38 This point is the key underpinning of the standard model's approach. The right to keep and bear arms exists in the people because it is their for their own protection. Note cooley's distinction between the people's "own (p.471)defence" and the "defence of the state." This distinction carries with it the clear implication that "the people" and "the state" are not the same thing. The militia and the people One modern critic of the Standard Model, dennis Henigan of the center to Prevent Handgun violence, dismisses this basis for the second Amendment. Henigan describes what I call the "Standard Model" as the "insurrectionist theory" of the second Amendment. 39 According to henigan, it is absurd to believe that the Framers intended to include a right of revolution in the constitution. 40 Henigan's argument suffers from a number of problems, not least of which is that in fact the Framers did seem to believe in just such a right. Aside from the passages"d above, the 1794 Tennessee constitution, which was adopted just after the adoption of the bill of Rights and which Thomas Jefferson is said to have described as "the least imperfect and most republican of the state constitutions 41 contains.
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Thomas Jefferson was a vigorous advocate of gun ownership because he believed that it fostered both personal and societal virtue; 32 a model constitution that he drafted for (p.469)Virginia in 1776 included a provision guaranteeing that "no Freeman shall be debarred the use of arms. Every one who is able may have a gun." 34 Thus, the right to keep and bear arms was considered an essential form of protection not just for home and hearth, but also against government tyranny. It can be understood as yet another of the forms of division of power that the Framers created to protect citizens' liberties. It is commonplace to note that the Framers divided power within the federal government, by apportioning it among three branches, and that the Framers divided government power in general by splitting it between the federal government and the governments of the states. But under the Standard Model approach it is fair to say that the Framers divided power yet another way, by ensuring that the citizenry possessed sufficient military thesis power to offset that of the federal government. Such a division makes sense in light of such other (p.470)Constitutional language as the Preamble's statement that the authority of the government comes from the people, and the similar statement in the tenth Amendment. 35 If the federal and state governments are merely agents of the people, it is logical that the people would be reluctant to surrender a monopoly on military power to their servants, for fear that their servants might someday become their masters. 36 This was certainly the view of commentators throughout the nineteenth century. As Justice review joseph Story wrote in his Commentaries on the constitution : The right of the citizens 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. 37 Influential nineteenth-century scholar Thomas cooley made the same point: The right of the people to bear arms in their own defence, and to form and drill military organizations in defence of the State, may not be very important in this country, but. Should the contingency ever arise when it would be necessary for the people to make use of the arms in their hands for the protection of constitutional liberty, the proceeding, so far from being revolutionary, would be in strict accord with popular right and duty.
26 Standard Model scholars also stress that the right to keep and bear arms was seen as serving two purposes. First, it allowed individuals to defend themselves from outlaws of all kinds-not only ordinary criminals, but also soldiers and government officials who exceeded their authority, for in the legal and philosophical framework of the time no distinction was made between the two. 27 Just as importantly, the presence of an armed populace was seen as a check on government tyranny and on the power of a standing army. With the citizenry armed, imposing tyranny would be far more difficult than it would be with the citizenry defenseless. Tench Coxe made this point in a commentary on the second Amendment. 28 Coxe explained the purpose of the Amendment this way.468) As civil rulers, not having their duty to the people duly before them, reviews may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their. 29 Similarly, madison himself wrote that a regular army that threatened liberty would find itself opposed by "a militia amounting to near a half a million citizens with arms in their hands." 30 Madison contrasted the situation in America with that obtaining under the european.
20 Thus, say standard Model writers, the second Amendment protects the same sort of individual right that other parts of the bill of Rights provide. To hold otherwise, these writers argue, is to do violence to the bill of Rights since, if one "right of the people" could be held not to apply to individuals, then so could others. 21 Furthermore, as William Van Alstyne notes, the "right" to which the second Amendment refers is clearly the right "of the people, to keep and bear arms." 22 Thus, whatever the meaning of the (p.467)Amendment's reference to a "well-regulated militia that reference does not modify. 23 This textual argument is also supported by reference to history. Standard Model scholars muster substantial evidence that the Framers intended the second Amendment to protect an individual right to arms. 24 The first piece of evidence for this proposition is that such a right was protected by the English Bill of Rights of 1689. 25 As such, it became one of the "Rights of Englishmen" around which the American revolutionaries initially rallied.
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What is a "militia"? What does it mean for one to be "well regulated"? What is a "right of the people"? What does it mean to "keep and bear arms"? And what sort of infringements on that right are prohibited? Until the last decade, the scholarly literature provided little guidance on this subject. Debate on the subject took place mun almost exclusively in political speeches, newspaper editorials, letters to the editor, and the pages of gun (p.465)magazines.
15 Since the publication of Don Kates' seminal article in the michigan Law review, 16 followed by sanford levinson's Yale law journal article entitled The Embarrassing Second summary Amendment, 17 however, a scholarly debate has flourished, with literally dozens of well-researched articles, many by eminent authors. 18 The purpose (p.466)of these articles is quite specifically to answer the questions set out above. A short summary of their conclusions follows. The Individual Right to keep and bear Arms Under the Standard Model The Standard Model is rooted in two main sources: the text of the second Amendment and its historical underpinnings. Both are interpreted to support an individual right to keep and bear arms. 19 The text's support is seen as straightforward: the language used, after all, is "right of the people a term that appears in other parts of the bill of Rights that are universally interpreted as protecting individual rights. Thus, any argument that the right protected is not one enforceable by individuals is undermined by the text: to deny that the right protected is one enforceable by individuals the following set of propositions must be accepted: (1) when the first Congress drafted the bill.
