Tennessee Law Review
Second Amendment Symposium,
vol. 62, no. 3, 1995.
Book Review: 813.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.

GUN CONTROL AND THE CONSTITUTION: SOURCES AND EXPLORATIONS ON THE SECOND AMENDMENT
Joyce Lee Malcolm *

Copyright © 1995 by the Tennessee Law Review Association, Inc. & Joyce Lee Malcolm
 

Americans living a century ago would have been amazed to find their right to have weapons included in any series entitled Controversies in Constitutional Law. Both before and after the American Revolution there had been agreement that citizens had a right to be armed. Indeed, in 1803 St. George Tucker, Virginia Supreme court justice and friend of Thomas Jefferson, dubbed that right the "true palladium of liberty," a sentiment echoed thirty years later by Joseph Story, the great Supreme Court justice and constitutional scholar. [1] It was, Story added, the people's protection against "the usurpation and arbitrary power of rulers." [2] Today Robert Cottrol, editor of Gun Control and the Constitution, [3] finds the Second Amendment, with its pledge that the "right of the people to keep and bear Arms shall not be infringed," [4] like a "somewhat disreputable member of a family" [5] while articles in learned journals label it "embarrassing" [6] and "terrifying." [7] Its slip from grace stemmed from fear of armed violence. New York's 1911 Sullivan Law, [8] the nation's first strict gun control act, was meant to protect the law-abiding from the anarchist movement, labor unrest, and masses of new immigrants. Other fears would follow--gang warfare in the 1920s, riots and assassinations in the 1960s. Many people began to doubt the wisdom of a right to be armed. Fears of government excess were replaced by fears of irresponsible citizens, and the price of disarmament--the complete dependence of law-abiding Americans upon police protection--seemed cheap enough if it purchased a reduction in violent crime. But schemes to limit or ban private firearms ran up against insistence that the Second Amendment protected that privilege. Hence the [Page 814] search began for alternate interpretations of that pesky amendment, that sometime "palladium of the liberties of a republic." [9] The great American gun debate had begun.

The result has been publication of a highly emotional literature of advocacy, but, until recently, little disinterested or careful scholarship, and that little widely-scattered. To provide students and scholars a handy guide to the controversy, two years ago Garland published Gun Control and the Constitution, [10] three volumes of materials compiled and edited by Professor Robert Cottrol. This collection of leading federal and state cases, congressional records and essays has now been distilled by Professor Cottrol into a single book, [11] presumably to reach a larger audience. Both collections, but especially the one-volume edition, are an asset in a debate that desperately needs to be steered into more productive channels.

Cottrol's masterful introduction precedes both collections. It is a concise, informative survey of the Second Amendment's history and fluctuating fortunes, with recommendations for avenues of study that will get us beyond the current impasse. The history Cottrol presents is straightforward and, for its length, remarkably thorough. He rightly emphasizes the influence that Blackstone's view of the necessity of an armed citizenry for self-defense and political liberty had on Americans of the founding era. [12] Oddly, however, he then retreats to the old saw that " from the beginning, conditions in colonial America created a very different attitude towards arms and the people" [13] from those of the English. In fact the attitudes were virtually identical, albeit practice differed. The English custom of employing armed citizens to keep the peace, and the Englishman's right to have weapons for self-defense, admirably suited colonial America, while English prejudice against professional armies and preference for the militia were all reflected here as well. It is true that Americans relied more heavily on the militia for public defense. Americans imposed no property restrictions on hunting, but the English were more liberal in permitting Catholics, a group they suspected of subversion, to have firearms for personal defense, while American fears of Indians and slaves led to outright prohibition. Professor Cottrol's own research with Raymond Diamond into weapons restrictions on slaves and free blacks adds an important dimension to that history. [14] Students will find his coverage of nineteenth-century state court cases and of the sparse Supreme Court record on the Second Amendment sound and particularly helpful since he places [Page 815] the cases in their historical context. [15] He also pinpoints the birth early in this century of the "collective rights" interpretation of the amendment, a reading that is usually used to deny an individual right to be armed was ever intended. [16]

