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Abstract
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From the enactment of the Bill of Rights through most of the twentieth century, the second amendment seems to have been understood to guarantee to every law-abiding responsible adult the right to possess most ordinary firearms. Until the mid-twentieth century courts and commentaries (the two earliest having been before Congress when it voted on the second amendment) deemed that the amendment "confirmed [the people] in their right to keep and bear their private arms," or "their own arms." In a 1939 case which is its only full treatment, the Supreme Court accepted that private persons may invoke the second amendment, but held that it confines their freedom of choice to militia-type weapons, i.e., high quality handguns and rifles, but not "gangster weapons" such as sawed-off shotguns, switchblade knives and (arguably) "Saturday Night Specials."
In the 1960s this individual right view was challenged by scholars who argued that the second amendment guarantee extends only to the states' right to arm formal military units. This states' right view attained predominance, and was endorsed by the ABA, the ACLU and such texts as Lawrence Tribe's American Constitutional Law. During the 1980s, however, a large literature on the amendment appeared, much of it rejecting the states' right view as inconsistent with the text and with new research findings on the legislative history, the attitudes of the authors, the meaning of the right to bear arms in antecedent American and English legal thought, and the role that an armed citizenry played in classical liberal political philosophy from Aristotle through Machiavelli and Harrington to Sidney, Locke, Rousseau and their various disciples. Indicative of the current Supreme Court's probable view is a 1990 decision which, though focussing on the fourth amendment, cites the first and second as well in concluding that the phrase "right of the people" is a term of art used throughout the Bill of Rights to designate rights pertaining to individual citizens (rather than to the states).
Sanford Levinson speculates that the indifference of academics, and the legal profession generally, to the second amendment reflects "a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible -- perhaps even 'winning' --interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation." But Levinson and others who reluctantly embrace the individual right view are not always sympathetic to gun ownership, and certainly not to the gun lobby's obnoxious pretension that the amendment bars any gun control it happens to oppose, however moderate or rational. This may help account for the fact that, though the availability of guns for self-defense is of great import to the gun lobby, that issue plays little part in modern academic exposition of the individual right position. In contrast, proponents of the state's right view do focus on the issue of self-protection, straight-forwardly denying the existence of historical evidence that self-protection was one of the concerns underlying the second amendment.
The purpose of this article is to explore the numerous and protean ways in which the concept of self-protection related to the amendment in the minds of its authors. Indeed, self-defense is at the core of the second amendment and was an element in the Founders' political thought generally. At the same time, it is important to recognize that the Founders' view of self-protection was not only stronger but also more inclusive than the concept described by many modern thinkers. To the Founders and their intellectual progenitors, being prepared for self-defense was a moral imperative as well as a pragmatic necessity; moreover, its pragmatic value lay less in repelling usurpation than in deterring it before it occurred.
Language: en |