From: meyers@leonardo.rtp.dg.com (Bill Meyers)
Newsgroups: talk.politics.guns
Subject: Re: "That embarrassing Second Amendment"
Keywords: 2nd amendment
Date: 8 Apr 92 15:19:45 GMT
Distribution: usa
Organization: N/I

In article <1992Apr2.194443.16169@ms.uky.edu> miles@ms.uky.edu (Stephen D. Grant) writes:
>I would like to know how many people are familiar with an article in the
>1989 fall edition of the "Yale Law Journal" called: "That embarrassing
>Second Amendment".
>If you haven't read it, do so!
>The article is by Stanford Levinson, and begins on page 637.

(Or, thanks to bb063@cleveland.Freenet.Edu (Christopher J. Crobaugh), ... :-)
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>From: bb063@cleveland.Freenet.Edu (Christopher J. Crobaugh)
>Subject: the embarassing 2nd 
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>
>amenThis is the text of "The 
>Embarrassing Second Amendment," by Professor Sanford Levinson
>of the University of Texas at Austin. He is a constitutional
>scholar "approved" by liberals - therefore, this article carries
>some weight with them. It was first published in the Yale Law 
>Journal in 1989. It makes some powerful points, and I have found
>it of great use with liberal attorneys here in the Cleveland
>Ohio area (God knows we've got a bunch of them).  
>Anyone serious about the RKBA should have copies of this article
>and be spreading them around to YOUR local liberal attorneys. 
>Many of them will in fact give it a fair shake, for one reason
>because they have heard of Sanford Levinson.  I guess his liberal
>credentials are impeccable.
>Anyway, good luck. This is worth reading (if you like reading 
>law journals). 
>
>#
>
>
>
>
>                   The EMBARRASSING SECOND AMENDMENT
>
>                            Sanford Levinson
>              University of Texas at Austin School of Law
>
>      Reprinted from the Yale Law Journal, Volume 99, pp. 637-659
>
>        One of the best known pieces of American popular art in this
>century is the New Yorker cover by Saul Steinberg presenting a map of
>the United States as seen by a New Yorker,  As most readers can no
>doubt recall, Manhattan dominates the map; everything west of the
>Hudson is more or less collapsed together and minimally displayed to
>the viewer. Steinberg's great cover depends for its force on the
>reality of what social psychologists call "cognitive maps."  If one
>asks inhabitants ostensibly of the same cities to draw maps of that
>city, one will quickly discover that the images carried around in
>people's minds will vary by race, social class, and the like. What is
>true of maps of places --that they differ according to the perspectives
>of the mapmakers--is certainly true of all conceptual maps.
>
>                To continue the map analogy, consider in this context
>the Bill of Rights; is there an agreed upon "projection" of the
>concept? Is there even a canonical text of the Bill of Rights? Does it
>include the first eight, nine, or ten Amendments to the Constitution?
>Imagine two individuals who are asked to draw a "map" of the Bill of
>Rights. One is a (stereo-) typical member of the American Civil
>Liberties Union (of which I am a card-carrying member); the other is an
>equally (stereo-) typical member of the "New Right." The first, I
>suggest, would feature the First Amendment2 as Main Street, dominating
>the map, though more, one suspects, in its role as protector of speech
>and prohibitor of established religion than as guardian of the rights
>of religious believers. The other principal avenues would be the
>criminal procedures aspects of the Constitution drawn from the
>Fourth,3 Fifth,4 Sixth,5 and Eighth6 Amendments.  Also depicted
>prominently would be the Ninth Amendment,7 although perhaps as in the
>process of construction. I am confident that the ACLU map would exclude
>any display of the just compensation clause of the Fifth
>Amendment8 or of the Tenth Amendment.9
>
>        The second map, drawn by the New Rightist, would highlight the
>free exercise clause of the First Amendment,10 the just compensation
>clause of the Fifth Amendment,11 and the Tenth Amendment.12 Perhaps the
>most notable difference between the two maps, though, would be in
>regard to the Second Amendment: "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." What would be at most a
>blind alley for the ACLU mapmaker would, I am confident, be a major
>boulevard in the map drawn by the New Right adherent. It is this last
>anomaly that I want to explore in this essay.
>
>
>
>
>I. The Politics Of Interpreting The Second Amendment
>
>
>    To put it mildly, the Second Amendment is not at the forefront of
>constitutional discussion, at least as registered in what the academy
>regards as the venues for such discussion --law reviews,13
>casebooks,14 and other scholarly legal publications. As Professor Larue
>has recently written, "the second amendment is not taken seriously by
>most scholars."15
>
>        Both Laurence Tribe16 and the Illinois team of Nowak, Rotunda,
>and Young17 at least acknowledge the existence of the Second Amendment
>in their respective treatises on constitutional law, perhaps because
>the treatise genre demands more encyclopedic coverage than does the
>casebook. Neither, however, pays it the compliment of extended
>analysis. Both marginalize the Amendment by relegating it to footnotes;
>it becomes what a deconstructionist might call a "supplement" to the
>ostensibly "real" Constitution that is privileged by discussion in the
>text.18  Professor Tribe's footnote appears as part of a general
>discussion of congressional power. He asserts that the history of the
>Amendment "indicate[s] that the central concern of [its] framers was to
>prevent such federal interferences with the state militia as would
>permit the establishment of a standing national army and the consequent
>destruction of local autonomy."19  He does note, how ever, that "the
>debates surrounding congressional approval of the second amendment do
>contain references to individual self-protection as well as to states'
>rights," but he argues that the qualifying phrase "'well regulated"
>makes any invocation of the Amendment as a restriction on state or
>local gun control measures extremely problematic."20  Nowak, Rotunda,
>and Young mention the Amendment in the context of the incorporation
>controversy, though they discuss its meaning at slightly greater
>length.21  They state that "[t]he Supreme Court has not determined, at
>least not with any clarity, whether the amendment protects only a right
>of state governments against federal interference with state militia
>and police forces..  .or a right of individuals against the federal and
>state government[s]."22
>
>        Clearly the Second Amendment is not the only ignored patch of
>text in our constitutional conversations. One will find extraordinarily
>little discussion about another one of the initial Bill of Rights, the
>Third Amendment: "No Soldier shall, in time of peace be quartered in
>any house, without the consent of the Owner, nor in time of war, but in
>a manner to be prescribed by law."  Nor does one hear much about
>letters of marque and reprisal23 or the granting of titles of nobility.
>24  There are, however, some differences that are worth noting.
>
>        The Third Amendment, to take the easiest case, is ignored
>because it is in fact of no current importance what whatsoever
>(although it did, for obvious reasons, have importance at the time of
>the founding). It has never, for a single instant, been viewed by any
>body of modern lawyers or groups of laity as highly relevant to their
>legal or political concerns. For this reason, there is almost no case
>law on the Amendment.25  I suspect that few among even the highly
>sophisticated readers of the Journal can summon up the Amendment
>without the aid of the text.
>
>        The Second Amendment, though, is radically different from these
>other pieces of constitutional text just mentioned, which all share the
>attribute of being basically irrelevant to any ongoing political
>struggles. To grasp the difference, one might simply begin by noting
>that it is not at all unusual for the Second Amendment to show up in
>letters to the editors of newspapers and magazines.26 That judges and
>academic lawyers, including the ones that write casebooks, ignore it is
>most certainly not evidence for the proposition that no one else cares
>about it. The National Rifle Association, to name the most obvious
>example, cares deeply about the Amendment, and an apparently serious
>Senator of the United States averred that the right to keep and bear
>arms is the "right most valued by free men."27 Campaigns for Congress
>in both political parties, and even presidential campaigns, may turn on
>the apparent commitment of the candidates to a particular view of the
>Second Amendment. This reality of the political process reflects the
>fact that millions of Americans, even if (or perhaps especially if)
>they are not academics, can quote the Amendment and would disdain any
>presentation of the Bill of Rights that did not give it a place of
>pride.
>
>        I cannot help but suspect that the best explanation for the
>absence of the Second Amendment from the legal consciousness of the
>elite bar, including that component found in the legal academy,
>28 is derived from a mixture of sheer opposition to the idea of private
>ownership of guns and the perhaps subconscious fear that altogether
>plausible, perhaps even "winning," interpretations of the Second
>Amendment would present real hurdles to those of us supporting
>prohibitory regulation. Thus the title of this essay --The Embarrassing
>Second Amendment -- for I want to suggest that the Amendment may be
>profoundly embarrassing to many who both support such regulation and
>view themselves as committed to zealous adherence to the Bill of Rights
>(such as most members of the ACLU).  Indeed, one sometimes discovers
>members of the NRA who are equally committed members of the ACLU,
>differing with the latter only on the issue of the Second Amendment but
>otherwise genuinely sharing the libertarian viewpoint of the ACLU.