In the second part of his introduction, Cottrol offers some intriguing new approaches to the issue of gun control and citizen rights. If taken seriously, these proposals could lead to the more multi-dimensional debates he desires. First, he calls for a halt to the continuing debate over the "collective rights" view in "its most simplistic form." [17] There is, he points out, no historical evidence to support the contention that the Second Amendment was meant merely to guarantee members of a "well-regulated" militia a right to be armed. [18] There may have been some excuse for the "collective rights" interpretation when the historical record had not been thoroughly researched. At this point, however, continued insistence upon this fallacy discredits its supporters--who include a substantial portion of the legal intellectual establishment, and who, it would seem, prefer upholding a patently false premise rather than facing an inconvenient truth. This willful ignorance is also a disservice to the American people, who will be relieved to learn that they have been correct all these years. They do have an individual right to be armed. Cottrol remarks ruefully that had the Second Amendment been frankly acknowledged as a bar to government bans on firearms ownership, we might have been engaged in a more productive debate all along, one which concentrated on reasonable limits to the right, not one doggedly intent on denying its existence. [19]

That being said, Cottrol offers those stuck in the "collective rights" rut ideas for a more sophisticated approach. [20] For example he notes that some theorists recognize an individual right but see it as so inextricably tied to the militia that the disappearance of that institution would leave the Second Amendment without a purpose. [21] Like the blind denial of any individual right to be armed, however, this approach ignores, in the way that most collective-rightists do, the issue of the right's intimate relationship to individual self-defense, as well its goal of keeping government in check. Neither of these purposes is dependent upon the militia. A National Guard trained, armed and--more importantly--commanded by the federal or state government, or a police force, again in the control of government, cannot by any stretch of the imagination be regarded as a check on government; nor, sadly, can they guarantee personal security. Although eighteenth- [Page 816] century Englishmen and Americans regarded the militia as a logical safeguard of liberty, whereas a professional army was a danger to it, neither people had illusions that a militia was, or ever could be, their ultimate protection. The final protection for both personal and constitutional security lay in their own hands. Still, Cottrol does not promise the collective- rightists a good argument, merely a more sophisticated one.

Federalist issues, until now peripheral to the debate over control of private weapons, are a fruitful source of research and deserve serious attention. Cottrol points out that Congress's role has been considered, but not always its power to ease as well as tighten controls. [22] Furthermore, with forty- three states having articles touching the right to be armed in their constitutions, the federalist dimension is substantial. The right and ability of citizens to be armed varies widely from one state to another. The extensive jurisprudence in state courts on the right to be armed has been little studied, although the great preponderance of gun legislation has been passed at the state level. This is obviously a formidable subject to study, but it is bound to be informative. Federalist issues have also become a concern for the modern militia. In recent years states have often protested against broader federal control of National Guard units. For those who have wondered why gun-control advocates have ignored the possibility of repeal of the Second Amendment, Cottrol offers a reasonable explanation and points to the danger inherent in repealing any seemingly inconvenient right. [23]

While the "more sophisticated" collective-rights theory provokes interesting questions, Cottrol believes that the individual-rights theory raises even more challenging problems. [24] If this is true he really does not demonstrate it. Instead, he voices the legitimate, but routine, concern over what weapons are appropriate for individuals and therefore protected, [25] and asks how effective private arms might be in protecting a people from tyranny or insurrection. [26] More unusual is his query about the recourse of a minority group that believes, rightly or wrongly, that it cannot rely upon government protection from private terrorism. [27]

Amid this flurry of questions, Cottrol asks one which reveals how successful the collective-rightists have been in enmeshing all argument over this right with the institution of the militia, diverting attention from its fundamental protection for personal defense. Cottrol asks cautiously, "Does the Second Amendment, perhaps in conjunction with the ninth amendment [Page 817] imply an individual right to self-defense?" [28] The answer is not far to seek. The right to self-defense is a basic intent of the Second Amendment, as it was of the English right to be armed. In fact self-defense does not depend on constitutions. It is the most fundamental of all rights. In Blackstone's judgment there are three "principle or primary" [29] rights, the very first of which is "personal security." [30] Government may, as Cottrol suggests, encourage "an unhealthy dependency" [31] when it urges citizens not to arm for their self-defense and, at the moment of crisis, not to defend themselves. But whatever government may urge, it cannot remove the people's right to defend themselves.

