Guns, Extremists, and the Constitution

A great deal has been written about the Second Amendment in the last two decades.1 The result is a body of work that illuminates the historical context in which the Second Amendment was adopted and enriches our theoretical understanding of its meaning. The historical and the theoretical works are divided into two camps. Some historians argue that revolutionary America was a culture in which every able bodied, adult free man was expected to possess a firearm, ready and equipped for use, if necessary, in defense of the community. However, that expectation was often more empty ideal than reality.2 Other historians contend that America in the eighteenth and early nineteenth centuries was not characterized by anything close to universal gun ownership, even among healthy, adult free men, and that firearms were prohibited to many people in this American society.3 The theoretical divide derives from and mimics the historical cleavage. One camp of theorists argues that the Second Amendment protects an individual right to gun ownership, relying for that conclusion on a variety of historical sources, structural arguments, and doctrinal nuggets extracted from a very sparse lode.4 The other group, sometimes described as "militia-centric,"5 contends that the Second Amendment protects only a collective right to defend the community and definitely does not include any individual right to gun ownership or to gun possession.6 A relatively lonely middle ground is occupied by those, most notably Robert Shalhope, who argue that the Second Amendment was created to secure both an "individual right to possess arms and the right of the states to form their own militia."7 The passions engendered by firearms possession are volcanic and occasionally color clear and objective judgment. Intemperate partisans of gun abolition have attacked individual rights theorists as dishonest tools of the gun lobby.8 Over-zealous champions of the individual rights point of view have uttered such outrageous nonsense as claiming that the Second Amendment "isn't about hunting ducks; it's about hunting politicians."9 There is, however, a genuine debate within these polar extremes. Individual rights theorists have marshaled an impressive array of early sources ranging across the Federalist and Anti-Federalist divide, including localists such as St. George Tucker and national fists such as Joseph Story, all for the purpose of supporting their contention that the founding generation was in agreement that there existed an individual right to possess arms.10 This reading of history has come under sharp attack from historians, who contend that it ignores the heterogeneity of early American political culture, commits the sin of anachronism by assuming that the framers shared our world views and that the framers' language meant to them what it means to us, and overlooks critical aspects of how the founding generation actually behaved with respect to private firearms possession.11 Each camp has it partly right. There is a great deal of evidence suggesting that the founding generation regarded firearms possession as an individual right.12 But that right was hardly unqualified. The historians critical of the individual rights thesis amply demonstrate the ways in which early Americans freely circumscribed the individual right to possess firearms in the interest of securing what was thought to be the public good. The historical objections to the individual rights thesis do not, however, destroy the validity of the individual rights point of view. Firearms possession in early America generally was limited to loyal members of the civil polity, essentially the electorate exclusive of criminals and the disloyal - those whose possession of firearms would pose a danger to public safety and political stability.13 The fact that early America barred large portions of the population from firearms possession - women, Indians, slaves, the propertyless - serves only to prove that the scope of the individual right to arms was limited to those who composed the civil polity. …