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“We the People” and the Lone Gunman

The Second Amendment isn't the only problem — it's our whole premodern Constitution.

Scene at the Signing of the Constitution of the United States by Howard Chandler Christy. Wikimedia

Mass shootings have become an American ritual. Someone murders a dozen or more people — schoolchildren in Connecticut, nightclub revelers in Florida, or concertgoers in Nevada. Shocked and horrified liberals shake their fists at the gun lobby and politicians too cowardly to stand up to their paymasters at the National Rifle Association (NRA). But nothing happens, and the activists roll over and go back to sleep. Then another mass shooting takes place, and the cycle begins again.

Gun control politics are immobilized because of an immovable constitutional barrier known as the Second Amendment. The forty-year drama around its interpretation does much to explain why popular support for regulation has failed to produce meaningful change.

For decades, liberal politicians equated the Second Amendment’s right to bear arms with the Third Amendment’s ban on the peacetime quartering of soldiers in private homes: both were harmless relics of a bygone era that did not infringe on the rest of the constitution. All Americans had to do was correctly understand the document — which, since all the best constitutional scholars were solid liberals, should not have been a problem. What could go wrong?

As it happens, a great deal. Liberal constitutionalists turned out to have gotten the Second Amendment wrong — not by a little but by a lot. The result has been a constitutional debacle.

Mass shootings are intensifying in scale and frequency, yet, thanks to a reinvigorated definition of the right to bear arms, the democratic majority can do little except take shelter and hope the violence stops.

What the Second Amendment Means

“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.” So the Second Amendment reads, as surely everyone knows by now. The sentence is a grammatical puzzle: it’s not immediately clear what the first thirteen words have to do with the rest.

Liberal constitutionalists had one answer. Since “a well regulated militia” is the goal, the amendment’s second half must describe activities intended to achieve it. But state militias were effectively federalized in the late nineteenth century, so the right “to keep and bear arms” must refer to nothing more than the right to maintain, support, and enlist in the National Guard.

This convenient interpretation banished individual gun rights as well as any thought of armed resistance to the federal government. Gun control could continue unimpeded, government power could keep expanding, and the Constitution could still appear fully in accord with modern values.

In 1980, the ACLU confidently declared, “the right to bear arms is a collective one existing only in the collective population of each state for the purpose of maintaining an effective state militia.” Laurence Tribe, the doyen of liberal constitutional scholars, considered the matter so closed that he didn’t even acknowledge the possibility of individual gun rights in the first edition of his classic American Constitutional Law.

But then legal scholars decided to take a second look. A California lawyer named Don B. Kates Jr, in a lengthy 1983 article in the Michigan Law Review, argued that liberals had gotten their history wrong. He explained that, while we think of a militia as an organized body of armed individuals, colonial Americans saw it as “[t]he whole body of able-bodied male citizens declared by law as being subject to call to military service,” to quote Federalist Noah Webster. More than allowed to bear arms, Kates wrote, these citizens were “affirmatively required to do so” in order to maintain the peace in the absence of a standing army or an organized police force.

History backs Kates up: in 1658, Virginia ordered all households to have a functioning firearm. The Massachusetts colonial legislature required even indentured servants to own a gun; in 1644, it imposed a six-shilling fine on any citizen who failed to obey. Where today’s liberals shudder at the thought of guns in schools and malls, in 1770, Georgia required churchgoers — white male churchgoers, that is — to arm themselves with a rifle or pistol. The legislature even ordered church officials to search their congregants no less than fourteen times a year to ensure compliance.

The colonists didn’t just dream up these laws. Rather, they participated in a political tradition going back at least to the Renaissance, one that held that the ultimate defense against despotism was a population of free men prepared to protect their liberties to the death.

The tradition acquired renewed force among Anglo-American “republicans” after 1688’s Glorious Revolution, when crypto-Catholic King James II tried to deprive his Protestant subjects of their arms before being driven out of the country. Thereafter, a long line of political philosophers — James Trenchard and Thomas Gordon, authors of the famous “Cato’s Letters,” William Blackstone, and more — fiercely argued that “only the armed freeholder was capable of independence and virtue,” as historian J. G. A. Pocock put it.

America’s founders absorbed these ideas. Indeed, Kates observed, “one thing all the Framers agreed on was the desirability of allowing citizens to arm themselves.”

James Madison, the so-called father of the Constitution, wrote that European tyrannies were “afraid to trust the people with arms,” but that Americans had nothing to fear because they possessed “the advantage of being armed  . . . over the people of almost every other nation.”

