Scottish factors and the origins of the second amendment: Some reflections on David Thomas Konig's rediscovery of the Caledonian background to the American right to arms

Law and History Review

Volumn 22, Issue 1, 2004, Pages 169-177

  Uviller, H Richard ^a   Merkel, William G ^a  

^a NONE

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EID: 60950469673     PISSN: 07382480     EISSN: None     Source Type: Journal    
DOI: 10.2307/4141669     Document Type: Review

References (33)

1. H. Richard Uviller is the Arthur Levitt Professor of Law Emeritus at the Columbia Law School. William G. Merkel is a D. Phil. candidate in Modern History at Oxford University, and Associate in Law, Columbia Law School, 2003-2005.
2. This review was written by Mr. Merkel with modest editorial assistance and the full accord of Professor Uviller. Our title, somewhat jokingly, plays on the double meaning of "factor"; however, we should own openly at this early point that we have absolutely nothing to say about Scottish factors in the sense of resident agents of British merchants and bankers who were blamed by many late colonial Virginians for provincial debt and attendant issues of imperiled esteem; see, e. g. , T. H. Breen, Tobacco Culture: The Mentality of the Great Tidewater Planters on the Eve of Revolution (Princeton: Princeton University Press, 1985).
3. H. Richard Uviller and William G. Merkel, The Militia and the Right to Arms Or, How the Second Amendment Fell Silent (Durham, N. C. : Duke University Press, 2003). Our argument is that the Second Amendment responded to the anti-federalists' classically republican fears of centrally controlled standing armies and the dangers they posed to balanced constitutional rule. In drafting the Bill of Rights, James Madison and the large federalist majority in the First Congress hoped to win over principled Antifederalists to the new Constitution. By reassuring their countrymen of the newly independent states' and newly formed Union's ability to rely on the less dangerous and more virtuous citizen militia for defense against civil unrest, foreign invasion, and would-be tyrants, the framers aimed to preserve not a state right but a personal entitlement to arms. They did so in expressed understanding that this right would be exercised in the civic forum of a well-regulated militia. The right against disarmament, the ratifiers hoped, would preserve the militia, thereby eliminating the most likely excuse for congressional funding of an overlarge regular army.
4. See Saul Cornell, "Commonplace or Anachronism: The Standard Model, the Second Amendment, and the Problem of History in Contemporary Constitutional Theory" Constitutional Commentary 16 (1999): 221
5. and Cornell, "'Don't Know Much About History': The Current Crisis in Second Amendment Scholarship," Northern Kentucky Law Review 29 (2002): 657.
6. Richard Primus, The American Idea of Rights (Cambridge: Cambridge University Press, 1999), 102-3.
7. We too agree that Sanford Levinson's "The Embarrassing Second Amendment," Yale Law Journal 99 (1991): 637, succeeded ably in its proclaimed purpose of igniting sustained interest among professional academics in a field that had long been ignored by both historians and law professors. We do not agree, however, with Professor Levinson's suggestions in "The Embarrassing Second Amendment" that the right to arms has an existence unrelated to militia service, or that the right to arms encompasses a right to revolution. See our discussion in The Militia and the Right to Arms, at 168-78.
8. See, e. g. , Jack N. Rakove, "The Second Amendment: The Highest State of Originalism," Chicago-Kent Law Review 76 (2000): 103
9. Carl T. Bogus, "The History and Politics of Second Amendment Scholarship: A Primer," Chicago-Kent Law Review 76 (2000): 3
10. and Paul Finkelman, "'A Well Regulated Militia': The Second Amendment in Historical Perspective," Chicago-Kent Law Review 76 (2000): 195.
11. See, e. g. , David C. Williams, "Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment," Yale Law Journal 101 (1991): 551
12. Williams, "The Militia Movement and the Second Amendment: Conjuring with the People," Cornell Law Review 81 (1996): 879
13. Williams, "The Unitary Second Amendment," New York University Law Review (1998): 822
14. and see our discussion of Williams's articles in The Militia and the Right to Arms, at 250-52.
15. David C. Williams, The Mythic Meanings of the Second Amendment: Taming Political Violence in a Constitutional Republic (New Haven: Yale University Press, 2003).
16. See Carl T. Bogus, "The Hidden History of the Second Amendment," U. C. Davis Law Review 31 (1998): 301
17. and our discussion in The Militia and the Right to Arms, at 178-91.
18. See our Madisonian critique of Levinson's influential formulation of the insurrectionary reading of the right to arms in The Militia and the Right to Arms, 170-78.
19. Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (New Haven: Yale University Press, 1998), 182-86
20. also consider David Yassky's interesting (but demonstrably counterfactual) argument that the Fourteenth Amendment constitutionalized federal conscription, thereby rendering the federal militia, and the Second Amendment, irrelevant. Yassky, "The Second Amendment: Structure, History, and Constitutional Change," Michigan Law Review 99 (2000): 588
21. and our discussion in The Militia and the Right to Arms, 209-11.
22. See J. G. A. Pocock, Politics, Language, and Time: Essays on Political Thought and History (London: Methuen, 1972)
23. and Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton: Princeton University Press, 1975).
24. See Barbara A. Black, "The Constitution of Empire: The Case for the Colonists," University of Pennsylvania Law Review 124 (1976): 1157, 1165, 1172-91.
25. See Black, "The Constitution of Empire: The Case for the Colonists. "
26. See Ian Loveland, Constitutional Law: A Critical Introduction (Aldershot, England; Brookfield, Vt: Ashgate/Dartmouth, 2000), 40-42.
27. See Loveland, Constitutional Law, at 616-27, on the constitutional principles involved in Scottish devolution. In one important respect, our assertion travesties the position of the Scottish Nationalists, for a majority of the party members probably now favor absorption into an integrated Europe as strongly as they do dissolving the bilateral ties linking Scotland to the rest of the United Kingdom.
28. To be fair, Konig even quotes Ned Landsman to the effect that the direct influence of the Scottish example was very small. See Landsman, "The Legacy of British Union for the North American Colonies: Provincial Elites and the Problem of Imperial Union," in A Union for Empire: Political Thought and the British Union of 1707, ed. John Robertson (Cambridge: Cambridge University Press, 1995), 297. However, Konig stresses that coming to terms with membership in (or allegiance to?) an Imperial Union had profound repercussions on provincial American constitutional thinking.
29. See Michael Foot and Isaac Kramnick, ed. , "Editors' Introduction," in The Thomas Paine Reader (Harmondsworth, England; New York: Penguin Books, 1987), 10, putting American sales of Common Sense at 100,000, an astonishing figure when one reflects that the population of the thirteen colonies numbered about 3,000,000.
30. See Lawrence Delbert Cress, Citizens in Arms: The Army and Militia in American Society to the War of 1812 (Chapel Hill: University of North Carolina Press, 1982), 34-35.
31. See our discussion in The Militia and the Right to Arms, 49-58, 60-64, 171-76, 301 n. 22, 312 n. 109.
32. From "the composition draft" reassembled from several fragments by the late Julian Boyd, editor-in-chief of the monumental and ongoing Princeton series of The Papers of Thomas Jefferson. It reflects the state of the developing text in mid-June 1776, after the Drafting Committee had delegated the writing to Jefferson, but before he submitted the original rough draft to them. See The Papers of Thomas Jefferson, ed. Julian Boyd et al. , 28 vols. (Princeton: Princeton University Press, 1950-), 1:420; Jefferson's own deletions appear here in (parenthesis).
33. On Washington's and Knox's plans for a select militia, see our discussion in The Militia and the Right to Arms, at 69-72, 112-15.