As for the contents of the collection, a minor annoyance in both the three- volume set and the new, concise version is that the Table of Contents fails to provide the dates when the cases, articles, or other materials were originally published. This is especially bothersome since most of the contents are, if I may be forgiven the pun, dated at this point, and their publication dates are terribly important. One is forced to scan the items themselves or, as I was often compelled to do, continually refer to the Acknowledgments section at the back of each volume. This could be readily corrected in future editions.

Now what does one gain, or lose, in opting for the new concise edition over the three-volume set? Volume One of the original set provides the complete text of three leading nineteenth- [32] and three leading twentieth-century state court opinions; [33] the three leading Supreme Court cases that touch on the Second Amendment; [34] one federal court case since the last of these in 1939; [35] and, as evidence of congressional discussion, the report of the Senate Judiciary Committee's Subcommittee on the Constitution published in 1982. [36] All these, with the exception of the last, are a great [Page 818] convenience to have within one set of covers. The congressional report is full of inaccuracies and seems important only for what it indicates of the state of available information in 1982, the research abilities of congressional staffers and, perhaps, the thinking of their employers at that time. Stephen Halbrook's essay on the fourteenth amendment and the right to keep arms, [37] however, has been rescued from the subcommittee report for inclusion in the condensed volume. [38] Otherwise the concise edition preserves only a single nineteenth-century state court opinion from this volume, [39] along with the two most important Supreme Court decisions. [40] The congressional section, which, by the way, is one of the innovative aspects of this series on constitutional conflicts, substitutes for the congressional report two far more useful items, the Firearms Owners' Protection Act of 1986 [41] and the recent Brady Handgun Violence Prevention Act. [42] The trade-offs here are in favor of the new volume.

Volume Two, "Advocates and Scholars: The Modern Debate on Gun Control," contains fifteen essays covering the period from 1969 to 1992. It is a fine selection that provides a range of opinion over the past quarter-century, but many of the earlier articles have been superseded by the later ones as the debaters became more knowledgeable and the debate more sophisticated. It is this volume that has suffered the deepest cuts, shrunk to three articles in the condensed version, [43] and shedding all the essays published before 1983. This was a wise decision. Although many early essays in Volume Two had interesting information, if we are ever to get beyond the factual inaccuracies--the faulty history of the English right to be armed for instance--which were regurgitated in one article after another as a basis for their argument, if we are to move beyond the mistaken "collective rights" view in its simplistic form to a more productive debate, it is time to build upon more recent research. The earlier articles are of use primarily for an understanding of where the debate stood when they were written, not for the enlightenment of students of the contemporary issue. The choice of which three articles to reprint cannot have been an easy one. [Page 819]

From Volume Three, on the other hand, seven out of nine essays survived the final cut. These form an interesting collection. Unfortunately the English background, doubtless in an effort to present two sides, includes Weatherup's 1975 article [44] based on an egregious misunderstanding of English history. The remaining articles grouped in both Volume Three and the concise edition under the title "Citizenship, Republicanism, and the Right to Bear Arms" include opposing essays by Robert Shalhope [45] and Lawrence Cress, [46] although the condensed version omits a published debate between them that the original set contains. [47] Here we have Cress, a proponent of the simplistic collective-rights view, reprinted despite Cottrol's desire to get beyond that argument. Nevertheless, there is much to be learned from this lively exchange of views, even if Cress's claims are based on naive and incorrect assumptions. David Williams's more subtle arguments in "Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment," [48] is an example of the more sophisticated collective-rights position. Cottrol's own excellent piece, written with Raymond Diamond on the African- American community's experience with the use and misuse of gun control, [49] is a fine conclusion to both collections. All in all, while there are essays one regrets losing in the condensed version, Cottrol has generally made the right choices. The new volume includes the most recent and informative pieces, and offers the reader easy access to the present debate.