Future president James Monroe included “the right to keep and bear arms” in the list of basic “human rights” he wanted to see enshrined in a new constitution, while Patrick Henry — of “give me liberty or give me death” fame — declared that “[t]he great object is that every man be armed.” His friend Richard Henry Lee agreed: “to preserve liberty, it is essential that the whole body of the people always possess arms and be taught alike, especially when young, how to use them.”

The Academic Revolution

If “well organized militia” simply referred to the people in arms and if each citizen was expected to supply his own weapon, then the collective and individual rights to bear arms represented two sides of the same coin. They complemented rather than contradicted each other, and the Second Amendment protected one just as much as it did the other.

Kates “got the individual-right movement rolling,” observed Adam Winkler, a professor of constitutional law at UCLA. But, because Kates was a practicing attorney rather than a legal scholar, his impact was limited. Then Sanford Levinson — one of the most prominent constitutional scholars in the country — published his 1989 article “The Embarrassing Second Amendment” in the prestigious Yale Law Journal.

Levinson neatly summed up the problem: liberals find the Second Amendment “embarrassing” because it hearkens back to a wild and woolly era in which farmers and townsfolk grabbed their muskets off the wall to defend their private arsenals against the gun regulators of their day — the British Redcoats. Ideas about armed resistance to tyrannical government not only fueled the American Revolution, but, Levinson went on, continued to influence political and legal thinking into the twentieth century.

Joseph Story, a leading constitutional authority of the 1830s, wrote:

The right  . . . to keep and bear arms has justly been considered 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.

Thomas Cooley, a constitutional authority of the post-Civil War period, wrote that the Second Amendment “was meant to hold [the government] in check,” and Theodore Schroeder, an important free-speech theorist of the early twentieth century, argued that

[T]he obvious import [of the right to bear arms] 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.

Liberals believed the gun lobby had invented this fantasy of an armed population resisting tyrannical government, but history showed otherwise. The argument was so persuasive it even convinced Laurence Tribe. In the third edition of his textbook, he wrote:

At the time of the Constitution’s framing, the term “militia” did not refer simply to state national guard units or their equivalent. Rather, the “militia” included all able-bodied property-owning white males who enjoyed the defining political rights of citizenship: the right to vote, hold public office, and serve on juries. When this race-specific and gender-specific group was called into service, it became the “organized militia,” the ideal of the citizen-soldier being, according to the story of Cincinnatus, the farmer or tradesman who could put down his civilian tools, pick up a rifle, and march off to war with the men of his community.

An armed citizenry was part of the system of checks and balances, just like a presidential veto or a Supreme Court ruling.

Why It Matters

Kates and Levinson were not conservatives trying to turn back the clock. On the contrary, Kates was a civil rights activist turned antipoverty lawyer who named his parrot “Che,” and Levinson was a card-carrying member of the ACLU. But they didn’t think it made sense that an amendment written not long after Lexington and Concord would only confer a collective right and therefore argued for a more sophisticated understanding of the issue, one that recognized how ideas change and acknowledged that Americans today don’t believe the same things as Americans in the eighteenth century.

To understand why these interventions represent more than a tempest in an academic teapot, imagine a world where First Amendment minimalists held sway. In this alternate reality, lawyers learn that the phrase “Congress shall make no law  . . . abridging the freedom of speech” applies only to the federal government. Therefore, if Massachusetts wants to close down a play on the grounds of obscenity or if Alabama wants to lock up communists or if California wants to expel fundamentalists, then neither Congress nor the federal courts can do anything about it because the First Amendment leaves the states free to do as they wish.

Now imagine that maximalists mounted a revolt, arguing that we should read the First Amendment in conjunction with Fourteenth Amendment, which says that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The resulting sea change in how the country understands free speech would extend the First Amendment to the country as a whole. (Incidentally, this is the claim of the modern doctrine of incorporation, the basis of the postwar civil-liberties revolution.) If this imaginary free-speech revolution succeeded, liberals would cheer themselves hoarse, ACLU members would dance in the streets, and conservatives would go away to sulk.

That’s roughly the inverse of what’s happened to the Second Amendment over the past forty years. Scholars have overthrown the old collective-right-only model. Now gun-rights supporters celebrate, and liberals excoriate cowardly politicians, unscrupulous lobbyists, and macho frontiersmen. But the NRA is winning not because it funds friendly politicians, but because it has the wind in its sails. It won the constitutional argument and is now winning the political one as well.

In 2000, Americans who believed in gun control outnumbered Second Amendment advocates by more than two to one. Since 2010, however, the two sides have run neck-and-neck. In 2004, Congress allowed an assault-rifle ban to expire due to pressure from the gun lobby, and in 2008 the Supreme Court struck down a gun-control measure on the basis of the Second Amendment for the first time when it overturned a Washington, D.C., handgun ban.

