOLUTION 163-64 (1992).
51. THE FEDERALIST NO. 41, at 258 (James Madison) (Clinton Rossiter ed., 1961). See also id. at 260 (a standing army is "burdensome to the properties and ominous to the liberties of the people"); George Washington, Sentiments on a Peace Establishment, 3 THE FOUNDERS' CONSTITUTION 128-29 (Philip B. Kurland & Ralph Lerner eds., 1987) ("[W]e are too poor to maintain a standing Army adequate to our defence, and were our country more populous and rich, still it could not be done without great oppression of the people."); 4 THE COMPLETE ANTI-FEDERALIST, supra note 49, at 207 ("An army, either in peace or war, is like the locust and caterpillars of Egypt; they bear down all before them.").
52. See, e.g., 1 FARRAND, supra note 48, at 242 (New Jersey plan).
53. See, e.g., 2 id. at 329-30 (statement of Elbridge Gerry); id. at 326 (statement of George Mason).
54. 1 id. at 19.
55. See 3 ELLIOT'S DEBATES, supra note 47, at 424-25 ("The safety of the Union and particular states requires that the general government should have power to repel foreign invasions.") (statement of James Madison); 4 id. at 98-99 (arguing that danger of British invasions is not over, and that an army is needed to repel foreign invasions) (statement of Mr. Iredell); THE FEDERALIST NO. 26, at 170 (Alexander Hamilton) (Clinton Rossiter ed., 1961); THE FEDERALIST NO. 4 (John Jay) (arguing that trade and other relations with European nations could lead to war).
56. THE FEDERALIST NO. 26, at 170 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
57. See, e.g., 3 ELLIOT'S DEBATES, supra note 47, at 389 ("Were we to be invaded by a powerful, disciplined army, should we be safe with militia? Could men unacquainted with the hardships, and unskilled in the disciplines of war . . . encounter with success the most skillful veterans . . . ?") (statement of George Nicholas); 2 id. at 522 ("How powerful and respectable must the body of militia appear under general and uniform regulations! How disjointed, weak, and inefficient are they at present!") (statement of James Wilson); 5 id. at 465 ("The states neglect their militia now. . . .") (statement of James Madison); 2 id. at 387 ("Have we not found from experience, that, while the power of arming and governing the militia has been solely vested in the state legislatures, they were neglected and rendered unfit for immediate service?") (statement of James Madison).
58. THE GUN CONTROL DEBATE: A DOCUMENTARY HISTORY 12 (Marjolijn Bijlefeld ed., 1997) (reprinting letter dated September 24, 1776, from George Washington to the President of the Continental Congress); see also 2 FARRAND, supra note 48, at 332 ("Mr. [Charles Cotesworth] Pinkney . . . had however but a scanty faith in Militia. There must be (also) a real military force . . . . The United States had been making an experiment without it, and we see the consequences in their rapid approaches toward anarchy.")
59. 2 FARRAND, supra note 48, at 387.
60. U.S. CONST. art. I, § 8, cl. 12.
61. U.S. CONST. art. I, § 8, cl. 15.
62. 2 FARRAND, supra note 48, at 388 (statement of James Madison); see also 3 id. at 318-319 ("If insurrections should arise, or invasions should take place, the people ought unquestionably to be employed to suppress and repel them, rather then a standing army. The best way to do these things, was to put the militia on a good and sure footing, and enable the government to make use of their services when necessary. . . .") (statement of Alexander Hamilton).
63. THE FEDERALIST NO. 46, at 299 (James Madison) (Clinton Rossiter ed., 1961). This passage nicely captures the distinction between the federal government's army and the states' militia. Militia officers are to be selected by the states, and Madison unquestioningly assumes that the militiamen will be "attached to" the states. Note, too, the subtle brilliance with which Madison contrasts army "men" with militia "citizens." See also infra text accompanying note 204 (noting that Madison's argument assumes an enlisted army and a conscripted militia).
64. U.S. CONST. art. I, § 8, cl. 16.
65. See supra note 59 and accompanying text.
66. U.S. CONST. art. I, § 8, cl. 16.
67. Id.
68. 2 FARRAND, supra note 48, at 388 (statement of Elbridge Gerry).
69. U.S. CONST, art. II, § 2, cl. 1.
70. See, e.g., 2 THE COMPLETE ANTI-FEDERALIST, supra note 49, at 243 (reprinting letter from "The Federal Farmer"); 2 ELLIOTT'S DEBATES, supra note 47, at 406 (proposal of Mr. Lansing that raising of peacetime army require congressional supermajority); see also 1 id. at 88 (proposal by New Jersey ratification convention that assent of nine states be required for peacetime army).
71. See, e.g., 2 THE COMPLETE ANTI-FEDERALIST, supra note 47, at 58 (reprinting Luther Martin's "The Genuine Information Delivered to the Legislature of the State of Maryland Relative to the Proceedings of the General Convention Lately Held at Philadelphia"); id. at 416 (reprinting "Essays of Brutus").
72. 1 ELLIOT'S DEBATES, supra note 47, at 371. See also 3 id. at 378 (statement of George Mason) (arguing that the federal government might call up the Georgia militia to respond to a disturbance in New Hampshire).
73. 3 id. at 378 (statement of George Mason).
74. See, e.g., 2 id. at 406 (proposal of Mr. Lansing).
75. See 3 id. at 392 ("If you give [power to call forth the militia] not to Congress, it may be denied by the states. If you withhold it, you render a standing army absolutely necessary; for if they have not the militia, they must have such a body of troops as will be necessary for the general defence of the Union.") (statement of George Nicholas).
76. 3 id. at 379 (statement of George Mason).
77. Note, too, that the actual debates between Federalists and Anti-Federalists focused not so much on the specter of the federal government prohibiting citizens to arm themselves, but on the fear that neither the federal government nor the states would actively arm citizen militiamen. This accords perfectly with the findings of recent historical scholarship that arms ownership in the Founding period was expensive, difficult, and not at all widespread. See Bellesiles, Gun Culture, supra note 3. For the Founders' delicate balance to work, it would not be sufficient for government merely to permit arms ownership; rather, government needed actively to foster arms ownership. The revisionists turn this history on its head - the Founders' main fear was not that the federal government would disarm militiamen, but that it would fail to arm them.
78. CREATING THE BILL OF RIGHTS: THE DOCUMENTARY RECORD FROM THE FIRST FEDERAL CONGRESS 12 (Helen E. Veit, Kenneth R. Bowling & Charlene Bangs Bickford eds., 1991) (hereinafter DOCUMENTARY RECORD) (resolution offered in the House of Representatives by James Madison on June 8, 1789).
79. Id. at 182 (statement of Elbridge Gerry).
80. See id. at 182-84.
81. Id. at 184 (reprinting The Congressional Register, August 17, 1789).
82. The change from "country" to "State" was made by a select committee charged by the House with revising Madison's proposal. See id. at 30. This committee left no surviving records of its deliberations. My characterization of the change is based solely on inference from the words themselves.
83. The only other change Congress made to Madison's original draft of the Amendment was to reverse the order of the clauses, pushing the "well regulated militia" language to the front of the sentence. The change is minor, but it, too, arguably highlights Congress' intention that the Amendment prevent threats to the militia, and not to arms ownership generally.
84. See KOHN, supra note 48, at 149.
85. See Act of Sept. 29, 1789, ch. 25, 1 Stat. 95.
86. See THOMAS P. SLAUGHTER, THE WHISKEY REBELLION 3 (1986); see also Act of May 9, 1794, ch. 27, Stat. 367 (authorizing President to call forth militia).
87. See SLAUGHTER, supra note 86, at 196; see also KOHN, supra note 48, at 162.
88. See SLAUGHTER, supra note 86, at 207-14.
89. Id. at 210; see also id. at 207-10.
90. See id. at 214-15.
91. See ALAN LLOYD, THE SCORCHING OF WASHINGTON: THE WAR OF 1812 11-30 (1974).
92. See CHAMBERS II, supra note 32, at 32-34; MAHON, supra note 32, at 67-68; SAMUEL ELIOT MORRISON, THE OXFORD HISTORY OF THE AMERICAN PEOPLE 383-91 (1965).
93. See MAHON, supra note 32, at 67-68; MORRISON, supra note 92, at 383. Under Article I, § 8, cl. 15, the militia could be called forth only "to execute the Laws of the Union, suppress Insurrections and repel Invasions."
