The Second Amendment

by Michael Waldman

  “give to the Government”: From James Madison to Thomas Jefferson, December 8, 1788. Founders Online, National Archives, http://founders.archives.gov/documents/Jefferson/01-14-02-0119, ver. 2013-09-28; source: The Papers of Thomas Jefferson, vol. 14, 8 October 1788–26 March 1789, ed. Julian P. Boyd (Princeton: Princeton University Press, 1958), 339–42.

  White Southern Baptists: For a full discussion of the Virginia Baptists and their role as pioneering religious dissidents, see Steven Waldman, Founding Faith: Providence, Politics and the Birth of Religious Freedom in America (New York: Random House, 2008), 100–106. Before the Revolution, the Episcopalians were known as Anglicans.

  Madison wrote a missive: James Madison to George Eve, January 2, 1789, Founders Online, National Archives, http://founders.archives.gov/documents/Madison/01-11-02-0297, ver. 2013-08-02; source: The Papers of James Madison, vol. 11, 7 March 1788–1 March 1789, ed. Robert A. Rutland and Charles F. Hobson (Charlottesville: University of Virginia Press, 1977), 404–6.

  “read-my-lips pledge”: Waldman, Founding Faith, 143.

  he won by 336 votes: Chris DeRose, Founding Rivals: Madison vs. Monroe, the Bill of Rights, and the Election That Saved a Nation (Washington, D.C.: Regnery, 2011), 246.

  George Washington’s de facto prime minister: Stuart Leibiger, Founding Friendship: George Washington, James Madison, and the Creation of the American Republic (Charlottesville: University of Virginia Press, 1999), 97–123.

  “the nauseous project”: James Madison letter to Richard Peters, August 19, 1789, in Papers of James Madison, 346–47. Richard Labunski argues that the gastric metaphor responds to a letter from Peters, which described the process as one with many cooks adding ingredients. Peters called Madison’s foes the “Anti-Soupites.” Perhaps. The metaphor is strikingly queasy nonetheless.

  “if we must have amendments”: Bowling, “ ‘A Tub to the Whale,’ ” 233.

  “Like a barrel thrown to the whale”: [Samuel Bryan], “Centinel NO. 19,” (Philadelphia) Independent Gazetteer, October 7, 1788, quoted in ibid.

  easy way to get under Madison’s skin: Charlene Bangs Bickford and Kenneth R. Bowling, Birth of the Nation: The First Federal Congress, 1789–1791 (Washington, D.C.: First Federal Congress Project/George Washington University, 1989), 53.

  “The storm has abated”: Representative John Vining’s speech is in Schwartz, ed., The Bill of Rights, II, 1022.

  Madison rose to speak again: Ibid., 1016–34.

  “It strikes me”: Ibid.

  His lengthy, clotted speech: Ibid.

  “it may occasion suspicions”: Ibid., 1019.

  “to quiet that anxiety”: Ibid., 1021.

  Faced with strenuous calls: This point is well made by Paul Finkelman, “It Really Was About a Well Regulated Militia,” Syracuse Law Review 59 (2008): 267.

  “There have been objections”: Schwartz, ed., The Bill of Rights, II, 1021.

  “The right of the people”: Ibid., 1026.

  His notes for his talk: A photograph of Madison’s original notes is available at www.loc.gov/exhibits/madison/images/vc11.jpg.

  “No state”: Schwartz, ed., The Bill of Rights, II., 1027.

  “the most valuable amendment”: Madison’s statement was made during the debate of August 17, 1788. Ibid., 1113.

  “Mr. Madison has introduced”: Ames added, “Upon the whole, it may do good towards quieting men who attend to sounds only, and may get the mover some popularity—which he wishes.” Fisher Ames to Theodore Dwight (June 11, 1789), in Helen E. Veit, Kenneth R. Bowling, and Chalene Bangs Bickford, eds., Creating the Bill of Rights: The Documentary Record from the First Federal Congress (Baltimore: Johns Hopkins University Press, 1991), 247. Veit et al. translate the Latin to read “could you forbear the laughter of a friend.”