The gun lobby’s ultimate triumph came this past April when Donald Trump told NRA members: “The eight-year assault on your Second Amendment freedoms has come to a crashing end.” In celebration, the association released a series of ferocious videos vowing revenge on the liberal establishment for even contemplating gun control.

In one video, an angry Tea Party activist named Dana Loesch warns the New York Times: “We’re coming to get you.” In another, she announces: “The only way we save our country and our freedom is to fight this violence of lies with the clenched fist of truth.” Then comes the tagline: “I’m the National Rifle Association of America,” Loesch grimly declares, “and I’m freedom’s safest place.”

Loesch perfectly summarizes the Second Amendment’s theory of resistance: ultimate protection lies with a population that is armed, dangerous, and determined to defend itself “with manly firmness” against a despotic government. If guns represent the key to freedom, then any effort to limit gun ownership is tyrannical by definition. The more liberals try, the more vehement armed resistance grows. It’s as if the Minutemen were still drilling on the village green.

Dueling Constitutions

Levinson noted that the Second Amendment is the only part of the Bill of Rights that contains what we might describe as a preamble. In this, it curiously parallels the Constitution as a whole, which of course opens with its more famous preamble “we the people.”

What makes this resemblance even stranger is that, in both cases, the meaning has remained open to debate. Just as reasonable people might disagree about what “a well regulated militia” has to do with a “right to keep and bear arms,” they might also argue over what forming a more perfect union, establishing justice, and the other sweeping goals set forth in the preamble have to do with the limited powers the rest of the document delineates. It’s as if the Second Amendment is a smaller constitution embedded, like a matryoshka doll, in a larger one.

Even more oddly, these two constitutions offer competing descriptions of the government’s role in citizens’ lives. The first one advances a more or less standard framework for representative government in which “we the people” elect senators, representatives, and members of the Electoral College. But the second amendment advances a “neo-republican” view that, as Levinson explains, emphasizes

participation in government, as contrasted to mere representation by a distant leadership.  . . . [J]ust 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.

The difference between a representative and a participatory government is the difference between calling the police and assuming the role of cop yourself if a burglar is breaking into your home. As a conservative pundit observed more than forty years ago:

[W]e are experiencing a sort of low-grade war going on between two alternative views of what America is and ought to be. On the one side are those who take bourgeois Europe as a model of a civilized society: a society just, equitable, and democratic; but well ordered, with the lines of responsibility and authority clearly drawn, and with decisions made rationally and correctly by intelligent men for the entire nation.  . . . On the other side is a group of people  . . . [whose] model is that of the independent frontiersman who takes care of himself and his family with no interference from the state.

The last phrase sounds a bit anachronistic since today’s neo-republicans do not reject the state. Instead, they advocate for a different kind of state, one that consists of property-owning white males like themselves who feel besieged by an oppressive liberal establishment. But, otherwise, the observation rings true. One side sees government as necessarily large and bureaucratic while the other thinks of it as something up close and personal, neighbors banding together against an outside threat.

Since Barry Bruce-Briggs described these two Americas in 1976, the gap between them has only grown. Our eighteenth-century constitution was supposed to foster compromise, but instead it has split the country into warring camps by advancing two incompatible concepts of government. Rather than the least important section of the Bill of Rights, the Second Amendment is conceivably the most important. Its language is more sweeping than the First Amendment’s, and it seems to have single-handedly thrust America into a long-forgotten past.

The current political paralysis is one result. The thirty percent of Americans who actually own guns use their constitutional privilege to lord this right over the remainder. Indeed, considering that gun ownership runs highest in low-population states like Wyoming, Montana, and the Dakotas, it appears that two kinds of legal privilege now intersect: that of bearing arms and that of extra representation in the Senate and Electoral College. A well-armed and overrepresented minority wants more power while the majority reels in disbelief that nothing can be done to stop a Second-Amendment enthusiast in Nevada from stockpiling high-powered weapons whose only purpose is to rain down death on his fellow citizens.

Eight other countries, mostly in Latin America, also constitutionalized the right to bear arms, but they had the good sense to later restrict or rescind such provisions. But the ultrarestrictive amending clause in Article V renders constitutional reform in the United States all but impossible.

If Americans go back to sleep after a mass shooting, it’s because that’s all their premodern Constitution allows them to do. It combines absolute freedom to cry out in pain and frustration with the absolute inability to do anything to prevent such outrages from occurring again. It leaves them all-too-vulnerable to the next gun nut who wants to see how many people he can kill before the cops break down his door.

Democracy that loses faith in its ability to change society is democracy that is withering on the vine. And that’s precisely what we’re seeing in the United States today.