>
>        It is not my style to offer "correct" or "incorrect"
>interpretations of the Constitution.29  My major interest is in
>delineating the rhetorical structures of American constitutional
>argument and elaborating what is sometimes called the "politics of
>interpretation," that is, the factors that explain why one or another
>approach will appeal to certain analysts at certain times, while other
>analysts, or times, will favor quite different approaches. Thus my
>general tendency to regard as wholly untenable any approach to the
>Constitution that describes itself as obviously correct and condemns
>its opposition as simply wrong holds for the Second Amendment as well.
>In some contexts, this would lead me to label as tendentious the
>certainty of NRA advocates that the Amendment means precisely what they
>assert it does. In this particular context--i.e., the pages of a
>journal whose audience is much more likely to be drawn from an elite,
>liberal portion of the public--I will instead be suggesting that the
>skepticism should run in the other direction, That is, we might
>consider the possibility that "our" views of the Amendment, perhaps
>best reflected in Professor Tribe's offhand treatment of it, might
>themselves be equally deserving of the "tendentious" label.
>
>
>II. The Rhetorical Structures of the Right to Bear Arms
>
>
>        My colleague Philip Bobbitt has, in his book Constitutional
>Fate,30 spelled out six approaches -- or "modalities," as he terms them
>-- of constitutional argument. These approaches, he argues, comprise
>what might be termed our legal grammar. They are the rhetorical
>structures within which "law-talk" as a recognizable form of
>conversation is carried on. The six are as follows:
>
>1) textual argument -- appeals to the unadorned language of the
>   text;31
>
>2) historical argument -- appeals to the historical background of the
>vision being considered, whether the history considered be general,
>such as background but clearly crucial events (such as the American
>Revolution). or specific appeals to the so-called intentions of
>framers;32
>
>3) structural argument -- analyses inferred from the particular
>structures established by the Constitution, including the tripartite
>division of the national government; the separate existence of both
>state and nation as political entities; and the structured role of
>citizens within the political order;33
>
>4) doctrinal argument -- emphasis on the implications of prior cases
>   decided by the Supreme Court;34
>
>5) prudential argument -- emphasis on the consequences  of adopting a
>   proferred decision in any given case;35
>
>6) ethical argument -- reliance on the overall "ethos" of limited
>   government as centrally constituting American political
>   culture.36
>
>        I want to frame my consideration of the Second Amendment within
>the first five of Bobbitt's categories; they are all richly present in
>consideration of the Amendment might mean. The sixth, which emphasizes
>the ethos of limited government, doe s not play a significant role in
>the debate of the Second Amendment.37
>
>
>A. Text
>
>
>        I begin with the appeal to text. Recall the Second Amendment:
>"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." No one has ever described the Constitution as a marvel of
>clarity, and the Second Amendment is perhaps one of the worst drafted
>of all its provisions. What is special about the Amendment is the
>inclusion of an opening clause -- a preamble, if you will -- that seems
>to set out its purpose. No similar clause is part of any other
>Amendment,38 though that does not, of course, mean that we do not
>ascribe purposes to them. It would be impossible to make sense of the
>Constitution if we did not engage in the ascription of purpose.
>Indeed, the major debates about The First Amendment arise precisely
>when one tries to discern a purpose, given that "literalism" is a
>hopelessly failing approach to interpreting it. We usually do not even
>recognize punishment of fraud -- a classic speech act -- as a free
>speech problem because we so sensibly assume that the purpose of the
>First Amendment could not have been, for example, to protect the
>circulation of patently deceptive information to potential investors in
>commercial enterprises. The sharp differences that distinguish those
>who would limit the reach of the First Amendment to "political" speech
>from those who would extend it much further, encompassing non-deceptive
>commercial speech, are all derived from different readings of the
>purpose that underlies the raw text.39
>
>        A standard move of those legal analysts who wish to limit the
>Second Amendment's force is to focus on its "preamble" as setting out a
>restrictive purpose. Recall Laurence Tribe's assertion that the purpose
>was to allow the states to keep their militias and to protect them
>against the possibility that the new national government will use its
>power to establish a powerful standing army and eliminate the state
>militias. This purposive reading quickly disposes of any notion that
>there is an "individual" right to keep and bear arms. The right, if
>such it be, is only a states's right. The consequence of this reading
>is obvious: the national government has the power to regulate--to the
>point of prohibition--private ownership of guns, since that has, by
>stipulation, nothing to do with preserving state militias. This is,
>indeed, the position of the ACLU, which reads the Amendment as
>protection only the right of "maintaining an effective state
>militia...[T]he individual's right to keep a nd bear arms applies only
>to the preservation or efficiency of a well-regulated [state] militia.
>Except for lawful police and military purposes, the possession of
>weapons by individuals is not constitutionally
>protected."40
>
>        This is not a wholly implausible reading, but one might ask why
>the Framers did not simply say something like "Congress shall have no
>power to prohibit state-organized and directed militias." Perhaps they
>in fact meant to do something else. Moreover, we might ask if ordinary
>readers of the late 18th Century legal prose would have interpreted it
>as meaning something else. The text at best provides only a starting
>point for a conversation. In this specific instance, it does not come
>close to resolving the questions posed by federal regulation of arms.
>Even if we accept the preamble as significant, we must still try to
>figure out what might be suggested by guaranteeing to "the people the
>right to keep and bear arms;" moreover, as we shall see presently, even
>the preamble presents unexpected difficulties in interpretation.
>
>
>B. History
>
>
>        One might argue (and some have) that the substantive right is
>one pertaining to a collective body -- "the people"-- rather than to
>individuals. Professor Cress, for example, argues that state
>constitutions regularly use the words "man" or "person" in regard to
>"individual rights such as freedom of conscience," whereas the use in
>those constitutions of the term "the people" in regard to a right to
>bear arms is intended to refer to the "sovereign citizenry"
>collectively organized.41  Such an argument founders, however, upon
>examination of the text of the federal Bill of Rights itself and the
>usage there of terms "the people" in the First, Fourth, Ninth, and
>Tenth Amendments.
>
>        Consider that the Fourth Amendment protects "[t]he right of he
>people to be secure in their persons," or that the First Amendment
>refers to the "right of the people peaceably to assemble, and to
>petition the Government for a redress of grievances." It is difficult
>to know how one might plausibly read the Fourth Amendment as other than
>a protection of individual rights, and it would approach the frivolous
>to read the assembly and petition clause as referring only to the right
>of state legislators to meet and pass a remonstrance directed to
>Congress or the President against some government act. The Tenth
>Amendment is trickier, though it does explicitly differentiate between
>"state" and "the people" in terms of retained rights.42  Concededly, it
>would be possible to read the Tenth Amendment as suggesting only an
>ultimate right revolution by the collective people should the "states"
>stray too far from their designated role of protecting the rights of
>the people. This reading follows directly from the social contract
>theory of the state.( But, of course, many of these rights are held by
>individuals.)
>
>        Although the record is suitably complicated, it seems
>tendentious to reject out of hand the argument that the one purpose of
>the Amendment was to recognize an individual's right to engage in armed
>self-defense against criminal conduct.43 Historian Robert E.  Shallhope
>supports this view, arguing in his article The Ideological Origins of
>the Second Amendment44 that the Amendment guarantees individuals the
>right "to possess arms for their own personal defense." 45  It would be
>especially unsurprising if this were the case, given the fact that the
>development of a professional police force (even within large American
>cities) was still at least half a century away at the end of the
>colonial period .46  I shall return later in this essay to this
>individualist notion of the Amendment, particularly in regard into the
>argument that "changing circumstances," including plausibility. But I
>want now to explore a second possible purpose of the Amendment, which
>as a sometime political theorist I find considerably more interesting.
>
>        Assume, as Professor Cress has argued, that the Second
> Amendment refers to a communitarian, rather than an individual
> right.47  We are still left the task of defining the relationship
> between the community and the state apparatus.  It is this fascinating
> problem to which I now turn.
>
>        Consider once more the preamble and its reference to the
>importance of a well-regulated militia. Is the meaning of the term
>obvious? Perhaps we should make some effort to find out what the term
>"militia" meant to 18th century readers and writers, rather than assume
>that it refers only to Dan Quayle's Indiana National Guard and the
>like. By no means am I arguing that the discovery of that meaning is
>dispositive as to the general meaning of the Constitution for us today.
>But it seems foolhardy to be entirely uninterested in the historical
>philology behind the Second Amendment.