  “As civil rulers”: Federal Gazette, June 18, 1789, at 2, col. 1. Some attribute significant influence to Coxe’s views. See Stephen Halbrook and David Kopel, “Tench Coxe and the Right to Keep and Bear Arms,” William and Mary Bill of Rights Journal 7 (1999): 347–400. Coxe was indeed a well-known Federalist. Madison replied to him, “it is much to be wished that the discontented part of our fellow Citizens could be reconciled to the Government they have opposed, and by means as little as possible unacceptable to those who approve the Constitution in its present form. The amendments proposed in the House of Representatives had this twofold object in view.” Madison’s note reads like the polite reply of a busy man who has been sent a newspaper clipping by an ardent supporter. Letter from James Madison to Tench Coxe, 24 June 1789, Founders Online, National Archives, http://founders.archives.gov/documents/Madison/01-12-02-0158, ver. 2013-08-02; source: The Papers of James Madison, vol. 12, 2 March 1789–20 January 1790 and supplement 24 October 1775–24 January 1789, ed. Charles F. Hobson and Robert A. Rutland (Charlottesville: University of Virginia Press, 1979), 257–58. Glenn Harlan Reynolds asserts that “Madison endorsed” Coxe’s view of the Second Amendment. Madison’s vague response hardly supports that idea. More, as Garry Wills points out, Madison’s bland reply “does not mean that he agreed with Coxe’s un-Madisonian reduction of the First Amendment to restrain only ‘self-righteous’ and ‘impious’ religions. Madison no more endorsed Coxe’s construction of the Second Amendment than he did this view of the First.” Sanford Levinson, David C. Williams, Glenn Harlan Reynolds, and John K. Lattimer, reply by Garry Wills, “To Keep and Bear Arms: An Exchange,” New York Review of Books, November 16, 1995, www.nybooks.com/articles/archives/1995/nov/16/to-keep-and-bear-arms-an-exchange/.

  The panel subtly altered the militia amendment: Veit, Bowling, and Bickford, eds., Creating the Bill of Rights, 38.

  Elbridge Gerry was quick to his feet: Schwartz, ed., The Bill of Rights, II, 1107–8.

  the language should be confined to people: House of Representatives, Amendments to the Constitution 17, 20 August 1789, Annals 1: 749–52, 766–67 (Amendment 2).

  requiring a conscientious objector to hire someone: Schwartz, ed., The Bill of Rights, II, 1108.

  Roger Sherman of Connecticut cut this down: Ibid.

  “the benevolence of the legislature”: Ibid., 1109.

  The House narrowly voted to retain: Ibid.

  “the uncertainty with which it is expressed”: Ibid.

  He “could not help himself”: Ibid.

  “a militia can never be depended upon”: Ibid., 1126.

  Twelve congressmen joined the debate: This point is made in Uviller and Merkel, The Militia and the Right to Arms, 102–3.

  The president had written a letter: George Washington to James Madison (circa May 31, 1789), The Papers of George Washington Digital Edition, ed. Theodore J. Crackel (Charlottesville: University of Virginia Press, Rotunda, 2008), http://rotunda.upress.virginia.edu/founders/GEWN-05-02-02-0305. Madison’s use of the letter is described in Bowling, “ ‘A Tub to the Whale,’ ” 223–42.

  Tantalizing reports leaked: John Randolph. “Letter to St. George Tucker,” September 11, 1789, in Veit, Bowling, and Bickford, eds., Creating the Bill of Rights, 293. Also available at http://consource.org/document/john-randolph-to-st-george-tucker-1789-9-11/20130122080032/.

  “for the common defence”: Schwartz, ed., The Bill of Rights, II, 1154.

  “It is amazing”: Ibid., 1171.

  none concern the amendment: Ibid., 1171–1204.

  Jefferson made his laconic announcement: Ibid.,1203.

  “Understanding this aspect of the politics”: Jack N. Rakove, “The Second Amendment: The Highest Stage of Originalism,” in Carl T. Bogus, ed., The Second Amendment in Law and History: Historians and Constitutional Scholars on the Right to Bear Arms (New York: New Press, 2001), 96.

  “The right of individuals to be armed”: Malcolm, To Keep and Bear Arms, 134.

  Some background is in order: For an interpretation that differs starkly from Malcolm’s, see Lois G. Schwoerer, “To Hold and Bear Arms: The English Perspective,” Chicago-Kent Law Review 76 (259): 30–48; “Brief for English/Early
American Historians as Amicus Curiae in Support of Respondents,” McDonald v. City of Chicago, www.americanbar.org/content/dam/aba/publishing/preview/publiced_preview_briefs_pdfs_09_10_08_1521_RespondentAmCuEnglishHistoriansnew.authcheckdam.pdf.

  “That the subjects which are Protestants”: The English Bill of Rights is available at http://avalon.law.yale.edu/17th_century/england.asp.

  “savours of the politics to arm the mob”: Schwoerer, “To Hold and Bear Arms,” 51.