94. See James Monroe, Recommendations for a Federal Draft, in THE MILITARY DRAFT: SELECTED READINGS ON CONSCRIPTION 503-13 (Martin Anderson ed., 1982).
95. I follow Akhil Amar in using the War of 1812 draft controversy as an example of Second Amendment practice. See AMAR, THE BILL OF RIGHTS, supra note 9, at 57-58.
96. 1 PAPERS OF DANIEL WEBSTER 21 (Charles M. Wiltse ed. 1986). Ironically, it was Federalists like Webster who opposed the war and the draft and relied on these states' rights arguments. In later life, at least, Webster was an ardent nationalist. The Jeffersonian Democratic-Republicans who initiated and propelled the war were in many other ways ideological heirs of the Anti-Federalists. The war is thus a marvelous example both of how assuming power can change a party's ideology, and of how simple summaries of such an ideology are invariably misleading; in this case, the Jeffersonians' affinity for France and hostility toward England overrode their decentralizing impulse.
97. Id. at 30.
98. Report and Resolutions of the Hartford Convention, in 2 GREAT ISSUES IN AMERICAN HISTORY 240 (Richard Hofstadter ed., 1958).
99. AMAR, supra note 9, at 58.
100. See United States v. Miller, 307 U.S. 174, 177 (1939).
101. See, e.g., Love v. Pepersack, 47 F.3d 120, 124 (4th Cir. 1995); United States v. Warin, 530 F.2d 103, 106 (6th Cir. 1976); United States v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974).
102. Hickman v. Block, 81 F.3d 98, 101 (9th Cir.), cert. denied, 519 U.S. 912 (1996).
103. United States v. Emerson, 46 F. Supp.2d 598, 599-600 (N.D. Tex. 1999).
104. 514 U.S. 549 (1995) (holding that Congress lacked authority under Commerce Clause to enact provision of Gun Free School Zones Act).
105. United States v. Morrison, 120 S. Ct. 1740 (2000) (holding that Congress lacked authority under Commerce Clause to enact provision of Violence Against Women Act).
106. Well, maybe not a pure red herring. At least one federal court has employed the militia-focused approach as a standing argument. See Hickman v. Block, 81 F.3d 98, 102 (9th Cir. 1996) ("Because the Second Amendment guarantees the rights of the states to maintain armed militia, the states alone stand in the position to show legal injury when this right is infringed."). Perhaps Hickman simply demonstrates that critics of standing doctrine are right to claim that its injury requirement is circular, and that court decisions dismissing complaints for lack of standing are equivalent to dismissals for failure to state a claim. Cf. Steven L. Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 STAN. L. REV. 1371, 1373 (1988) (describing and rejecting argument that standing doctrine is "a sophisticated manipulation for the sub rosa decision of cases on their merits"). But to those who do distinguish between standing requirements and the other elements that a plaintiff must demonstrate in order to obtain relief, I suggest that Hickman was incorrect, and that accepting a militia-focused approach to the Second Amendment does not entail dismissing any suit brought by an individual citizen under the Second Amendment for lack of standing. For an example of a revisionist scholar presenting the militia-focused approach as a standing argument, see AMAR, supra note 9, at 221.
107. For examples of revisionist scholarship adopting this view, see Dowlut, supra note 3; Lund, supra note 3.
108. United States v. Emerson, 46 F. Supp. 2d 598, 600 (N.D. Tex. 1999).
109. Printz v. United States, 521 U.S. 898, 938 (1997) (Thomas, J., concurring).
110. In addition to its inconsistency with the specific legislative history we have discussed, the Libertarian Approach suffers from a more basic anachronism. It ignores the findings of historians such as Bernard Bailyn, Gordon Wood and J.G.A. Pocock, who have shown that the Founders' political theory was deeply republican. See BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION (1992); J.G.A. POCOCK, THE MACHIAVELLIAN MOMENT: FLORENTINE POLITICAL THOUGHT AND THE ATLANTIC REPUBLICAN TRADITION (1975); WOOD, supra note 50; GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787 (1969); see also Williams, The Terrifying Second Amendment, supra note 3 (describing the Second Amendment as rooted in republican political theory). Only since this republicanism has waned have Americans committed themselves to the sort of "individual right" imagined by the Libertarian Approach.
111. Some revisionists buttress this textual argument with a historical argument to the effect that the Second Amendment incorporated an English tradition of protecting arms ownership by individuals, dating at least to the 1689 English Bill of Rights. See generally MALCOLM, supra note 3; see also Emerson, 46 F. Supp.2d at 602. Undoubtedly the English Bill of Rights was an important precedent for the Founders - but rather than supporting the Libertarian Approach, this precedent argues in favor of a militia-focused interpretation of the Second Amendment. Defending that claim in full would require too long a detour from my central argument in this Article, but here is the defense in a nutshell: The English Bill of Rights resulted from a 60-year struggle for power between the largely Protestant Parliament and a succession of Stuart kings allied with Catholic interests. See generally BARRY COWARD, THE STUART AGE: A HISTORY OF ENGLAND 1603-1714 (1980); LAWRENCE STONE, THE CAUSES OF THE ENGLISH REVOLUTION, 1529-1642 (1972). Parliament finally won the conflict, installing a Protestant king and adopting a Bill of Rights containing the following: Whereas the late King James II . . . did endeavor to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom . . . by raising and keeping a standing army within this kingdom in time of peace without consent of parliament and . . . by causing several good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law, . . . [we] declare . . . that the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law; that the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law . . . . SOURCES OF ENGLISH CONSTITUTIONAL HISTORY 600-01 (Carl Stephenson & Frederick George Marcham eds. and trans., 1937). These provisions were designed to ensure a feudal militia in which each lord commanded men-in-arms from the areas under his dominion. The Stuart kings had wanted a centralized militia with officers appointed by the king. Compare id. at 486 (reprinting The Militia Ordinance of 1642) with id. at 541 (reprinting Militia Act of 1661). Thus the guarantee was limited to Protestants, and it applied only to arms "suitable to their conditions" (meaning status in the feudal hierarchy). It explicitly recognized the numerous common law and statutory restrictions on gun possession which existed both before and after adoption of the English Bill of Rights. See Bellesiles, Gun Laws, supra note 3, at 571-73. The purpose of the English Bill of Rights was not to protect individual British citizens' rights to own weapons but to guarantee that Parliament's noblemen would be able to field armed forces independent of the crown - a concern directly analogous to that of the American Anti-Federalists who sought to prevent the new central government from monopolizing military force. As an alternative to relying on British history, some revisionists have recently argued for the Libertarian Approach on Fourteenth Amendment grounds. See AMAR, supra note 9; STEPHEN P. HALBROOK, FREEDMEN, THE FOURTEENTH AMENDMENT, AND THE RIGHT TO BEAR ARMS, 1866-1876 (1998). I consider this argument infra Section IV.A.
112. Volokh, supra note 3, at 796.
113. Lund, supra note 3, at 21.
114. Reynolds, supra note 3, at 467.
115. Volokh, supra note 3.
116. In addition to the ordinary principle against rendering any constitutional text "mere surplusage," Marbury v. Madison, 5 U.S. 137, 174 (1803), a close look at the grammar of the Second Amendment suggests that the Founders intended the Amendment to be read as a unitary whole. Note that the drafters inserted two unusual commas in the Amendment; under ordinary usage, the first and third commas are unnecessary. If these commas had not been inserted, it might be possible to understand the first half of the Amendment as simply explaining the rationale for the second half (the Amendment would then read: "A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed."). Instead, the first unusual comma - between "Militia" and "being" - forces the reader to search for a verb for which "Militia" is the subject. That verb does not appear until "shall not be infringed" near the end of the Amendment. The second unusual comma - between "Arms" and "shall" - sets off the verb phrase "shall not be infringed" from the preceding language; it suggests that the subject for this verb phrase is not simply "the right of the people to keep and bear Arms." The grammatical effect of these two unusual commas is to link "A well regulated Militia" to "shall not be infringed" - to emphasize, in other words, that the goal of the Amendment is to protect the militia against federal interference. I do not place enormous weight on this argument, but considering that the use of punctuation in the Constitution generally conforms to modern conventions, and that the Second Amendment was redrafted at least twice during the First Congress, I do believe the Amendment's curious punctuation supports a militia-focused reading.