>
>        I, for one, have been persuaded that the term "militia" did not
>have the limited reference that Professor Cress and many modern legal
>analysts assign to it. There is strong evidence that "militia" refers
>to all of the people, or least all of those treated as full citizens of
>the community. Consider, for example, the question asked by George
>Mason, one of the Virginians who refused to sign the Constitution
>because of its lack of a Bill of Rights: "Who are the militia? They
>consist now of the whole people."48  Similarly, the Federal Farmer, one
>of the most important Anti-Federalist opponents of the Constitution,
>referred to a "militia, when properly formed, [as] in fact the people
>themselves."49  We have, of course, moved now from text to history.
>And this history is most interesting, especially when we look at the
>development of notions of popular sovereignty. It has become almost a
>cliche of contemporary American historiography to link the development
>of American political thought, including its constitutional aspects, to
>republican thought in England, the "country" critique of the powerful
>"court" centered in London.
>
>        One of the school's most important writers, of course, was
> James Harrington, who not only was in influential at the time but also
> has recently been given a certain pride of place by one of the most
> prominent of contemporary "neo-republicans," Professor Frank
> Michelman.50  One historian describes Harrington as having made "the
> most significant contribution to English libertarian attitudes toward
> arms, the individual, and society."51  He was a central figure in the
> development of the ideas of popular sovereignty and
> republicanism.52  For Harrington, preservation of republican liberty
> requires independence, which rests primarily on possession of adequate
> property to make men free from coercion by employers or landlords.
> But widespread ownership of land is not sufficient. These independent
> yeoman would also bear arms. As Professor Morgan puts it, "[T]hese
> independent yeoman, armed and embodied in a militia, are also a
> popular government's best protection against its enemies, whether they
> be aggressive foreign monarchs or scheming demagogues within the
> nation itself."53
>
>        A central fear of Harrington and of all future republicans was
>a standing army, composed of professional soldiers. Harrington and his
>fellow republicans viewed a standing army as a threat to freedom, to be
>avoided at all almost all costs. Thus, says Morgan, "A militia is the
>only safe form of military power that a popular government can employ;
>and because it is composed of the armed yeomanry, it will prevail over
>the mercenary professionals who man the armies of neighboring
>monarchs."54
>
>        Scholars of the First Amendment have made us aware of the
>importance of John Trenchard and Thomas Gordon, whose Cato's
>Letters were central to the formation of the American notion of freedom
>of the press.  That notion includes what Vincent Blasi would come to
>call the "checking value" of a free press, which stands as a sturdy
>exposer of governmental misdeeds.55  Consider the possibility, though,
>that the unlimited "checking value" in a republican polity is the
>ability of an armed populace, presumptively motivated by a shared
>commitment to the common good, to resist governmental tyranny.56
>Indeed, one of Cato's letters refers to "the Exercise of despotick
>Power [as] the unrelenting War of an armed Tyrant upon his unarmed
>subjects..."57
>
>        Cress persuasively shows that no one defended universal
>possession of arms. New Hampshire had no objection to disarming those
>who "are or have been in actual rebellion," just as Samuel Adams
>stressed that only "peaceable citizens" should be protected in their
>right of "keeping their own arms."58  All these points can be conceded,
>however, without conceding as well that Congress -- or, for that
>matter, the States, -- had the power to disarm these "peaceable
>citizens."
>
>        Surely one of the foundations of American political thought of
>the period was the well-justified concern about political corruption
>and consequent governmental tyranny. Even the Federalists, fending off
>their opponents who accused them of foisting an oppressive new scheme
>upon the American people, were careful to acknowledge the risk of
>tyranny. James Madison, for example, speaks in Federalist Number Forty-
>Six of "the advantage of being armed, which the Americans possess over
>the people of almost every other nation."59  The advantage in question
>was not merely the defense of American borders; a standing army might
>well accomplish that. Rather, an armed public was advantageous in
>protecting political liberty. It is therefore no surprise that the
>Federal Farmer, the nom de plume of an anti-federalist critic of the
>new Constitution and its absence of a Bill of Rights, could write that
>"to preserve liberty, it is essential that the whole body of the people
>always posses s arms, and be taught alike, especially when young, how
>to use them..."60  On this matter, at least, there was no cleavage
>between the pro-ratification Madison and his opponent.
>
>        In his influential Commentaries on the Constitution, Joseph
>Story, certainly no friend of Anti-Federalism, emphasized the
>"importance" of the Second Amendment.61  He went on to describe the
>militia as the "natural defence of a free country" not only "against
>sudden foreign invasions" and "domestic insurrections," with which one
>might well expect a Federalist to be concerned, but also against
>"domestic usurpations of power by rulers."62  "The right of the
>citizens to keep and bear arms has justly been considered," Story
>wrote, "as the palladium of the liberties of a republic; since it
>offers a strong moral check against the usurpation and arbitrary power
>by rulers; and will generally, even if these are successful in the
>first instance, enable the people to resist and triumph over
>them."63
>
>        We also see this blending of individualist and collective
>accounts of the right to bear arms in remarks by Judge Thomas Cooley,
>one of the most influential 19th century constitutional commentators.
>Noting that the state might call into its official militia only "a
>small number" of the eligible citizenry, Cooley wrote that "if the
>right [to keep and bear arms] were limited to those enrolled, the
>purpose of this guaranty might be defeated altogether by the action or
>neglect to act of the government it was meant to hold in
>check."64  Finally, it is worth noting the remarks of Theodore
>Schroeder, one of the most important developers of the theory of
>freedom of speech early in this century.65  "[T]he obvious import [of
>the constitutional guarantee to carry arms]," he argues, "is to promote
>a state of preparedness for self-defense even against the invasions of
>government, because only governments have ever disarmed any
>considerable class of people as a means toward their
>enslavement."66
>
>        Such analyses provide the basis for Edward Abbey's revision of
> a common bumper sticker, "If guns are outlawed, only the government
> will have guns."67  One of the things this slogan has helped me to
> understand is the political tilt contained within the Weberian
> definition of the state -- i.e., the repository of a monopoly of the
> legitimate means of violence 68 -- that is so commonly used by
> political scientists. It is a profoundly statist definition, the
> product of a specifically German tradition of the (strong) state
> rather than of a strikingly different American political tradition
> that is fundamentally mistrustful of state power and vigilant about
> maintaining ultimate power, including the power of arms, in the
> populace.
>
>        We thus see what I think is one of the most interesting points
>in regard to the new historiography of the Second Amendment -- its
>linkage to conceptions of republican political order. Contemporary
>admirers of republican theory use it as a source of both critiques of
>more individualist liberal theory and of positive insight into the way
>we today might reorder our political lives.69  One point of emphasis
>for neo-republicans is the value of participation in government, as
>contrasted to mere representation by a distant leadership, even if
>formally elected. But the implications of republicanism might push us
>in unexpected, even embarrassing, directions; just as ordinary citizens
>should participate actively in governmental decision-making, through
>offering their own deliberative insights, rather than be confined to
>casting ballots once every two or four years for those very few
>individuals who will actually make the decisions, so should ordinary
>citizens participate in the process of law enforcement and defense of
>liberty rather than rely on professionalized peacekeepers, whether we
>call them standing armies or police.
>
>
>D. Structure
>
>
>        We have also passed imperceptibly into a form of structural
>argument, for we see that one aspect of the structure of checks and
>balances within the purview of 18th century thought was the armed
>citizen. That is, those who would limit the meaning of the Second
>Amendment to the constitutional protection of state-controlled militias
>agree that such protection rests on the perception that militarily
>competent states were viewed as a potential protection against a
>tyrannical national government. Indeed, in 1801 several governors
>threatened to call out state militias if the Federalists in Congress
>refused to elect Thomas Jefferson president.70  But this argument
>assumes that there are only two basic components in the vertical
>structure of the American polity--the national government and the
>states. It ignores the implication that might be drawn from the Second,
>Ninth, and Tenth Amendments; the citizenry itself can be viewed as an
>important third component of republican governance insofar as it stands
>ready to defend republican liberty against the depredations of the
>other two structures, however futile that might appear as a practical
>matter.