First, as I have suggested elsewhere, prediction of Supreme court decisions does little to validate particular theories, given the complexities involved. 10, second, supreme court decisions change in a way that physical laws do not. (p.464)It would have been perfectly proper in 1953 to argue that because the supreme court had not recognized the right to integrated schools, such a right did not exist, at least as a legally enforceable matter. 11, but such an argument would hardly have stated an eternal truth about the constitution, or even (as the following year proved) 12 about the supreme court's view of the question. Similarly, the supreme court's treatment of the first Amendment until well into this century was very similar to its treatment of the second Amendment up to this point.
13, though we must all abide by the supreme court's decisions, for constitutional scholars the supreme court is another institution to be studied-and, frequently, critiqued-rather than a source of final answers. At any rate, with these caveats I will discuss what can fairly be called the "Standard Model" of Second Amendment interpretation. I will also discuss those aspects of Second Amendment theory that can be characterized as outside the Standard Model. I will then make some observations of my own regarding the shortcomings of both Standard Model and non-Standard Model theories, and will close with a few comments on the way in which the public debate over the second Amendment has been influenced (or not). The Standard Model, the second Amendment reads: 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. 14 to modern readers, at least, these words are not particularly clear.
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But the overall framework for analysis, the questions regarded as being clearly resolved, and those regarded as still open, are all generally agreed upon. This is certainly the case with regard to second Amendment scholarship. Unfortunately, despite the existence of unusually broad areas of scholarly consensus, this literature has so far had less of a disciplinary effect on public entry debate than might otherwise be hoped. Perhaps this Symposium, by increasing the awareness of general readers, will help to remedy that problem. I will discuss this subject at greater length below. Of course, a standard Model among lawyers is not the same thing as a standard Model among physicists. For one thing, physicists can revise their theories based on new experiments and data. Lawyers lack such opportunities. The supreme court is the closest thing we have to a theory-testing device, but the court does not really serve a theory-testing purpose.
7, similarly, in the field of free speech representatives of the media seem often to believe that everything that affects their interests-almost down to the availability of free parking near newspaper offices-implicates important First Amendment concerns, while those opposed to, say, sexually explicit art. But with regard to most parts of the bill of Rights, the ability of partisans to make extreme constitutional arguments is limited by the existence of large bodies of judicial with caselaw and scholarly explication, which set the bounds for respectable discourse on the subject. In the case of the second Amendment, at least until a few years ago, there was no such caselaw or scholarship. Today there is still very little caselaw, but there is now a great deal of scholarship. 8, so far, however, the scholarship seems to have had less impact on the public debate in this area than in many others: instead, the debate is driven mostly by what will make good sound bites and by what will further the direct-mail fundraising. That may change, and if it does it will probably be a good thing. Perhaps surprisingly, what distinguishes the second Amendment scholarship from that relating to other constitutional rights, such as privacy or free speech, is that there appears to be far more agreement on the general outlines of Second Amendment theory than exists in those other areas. Indeed, there is sufficient consensus on many issues that one can properly speak of a "Standard Model" in Second Amendment theory, much as physicists and cosmologists speak of a "Standard Model" in terms of the creation and evolution of the Universe. 9, in both cases, the agreement is not complete: within both Standard Models are parts that are subject to disagreement.
to synthesize the literature. Although some aspects of Second Amendment theory have been developed with a thoroughness that would surprise those unfamiliar with the field, other aspects deserve additional study. I hope that readers of this Article will be inspired to join in the conversation. Introduction, before addressing the body of Second Amendment scholarship, it is worth taking a moment to put it into the context of the popular debate over gun controls and the right to bear arms. Although it would be something of an oversimplification, it is probably fair to say that those who support (p.462)gun control have generally tended either to ignore the second Amendment entirely or to adopt an interpretation that leaves it essentially without effect. 1, those opposed to gun control, on the other hand, have naturally tended to adopt rather strong interpretations of the second Amendment. This is not surprising; we see similar phenomena with regard to other parts of the bill of Rights. For example, it is common to find "right wing" opponents of sexual liberty taking the position that the ninth Amendment, 3 often cited as the root of the right to privacy that is typically implicated in cases involving sexual freedom, 4 means nothing. Robert Bork, for example, has described the ninth Amendment as an "inkblot" whose meaning cannot be deciphered, 5 and has referred to the right of privacy as a "loose canon in the law." 6, supporters of such sexual rights, on the other hand, tend.
Glenn Harlan reynolds this Symposium contains a number of important articles relating to the second Amendment to the United States Constitution. But what many casual readers may not realize is that those articles are simply the latest installments in what has golf become a rich and interesting literature. Although the second Amendment was almost completely ignored by the academic community for the first two centuries of its existence, the past several years have seen an explosion of scholarship. The reasons for that explosion are beyond the scope of this Article; they may stem in part from the increased prominence of "gun control" debates in contemporary politics, or from the natural tendency of constitutional law scholars to look for as yet unmined subjects for. But for whatever reason, the past five years or so have undoubtedly seen more academic research concerning the second Amendment than did the previous two hundred. In this Article, i will summarize and criticize that scholarship. By doing so, i hope to serve two purposes.
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A critical guide to the second amendment. Back, home, copyright 1995 Glenn Harlan reynolds. Originally published as 62 Tenn. Permission for www use at this site generously granted by the author. For educational use only. The printed edition remains canonical. For citational use please obtain a back issue from William. Hein., father's 1285 main Street, buffalo, new York 14209;.