117. DOCUMENTARY RECORD, supra note 78, at 12. See also 6 SOURCES AND DOCUMENTS OF UNITED STATES CONSTITUTIONS 345 (William F. Swindler ed., 1976) (reprinting New Hampshire Constitution of 1784: "No person who is conscientiously scrupulous about the lawfulness of bearing arms, shall be compelled thereto, provided he will pay on equivalent."); 1 ELLIOT'S DEBATES, supra note 47, at 335 (reprinting constitutional amendment proposed by Rhode Island's 1790 ratifying convention: "That the people have a right to keep and bear arms; . . . That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.").
118. 1 ELLIOT'S DEBATES, supra note 47, at 62.
119. A CENTURY OF LAWMAKING FOR A NEW NATION: U.S. CONGRESSIONAL DOCUMENTS AND DEBATES, available at http://memory.loc.gov/ammen/amlaw/lawhome. html [hereinafter CENTURY OF LAWMAKING]. I didn't choose the dates to search - that is what was available at the time of writing.
120. JOURNAL OF THE CONTINENTAL CONGRESS, 1774-1789, at 1030 (Tues., Nov. 7, 1780) (Worthington C. Ford et al. eds., 1904-1937), available at CENTURY OF LAWMAKING, supra note 119.
121. JOURNAL OF THE SENATE OF THE UNITED STATES OF AMERICA, 1789-1873, at 264 (n.p, n.d.), available at CENTURY OF LAWMAKING, supra note 119.
122. 1 OXFORD ENGLISH DICTIONARY 634 (J. A. Simpson & E.S.C. Weiner eds., 2d ed. 1989).
123. 2 id. at 21.
124. Id. (alteration in original).
125. Garry Wills To Keep and Bear Arms, N.Y. REV. BOOKS, Sept. 21, 1995 (tracing etymology of phrase bear arms and concluding that dominant meaning is military); see also GARRY WILLS, A NECESSARY EVIL 252-60 (2000) (same).
126. 1 OXFORD ENGLISH DICTIONARY, supra note 122, at 633-34.
127. Id. at 634.
128. Id.
129. Aymette v. State, 21 Tenn. (2 Hum.) 154, 161 (1840) (interpreting Tennessee Constitution); see also Ex parte Rameriz, 226 P. 914, 921 (Cal. 1924) ("An examination of the numerous authorities in various states will show that the right to keep and bear arms as guaranteed by a state constitutional provision similar to the federal amendment refers only to the bearing of arms by the citizens in defense of a common cause."); Hill v. State, 53 Ga. 473, 474 (1874) ("The language of the constitution of this state, as well as that of the United States, guarantees only the right to keep and bear the 'arms' necessary for a militiaman."); City of Salina v. Blaksly, 72 Kan. 230, 232 (1905) (Both U.S. and Kansas Constitutions "appl[y] only to the right to bear arms as a member of the state militia, or some other military organization provided by law."); Ex parte Thomas, 21 Okla. 770 (1908) (interpreting Oklahoma Constitution) ("As the object for which the right to keep and bear arms is secured is of general and public nature, to be exercised by the people in a body, for their common defense, so the arms, the right to keep which is secured, are such as are usually employed in civilized warfare.") (quoting Aymette, 21 Tenn. at 158); English v. State, 35 Tex. 473, 476 (1872) ("The word 'arms' in the connection we find it in the Constitution of the United States refers to the arms of a militiaman or soldier, and the word is used in its military sense."); State v. Workman, 14 S.E. 9, 11 (W. Va. 1891) ("[I]n regard to the kind of arms referred to in the [Second A]mendment, it must be held to refer to weapons of warfare to be used by the militia."); cf. JOEL PRENTISS BISHOP, COMMENTARIES ON THE LAW OF STATUTORY CRIMES § 792, at 497 (1873) (Second Amendment "protects only the right to 'keep' such 'arms' as are used for purposes of war . . . since such, only, are properly known by the name of 'arms;' and such, only, are adapted to promote 'the security of a free State.' In like manner, the right to 'bear' arms refers merely to the military way of using them. . . ."); Lucilius A. Emery, The Constitutional Right to Keep and Bear Arms, 28 HARV. L. REV. 473, 476 (1915) ("The single individual or the unorganized crowd, in carrying weapons, is not spoken of or thought of as 'bearing arms.'"). The presence of the word "keep" in the Second Amendment does not change the Amendment's fundamentally military meaning. The consistent use of the phrase "keep and bear arms" by the Founders and their forebears suggests that it should be understood as a single term of art, such as "arbitrary and capricious" or "willful, deliberate and premeditated." If we feel the need to give "keep" an independent meaning in the Amendment, we can do so by reading it simply preclude a narrow interpretation of the Amendment that would protect only the possession of firearms by persons actively engaged in militia duties (permitting, for example, the federal government to require weapons to be stored in a central depository). The Founders were in fact concerned about such a possibility, as they had seen the British seek to require Massachusetts militiamen to bring their weapons to an armory - where they would have been easily controlled by British troops. By protecting the right to "keep" as well as "bear" arms, the Founders may have seen the Amendment as ensuring that militiamen would be able to store their weapons at home, thus making militia disarmament more difficult.
130. The example relied upon most heavily by the revisionists is the "Pennsylvania Minority Report," a dissenting statement issued by Pennsylvania Anti-Federalists after losing the ratification vote in their state convention. See 3 THE COMPLETE ANTI-FEDERALIST, supra note 49, at 145 (reprinting "The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania To Their Constituents"); see also, e.g., Kates, Original Meaning, supra note 3, at 222 (citing Pennsylvania Minority Report); David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU L. REV. 1359, 1406-07 (same); Lund, supra note 3, at 60-61 (same). This document contained a series of proposed amendments to the new Constitution, including this: That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up: and that the military shall be kept under strict subordination to and be governed by the civil powers.
131. THE COMPLETE ANTI-FEDERALIST, supra note 49, at 151. On the one hand, this text certainly shows a Founding-era use of "bear arms" that, consistent with the Libertarian Approach, includes both military and non-military meanings. On the other hand, the Pennsylvania Minority's proposed right to bear arms "for the purpose of killing game" is unlike every state constitution of its time and every other state proposal for amending the federal Constitution - and most important, it was rejected by the drafters of the Second Amendment. Indeed, the differences between the Pennsylvania proposal and the Second Amendment argue strongly against the Libertarian Approach. In the first place, the fact that the Pennsylvania Minority felt the need to specify the reach of their proposal suggests that "killing game" would not otherwise have been considered material to the right to bear arms. Second, the Pennsylvania proposal would have prohibited disarming either "the people" or "any of them"; by contrast, the Second Amendment speaks only of "the people" in their collective capacity as militiamen. Moreover, historian Saul Cornell argues that the Pennsylvanians themselves had a considerably more complex understanding of the right to bear arms than the libertarian reading of the Minority Report would suggest. See Cornell, supra note 3, at 227-30. In 1776, Pennsylvania adopted a state constitution providing that "people have a right to bear arms for the defense of themselves and the State." Id. at 228. The following year, the state legislature enacted legislation known as the Test Acts which limited that right only to those citizens who took a loyalty oath, which "as much as forty percent of the citizenry" refused to do. Id. Even for Pennsylvanians, then, "[g]un ownership was based on the idea that one agreed to support the state and to defend it against those who might use arms against it." Id. at 229.
132. The parentheticals are intended to suggest that, were courts to adopt the revisionists' Unorganized Militia Approach, many crucial and difficult issues would remain to be fleshed out - which is not to say, of course, that courts will always recognize this task and attempt to tackle it. In Emerson, for example, the Court leapt from its determination that Timothy Emerson's desire to possess a weapon was a cognizable Second Amendment interest to its conclusion that the statute at issue was unconstitutional, without pausing to consider whether the government's interest in preventing domestic violence justified the statute. See United States v. Emerson, 46 F. Supp. 2d 598 (N.D. Tex. 1999).
133. While the revisionists' rhetoric often sounds like it is supporting a Libertarian Approach, many revisionists carefully avoid this pitfall and adopt the Unorganized Militia Approach. See, e.g., Reynolds, supra note 3; Van Alstyne, supra note 3.
134. See United States v. Wright, 117 F.3d 1265, 1273 (11th Cir. 1997) (emphasis added); see also cases cited supra note 2. While I refer to the Organized Militia Approach as the "courts' approach," it should be noted that modern Second Amendment doctrine has been elaborated largely by the federal Courts of Appeal; the Supreme Court has said very little about the Amendment. See David Yassky, The Sound of Silence: The Supreme Court and the Second Amendment, 18 ST. LOUIS U. PUB. L. REV. 189 (1999); see also infra Section IV.C.