>
>        One implication of this republican rationale for the Second
>Amendment is that it calls into question the ability of a state to
>disarm its citizenry. That is, the strongest version of the republican
>argument would hold it to be a "privilege and immunity of United States
>citizenship"--of membership in a liberty-enhancing political order --
>to keep arms that could be taken up against tyranny wherever found,
>including, obviously, state government. Ironically, the principal
>citation supporting this argument is to Chief Justice [Roger] Taney's
>egregious opinion in Dred Scott,71  where he suggested that an
>uncontroversial attribute of citizenship, in addition to the right
>migrate from one state to another, was the right to possess arms. The
>logic of Taney's argument at the point seems to be that, because it was
>inconceivable that the Framers could have genuinely imagined blacks
>having the right to possess arms, it follows that they could not have
>envisioned them as being citizens, since citizenship entailed the
>right. Taney's seeming recognition of a right to arms is much relied on
>by opponents of gun control.72 Indeed, recall Madison's critique, in
>Federalist Numbers Ten and Fourteen, of republicanism's traditional
>emphasis on the desirability of small states as preservers of
>republican liberty. He transformed this debate by arguing that the
>states would be less likely to preserve liberty because they could so
>easily fall under the sway of a local dominant faction, whereas an
>extended republic would guard against this danger.  Anyone who accepts
>the Madisonian argument could scarcely be happy enhancing the power of
>the states over their own citizens; indeed, this has been one of the
>great themes of American constitutional history, as the nationalism of
>the Bill of Rights has been deemed necessary in order to protect
>popular liberty against state depredation.
>
>
>D. Doctrine
>
>
>   Inevitably one must at least mention, even though there is not space
>to discuss fully, the so-called incorporation controversy regarding the
>application of the Bill of Rights to the states through the Fourteenth
>Amendment. It should be no surprise that the opponents of gun control
>appear to take a "full incorporationist" view of that
>Amendment.73  They view the privileges and immunities clause, which was
>eviscerated in the Slaughterhouse Cases,74 as designed to require the
>states to honor the rights that had been held, by Justice Marshall in
>Barron v.  Baltimore in 1833,75 to restrict only the national
>government. In 1875 the Court stated, in United States v.
>Cruickshank,76 that the Second Amendment, insofar as it grants any
>right at all, "means no more than that it shall not be infringed by
>Congress.  This is one of the amendments that has no other effect than
>to restrict the powers of the national government..." Lest there be any
>remaining doubt on this point, the Court specifically cited the
>Cruickshank language eleven years later in Presser v.
>Illinois,77 in rejecting the claim that the Second Amendment served to
>invalidate an Illinois statute that prohibited "any body of men
>whatever, other than the regular organized volunteer militia of this
>State, and the troops of the United States....to drill or parade with
>arms in any city, or town, of this State, without the license of the
>Governor thereof..."78
>
>        The first "incorporation decision," Chicago, B & Q.R.Co.  v.
>Chicago,79 was not delivered until eleven years after
>Presser; one therefore cannot know if the judges in Cruickshank and
>Presser were willing to concede that any of the amendments comprising
>the Bill of Rights  were anything more than limitations on
>congressional or other national power. The obvious question, given the
>modern legal reality of the incorporation of almost all of the right s
>protected by the First, Fourth, Fifth, Sixth, and Eighth Amendments, is
>what exactly justifies treating the Second Amendment as the great
>exception. Why, that is, could Cruickshank and Presser be regarded as
>binding precedent any more than any of the other "pre-incorporation"
>decisions refusing to apply given aspects of the BIll of Rights against
>the states?
>
>        If one agrees with Professor Tribe that the Amendment is simply
>a federalist protection of state rights, then presumably there is
>nothing to incorporate.80  If, however, one accepts the Amendment as a
>serious substantive limitation on the ability of the national
>government to regulate the private possession of arms based on either
>the "individualist" or the "new-republican" theories sketched above,
>then why not follow the "incorporationist" logic applied to other
>amendments a nd limit the states as well in their powers to regulate
>(and especially to prohibit) such possession?  The Supreme Court has
>almost shamelessly refused to discuss the issue,81  but that need not
>stop the rest of us.
>
>        Returning, though, to the question of Congress' power to
>regulate the keeping and bearing of arms, one notes that there is,
>basically, only one modern case that discusses the issue, United States
>v. Miller,82 decided in 1939 . Jack Miller was charged with moving a
>sawed-off shotgun in interstate commerce in violation of the National
>Firearms Act of 1934. Among other things, Miller and a compatriot had
>not registered the firearm, as required by the Act. The court below ha
>d dismissed the charge, accepting Miller's argument that the Act
>violated the Second Amendment.
>
>        The Supreme Court reversed unanimously, with the arch-
>conservative Justice McReynolds writing the opinion.83 Interestingly
>enough, he emphasized that there was no evidence showing that a sawed-
>off shotgun "at this time has some reasonable relationship to the
>preservation or efficiency of a well regulated militia."84 And
>"[c]ertainly it is not within judicial notice that this weapon is any
>part of the ordinary military equipment or that its use could
>contribute t o the common defense."85 Miller might have had a tenable
>argument had he been able to show that he was keeping or bearing a
>weapon that clearly had a potential military use.86
>
>        Justice McReynolds went on to describe the purpose of the
>Second Amendment as "assur[ing] the constitution and render[ing]
>possible the effectiveness of [the militia].87  He contrasted the
>Militia with troops of a standing army, which the Constitution indeed
>forbade the states to keep without the explicit consent of Congress.
>The sentiment of the time strongly disfavored standing armies; the
>common view was that adequate defense of country and laws could be
>secured through the Militia -- civilians primarily, soldiers on
>occasion."88  McReynolds noted further that "the debates in the
>Convention, the history and legislation of Colonies and States, and the
>writings of approved commentators [all] [s]how plainly enough that the
>Militia comprised all males physically capable of acting in concert for
>the common defense."89
>
>        It is difficult to read Miller as rendering the Second
>Amendment meaningless as a control on Congress. Ironically,
>MIller can be read to support some of the most extreme anti-gun control
>arguments, e.g., that the individual citizen has a right to keep and
>bear bazookas, rocket launchers, and other armaments that are clearly
>relevant to modern warfare, including, of course, assault weapons.
>Arguments about the constitutional legitimacy of a prohibition by
>Congress of private ownership of handguns or, what is much more likely,
>assault rifles, might turn on the usefulness of such guns in military
>settings.
>
>
>E. Prudentialism
>
>
>        WE have looked at four of Bobbitt's categories -- text,
>history, structure, and case law doctrine -- and have seen, at the very
>least, that the arguments on behalf of a "strong" Second Amendment are
>stronger than many of us might wish were the case.  This, then, brings
>us up to the fifth category, prudentialism, or an attentiveness to the
>practical consequences, which is clearly of great importance in any
>debate about gun control. The standard argument in favor of strict
>control and, ultimately, prohibition of private ownership focuses on
>the extensive social costs of widespread distribution of firearms.
>Consider, for example, a recent speech given by former Justice Lewis
>Powell to the American Bar Association.He noted that over 40, 000
>murders were committed in the United States in 1986 and 1987, and that
>fully sixty percent of them were committed with firearms.90 Justice
>Powell indicated that "[w]ith respect to handguns," in contrast "to
>sporting rifles and shotguns [,] it is not easy to understand why the
>Second Amendment, or the notation of liberty, should be viewed as
>creating a right to own and carry a weapon that contributes so directly
>to the shocking number of murders in our society."91
>
>        It is hard to disagree with Justice Powell; it appears almost
>crazy to protect as a constitutional right something that so clearly
>results in extraordinary social cost with little, if any, compensating
>social advantage. Indeed, since Justice Powell's talk, the subject of
>assault rifles has become a staple of national discussion, and the
>opponents of regulation of such weapons have deservedly drawn the
>censure of even conservative leaders like William Bennett. It is almost
>impossible to imagine that the judiciary would strike down a
>determination by Congress that the possession of assault weapons should
>be denied to private citizens.
>
>        Even if one accepts the historical plausibility of the
>arguments advanced above, the overriding temptation is to say that
>times and circumstances have changed and that there is simply no reason
>to continue enforcing an outmoded, and indeed, dangerous, understanding
>of private rights against public order. This criticism is clearest in
>regard to the so-called individualist argument, for one can argue that
>the rise of a professional police force to enforce the law has made
>irrelevant, and perhaps even counter-productive, the continuation of a
>strong notion of self-help as the remedy for crime.92
>
>        I am not unsympathetic to such arguments. It is no purpose of
>this essay to solicit membership for the National Rifle Association or
>to express any sympathy for what even Don Kates, a strong critic of the
>conventional dismissal of the Second Amendment, describes as "the gun
>lobby's obnoxious habit of assailing all forms of regulation on 2nd
>Amendment grounds."93  And yet...
>        Circumstances may well have changed in regard to individual
>defense, although we ignore at our political peril the good faith
>belief of many Americans that they cannot rely on the police for
>protection against a variety of criminals. Still, l et us assume that
>the individualist reading of the Amendment has been vitiated by
>changing circumstances. Are we quite so confident that circumstances
>are equally different in regard to the republican rationale outlined
>earlier?