Cottrol's collections provide a staging ground and direction for future discussion. It seems to me, however, that the two most challenging questions have been side-stepped, perhaps because they push beyond the bounds of strict constitutional argument although they lie at the heart of the problem. First, it is impossible to read the essays of those opposed to a right to have weapons without coming to the conclusion that their real interest is not rights or weapons but a reduction in violent crime. In searching for the source of American violence they have made a simple equation between numbers of privately-owned weapons and the rate of armed crime. Their target is crime: quashing an individual right to be [Page 820] armed is simply the means to an end. Regrettably, they have never seriously questioned their initial premise, although others have. Daniel Polsby, for example, agrees that there is a connection between armed citizens and armed crime, but not the one gun control advocates envision. [50] He suggests that banning law-abiding citizens from owning guns might actually tempt criminals to further violence. England, that favorite country of comparison for gun-control advocates, by no means justifies their case. Victorian England, for instance, is an intriguing counter-example. It had no real restraint on ownership of weapons, appalling poverty, and no social safety net. One would assume that in these circumstances shootings would be commonplace. Instead there was a moderate and declining rate of armed crime. Why? The Swiss--their 650,000 assault weapons kept in private homes making them the most heavily armed civilians in the world-- with virtually no armed violence, are a familiar counter-example impatiently dismissed by advocates of gun control. The time has come to get to the heart of the issue, to tackle the real reasons for community violence. Granted, this is a vastly more complex subject than pinpointing the meaning of the Second Amendment. But we can make a useful start by testing whether the right of individuals to be armed is indeed linked to violence, and if so whether it increases or diminishes the frequency of armed crime.

Lastly, we should consider the aims of those, both English and American, who bequeathed us this dangerous legacy and whose sense of the keys to liberty was so sure in other areas. They knew that giving individual citizens a right to be armed was risky. But, as a defender of English rights put it, "Our ancestors were pleased rather to enjoy a condition of perilous freedom than a state of abject tranquility in the condition of slaves." [51] Were they naive? Was their trust misplaced? Or is it misplaced today? Should government be our last resort? And now we come to the most basic, most compelling, and most disturbing question of all. In a recent essay Cottrol and Diamond remind us that over sixty million people have been murdered by their own governments in our century. [52] Nevertheless they find silence on the issue of whether "the state should have a monopoly of force and whether an armed population might still play an important role in deterring governmental excesses." [53] They brand "those we rely on for serious constitutional and political commentary," and who "have failed to examine" these issues with "intellectual cowardice" for this "self-imposed limit on political and constitution discourse that causes us largely to ignore [Page 821] one of the most critical questions of our time." [54] We need to face that stark question.

* Professor of History, Bentley College, Fellow Royal Historical Society.

[1]. 1 WILLIAM BLACKSTONE, COMMENTARIES 300 (Tucker ed. 1803).

[2]. JOSEPH STORY, 2 COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 646 (5th ed. 1891).

[3]. GUN CONTROL AND THE CONSTITUTION: SOURCES AND EXPLORATIONS ON THE SECOND AMENDMENT (Robert Cottrol ed., 1994) [hereinafter GUN CONTROL].

[4]. U.S. CONST. amend II.

[5]. GUN CONTROL, supra note 3, at xxxi.

[6]. Sanford Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637 (1989).

[7]. David C. Williams, Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101 YALE L.J. 551 (1991).

[8]. 1911 N.Y. LAWS § 1897.

[9]. 2 STORY, supra note 2, at 646.

[10]. GUN CONTROL AND THE CONSTITUTION (Robert Cottrol ed., 1993).

[11]. GUN CONTROL, supra note 3.

[12]. Id. at xiii-xiv.

[13]. Id. at xv

[14]. See, e.g., Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 GEO. L.J. 309 (1991).

[15]. GUN CONTROL, supra note 3, at xix-xxv.

[16]. Id. at xxv.

[17]. Id. at xxxv.

[18]. Id.

[19]. Id. at xli.

[20]. Id. at xxxv.

[21]. Id.

[22]. Id. at xxxvii.

[23]. Id. at xxxix-xl.

[24]. Id. at xxxvii.

[25]. Id. at xxxvii-xxxviii.

[26]. Id. at xxxviii.

[27]. Id. at xxxviii-xxxix.

[28]. Id. at xxxix.

[29]. 1 WILLIAM BLACKSTONE, COMMENTARIES 125 (1765).

[30]. Id.

[31]. GUN CONTROL, supra note 3, at xxxix.