135. The National Guard is a set of reserve military forces attached to both the federal government and the states. The basic structure of the modern National Guard was established by the Dick Act of 1903, ch. 196, Stat. 775 (1903). This statute provided federal funding and training for states' militia units; units funded and trained under the Act were denominated the "National Guard" and defined as the "organized militia." Statutes subsequent to the Dick Act have placed the National Guard under ever-greater federal control. Currently, anyone enlisting in a National Guard unit is automatically also enlisted into a "reserve" unit of the U.S. Army (or Air Force), the federal government may use National Guard units for a variety of purposes, and the federal government appoints the commanding officers for these units. See 10 U.S.C. § 12301 (1994) (federal authority to transfer Guard members to "active duty"); Id. at §§ 12201-12215 (command structure of National Guard); Perpich v. Dep't of Def., 496 U.S. 334, 345-46 (1989) (describing "dual enlistment" system). The federal government also provides "virtually all of the funding" for the National Guard. Perpich, 496 U.S. at 351. Today, each state has a branch of the National Guard, with a total strength of approximately 450,000 members. See Bob Haskell, Educating Executives, ON GUARD (April 2000), available at http://ngb.dtic.mil/news_center/onguard/2000/april/ executives.html. No state maintains any other organized militia. See generally MAHON, supra note 32 (describing the exclusive role of the National Guard today).
136. 26 U.S.C. §§ 5801-5872 (1994). The statute does permit private possession of machine guns under certain limited circumstances; the effect, however, is a near-total ban.
137. 18 U.S.C. § 922(v), app. A (1994).
138. Maybe not though - no right is absolute, and the revisionists typically avoid giving examples of actual statutes that they contend are unconstitutional.
139. 26 U.S.C. §§ 5844(1), 5853.
140. Wright, 117 F.3d at 1272.
141. United States v. Warin, 530 F.2d 103, 106 (6th Cir. 1976).
142. United States v. Kuehnoel, No. 97-30189, 1999 U.S. App. LEXIS 16373, at *6 (9th Cir. July 12, 1999).
143. United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977).
144. Kuehnoel, 1999 U.S. App. LEXIS 16373; United States v. Rybar, 103 F.3d 273 (3d Cir. 1996), cert. denied, 522 U.S. 807 (1997); United States v. Hale, 978 F.2d 1016 (8th Cir. 1992); Oakes, 564 F.2d at 387; Warin, 530 F.2d at 103.
145. See, e.g., GA. CODE ANN. § 38-2-3(d) (1995) (defining state's "unorganized militia" as "all able-bodied male residents of the state between the ages of seventeen and forty-five [with certain exceptions]"); KAN. CONST. art. VIII, § 1 (defining state's militia as "all able-bodied male citizens between the ages of twenty-one and forty-five [with certain exceptions]").
146. th Cir. 1997); see also Oakes, 564 F.2d at 387 (refusing to find Second Amendment violation "merely because [the defendant] is technically a member of the Kansas militia").
147. 3 ELLIOT'S DEBATES, supra note 47, at 425.
148. Act of May 8, 1792, ch. 23, 1 Stat. 271, 271. The Act did exempt federal officials from militia service, along with customhouse officers, post officers and stage drivers, ferrymen, pilots, mariners, and any persons exempted by the laws of the respective states.
149. 3 ELLIOT'S DEBATES, supra note 47, at 386. I use this quotation advisedly. Henry was among the most determined and impassioned Anti-Federalist opponents of the Constitution, and this quotation is in fact from a speech arguing against ratification. As Henry's intentions for the new nation were plainly not shared by those who framed and ratified the Constitution, I want to avoid the trap of relying on him as a reliable indicator of the Founders' world-view. That is precisely the trap fallen into by some revisionists, who build their entire arguments around quotations from Anti-Federalists. See, e.g., HALBROOK, supra note 3. On the specific issue of the composition of the militia, however, Henry's views are exemplary.
150. I briefly describe the National Guard at supra note 134.
151. See 2 FARRAND, supra note 48, at 330-33.
152. See Leon Friedman, Conscription and the Constitution, 67 MICH. L. REV. 1493, 1537-38 (1969).
153. See 3 ELLIOTT'S DEBATES, supra note 47, at 425-26 (statement of George Mason).
154. Of course, the actual response of a Federalist to such a proposal would have been that Congress lacked power to enact such a ban under Article I, Section 8. In Federalist No. 84, Alexander Hamilton famously argued that the enumeration of powers obviated a bill of rights - that the Constitution gave the federal government no power to regulate, for example, speech or worship. THE FEDERALIST NO. 84 (Hamilton). The same argument would presumably apply to firearm ownership.
155. See Lessig, Fidelity as Translation, supra note 26; Lessig, Fidelity in Translation, supra note 26; Lessig, Understanding Changed Readings, supra note 26.
156. Or in Lessig's words: presuppositions are those elements of a context "relied upon by the author . . . in just the sense that had they been other than they were when the author first used these words, then the author would have used words other than she did." Lessig, Fidelity in Translation, supra note 26, at 1179-80. And: "If between two contexts a presupposition has changed . . . [then] the reader must accommodate for this changed presupposition if she is to be faithful to the text's original meaning." Id. at 1180-81.
157. Lessig himself cites the Second Amendment as a possible candidate for translation - although he appears to believe that translating the Amendment would yield a result similar to the revisionists' Unorganized Militia Approach, rather than supporting the courts. See id. at 1204-05. The few lines he devotes to the Amendment, however, are more in the nature of a tentative suggestion than a full-blown argument.
158. See Henigan, supra note 3; Ehrman & Henigan, supra note 3. Henigan and Ehrman neither use Lessig's terminology nor rely upon his work; nonetheless, I think their argument is a good example of what Lessig has in mind by
159. Ehrman & Henigan, supra note 3, at 39. These developments, and the entire history of the militia, are described well in MAHON, supra note 32.
160. The transformation can be dated to the 1903 Dick Act. See supra note 134. My argument in the next Part will be that a statute like the Dick Act was possible only after the Civil War.
161. Williams, Conjuring with the People, supra note 3; Williams, The Terrifying Second Amendment, supra note 3; see also Bailyn, supra note 110; Pocock, supra note 110; Wood, supra note 110.
162. Williams, The Terrifying Second Amendment, supra note 3, at 555.
163. See 4 ELLIOT'S DEBATES, supra note 47, at 424 ("If we are, then, to govern the militia, it must be such men as the particular states have declared to be militia.") (statement of Rep. Williamson), see also Marguerite Driessen, Private Organizations and the Militia Status, 1998 BYU L. REV. 1, 7 ("[L]egitimate militias were organized by the State. Being a member of a militia was not something an individual conferred upon himself.").
164. John Adams, Defense of the Constitutions of Government of the United States, in 6 WORKS OF JOHN ADAMS 3, 197 (Charles F. Adams ed., 1851).
165. U.S. CONST. art. I, § 8, cl. 16.
166. See generally DAVID P. SZATMARY, SHAYS REBELLION (1980). Thomas Jefferson is the exception that proves the rule. In a letter to William Smith (the letter containing the famous quotation "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure."), Jefferson criticized the Philadelphia delegates ("Our Convention has been too much impressed by the insurrection in Massachusetts") and praised Shays' rebels ("[C]an history produce an instance of rebellion so honorably conducted?"). See Alpheus Thomas Mason, ed., FREE GOVERNMENT IN THE MAKING 247 (2d ed. 1956) (reprinting letter dated Nov. 13, 1787, from Thomas Jefferson to William Smith).
167. See SLAUGHTER, supra note 86, at 190-204; Saul Cornell, supra note 3.
168. Bellesiles, Suicide Pact, supra note 3, at 256.
169. Lessig anticipates this problem by defining a category of "political presuppositions" which reflect value judgments rather than factual beliefs. See Lessig, Fidelity in Translation, supra note 26, at 1254-55. Constitutional interpreters should not, according to Lessig, credit changes in such presuppositions. Id. This concession by Lessig eliminates a great deal of the explanatory power of his theory. As the example of the Second Amendment illustrates, most, if not all significant instances of doctrinal change in constitutional law are driven by changes in "political presuppositions." The interpretive methodology I advocate here seeks to identify those changes which are grounded in a constitutional amendment, and therefore ought to be taken into account by contemporary interpreters.