>
>        One would, of course, like to believe that the state, whether
>at the local or national level, presents no threat to important
>political values, including liberty. But our propensity to believe that
>this is the case may be little more than a sign of how truly different
>we are from our radical forbearers. I do not want to argue that the
>state is necessarily tyrannical; I am not an anarchist. But it seems
>foolhardy to assume that the armed state will necessarily be
>benevolent. The American political tradition is, for good or ill, based
>in large measure on a healthy mistrust of the state. The development of
>widespread suffrage and greater majoritarianism in our polity is itself
>no sure protection, at least within republican theory. The republican
>theory is predicated on the stark contrast between mere democracy,
>where people are motivated by selfish personal interest, and a
>republic, where civic virtue, both in common citizen and leadership,
>tames selfishness on behalf of the common good. In any event, it is
>hard for me to see how one can argue that circumstances have so changed
>us as to make mass disarmament constitutionally
>unproblematic.94
>
>        Indeed, only in recent months have we seen the brutal
>suppression of the Chinese student demonstrations in Tiananmen Square.
>It should not surprise us that some NRA sympathizers have presented
>that situation as an abject lesson to those who unthinkingly support
>the prohibition of private gun ownership. "[I]f all Chinese citizens
>kept arms, their rulers would hardly have dared to massacre the
>demonstrators... The private keeping of hand-held personal firearms is
>within the constitutional design for a counter to government run
>amok... As the Tianamen Square tragedy showed so graphically, AK 47's
>fall into that category of weapons, and that is why they are protected
>by the Second Amendment."95  It is simply silly to respond that small
> arms are irrelevant against nuclear armed states; Witness contemporary
> Northern Ireland and the territories occupied by Israel, where the
> sophisticated weaponry of Great Britain and Israel have proved almost
> totally beside the point. The fact that these may not be pleasant
> examples does not affect the principal point, that a state facing a
> totally disarmed population is in a far better position, for good or
> ill, to suppress popular demonstrations and uprisings than one that
> must calculate the possibilities of its soldiers and officials being
> injured or killed.96
>
>
>III. Taking the Second Amendment Seriously
>
>
>  There is one further problem of no small import; if one does accept
>the plausibility of any of the arguments on behalf of a strong reading
>of the Second Amendment, but, nevertheless, rejects them in the name of
>social prudence and the present -day consequences produced by finicky
>adherence to earlier understandings, why do we not apply such
>consequentialist criteria to each and every part of the Bill of
>Rights?97  As Ronald Dworkin has argued, what it meant to take rights
>seriously is that one will honor them even when there is significant
>social cost in doing so. If protecting freedom of speech, the rights of
>criminal defendants, or any other parts of the Bill of Rights were
>always (or even most of the time) clearly cost less to the society as a
>whole, it would truly be impossible to understand why they would be as
>controversial as they are. The very fact that there are often
>significant costs -- criminals going free, oppressed groups having to
>hear viciously racist speech and so on -- helps to account for the
>observed fact that those who view themselves as defenders of the Bill
>of Rights are generally antagonistic to prudential arguments.  Most
>often, one finds them embracing versions of textual, historical, or
>doctrinal arguments that dismiss as almost crass and vulgar any
>insistence that times might have changed and made too "expensive" the
>continued adherence to a given view. "Cost-benefit" analysis, rightly
>or wrongly, has come to be viewed as a "conservative" weapon to attack
>liberal rights.98  Yet one finds that the tables are strikingly turned
>when the Second Amendment comes into play. Here it is "conservatives"
>who argue in effect that social costs are irrelevant and "liberals" who
>argue for a notion of the "living Constitution" and "changed
>circumstances" that would have the practical consequence of removing
>any real bite from the Second Amendment.
>
>        As Fred Donaldson of Austin, Texas wrote, commenting on those
>who defended the Supreme Court's decision upholding flag-burning as
>compelled by a proper (and decidedly non-prudential) understanding of
>the First Amendment, "[I]t seems inconsistent for [defenders of the
>decision] to scream so loudly" at the prospect of limiting the
>protection given expression "while you smile complacently at the Second
>torn and bleeding. If the Second Amendment is not worth the paper it is
>written on, what price the First?"99  The fact that Mr.  Donaldson is
>an ordinary citizen rather than an eminent law professor does not make
>his question any less pointed or its answer less difficult.
>
>        For too long, most members of the legal academy have treated
>the Second Amendment as the equivalent of an embarrassing relative,
>whose mention brings a quick change of subject to other, more
>respectable,  family members. That will no longer d o. It is time for
>the Second Amendment to enter full scale into the consciousness of the
>legal academy. Those of us who agree with Martha Minow's emphasis on
>the desirability of encouraging different "voices" in the legal
>conversation100 should be especially aware of the importance of
>recognizing the attempts of Mr. Donaldson and his millions of
>colleagues to join the conversation. To be sure, it is unlikely that
>Professor Minow had those too often peremptorily dismissed as "gun nuts
>" in mind as possible providers of "insight and growth," but surely the
>call for sensitivity  to different or excluded voices cannot extend
>only those groups "we" already, perhaps "complacent[ly]," believe have
>a lot to tell "us."101  I am not so naive as to believe that
>conversation will overcome the chasm that now separates the sensibility
>of, say, Senator Hatch and myself as to what constitutes the "right[s]
>most valued by free men [and women]."102  It is important to remember
>that one will still need to join up sides and engage in vigorous
>political struggle.  But it might at least help to make the political
>sides appear more human to one another. Perhaps "we" might be led to
>stop referring casually to "gun nuts" just as, maybe, members of the
>NRA could be brought to understand the real fear that the currently
>almost uncontrolled system of gun ownership sparks in the minds of many
>whom they casually dismiss as "bleeding-heart liberals." Is not, after
>all, the possibility of serious, engaged discussion about political
>issues at the heart of what is most attractive in both liberal and
>republican versions of politics?
>
>
>
>
>FOOTNOTES
>
>1.  It is not irrelevant that the Bill of Rights submitted to the
>states in 1789 included not only what are now the first ten Amendments,
>but also two others, Indeed, what we call the First Amendment was only
>the third one of the list submitted to the states. The initial "first
>amendment" in fact concerned the future size of the House of
>Representatives, a topic of no small importance to the Anti-
>Federalists, who were appalled by the smallness of the House seemingly
>envisioned by the Philadelphia farmers. The second prohibited any pay
>raise voted by the members of Congress to themselves from taking effect
>until an election "shall have intervened." See J. Goebel, 1 The Oliver
>Wendell Holmes Devise History Of the Supreme Court OF the United
>States: antecedents and beginnings to 1801, at 442n.162 (1971). Had all
>of the initial twelve proposals been ratified, we would, it is
>possible, have a dramatically different cognitive map of the Bill of
>Rights. At the very least, one would neither hear defenses of the
>"preferred status" of freedom of speech framed in terms of the
>"firstness" of some special intention of the Framers to safeguard the
>particular rights laid out there.
>
>2.  "Congress shall make no law respecting an establishment of
>religion...or abridging the freedom of speech, or of the press; or of
>the right of the people to peaceably to assemble, and to petition the
>Government for a redress of grievances." U.S. Const. Amend. I
>
>3.       "The right of the people to be secured in their persons,
>houses, papers, and effects, against unreasonable searches and
>seizures, shall not be violated; and no Warrants shall issue but upon
>probable cause, supported by Oath or affirmation, a nd particularly
>describing the place to be searched, and the persons or things to be
>seized." U.S. Const. Amend. IV.
>
>4.       "No person shall be held to answer for a capital, or otherwise
> infamous crime, unless on a presentment of indictment of a Grand Jury,
> except in cases arising in the land or naval forces, or in the
> Militia, when in actual services in the time of War or public danger;
> nor shall any person be subject for the same offense to be twice put
> in jeopardy of life and limb; nor shall be compelled in any criminal
> case to be a witness against himself, nor be deprived of life,
> liberty, or property, without due process of law..." U.S. Const.
> Amend. V
>
>5.       "In all criminal prosecutions, the accused shall enjoy the
>right to a speedy and public trial, by an impartial jury of the State
>and district wherein the crime shall have been committed, which
>district shall have previously ascertained by la w, and to be informed
>of the nature and cause of the accusation; to be confronted with the
>witnesses against him; to have compulsory process for obtaining
>witnesses in his favor, and to have the Assistance of Counsel for his
>defense." U.S. Const. Amend. VI.
>
>6.       "Excessive bail shall not be required, nor excessive fines
>imposed, nor cruel and unusual punishments inflicted." U.S. Const.