  James Madison’s notes: Madison’s handwritten notes for his June 8 speech are displayed, in digital form, at www.loc.gov/exhibits/madison/images/vc11.jpg.

  Law professor David Yassky: Amicus brief filed on behalf of fifty-two historians in United States v. Emerson, U.S. Court of Appeals, Fifth Circuit, September 3, 1999, available at www.potowmack.org/yass.html#amici. A polymath, Yassky would later serve as an elected official in New York City, as well as its ubiquitous taxi and limousine commissioner.

  the opening clause: For a discussion of the significance of explanatory clauses in eighteenth-century law, and its relevance to “popular constitutionalism,” see Thomas Konig, “Why the Second Amendment Has a Preamble: Original Public Meaning and the Political Culture of Written Constitutions in Revolutionary America,” U.C.L.A. Law Review 56 (2009): 1295. Konig notes that in the eighteenth century, preambles were considered legally binding, and controlled the narrower language that followed. For example, as Vice President Thomas Jefferson compiled the Manual of Parliamentary Practice, he urged legislators to draft and vote on the preambles last, since they controlled the meaning of the rest. Ibid., 1130. Another scholar, Paul Finkelman, argues that a compelling preamble was especially necessary for this amendment, given the Anti-Federalists’ fear of a standing army. Finkelman, “It Really Was About a Well Regulated Militia,” 267. But see Eugene Volokh, “The Commonplace Second Amendment,” N.Y.U. Law Review 73 (1998): 793. Volokh, a libertarian supporter of gun rights, concedes that the Second Amendment is the only one in the U.S. Constitution to have a statement of purpose. In his research, he found numerous provisions in state constitutions with preambles. It stood out in the Bill of Rights, but was an everyday method of drafting, he argues. So the preamble’s presence here does not connote an intent to modify or limit the right-recognizing clauses.

  John Jay wrote: Jones v. Walker, 13 F. Cas. 1059, 1065 (C.C.D. Va. n.d.) (no. 7507), reprinted in Maeva Marcus, The Documentary History of the Supreme Court of the United States 1789–1800 (New York: Columbia University Press, 2004), 301.

  the Framers’ familiarity with Latin: See “The Second Amendment: Our Latinate Constitution,” Linguistics Research Center, University of Texas at Austin, December 26, 2012, http://blogs.utexas.edu/lrc/2012/12/26/the-second-amendment-our-latinate-constitution/; Mark Liberman, “The New Yorker Finds the U.S. Constitution Ungrammatical,” “Language Log” (blog), December 18, 2012, http://langugelog.ldc.upenn.edu/nll/?p=4378. For Second Amendment legal advocates and scholars on the same topic, see Volokh, “The Commonplace Second Amendment,” 793.

  the only one of the ten in the Bill of Rights that has an explanatory clause: Richard Epstein, “A Structural Interpretation of the Second Amendment: Why Heller is (Probably) Wrong on Originalist Grounds,” Syracuse Law Review 59 (2008–2009): 171. Epstein, a prominent libertarian, writes:

  Let us start with the introductory clause. Does its choice of words make any difference? Thus, suppose it said, “A healthy wildlife population, being necessary to the security of homes and farms, the right of the people to keep and bear arms shall not be infringed.” The evident disjunction is that the two clauses have no relationship between them. But the Second Amendment coheres in part because there does seem to be a logical connection between the end stated in the first clause and the means chosen in the second.

  Many modern readers: Entries in the Oxford English Dictionary from the 1700s for “regulation” include usage such as “If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations,” from 1709.

  In the Articles of Confederation: “No vessel of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the United States in Congress assembled, for the defense of such State, or its trade; nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the United States in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of filed pieces and tents, and a proper quantity of arms, ammunition and camp equipage.” Articles of Confederation, sec. 6, par. 4.

  In that contentious session: DHRC X, June 14, 1788; also available at www.constitution.org/rc/rat_va_12.htm.

  Some find this: Those arguing that the Second Amendment recognizes an individual right produced a massive array of articles. (See the full discussion of this in Chapter Five.) For a sample of this perspective, see Stephen Halbrook, “The Jurisprudence of the Second and Fourteenth Amendments,” George Mason Law Review 4 (1981): 1; Stephen Halbrook, “To Keep and Bear Their Private Arms: The Adoption of the Second Amendment, 1787–1791” Northern Kentucky Law Review 10 (1982): 13; Don Kates, “The Second Amendments and the Ideology of Self-Protection,” Constitutional Commentary 9 (1992): 87; David T. Hardy, “Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment” Harvard Journal of Law and Public Policy 9 (1986): 559; Nelson Lund, “The Second Amendment, Political Liberty and the Right to Self-Preservation,” Alabama Law Review 39 (1987): 103; and Stephen Halbrook, “Personal Security, Personal Liberty, and ‘the Constitutional Right to Bear Arms’: Visions of the Framers for the Fourteenth Amendment” Seton Hall Constitutional Law Journal 5 (1995): 341.