170. 245 U.S. 366 (1918).
171. That is a large claim and I do not intend to defend it here. Suffice it to say that Lincoln himself based his authority to issue the Proclamation entirely upon his status as Commander-in-Chief, writing privately that the Proclamation had no constitutional or legal justification, except as a military measure. 8 COMPLETE WORKS OF ABRAHAM LINCOLN 32 (John G. Nicolay and John Hay eds. 1905). In his main public defense of the Proclamation, Lincoln responded to charges of its unconstitutionality by stating: "I think differently. I think the constitution invests its Commander-in-chief with the law of war, in time of war." DAVID HERBERT DONALD, LINCOLN 456 (1995) (quoting letter from Lincoln to James C. Conkling). It is also worth noting that Lincoln's first effort at emancipation was to propose constitutional amendments that were much less sweeping than his eventual Proclamation, see id. at 396-97, and that Justice Curtis - who had dissented in Dred Scott and who by 1862 had retired from the Supreme Court - wrote a pamphlet contesting the Proclamation's constitutionality. ALEXANDER H. STEPHENS, 2 A CONSTITUTIONAL VIEW OF THE LATE WAR BETWEEN THE STATES 551-57 (Philadelphia, Nat'l Publ'g Co. 1870). See also JAMES G. RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN 373-78 (1926) (discussing Proclamation's constitutionality).
172. See Pollock v. Farmers' Loan and Trust Co., 157 U.S. 429 (1895) (declaring 1894 income tax law unconstitutional) (nullified by Sixteenth Amendment).
173. See Ex Parte Milligan, 71 U.S. 2 (1866).
174. The wartime Legal Tender Act was initially declared unconstitutional in Hepburn v. Griswold, 75 U.S. 603 (1870), but the Court quickly reversed itself in the Legal Tender Cases, 79 U.S. 457 (1871) (reversing Hepburn). I would argue that the holding in the Legal Tender Cases depends mainly on the Civil War Amendments - but that argument will have to await another day. For criticisms of the Legal Tender Cases, see ROBERT BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 155 (1990); Kenneth W. Dam, The Legal Tender Cases, 1981 SUP. CT. REV. 367 (1982); Peter B. McCutchen, Mistakes, Precedent, and the Rise of the Administrative State: Toward a Constitutional Theory of the Second Best, 80 CORNELL L. REV. 1, 17 (1994).
175. See JAMES M. MCPHERSON, BATTLE CRY OF THE REPUBLIC 322-26, 490-94; MAHON, supra note 32, at 97-107; CHAMBERS II, supra note 32, at 42-49.
176. When Lincoln took office in 1860, the national army consisted of only 16,000 soldiers. See MAHON, supra note 32, at 97; ERIC FONER, RECONSTRUCTION 23 (1988). By 1862, more than 700,000 men had joined the Union Army, MCPHERSON, supra note 174, at 322, and during the course of the war some 2,100,000 soldiers would fight on the Union side, id. at 306 n.41.
177. Act of July 17, 1862, 12 Stat. 597. See MCPHERSON, supra note 174, at 492-93; MAHON, supra note 32, at 100-01.
178. Act of March 3, 1863, ch. 75, 12 Stat. 731. Incidentally, the Union's difficulties in raising troops demonstrate James Madison's acuity in Federalist 46, in which he predicted that state militias would far outnumber even the largest federal army that could be amassed with volunteers. See supra note 63 and text accompanying note 204.
179. See infra notes 200-13 and accompanying text.
180. See CONG. GLOBE, 37th Cong., 3d Sess. 1391 (1863) (Senate approved Conscription Act by vote of 35-6); CONG. GLOBE, 37th Cong., 3d Sess. 1268-69 (1863) (use of "copperhead" epithet).
181. See MCPHERSON, supra note 174, at 609-11.
182. See id. at 611.
183. 45 Pa. 238 (1863); see also J.L. Bernstein, Conscription and the Constitution: The Amazing Case of Kneedler v. Lane, 53 A.B.A. J. 708 (1967).
184. Kneedler, 45 Pa. at 245.
185. See Bernstein, supra note 182, at 712 In winning reelection, Curtin defeated a challenge by none other than Pennsylvania Supreme Court Justice George Woodward, who had engineered that court's unusual proceeding in Kneedler. This election, along with those taking place simultaneously in other states, was understood nationwide as a crucial referendum on Lincoln's leadership and his prosecution of the war. "A prominent Democrat campaigning for Woodward declared that when elected he would unite with Governors Vallandigham of Ohio and Seymour of New York (representing together nearly half of the North's population) 'in calling from the army troops from their respective States for the purpose of compelling the Administration to invite a convention of the States to adjust our difficulties.'" MCPHERSON, supra note 174, at 685; see also DONALD, supra note 170, at 454-55.
186. Kneedler, 45 Pa. at 238.
187. See Roger B. Taney, Thoughts on the Conscription Law of the United States, in THE MILITARY DRAFT: SELECTED READINGS ON CONSCRIPTION 208 (Martin Anderson ed., 1982).
188. The Selective Draft Law Cases, 245 U.S. 366 (1918).
189. See United States v. Murphy, 70 U.S. 649 (1865); United States v. Scott, 70 U.S. 642 (1865). Also, Tarble's Case, in 1872, contains dicta explicitly approving the federal draft: "Now, among the powers assigned to the National government, is the power 'to raise and support armies' . . . . [I]ts control over the subject is plenary and exclusive. It can determine, without question from any State authority, how the armies shall be raised, whether by voluntary enlistment or forced draft . . . ." 80 U.S. 397, 408 (1872). This observation is made in passing, without any supporting argument.
190. 245 U.S. at 372 (Court's summary of party arguments).
191. Id. at 382 ("The fallacy of the argument results from confounding the constitutional provisions concerning the militia with that conferring upon Congress the power to raise armies. It treats them as one while they are different.").
192. Other scholars have dealt with this issue more comprehensively than I do here, with the same conclusion. See Harrop A. Freeman, The Constitutionality of Direct Federal Military Conscription, 46 IND. L.J. 333 (1971); Friedman, supra note 151; see also AMAR, supra note 9, at 56-59. As the dates of the Friedman (1969) and Freeman articles suggest, debate over the draft's constitutionality revived during the Vietnam War.
193. U.S. CONST. art. I, § 8, cl. 12.
194. U.S. CONST. art. I, § 8, cl. 18.
195. 245 U.S. at 377.
196. U.S. CONST. art. I, § 8, cl. 12.
197. U.S. CONST. art. I, § 8, cl. 15.
198. U.S. CONST. art. I, § 10, cl. 3.
199. U.S. CONST. art. I, § 8, cl. 16.
200. Taney, supra note 186, at 213.
201. CONG. GLOBE, 37th Cong., 3d Sess. 1364 (1863) (statement of Sen. Bayard).
202. U.S. CONST. art. I, § 8, cl. 15.
203. U.S. CONST. art. I, § 8, cl. 16.
204. Kneedler v. Lane, 45 Pa. 238, 257 (1863) (Woodward, J., concurring).
205. THE FEDERALIST NO. 46, at 299 (James Madison) (Clinton Rossiter ed., 1961).
206. Friedman, supra note 151, at 1525. Friedman thus concludes, "The idea of a direct draft by a central government acting upon every citizen without the intervening authority of the state governments was firmly and totally rejected even at the darkest moments of the Revolution." Id. at 1510.
207. CONG. GLOBE, 37th Cong., 3d Sess. 1269 (1863) (statement of Rep. Cox).
208. 45 Pa. at 248-49.
209. See supra notes 94-99 and accompanying text.
210. CONG. GLOBE, 37th Cong., 3d Sess. 1363 (1863) (statement of Sen. Bayard); see also id. at 1363-64 ("[The bill] does not propose that Congress shall act under that provision of the Federal Constitution which authorizes the . . . calling [of] the militia of the several States into active service . . . . The bill has no such object . . . . [The bill] utterly abandons and subverts the militia system of the United States . . . and substitutes in place of that system standing armies."); Kneedler, 45 Pa. at 272 ("During the Whiskey Insurrection in this state, President Washington called upon the militia [to suppress the rebellion], by a requisition on the governor, and in person commanded them. So the militia were called out from many of the states during the war with Great Britain, and in every instance a requisition made by the President upon the governors of the states.").
