A Well-Regulated Militia
The contemporary controversy poses two distinct views of the Second Amendment against one another. The first, and a conception arguably in place since at least the 1939 U.S. v. Miller decision, centers on the collective right to “keep and bear arms” conditional upon membership in state militias. In other words, the preamble to the Second Amendment, which reads “A well-regulated militia being necessary to the security of a free state,” dictates the extent of the second, operative clause, “the right of the people to keep and bear arms, shall not be infringed.” This does not preclude an individual right to gun ownership and possession, but lowers it to matters of statutory concern, therefore enabling even severe restrictions to stand.
The second interpretation, known as the individual rights view or the “standard model,” acknowledges the historic meaning of the preamble, but suggests that it does not limit the explicit language of the operative clause. In their eyes, local, state, and federal regulations which deny gun ownership and possession to law-abiding Americans are flatly unconstitutional. This is the interpretation embraced by the majority of the Supreme Court in Heller, while those in the dissent clung to a collective rights view. In Cornell’s view, both are wrong.
The Second Amendment was one of twelve to emerge as a byproduct of the state ratifying conventions surrounding the adoption of the U.S. Constitution. Anti-federalists who opposed the tendency toward a strong central government attached a plethora of reservations to the document, among them the fear of a standing army in the aftermath of the British occupation that prefaced the Revolutionary War. Article I, Section 8, Clause 16, gave Congress the power to “…provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.”
Emerging from an era when militias were organized by states, and a permanent national standing army did not exist, one can see the cause for concern that this provision raised amongst skeptics of the new Constitution. An army immune from the control of individual states could run rampant over their rights and rule as a despot. The Second Amendment was thus an effort to assuage their fears and restore the balance of power between the federal and state governments.
While Cornell acknowledges the advocates for inclusion of an individual right to gun ownership separate from militia membership, including Thomas Jefferson, these voices were cast aside, as the matter was assumed to be a province of common law, and gun control regulations are as old as the nation; indeed, some reach back further to the colonial era.
James Madison, the principal author of what came to be known as the Bill of Rights, including the Second Amendment, pushed for a conscientious objector clause to address the concerns of pacifist Quakers that they would not be forced into military service. It was excluded in the final version, but it does speak to the original conception of the amendment, Cornell argues. In the author’s eyes, it establishes neither a collective nor an individual right, but a civic responsibility to take up arms in defense of the nation from threats near and far.
Before the ink was dry on the document, debates over its meaning ensued, most tied to a states right’s conception of the Second Amendment. Its proponents suggested that citizens of a given state could take up arms to protest what they deemed tyranny from above. Shay’s Rebellion, which served as an impetus for the Constitutional Convention, was laden with this logic, and the Whiskey Rebellion that followed during Washington’s first term continued this legacy. Indeed, the Nullification Crisis of the Jackson era invoked similar terms, and this tussle between a civic and states rights interpretation of the Second Amendment were not put to rest until the conclusion of the Civil War.
Its aftermath provided a glimpse of the modern conceptual standoff as recently-freed slaves in the South took up arms in self-defense against the acts of terror perpetuated by the Ku Klux Klan. Despite the barbaric actions of the latter group, “freedmen” lost nearly every legal battle on this front, as the states rights conception of the Second Amendment held its ground.
At the time, the Supreme Court refused to incorporate the Second Amendment to state and local laws via the Fourteenth, and this holds true through this very day as future Courts selectively incorporated other portions of the Bill of Rights. In the years that followed, the even more restrictive collective rights view surfaced in the pages of the Harvard Law Review. Cornell argues that it was the civic model that the Supreme Court reinforced in its 1939 decision upholding the constitutionality of the National Firearms Act of 1934 in U.S. v. Miller, yet the collective rights view took hold among legal theorists and continued to hold sway until recent years.
The individual rights theory has been propagated by the National Rifle Association with great success on the legislative front, but fewer triumphs in the courts. Its adoption by contrarian scholars resulted in what the author terms “revisionism” and ultimately emerged as the mainstream or “standard model” of understanding the Second Amendment. The 5-4 majority in Heller clearly adhere to its central tenets, and therefore invite the Second Amendment’s incorporation and potential challenges to state and local gun laws in the aftermath.
Although Cornell resides firmly in the pro-gun control camp, his book offers a balanced view of the history surrounding this most controversial amendment. However, he leaves us with few solutions of how to proceed given that state militias are a thing of the past with the emergence of the National Guard in its place. A return to a civic conception of the Second Amendment is therefore impractical, and if we adhere to Cornell’s original understanding of its text, state and local statutes seemingly hold unbridled sway owner the extent of individual firearms ownership in America.
Perhaps Justice Scalia offered us a middle ground in his majority opinion last summer by recognizing an individual right to gun ownership, but allowing “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Regardless, on the heels of this landmark decision, Cornell provides us with excellent scholarship to question the claims of both Scalia and the dissenting bloc of the modern Supreme Court, not to mention the separate camps in this perpetual culture war.