>Amend. VIII.
>
>7.       "The enumeration in the Constitution, of certain rights, shall
>not be construed to deny or disparage others retained by the people."
>U.S. Const. Amend.IX.
>
>8.       "[N]or shall private property be taken for public use, without
>just compensation." U.S. Const. Amend. V.
>
>9.       "The powers not delegated to the United States by the
>Constitution, nor prohibited by it to the States, are reserved to the
>States respectively, or to the people." U.S. Const. Amend. X.
>
>10. "Congress shall make no law...prohibiting the free exercise thereof
>    [religion]..." U.S. Const. Amend. I.
>
>11. See supra note 8.
>
>12. See supra note 9.
>
>13. There are several law review articles discussing the Amendment.
>See, e.g. Lund, infra note 96, and the articles cited in Dowlut &
>Knoop, State Constitutions and the Right to Keep and Bear Arms, 7 Okla.
>U.L. Rev. 177, 178 n.3 (1982). See also the valuable symposium on Gun
>Control, edited by Don Kates, in 49 Law & Contemp. Probs. 1-267 (1986),
>including articles by Shallhope, The Armed Citizen in the Early
>Republic, at 125; Kates, The Second Amendment: A Dialogue, at 143;
>Halbrook, What the Framers Intended: A Linguistic Analysis of the Right
>to "Bear Arms," at 151. The symposium also includes a valuable
>bibliography of the published materials on gun control, including
>Second Amendment considerations, at 251-67. The most important single
>article is almost undoubtedly Kates, Handgun Prohibition and the
>Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204 (1983).
>Not the least significant aspect of Kates' article is that it is
>basically the only one to have appeared in an "elite" law review.
>However, like many of the authors of other Second Amendment pieces,
>Kates is a practicing lawyer rather than a legal academic. I think it
>is accurate to say 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. But see Larue,
>Constitutional Law and Constitutional History, 36 Buffalo L.Rev. 373,
>375-78 (1988)(briefly discussing Second Amendment). Akhil Reed Amar's
>reconsiderations of the foundations of the Constitution also promises
>to delve more deeply into the implications of the Amendment. See Amar,
>Of Sovereignty and Federalism, 96 Yale L.J. 1425, 1495-1500 (1987).
>Finally, there is one book that provides more in depth treatment of the
>Second Amendment: S. Halbrook, That Every Man Be Armed, The Evolution
>of a Constitutional Right (1984). George Fletcher, in his study of the
>Bernard Goetz case, also suggests that Second Amendment analysis not
>frivolous, though he does not elaborate the point. G. Fletcher, A Crime
>of Self-Defense 156-58, 210-11 (1988). One might well find this overt
>reference to "elite" law reviews and "major" writers objectionable, but
>it is foolish to believe that these distinctions do not exist within
>the academy, or more importantly, that we cannot learn about the
>sociology of academic discourse through taking them into account. No
>one can plausibly believe that the debates that define particular
>periods of academic discourse are a simple reflection of "natural"
>interest in the topic. Nothing helps an issue so much as its being
>taken up as an obsession by a distinguished professor from, say Harvard
>or Yale.
>
>14. One will search the "leading" casebooks in vain for any mention of
>the Second Amendment. Other than its being included in the text of the
>Constitution that all of the casebooks reprint, a reader would have no
>reason to believe that the Amendment exists or could possibly be of
>interest to the constitutional analyst. I must include, alas, P. Brest
>and S. Levinson, Processes of Constitutional Decisionmaking (2d ed.
>1983), within this critique, though I have every reason to believe that
>this will not be true of the forthcoming third edition.
>
>15. Larue, supra note 13, at 375.
>
>16. L. Tribe, American Constitutional Law (2d ed. 1988).
>
>17. J. Nowak, R. Rotunda,& J. Young, Constitutional Law (3d ed. 19860.
>
>18. For a brilliant and playful meditation on the way the legal world
>    treats footnotes and other marginal phenomena, see Balking,
>    The Footnote, 83 Nw. U. L. Rev. 275, 276-81 (1989).
>
>19. Tribe, supra note 16 at 299 n6.
>
>20. Id.; see also J. Ely, Democracy and Distrust 95 (1980) ("[T]he
>framers and ratifiers...opted against leaving to the future the
>attribution of [other] purposes, choosing instead explicitly to
>legislate the goal in terms of which the provision was to be
>interpreted.") As shall be seen below, see infra text accompanying note
>38, the preamble may be less plain in its meaning than Tribe's (and
>Ely's) confident argument suggests.
>
>21. J. Nowak, R. Rotunda & J. Young supra note 17, at 316n.4.  They do
>    go on to cite a spate of articles by scholars who have debated the
>    issue.
>
>22. Id, at 316 n. 4.
>
>23. U.S. Const. art. I Sec. 10
>
>24. U.S. Const. art. I sec. 9, cl. 8.
>
>25. See, e.g., Legislative Reference Serv., Library of Congress, the
>Constitution of the United States of America; Analysis and
>Interpretation 923 (1964), which  quotes the Amendment and then a
>comment from Miller, The Constitution 646 (1 893): "This amendment
>seems to have been thought necessary. It does not appear to have been
>the subject of judicial exposition; and it is so thoroughly with our
>ideas, that further comment is unnecessary." Cf. Engblom v.  Carey, 724
>F.2d 2 8 (2d Cir. 1983), affg 572 F. Supp. 44 (S.D.N.Y.  1983).
>Engblom grew out of a "statewide strike of correction officers, when
>they were evicted from their facility-residence...and members of the
>National Guard were housed in their residences without their consent."
>The district court had initially granted summary judgment for the
>defendants in a suit brought by the officers claiming a deprivation of
>their right under the Third Amendment. The Second Circuit, however,
>reversed on the ground that it could not "say that as a matter of law
>appellants were not entitled to the protection of the Third Amendment,"
>Engblom v. Carey, 677 F.2d 957, 964 (2d Cir.  1982). The District Court
>on remand held that, as the Third Amendment rights had not been clearly
>established at the time of the strike, the defendants were protected by
>a qualified immunity, and it is this opinion that was upheld by the
>Second Circuit. I am grateful to Mark Tushnet for bringing this case to
>my attention.
>
>26. See, e.g. The Firearms the Second Amendment Protects, N.Y. Times,
>June 9, 1988, at A22, col 2 (three letters); Second Amendment and Gun
>Control, L.A. Times, March 11, 1989, Part II, at 9 col 1. 1 (nine
>letters) ; What 'Right to Bear Arms'?, N.Y.  Times, July 20, 1989, at
>A23, col 1(national ed.)(op.  ed.  essay by Daniel Abrams); see also We
>Rebelled to Protect Our Gun Rights, Washington Times, July 20, 1989, at
>F2 col. 4.
>
>27. Fee Subcommittee on the Constitution of the Comm. on the Judiciary,
>    the Right to Keep and Bear Arms, 97th Cong., 2d Sess.  viii
>    (1982)(preface by Senator Orrin Hatch)[thereinafter  The Right to
>    Keep and Bear Arms].
>
>28. See supra notes 13-14.
>
>29. See Levinson, Constitutional Rhetoric and the Ninth Amendment, 64
>    Chi-Kent L.Rev. 131 (1988).
>
>30. P. Bobbit, Constitutional Fate (1982).
>
>31. Id. at 25-38.
>32. Id. at 9-24.
>33. Id. at 75-92.
>34. Id. at 39-58
>35. Id. at 59-73.
>36. Id. at 93-119.
>37. For the record, I should note that Bobbitt disagrees with this
> statement, making an eloquent appeal (in conversation) on behalf of
> the classic American value of self-reliance for the defense of oneself
> and, perhaps more importantly, one's family.  I certainly do not doubt
> the possibility of constructing an "ethical" rationale for limiting
> the state's power to prohibit gun ownership. Nonetheless, I would
> claim that no one unpersuaded by any of the arguments derived from the
> first five models would suddenly change his or her mind upon being
> presented with an "ethical" argument.
>
>38. Cf., e.g. the patents and copyrights clause, which sets out the
>power of Congress "[t]o promote the progress of Science and useful
>Arts, by securing for limited Times to Authors and Inventors the
>exclusive Right to their respective Writings and Discoveries." U.S.
>Const. art. I Sec. 8.
>
>39.For examples of this, see F. Schauer, Freedom of Speech: A
>Philosophical Enquiry (1982); Levinson, First Amendment, Freedom of
>Speech, Freedom of Expression: Does it Matter What We Call It? 80 Nw.
>U.L.Rev. 767 (1985)(reviewing M. Redish, Freedom of Expression: A
>Critical Analysis (1984)).