211. CONG. GLOBE, 37th Cong., 3d Sess. 1364 (1863) (statement of Sen. Bayard).
212. Kneedler, 45 Pa. at 245.
213. CONG. GLOBE, 37th Cong., 3d Sess. 1367 (1863) (statement of Sen. Turpie). Senator James Bayard elaborated the point further: Heretofore it has been always held that the reserved force of the nation is the militia of the several States, which can be called into its service by the President of the United States under the provisions that Congress may adopt for that purpose; but when you call that militia into service, you call them in, not as individuals, but as organized bodies of men, to be commanded, under the express provision of the Constitution, by officers appointed by the States, and to be disciplined under the discipline that Congress prescribes, by the State authorities alone. . . . Id. at 1363 (statement of Sen. Bayard).
214. CONG. GLOBE, 37th Cong., 3d Sess. 1270 (1863) (statement of Rep. Cox).
215. See MCPHERSON, supra note 174, at 854.
216. Fay v. New York, 332 U.S. 261, 282 (1947).
217. See WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT 48-63 (1988).
218. U.S. CONST. amend. XIV, § 1.
219. 60 U.S. (19 How.) 393 (1857); see also The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 73 (1872) (noting that the "main purpose" of Section 1 of the Fourteenth Amendment was to "establish the citizenship of [former slaves and other free African-Americans]").
220. Slaughter-House Cases, 83 U.S. at 94-95.
221. 410 U.S. 113 (1973).
222. 526 U.S. 489 (1999).
223. Dred Scott, 60 U.S. at 415.
224. See 245 U.S. 366, 377 (1918).
225. Id. at 368 (summarizing the government's brief).
226. Id. at 378.
227. Id. at 389 (citation omitted).
228. The Conscription Act was enacted in 1863. The Fourteenth Amendment was approved by Congress in 1866 and was ratified by 1868.
229. See RAOUL BERGER, GOVERNMENT BY JUDICIARY 20 (stating that "all are agreed [that] it was the purpose of the [Fourteenth] Amendment to embody and protect" the Civil Rights Act of 1866).
230. See CONG. GLOBE, 39th Cong., 1st Sess. 1291 (1866) (statement of Rep. Bingham); NELSON, supra note 216, at 48.
231. See supra notes 218, 228, 229, and accompanying text.
232. The Selective Draft Law Cases, 245 U.S. 366, 387 (1918).
233. Act of March 2, 1867, ch. 153, 14 Stat. 428; see also FONER, supra note 175, at 73-75.
234. Act of April 9, 1866, ch. 31, 14 Stat. 27.
235. Act of April 20, 1871, ch. 22, 17 Stat. 13.
236. Cf. AMAR, supra note 9, at 166 (arguing that the use of "or enforce" in the Fourteenth Amendment shows intention to limit state executive action as well as legislative action).
237. Act of April 9, 1866, ch. 31, § 2, 14 Stat. at 27.
238. Act of April 20, 1871, ch. 22, § 1, 17 Stat. 13.
239. See Bogus, Hidden History, supra note 3, at 335-37. Interestingly, though, historian Peter Voelz has uncovered several instances during the colonial period in which South Carolina actually armed slaves to fight as soldiers. See PETER M. VOELZ, SLAVE AND SOLDIER: THE MILITARY IMPACT OF BLACKS IN THE COLONIAL AMERICAS 24-27 (1993).
240. See FONER, supra note 175, at 203 ("[S]tate militias [were] intended, as a Mississippi white put it in 1865, to 'keep good order and discipline amongst the negro population.'").
241. Act of April 20, 1871, ch. 22, § 2.
242. Id.
243. 2 FARRAND, supra note 48, at 229 (Virginia Plan as approved by Committee of the Whole).
244. THE FEDERALIST NO. 45 at 292-93 (James Madison) (Clinton Rossiter ed., 1961).
245. See generally CORNELL, supra note 30.
246. See THE FEDERALIST NO. 3 (John Jay); THE FEDERALIST NO. 4 (John Jay).
247. See THE FEDERALIST NO. 11 (Alexander Hamilton).
248. See THE FEDERALIST NO. 5 (John Jay); THE FEDERALIST NO. 6 (Alexander Hamilton).
249. See THE FEDERALIST NO. 3, at 42 (John Jay) (Clinton Rossiter ed., 1961).
250. See THE FEDERALIST NO. 46, at 294 (James Madison) (Clinton Rossiter ed., 1961).
251. See WOOD, supra note 110.
252. I acknowledge a strand of Federalist thought that distrusted the states even more than the federal government. Most famously, Charles Beard showed that many Federalists feared nascent populism in the post-Revolutionary state governments, and sought to protect basic property rights. See CHARLES A. BEARD, AN ECONOMIC INTERPRETATION OF THE CONSTITUTION OF THE UNITED STATES (1913); cf. WOOD, supra note 110, at 475-83 (describing Federalists' concern over "social mobility"); U.S. CONST. art. I, § 8, cl. 4 (conferring authority over bankruptcy law on federal government); U.S. CONST. art. I, § 10, cl. 1 (prohibiting states from "impairing the Obligation of Contracts"). More generally, Madison's Federalist No. 10 - which today is probably the single best-known articulation of Federalist theory - argues the advantages of a "large over a small republic." See THE FEDERALIST NO. 10, at 83 (James Madison) (Clinton Rossiter ed., 1961). "Extend the sphere," Madison counsels, and the new government will be able to "control[] the effects of faction." Id. Read for all it's worth, Federalist No. 10 does indeed suggest that the national government will be superior to the states on a whole range of issues, not merely within its limited domain. But read this way, Federalist No. 10 is anomalous; there is no question that the Founders wanted the powers of the federal government to be "few and defined." THE FEDERALIST NO. 45 at 292-93 (James Madison) (Clinton Rossiter ed., 1961). Indeed, it may be that Federalist No. 10 is assigned so frequently in college political science courses precisely because its strong nationalism is more in keeping with today's governmental structure than that of the Founders. Moreover, as Larry Kramer has recently demonstrated, the evidence suggests that Madison's strong nationalist argument was either ignored or misunderstood even by his fellow delegates at the Philadelphia convention. See Larry D. Kramer, Madison's Audience, 112 HARV. L. REV. 611 (1999).
253. Of course, as a matter of political feasibility it would have been impossible in 1787 to fundamentally rearrange state institutions, even if the Philadelphia delegates had wanted to do so.
254. U.S. CONST. art. VI, § 1, cl. 2.
255. U.S. CONST. art. I, § 10.
256. THE FEDERALIST NO. 46 at 298 (James Madison) (Clinton Rossiter ed., 1961).
257. See supra text accompanying note 63.
258. The 1990 case Perpich v. Dep't of Defense, 496 U.S. 334 (1990), illustrates this tacit repeal even more clearly than do the Selective Draft Law Cases. In Perpich, the Supreme Court gave the federal government plenary authority over even the training of National Guard units, despite the explicit constitutional reservation of this authority to the states. See U.S. CONST. art. I, § 8, cl. 16 ("reserving to the States respectively . . . the Authority of training the Militia according to the discipline prescribed by Congress"). It is possible to read Perpich as resting on the argument that federal funding for the Guard entitles the federal government to insist on training authority, see 496 U.S. at 351-52, but just as with the Commerce Clause and the Tenth Amendment, the Court's permission of conditional spending that circumvents limits on federal authority is tantamount to abandonment of those limits. See Matthew D. Adler & Seth F. Kreimer, The New Etiquette of Federalism: New York, Printz and Yeskey, 1998 SUP. CT. REV. 71, 102-105 (demonstrating that permitting Congress to coerce state action through conditional spending is identical to commandeering state action in violation of the Tenth Amendment); Lynn A. Baker, Conditional Federal Spending After Lopez, 95 COLUM. L. REV. 1911 (1995) (describing and criticizing Supreme Court's willingness to permit Congress to evade enumerated-powers limits on federal authority with conditional spending); cf. Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1415 (1989) (describing doctrine under which federal government is prohibited from evading certain constitutional restrictions through conditional spending).