  The official records of the time: David Yassky, “The Second Amendment: Structure, History, and Constitutional Change,” Michigan Law Review 99 (2000): 618.

  Another scholar looked at databases: See Nathan Kozuskanich, “Originalism in a Digital Age: An Inquiry into the Right to Bear Arms,” Journal of the Early Republic 29 (2009): 586–88.

  A search for the phrase “bear arms”: http://founders.archives.gov/.

  a last vestige of “civic republicanism”: David C. Williams notes, “[The] Anti-Federalist framers of the Second Amendment may not have thought consciously about whether they were relying on liberal or republican rights of revolution. Indeed, they may have relied on both rights without worrying about inconsistency. But in context, their primary loyalty seems clear. They self-consciously cast themselves as defenders of the War for Independence, a revolution made for republican principles. They gave the right to bear arms to a militia—a sacred concept in the republican tradition but one that [John] Locke does not even mention.” Williams, “Civic Republicanism and the Citizen Militia,” 584. Williams believes that the militias were designed with an insurrectionist purpose—to provide a military check on central power. Uviller and Merkel, too, argue that the militia amendment was “too wedded to the ancient, mixed, and balanced Constitution, too steeped in English political history to make an easy transition into a universal ‘rights’ framework. . . . The right to arms differs from its now individualistic companions . . . because it never escaped its heritage as a corporate entitlement belonging to individuals only because they were members of a group.” Uviller and Merkel, The Militia and the Right to Arms, 164.

  CHAPTER FOUR: ARKANSAS TOOTHPICKS, BEECHER’S BIBLES, AND THE FOURTEENTH AMENDMENT

  began to crumble: See generally Cunliffe, Soldiers and Civilians, 205–12. John Mahon, on the other hand, argues that the militia was strong—if decentralized—before the War of 1812. See Mahon, History of the Militia and the National Guard, 54–55.

  George Washington convened his cabinet: The first president’s reaction to congressional investigations into the St. Clair episode is describe
d in Louis Fisher, “Congressional Access to Executive Branch Information: Legislative Tools,” Congressional Research Service, May 17, 2001, www.fas.org/sgp/crs/secrecy/RL30966.pdf. See also Emily Berman, Executive Privilege: A Legislative Remedy (New York: Brennan Center for Justice, 2009), 63, n. 44.

  The new federal law: Militia Act: 1 stat. 271 (Uniform Militia Act of 1792). Its full title was An Act more effectually to provide for the National Defense by establishing an Uniform Militia throughout the United States. That same month, Congress passed another act, delegating “to the president some of Congress’ power to call the militia into federal service.” Mahon, History of the Militia and the National Guard, 52–53.

  “each and every free able-bodied white male citizen”: This law introduced a racial element into the militia. In the late 1700s, in most of the country free African Americans could vote and serve in the militia. The codification of a whites-only militia likely had to do with their potential use to enforce slavery. For a challenging perspective on the racial politics behind the Second Amendment, see Robert Cottrol and Raymond Diamond, “The Second Amendment: Toward an Afro-Americanist Reconsideration,” The Georgetown Law Journal 80 (1991): 309–61.

  a profound degree of governmental intrusion: The Militia Act of 1792 resurfaced as an ironic constitutional footnote. Long forgotten, it assumed sudden prominence in 2012, when President Barack Obama’s Affordable Care Act faced legal challenge. Litigants opposed the requirement that citizens purchase private health insurance. Where before had the federal government ordered Americans to buy something in private commerce? Here was an example, one signed into law by George Washington himself. In truth the fit was incomplete. The Militia Act implemented a provision of the Constitution specifically designed to preserve state military forces. The health law, by contrast, relied on the more elastic clause letting Congress regulate “interstate commerce.” In both instances, Congress could have provided the public good by buying guns or insurance itself. (In the end the law was deemed to rest on a different authority: Congress’s power to tax.) See National Federation of Independent Business v. Sebelius, 567 U.S. ___ (2012), (fn. 3).