>
>40. ACLU Policy #47. I am grateful to Joan Mahoney, a member of the
>    national board of the ACLU, for providing me with a text of the
>    ACLU's current policy on gun control.
>
>41. Cress, An Armed Community: The Origins and Meaning of the Right to
>    Bear Arms, 71 J. Am. Hist. 22, 31 (1984).
>
>42. See U.S. Const. Amend. X.
>
>43. For a full articulation of the individualist view of the Second
> Amendment, see Kates Handgun Prohibition and the Original Meaning of
> the Second Amendment, 82 Mich. L. Rev. 204(1983). One can also find an
> efficient presentation of this view in Lund, infra note 96, at 117.
>
>44. Shallhope, The Ideological Origins of the Second
>    Amendment, 69 J. Am. Hist. 599 (1982).
>45. Id. at 614.
>
>46. See Daniel Boorstin's laconic comment that "the requirements for
>self-defense and food-gathering had put firearms in the hands of nearly
>everyone" in colonial America. D. Boorstin -- the Colonial Experience
>353 (1958). The beginnings of a professional police force in Boston are
>traced in R. Lane, Policing the City: Boston 1822-1855 (1967). Lane
>argues that as of the earlier of his two dates, "all the major eastern
>cities...had several kinds of officials serving various police
>functions, all of them haphazardly inherited from the British and
>colonial past. These agents were gradually drawn into better defined
>and more coherent organizations." Id. at 1. However, as Oscar Handlin
>points out in his introduction to the book, "to bring into being a
>professional police force was to create precisely the kind of hireling
>body considered dangerous by conventional political theory," Id. at
>vii.
>
>47. See Cress, supra note 41.
>
>48. 3 J. Elliott, Debates in the General State Conventions 425 (3d ed.
>    1937)(statement of George Mason, June 14, 1788), reprinted in
>    Kates, supra note 13, at 261 n. 51.
>
>49. Letters from the Federal Farmer to the Republican 123 (W. Bennett
>    e.1978)(ascribed to Richard Henry Lee), reprinted in Kates, supra
>    note 13 at 261 n. 51.
>
>50. Michelman, The Supreme Court 1985 Term -- Forward: Traces of Self
>    Government, 100 Harvard L. Rev. 4, 39 (1986)(Harrington is "pivotal
>    figure in the history of the 'Atlantic' branch of republicanism
>    that would find its way to America").
>
>51. Shallhope, supra note 44, at 602.
>
>52. Edmund Morgan discusses Harrington in his recent book, Inventing
>    the People 85-87 (1988)(analyzing notion of popular sovereignty in
>    American thought).
>53. Id. at 156.
>54. Id. at 157. Morgan argues incidentally, that the armed yeomanry was
>neither effective as a fighting force nor particularly protective of
>popular liberty, but that is another matter. For our purposes, the
>ideological perceptions are surely more important the "reality"
>accompanying them. Id. at 160-65.
>
>55. Blasi, The Checking Value in First Amendment Theory, 1977 A.  B.
>    Found. Res. J. 521.
>
>56. See Lund, infra note 96, at 111-116.
>
>57. Shallhope, supra note 44, at 603 (quoting 1755 edition of
>Cato's Letters). Shallhope also quotes from James Burgh, another
>English writer well known to American revolutionaries: "The possession
>of arms is the distinction between a freeman and a slave.  He, who has
>nothing, and who himself belongs to another, must be defended by him
>whose property he is, and needs no arms. But he, who thinks he is his
>own master, and has what he can call his own, ought to have arms to
>defend himself, and what he possesses; else he lives precariously; and
>at discretion." Id at 604. To be  sure, Burgh also wrote that only men
>of property should in fact comprise the militia: "A militia consisting
>of any others than the men of property in a country, is no militia; but
>a mungrel army." Cress, supra note 41, at 27 (emphasis in
>original)(quoting J. Burgh, 2 Political Disquisitions: or An Enquiry
>Into Public Errors, Defects, and Abuses (1774-75)).  Presumably,
>though, the widespread distribution o f property would bring with it
>equally widespread access to arms and membership in the militia.
>
>58. See Cress, supra note 41, at 34.
>
>59. The Federalist No. 46 at 299 (J. Madison)(C. Rossiter ed. 1961).
>
>60. Letters from the Federal Farmer to the Republican 124 (W. Bennett
>    ed. 1978).
>
>61. 3 J. Story, Commentaries Sec. 1890 (1833) quoted in 5 The Founders'
>    Constitution 214 (P. Kurland & R. Lerner eds. 1987).
>
>62. Id.
>
>63. Id. Lawrence Cress, despite his forceful of Shallhope's
>individualists rendering of the Second Amendment, nonetheless himself
>notes "[t]he danger posed by manipulating demagogues, ambitious rulers,
>and foreign invaders to free institutions required the vigilance of
>citizen-soldiers cognizant of the common good." Cress, supra note 41,
>at 41 (emphasis added).
>
>64. T. Cooley, The General Principles of Constitutional Law in The
>United States of America 298 (3d ed. 1898): "The Right of the People to
>bear arms in their own defense, and to form and drill military
>organizations in defense of the State, may not b e very important in
>this country, but it is significant as having been reserved by the
>people as a possible and necessary resort for the protection of self-
>government against usurpation, and against any attempt on the part of
>those who may for the time be in possession of State authority or
>resources to set aside the constitution and substitute their own rule
>for that of the people. Should the contingency ever arise when it would
>be necessary for the people to make use of the arms in their hands for
>the protection of constitutional liberty, the proceeding, so far from
>being revolutionary, would be in strict accord with popular right and
>duty. Cooley advanced this same idea in The Abnegation of Self-
>Government, 12 Princeton Rev.  213-14 (1883).
>
>65. See Rabban, The First Amendment in Its Forgotten Years, 90 Yale
>L.J. 514, 560 (1981) ("[P]rodigious theoretical writings of Theodore
>Schroeder...were the most extensive and libertarian treatments of
>freedom of speech in the prewar period"); see also Graber, Transforming
>Free Speech (forthcoming 1990)(manuscript at 4-12; on file with
>author).
>
>66. T. Schroder, Free Speech for Radicals 104 (reprint ed. 1969).
>
>67. Shalhope, supra note 44, at 45.
>
>68. See M. Weber, The Theory of Social and Economic Organization 156
>(T. Parsons ed. 1947), where he lists among "[t]he primary formal
>characteristics of the modem state" the fact that: "to-day, the use of
>force is regarded as legitimate only so far as it is either permitted
>by the state or prescribed by it... The claim of the modern state to
>monopolize the use of force is as essential to it as its character of
>compulsory jurisdiction and continuous organization."
>
>69. See, e.g., Symposium: The Republican Civil Tradition, 97 Yale L.J.
>    1493-1723 (1988).
>
>70. See D. Malone, 4 Jefferson and His Times: Jefferson the President:
>First Term, 1801-1805, AT 7-11 (1970)(republican leaders ready to use
>state militias to resist should lame duck Congress attempt to violate
>clear dictates of Article II by designating someone other than Thomas
>Jefferson as President in 1801).
>
>71. Scott v. Sanford  60 U.S. (19 How.) 393,417 (1857).
>
>72. See, e.g., Featherstone, Gardiner & Dowlut, The Second Amendment to
>    the United States Constitution Guarantees and Individual Right to
>    Keep and Bear Arms, supra note 27, at 100.
>
>73. See, e.g..., Halbrook, The Fourteenth Amendment and the Right to
>Keep and Bear Arms: The Intent of the Framers, in The Right to Keep and
>Bear Arms, supra note 27, at 79. Not the least of the ironies observed
>in the debate about the Second Amendment is that NRA conservatives like
>Senator Hatch could scarcely have been happy with the wholesale attack
>leveled by former Attorney General Meese on the incorporation doctrine,
>for here is one area where some "conservatives" may in fact b e more
>zealous adherents of that doctrine than are most liberals, who, at
>least where the Second Amendment is concerned, have a considerably more
>selective view of incorporation.
>
>74. 83 U.S. 36 (1873).
>
>75. 32 U.S. (7 Pet.)243 (1833).
>
>76. 92 U.S. 542, 553 (1875).
>
>77. 116 U.S. 252, 267 (1886). For a fascinating discussion of
>    Presser,  see Larue, supra note 13, at 386-90.