259. CONG. GLOBE, 37th Cong., 3d Sess. 1365 (1863) (statement of Sen. Bayard).
260. ACKERMAN, FOUNDATIONS, supra note 25, at 86-94.
261. See AMAR, supra note 9, at 257-66; see also HALBROOK, supra note 111.
262. Adamson v. California, 332 U.S. 46, 71-72 (1947) (Black, J., dissenting).
263. Id. at 63-64 (Frankfurter, J., concurring).
264. Id. at 65 (Frankfurter, J., concurring) ("In the history of thought 'natural law' has a much longer and much better founded meaning and justification than such subjective selection of the first eight Amendments for incorporation into the Fourteenth.")
265. Id. at 67 (Frankfurter, J., concurring).
266. Or as I would put it, "selective incorporation plus" - for what the Court took away by preferring selective incorporation to Frankfurter's "natural rights" approach, it gave back with its "right to privacy" jurisprudence. See Griswold v. Connecticut, 381 U.S. 479 (1965).
267. The others are the Seventh Amendment and the grand jury provisions of the Fifth Amendment (along with the "structural" provisions of the Ninth and Tenth Amendments -and of course the all-but-obsolete Third Amendment).
268. See, e.g., Kopel, supra note 3. The cases are Presser v. Illinois, 116 U.S. 252 (1886), and United States v. Cruikshank, 92 U.S. 542 (1875).
269. See, e.g., Peoples Rights Org. v. City of Columbus, 152 F.3d 522, 538 n.18 (6th Cir. 1998); Quilici v. Village of Morton Grove, 695 F.2d 261, 270-71 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983).
270. Burton v. Sills, 248 A.2d 521 (N.J. 1968), appeal dismissed 394 U.S. 812 (1969); Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983).
271. AMAR, supra note 9, at 221.
272. Id. at 222.
273. Id. at 257-66. Note that Amar's new version of the revisionist argument not only shifts the foundation of the right from the Second Amendment to the Fourteenth, but it also restates the right as a libertarian one rather than a right derived from individuals' membership in an unorganized militia.
274. The following account of the progression from Slaughter-House to Lochner borrows from David Yassky, Eras of the First Amendment, 91 COLUM. L. REV. 1699, 1724-28 (1991).
275. 83 U.S. (16 Wall.) 36 (1873).
276. Id. at 71.
277. It is standard for constitutional law scholars to bemoan the Slaughter-House Cases - how much better it would have been if later individual rights jurisprudence (Roe, Griswold, etc.) had been able to develop on the sturdy foundation of the Privileges and Immunities Clause rather than the rickety Due Process Clause. See Kevin Christopher Newsom, Setting Incorporationism Straight: A Reinterpretation of the Slaughter-House Cases, 109 YALE L.J. 643, 647 & n.13 (2000) (listing scholarly works criticizing the Slaughter-House Cases). The Court's recent decision in Saenz v. Roe, 526 U.S. 489 (1999), which hints at a revival of the Privileges and Immunities doctrine, will only add fuel to this fire.
278. Slaughter-House Cases, 83 U.S. at 96 (Field, J., dissenting).
279. It is true that Bradley does list several Bill of Rights guarantees - "the right of trial by jury, or free exercise of religious worship, the right of free speech and a free press, the right peaceably to assemble for the discussion of public measures, the right to be secure against unreasonable searches and seizures" - among those protected by the Privileges and Immunities Clause. Id. at 118 (Bradley, J., dissenting). But Bradley's vision of the Fourteenth Amendment went well beyond mere incorporation of the Bill of Rights. He saw the Amendment as protecting "privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments." Id. at 117 (Bradley, J., dissenting) (quoting Corfield v. Coryell). In elaborating the content of these fundamental rights, Bradley looked to the Bill of Rights, but also to the Magna Carta and the "constitutional history of England." Id. at 118 (Bradley, J., dissenting). Indeed, for Bradley the existence of these rights did not depend on the Constitution at all; he wrote that "even if the Constitution were silent, the fundamental privileges and immunities of citizens, as such, would be no less real and no less inviolable than they now are." Id. at 119. The importance of the Fourteenth Amendment was not that it specified the "privileges and immunities" of citizens, but that it authorized the Supreme Court to order redress when those privileges and immunities were violated. In Bradley's view, then, the only limits to the Court's new ability to impose restrictions on state governments came from the Court's own understanding of what rights were "fundamental" in Anglo-American tradition.
280. See Yassky, supra note 273, at 1726-28. Kevin Newsom has recently buttressed this argument with valuable evidence showing that Field's repeated references to the Fourteenth Amendment as protecting "common rights" expressed his view that the Amendment protected common law rights to property and contract. See Newsom, supra note 276, at 658-63.
281. 83 U.S. at 101-02 (Field, J., dissenting) (citing Case of Monopolies, 11 Coke's Reports 85 (K.B. 1602)).
282. Butchers' Union Slaughter-House and Live-Stock Landing Co. v. Crescent City Live-Stock Landing and Slaughter-House Co., 111 U.S. 746, 755-56 (1884) (Field, J., concurring) (emphasis added).
283. 282. 83 U.S. at 78.
284. Id. at 77-78.
285. Id. at 78.
286. 165 U.S. 578 (1897).
287. Id. at 589.
288. See Lochner v. New York, 198 U.S. 45 (1905).
289. See Yassky, supra note 273, at 1721-24.
290. The argument, in short, is that the framers of the Fourteenth Amendment maintained a sharp distinction between civil rights (meaning the right to be treated as a person for purposes of property ownership, contract formation and protection against torts) and political rights (such as the right of free speech, the right to serve on a jury and the right to serve in the militia), and they saw the Fourteenth Amendment as protecting, primarily if not exclusively, the former. See, e.g., CONG. GLOBE, 39th Cong., 1st Sess. 472, 476 (1866) (statement of Sen. Trumbull) (stating that purpose of Civil Rights Act, on which Fourteenth Amendment was based, was to protect "the right to make and enforce contracts, to sue and be sued, and to give evidence, to inherit, purchase, sell, lease, hold and convey real and personal property, and to full and equal benefit to all laws and proceedings for the security of person and property"); see also RAOUL BERGER, GOVERNMENT BY JUDICIARY (1977); RAOUL BERGER, THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1989).
291. Adamson v. California, 332 U.S. 46, 83 (Black, J., dissenting).
292. 300 U.S. 379 (1937).
293. The Court's decision in Chicago, Burlington and Quincy Railroad v. Chicago, 166 U.S. 226 (1897), is sometimes said to be the first incorporation decision. See, e.g., Levinson, supra note 3, at 653. That is a misreading of the case. The defendant in the case, the City of Chicago, had condemned property belonging to the plaintiff railroad; the railroad alleged that it had received insufficient compensation. The Court held that it would violate the Fourteenth Amendment if "private property is taken for the State . . . without compensation," Chicago, Burlington and Quincy Railroad, 166 U.S. at 241, although it found no violation in the case before it. The Court's declaration is sometimes thought to be an "incorporation" of the Fifth Amendment's Just Compensation Clause, but the Court's opinion never mentions the Fifth Amendment. Instead, the Court sees its holding as a straightforward application of the Fourteenth Amendment's own Due Process Clause. If the case implies anything about the Fifth Amendment, it is that the Just Compensation Clause is unnecessary, as the obligation to provide compensation inheres in the due process requirement. Rather than an early effort at incorporation, Chicago, Burlington and Quincy Railroad should be seen as emblematic of the property-centric Lochner era, as Justice Black suggested in his Adamson dissent, see 332 U.S. at 79-80. It is true, however, that the Court began to apply the First Amendment against the states several years prior to West Coast Hotel. See Gitlow v. New York, 268 U.S. 652 (1925); Stromberg v. California, 283 U.S. 359 (1931) (invalidating state criminal syndicalism statute); Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931) (invalidating state statute authorizing injunctions against defamatory newspapers); Grosjean v. American Press Co., 297 U.S. 233 (1936) (striking down special tax on newspapers); De Jonge v. Oregon, 299 U.S. 353 (1937) (overturning state conviction under anti-Communist censorship statutes). In these cases, the Court moved from "assum[ing]" arguendo that "freedom of speech . . . [is] protected by the due process clause of the Fourteenth Amendment". Gitlow, 268 U.S. at 666, to declaring that "[i]t is no longer open to doubt," Near, 283 U.S. at 707. The shift, however, was accompanied by virtually no analysis. The Court's sustained inquiry into the incorporation question did not occur until the 1940s. Accordingly, I read these cases as the sort of deviation from a dominant paradigm that opens the way for a later shift in the paradigm - without which, they would have remained anomalous and would likely have been narrowed or abandoned by subsequent Courts. See generally THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (1962).