[32]. Nunn v. Georgia, 1 Ga 243 (1846); Andrews v. State, 50 Tenn. 141, 3 Heisk. 165 (1871); Aymette v. State, 21 Tenn. 152, 2 Hum. 158 (1840), reprinted in 1 GUN CONTROL AND THE CONSTITUTION, supra note 10, at 11, 21, 2.

[33]. Kalodimos v. Village of Morton Grove, 470 N.E.2d 266 (Ill. 1984); City of Salina v. Blaksley, 72 Kan. 230 (1905). State v. Kessler, 614 P.2d 94 (Or. 1980), reprinted in 1 GUN CONTROL AND THE CONSTITUTION, supra note 10, at 138, 124, 130.

[34]. United States v. Miller. 307 U.S. 174 (1939); Presser v. Illinois, 116 U.S. 252 (1886); United States v. Cruikshank, 92 U.S. 542 (1875), reprinted in 1 GUN CONTROL AND THE CONSTITUTION, supra note 10, at 104, 86, 58.

[35]. Fresno Rifle & Pistol Club, Inc. v. Van De Kamp, 965 F.2d 723 (9th Cir. 1992), reprinted in 1 GUN CONTROL AND THE CONSTITUTION, supra note 10, at 115.

[36]. SUBCOMMITTEE ON THE CONSTITUTION OF THE COMM. ON THE JUDICIARY, 97TH CONG., 2D SESS., THE RIGHT TO KEEP AND BEAR ARMS (Comm. Print 1982) [hereinafter SUBCOMMITTEE REPORT].

[37]. Stephen P. Halbrook, The Fourteenth Amendment and the Right to Keep and Bear Arms: The Intent of the Framers, in SUBCOMMITTEE REPORT, supra note 36, at 68.

[38]. Id., reprinted in GUN CONTROL, supra note 3, at 360.

[39]. Aymette, supra note 32, reprinted in GUN CONTROL, supra note 3, at 2.

[40]. Miller, 307 U.S. 174 (1939): Presser, 116 U.S. 252 (1886), reprinted in GUN CONTROL, supra note 3, at 30, 12.

[41]. Firearms Owners' Protection Act of 1986, Pub. L. No. 99-308, 100 Stat. 449, reprinted in GUN CONTROL, supra note 3, at 41.

[42]. Brady Handgun Violence Prevention Act of 1993, Pub. L. No. 103-159, 107 Stat. 1536, reprinted in GUN CONTROL, supra note 3, at 54.

[43]. Dennis A. Henigan, Arms. Anarchy and the Second Amendment, 26 VAL. U. L. REV. 107 (1991); Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH. L. REV. 204 (1983); Levinson, supra note 6, reprinted in GUN CONTROL, supra note 3, at 161, 66, 137.

[44]. Roy G. Weatherup, Standing Armies and Armed Citizens: An Historical Analysis of the Second Amendment, 2 HASTINGS CONST. L. Q. 961 (1975), reprinted in GUN CONTROL, supra note 3, at 185-225.

[45]. Robert E. Shalhope, The Ideological Origins of the Second Amendment, 69 J. AM. HIST. 599 (1982), reprinted in GUN CONTROL, supra note 3, at 257.

[46]. Lawrence D. Cress, An Armed Community: The Origins and Meaning of the Right to Bear Arms, 71 J. AM. HIST. 22 (1984), reprinted in 3 GUN CONTROL, supra note 3, at 274.

[47]. Robert E. Shalhope & Lawrence D. Cress, The Second Amendment and the Right to Bear Arms: An Exchange, 71 J. AM. HIST. 587 (1984), reprinted in 3 GUN CONTROL AND THE CONSTITUTION, supra note 10, at 111.

[48]. Williams, supra note 7, reprinted in GUN CONTROL, supra note 3, at 295.

[49]. Cottrol & Diamond, supra note 14, reprinted in GUN CONTROL, supra note 3, at 375.

[50]. Daniel D. Polsby, The False Promise of Gun Control, THE ATLANTIC MONTHLY, March 1994, at 57.

[51]. JOYCE L. MALCOLM, TO KEEP AND BEAR ARMS 167 (1994).

[52]. Robert J. Cottrol & Raymond T. Diamond. The Fifth Auxiliary Right, 104 YALE L.J. 995 (1995) (reviewing MALCOLM, supra note 51).

[53]. Id. at 1026.

[54]. Id.