>
>78. 116 U.S. at 253. There is good reason to believe that this statute,
>passed by the Illinois legislature in 1879, was part of an effort to
>control (and indeed, suppress) widespread labor unrest linked to the
>economic troubles of the time. For the background of the Illinois
>statute, see P. Avrich, The Haymarket Tragedy 45 (1984): "As early as
>1875, a small group of Chicago socialists, most of them German
>immigrants, had formed an armed club to protect the workers against
>police and military assaults, as well as against physical intimidation
>at the polls. In the eyes of its supporters...the need for such a group
>was amply demonstrated by the behavior of the police and [state-
>controlled] militia during the Great Strike of 1877, a national protest
>by labor triggered by a ten percent cut in wages by the Baltimore and
>Ohio Railroad, which included the breaking up of workers' meetings, the
>arrest of socialist leaders, [and] the use of club, pistol and bayonet
>against strikers and their supporters...Workers...were resolved never
>again to be shot and beaten without resistance. Nor would the stand
>idly by while their meeting places were invaded or their wives and
>children assaulted. The were determined , as Albert Parsons [a leader
>of the anarchist movement in Chicago] expressed it, to defend both
>'their persons and their rights.'"
>
>79. 166 U.S. 226 (1897) (protecting rights of property owners by
>    requiring compensation for takings of property).
>
>80. My colleague Douglas Laycock has reminded me that a similar
>argument was made by some conservatives in regard to the establishment
>clause of the First Amendment. Thus, Justice Brennan noted that "[i]t
>has been suggested, with some support in history, that absorption of
>the First Amendment's ban against congressional legislation 'respecting
>an establishment of religion' is conceptually impossible because the
>Framers meant the Establishment Clause also to foreclose any attempt by
>Congress to disestablish the official state churches." Abington School
>District v. Schempp, 374 U.S. 203, 254 (1963) (Brennan, J., concurring)
>(emphasis added). According to this reading, it would be illogical to
>apply the establishment clause against the states "because that clause
>is not one of the provisions of the Bill of Rights which in terms
>protects a 'freedom' of the individual," id. at 256, inasmuch as it is
>only a federalist protection of states against a national establishment
>(or disestablishment). "The fallacy in this contention," responds
>Brennan, "is that it underestimates the role of the Establishment
>Clause as a co-guarantor, with the Free Exercise Clause, of religious
>liberty." Id. Whatever the sometimes bitter debates about the precise
>meaning of "establishment," it is surely the case that Justice Brennan,
>even as he almost cheerfully concedes that at one point in our history
>the "states-right" reading of the establishment clause would have been
>thoroughly plausible, expresses what has become the generally accepted
>view as to the establishment clause being some kind of limitation on
>the state as well as on the national government. One may wonder whether
>the interpretive history of the establishment clause might have any
>lessons for the interpretation of the Second Amendment.
>
>81. It refused, for example, to review the most important modern gun
>control case, Quilici v. Village of Morton Grove, 695 F. 2d 261 (7th
>Cir. 1982), cert. denied, 464 U.S. 863 (1983), where the Seventh
>Circuit Court of Appeal s upheld a local ordinance in Morton Grove,
>Illinois, prohibiting the possession of handguns within its borders.
>
>82. 307 U.S. 174 (1939.
>
>83. Justice Douglas, however, did not participate in the case.
>
>84. Miller, 307 U.S. at 178.
>
>85. Id. at 178 (citation omitted).
>
>86. Lund notes that "commentators have since demonstrated that sawed-
>    off or short barrelled shotguns are commonly used as military
>    weapons." Lund, infra note 96, at 109.
>
>87. 307 U.S. at 178.
>
>88. Id. at 179.
>
>89. Id.
>
>90. L. Powell, Capital Punishment, Remarks Delivered to the Criminal
>    Justice Section, ABA 10 (Aug 7, 1988).
>
>91. Id. at 11.
>
>92. This point is presumably demonstrated by the increasing public
>    opposition of police officials to private possession of handguns
>    (not to mention assault rifles).
>
>93. D. Kates, Minimalist Interpretation of the Second Amendment 2
>    (draft Sept. 29, 1986) (unpublished manuscript available from
>    author).
>
>94. See Lund, supra note 96, at 116.
>
>95. Wimmershoff-Caplan, The Founders and the AK-47,
>Washington Post, July 6, 1989, at A18, col. 4, reprinted as Price of
>Gun Deaths Small Compared to Price of Liberty, Austin-American
>Statesman, July 11, 1989, at A11. Ms. Wimmershoff-Caplan is identified
>as a "lawyer in New York" who is "a member of the National Board of the
>National Rifle Association." Id. One of the first such arguments in
>regard to the events in Tianamen Square was made by William A. Black in
>a letter, Citizens Without Guns, N.Y.  Times, June 18, 1989, at D26,
>col. 6. Though describing himself as "find[ing] no glory in guns [and]
>a profound anti-hunter," he nonetheless "stand[s] with those who would
>protect our right to keep and bear arms" and cited for support the fact
>that "none [of the Chinese soldiers] feared bullets: the citizens of
>China were long ago disarmed by the Communists." "Who knows," he asks,
>"what the leaders and the military and the police of our America will
>be up to at some point in the future? We need an armed citizenry to
>protect our liberty." As one might expect, such arguments draw heated
>responses.  See Rudlin, The Founders and the AK-47 (Cont'd) Washington
>Post, July 20, 1989 at A22, col 3.  Jonathan Rudlin accused Ms.
>Wimmershoff-Caplan of engaging in Swiftian satire, as no one could
>"take such a brilliant burlesque seriously." Neal Knox, however,
>endorsed her essay in full, adding the Holocaust to the list of
>examples: "Could the Holocaust have occurred if Europe's Jews had owned
>thousands of then-modern military Mauser bolt action rifles?" See also,
>Washington Post, July 12, 1989, at A22, for other letters.
>
>96.  See Lund, The Second Amendment, Political Liberty, and the Right
>to Self-Preservation, 39 Ala. L. Rev. 103 (1987) at 115: "The decision
>to use military force is not determined solely by whether the
>contemplated benefits can be successfully obtained through the use of
>available forces, but rather determined by the ratio of those benefits
>to the expected costs. It follows that any factor increasing the
>anticipated cost of a military operation makes the conduct of that
>operation incrementally more unlikely. This explained why a relatively
>poorly armed nation with a small population recently prevailed in a war
>against the United States, and it explains why governments bent on the
>oppression of their people almost always disarm the civilian population
>before undertaking more drastically oppressive measures." I should note
>that I wrote (and titled) this article before reading Lund's article,
>which begins, "The Second Amendment to the United States Constitution h
>as become the most embarrassing provision of the Bill of Rights." I did
>hear Lund deliver a talk on the Second Amendment at the University of
>Texas Law School during the winter of 1987, which may have penetrated
>my consciousness more than I realized while drafting this article.
>
>97. See D. Kates, supra note 93, at 24-25 n. 13, for a discussion of
>    this point.
>
>98. See, e.g., Justice Marshall's dissent, joined by Justice Brennan,
>in Skinner v. Railway Labor Executive Association, 109 S.  Ct.  1402,
>(1989) upholding the government's right to require drug tests of
>railroad employees following accidents. It begins with his chastising
>the majority for "ignor[ing] the text and doctrinal history of the
>Fourth Amendment, which require that highly intrusive searches of this
>type be based on probable cause, not on the evanescent cost-benefit
>calculations of agencies or judges," id. at 1423, and continues by
>arguing that "[t]he majority's concern with the railroad safety
>problems caused by drug and alcohol abuse is laudable; its cavalier
>disregard for the Constitution is not. There is no drug exception to
>the Constitution, any more than there is a communism exception or an
>exception for other real or imagined sources of domestic unrest." Id.
>at 1426.
>
>99. Donaldson, Letter to Editor, Austin America-Statesman, July 8,
>    1989, at A19, col. 4.
>
>100. See Minow, The Supreme Court 1986 Term -- Foreword: Justice
>Engendered  101 Harv. L. Rev. 1074-90 (1987). "We need settings in
>which to engage in the clash of realities that breaks us out of settled
>and complacent meanings and create s opportunities for insight and
>growth." Id. at 95; see also Getman, Voices, 66 Tex. L. Rev. 577
>(1988).
>
>101. And, perhaps more to the point, "you" who insufficiently listen to
>     "us" and to "our" favored groups.
>
>102. See supra note and accompanying text.
>
>
>Transcribed by
>
>Chris Crobaugh
>30460 Otten Rd.
>N. Ridgeville, Ohio 44039
>(216) 327-6655
>
>Lorain County Firearms Defense Association
>Ohio Constitution Defense Council
> 
>
>-- 
>bb063@Cleveland.Freenet.Edu  Chris Crobaugh - (216) 327-6655 (V)
>"Those who would sacrifice essential liberties for a little 
>temporary safety deserve neither liberty nor safety." B. Franklin
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