294. This debate paralleled in many ways the debate between the Slaughter-House dissenters - with Frankfurter articulating the modern version of Bradley's "natural law" approach and Black arguing for doctrine constrained, not by the common law as in Field's view, but by the text of the Bill of Rights.
295. 304 U.S. 144 (1938).
296. Id. at 152 n.4.
297. 332 U.S. 46, 68-123 (1947) (Black, J., dissenting).
298. 211 U.S. 78 (1908).
299. Adamson, 332 U.S. at 82.
300. Id. at 83.
301. See, e.g., Levinson, supra note 3, at 657-58, Powe, Jr., supra note 3; Van Alstyne, supra note 3, at 1239-41.
302. See supra text accompanying notes 78-80.
303. See supra text accompanying notes 63, 255, 256.
304. In 1919, for example, the Supreme Court upheld a federal judge's decision to sentence Eugene Debs to ten years in prison for giving a speech against American involvement in World War I. See Debs v. United States, 249 U.S. 211 (1919). While serving his sentence, Debs received nearly one million votes as the Socialist Party candidate in the 1920 presidential election. INFORMATION PLEASE ALMANAC 614 (41st ed. 1988). See also, e.g., Whitney v. California, 274 U.S. 357 (1927); Gitlow v. New York, 268 U.S. 652 (1925) (upholding state conviction for "criminal syndicalism"); Rabban, The First Amendment in Its Forgotten Years, 90 YALE L.J. 514 (1981); Yassky, supra note 273, at 1717-20.
305. 303 U.S. 444 (1938) (striking down municipal ordinance prohibiting the distribution of handbills without a permit).
306. 307 U.S. 496 (1939) (enjoining municipality from prohibiting distribution of pamphlets).
307. 319 U.S. 624 (1943) (forbidding public schools to require students to recite pledge of allegiance).
308. 326 U.S. 501 (1946) (establishing right to distribute pamphlets on private property in "company town"); see also De Jonge v. Oregon, 299 U.S. 353 (1937) (over-turning state conviction under anti-Communist censorship statutes); Grosjean v. American Press Co., 297 U.S. 233 (1936) (striking down special tax on newspapers); Stromberg v. California, 283 U.S. 359 (1931) (invalidating state criminal syndicalism statute); Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931) (invalidating state statute authorizing injunctions against defamatory newspapers). On the timing of these opinions, see supra note 113; see also Yassky, supra note 106.
309. See, e.g., Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (stating that subversive advocacy is protected "except where [it] is directed to inciting or producing imminent lawless action and is likely to incite or produce such action"); New York Times Co. v. Sullivan, 376 U.S. 254, 279-83 (1964) (establishing "actual malice" test for libel of public figure).
310. See, e.g., Terry v. Ohio, 392 U.S. 1 (1968); Mapp v. Ohio, 367 U.S. 643 (1961).
311. See, e.g., Griffin v. California, 380 U.S. 609 (1965); Malloy v. Hogan, 378 U.S. 1 (1964).
312. See, e.g., Duncan v. Louisiana, 391 U.S. 145 (1968); Pointer v. Texas, 380 U.S. 400 (1965); Gideon v. Wainwright, 372 U.S. 335 (1963).
313. See, e.g., Robinson v. California, 370 U.S. 660 (1962).
314. 307 U.S. 174 (1939).
315. Act of June 26, 1934, ch. 757, 48 Stat. 1236.
316. See infra Section IV.C.
317. See Cases v. United States, 131 F.2d 916 (1st Cir. 1942); United States v. Tot, 131 F.2d 261 (3rd Cir. 1942).
318. See United States v. Rybar, 103 F.3d 273 (3d Cir. 1996), cert. denied, 522 U.S. 807 (1997); Hickman v. Block, 81 F.3d 98, 101 (9th Cir. 1996), cert. denied sub nom. Hickman v. County of Los Angeles, 519 U.S. 912 (1996); Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983); United States v. Warin, 530 F.2d 103 (6th Cir. 1976), cert. denied, 426 U.S. 948 (1976).
319. Compare West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) (upholding state minimum wage statute) with Moorehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936) (invalidating state minimum wage statute under Due Process Clause of the Fourteenth Amendment).
320. Compare Wickard v. Filburn, 317 U.S. 111 (1942) (upholding production quotas of Agricultural Adjustment Act of 1938), and United States v. Darby, 312 U.S. 100 (1941) (upholding wage and hour requirements of Fair Labor Standards Act of 1938), and Steward Mach. Co. v. Davis, 301 U.S. 548 (1937) (upholding federal unemployment insurance system of Social Security Act of 1935), with United States v. Butler, 297 U.S. 1 (1936) (invalidating acreage reduction provisions of Agricultural Adjustment Act of 1933 as beyond scope of congressional power), and Carter v. Carter Coal Co., 298 U.S. 238 (1936) (invalidating Bituminous Coal Conservation Act as exceeding Commerce Clause power), and Hammer v. Dagenhart, 247 U.S. 251 (1918) (invalidating Child Labor Act as exceeding Commerce Clause power).
321. Compare NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) (upholding National Labor Relations Act of 1935), and Yakus v. United States, 321 U.S. 414 (1944), with A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (invalidating National Industrial Recovery Act on separation of powers and Commerce Clause grounds).
322. See Franklin D. Roosevelt, Address Before Joint Session of Congress (Jan. 6, 1941), in NOTHING TO FEAR: THE SELECTED ADDRESSES OF FRANKLIN DELANO ROOSEVELT 1932-1945 at 258, 266 (B.D. Zevin ed. 1946).
323. See Franklin D. Roosevelt, Address to the American People (June 28, 1954), in NOTHING TO FEAR: THE SELECTED ADDRESSES OF FRANKLIN DELANO ROOSEVELT 1932-1945 supra note 321, at 34, 35; Franklin D. Roosevelt, Address in Chicago, IL (Oct. 14, 1936) in id. at 60, 64.
324. Elaine Scarry, War and the Social Contract: Nuclear Policy, Distribution, and the Right to Bear Arms, 139 U. PA. L. REV. 1257 (1991).
325. Williams, The Terrifying Second Amendment, supra note 3, at 607-10.
326. 307 U.S. at 178 (quoting the statute).
327. See, e.g., Brannon P. Denning, Can the Simple Cite Be Trusted?: Lower Court Interpretations of United States v. Miller and the Second Amendment, 26 CUMB. L. REV. 961 (1996); Nelson Lund, The Past and Future of the Individual's Right to Arms, 31 GA. L. REV. 1, 40-41 n.96 (1996); L.A. Powe, Jr., Guns, Words and Constitutional Interpretation, 38 WM. & MARY L. REV. 1311, 1332 (1997).
328. Cases v. United States, 131 F.2d 916, 922 (1st Cir. 1942).
329. For that matter, Miller is also inconsistent with the strong version of the "collective rights" approach which turns the Second Amendment into a standing requirement. The Court never questions Miller's standing to raise a Second Amendment claim; the fact that his home state of Arkansas showed no interest in protecting Miller from imprisonment was quite properly immaterial to the Court. See infra Section II.A.
330. Some revisionist scholars attribute the tentativeness of the Court's opinion in Miller to the fact that the Court heard only from the government when the case was argued; Miller himself was not represented, having jumped bail and fled. See, e.g., Dowlut, supra note 3, at 73; Roy G. Weatherup, Standing Armies and Armed Citizens: An Historical Analysis of the Second Amendment, 2 HASTINGS CONST. L.Q. 961, 999 (1975).
331. See 145 CONG. REC. H59, 2414 (daily ed. April 28, 1999) (debate in House of Representatives on resolution to withdraw troops from overseas).
332. See 146 CONG. REC. E 1097 (daily ed. June 23, 2000) (statement of Rep. Weldon); 145 CONG. REC. E587, 1337 (daily ed. June 18, 1999) (statement of Rep. Barcia); 145 CONG. REC. S74, 5633 (daily ed. May 20, 1999) (statement of Sen. Smith); 145 CONG. REC. S59, 4319 (daily ed. April 28, 1999) (statement of Sen. McCain).
333. Based on a Lexis search of the Congressional Record for 1999 and 2000 (through August 1), using the search terms [("war powers" or Bosnia or Yugoslavia or troops) and "Second Amendment"].