A couple weeks ago the Wisconsin legislature was busy trying to figure out exactly how to change the laws so as to allow residents to carry concealed handguns. One option being bandied about was to have gun-toters apply for a permit and receive a modicum of training before having it granted. The other goes by the Orwellian name "constitutional carry" which means that no permit would be necessary. This is justified in the minds of supporters because the Constitution has an amendment relating to guns which includes the phrase "well regulated" and somehow for these people saying that the government can regulate something really means it can't.
So I availed myself of the opportunity to read Saul Cornell's A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America. Cornell is, according to his publisher, "Professor of History at Ohio State University and Director of the Second Amendment Research Center at the John Glenn Institute. An authority on constitutional history and especially on the Second Amendment, he is the author of The Other Founders: Anti-Federalism and the Dissenting Tradition in America and editor of Whose Right to Bear Arms Did the Second Amendment Protect?" In the book, Cornell lays out some prescriptive measures but this comes at the conclusion of the book. The bulk of the text is not polemical in nature and is instead history written for the layperson.
His thesis is that 21st century Americans don't properly understand the Second Amendment ("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.") as it was intended. Today we have the individual right interpretation as espoused by the NRA and many others which sees the right to bear arms as something conferred upon individuals. On the other end there's gun control advocates who normally take a collective rights stance on the Second Amendment. Here the idea is that the amendment is about states regulating militias, not about the rights of individual citizens.
But Cornell argues that the amendment confers what he calls a "civic right". It's probably not the best term out there, however, but until we get a really lengthy German word that covers its meaning, we're stuck with it. I say it's not the best description because it entails a right plus an obligation/duty/responsibility, namely to serve in the militia. As one can imagine, many in late-18th century America were very weary of standing armies. Even those that weren't had to concede that, well, our country didn't have any. Hence militias. And while there were disputes about the exact roles of Congress and the states regarding them, there was little disagreement that most white males had to be in them. (Quakers, for instance, were exempted.) This is what Cornell means. The right to "bear arms" was tied up in a Gordian knot with the duty to serve in the militia. This wasn't about owning a musket if you wanted to, you had to own a musket. Furthermore, you had to show up at muster when called and you had to put your life on the line if asked to do so. As you can see, neither of the two most popular views today incorporate the notion of compulsory participation in the common defense.
It's not that keeping arms for individual self-defense was unheard of, but that idea was part of the common law heritage American inherited from England. Cornell notes that the earliest state constitutions were devoid of any language protecting the right of keeping arms for self-defense. Plus there were exemptions for Quakers. You wouldn't need to exempt conscientious objectors if bearing arms was a right for individuals to exercise or not. Cornell references the responses of Massachusetts towns when considering their constitution. It referred to keeping and bearing arms for the common defense but not for self-defense yet there was a great paucity of comment on the issue with only a couple towns bringing up objections to the omission of keeping arms for the latter purpose.
The book also abounds with court rulings stemming from incidents involving people taking up arms. In 1813 Kentucky passed a law restricting concealed carry. (And Louisiana enacted an even stricter law later that same year.) The law was challenged and the state's supreme court ruled in 1822 against the laws saying that the Second Amendment encapsulated an individual right. Furthermore it stated that this right could not be regulated. After the decision was handed down, the Kentucky House went ballistic. (Ahem.) It issued a stinging rebuke of the court's ruling which lectured the judges on the historical meaning of the Second Amendment – i.e. – it pertained to militias & the common defense. Kentucky would eventually modify its constitution to nullify the court's ruling.
I appreciated not only how A Well-Regulated Militia demonstrated the general understanding of the Second Amendment's meaning in the late 18th/early 19th centuries but also that it gave time to dissenting views. At no time in our history has there been a consensus on what the amendment meant. There have always been those who see it as conferring an individual right while Anti-Federalist types saw it as guaranteeing states' rights. Regarding the latter, militias were seen as protectors of liberty and a check on the federal government. A small minority thought that guaranteeing the right of militia members to bear arms was an acknowledgement that states could openly and violently rebel against the federal government when it became tyrannical. More common was the idea that, when a tyrannical federal government ordered militias to do its bidding, they could provide a check on its power by refusing to bear arms in its service. Entangled here are also many disagreements over who has what kind of jurisdiction over militias.
Cornell cites the U.S. Supreme Court's 1876 ruling in United States v. Cruikshank as a watershed moment. "The Supreme Court's ruling endorsed a limited states' rights conception of the Second Amendment and pushed aside the civic conception of the Second Amendment that had dominated mainstream constitutional theory since the adoption of the Bill of Rights…After Cruikshank, the Second Amendment would be understood to be a limit on federal power to disarm the state militias."
Many arguments from this country's early days became moot as police forces were created and federal legislation in the early 20th century wrestled control of the militias from the states. We were moving towards standing armies. At this point, the Second Amendment seems to have been in limbo. SCOTUS declared it was about the rights of the states and their attendant militias but they no longer had militias.
Cornell cites the SCOTUS ruling in United States v. Miller (1939) as being the genesis of our modern gun control debate. Here the Court ruled against an individual interpretation of the Second Amendment and instead fused "elements of the traditional civic conception and the states' right view that had emerged at the end of the 19th century." Apparently the wording of the decision left it open to some interpretation and the legal theory about the Second Amendment which was in vogue at the time was developed by Lucillus A. Emery, the chief justice of Maine's supreme court, in an article published in 1914 in Harvard Law Review. His was the collective rights theory which stated that the Second Amendment applied to those who "bear arms in military organizations" – the new National Guard created by the federal government. This essentially made the Second Amendment an anachronism, a relic of an age before organized police forces and professional armies. Emery's ideas and the individual rights view would become the antipodes in the modern debate over gun control.
In his closing Cornell attempts to rescue the civic meaning of bearing arms as both a right and a duty. He laments "the precipitous decline in the ideal of civic participation in American culture", a culture in which most people hold an individual rights view. But rather than amending the Constitution to extirpate that annoying bit about militias, Cornell suggests we use it in situ as a basis to "transform public culture." It seems that the goal of this atavistic endeavor is to reinvigorate the notion of civic obligation and he offers mandatory public service for youth as a starting point.
Cornell adds that, in addition to having lost the idea of civic participation, we have also abandoned the idea of well-regulated liberty. This was repeated earlier in the book a few times when he noted various jurists, politicians, &c commenting that there was a distinction between a well-regulated militia and an armed mob. He is taking aim at the NRA and the prevailing individualist view of the Second Amendment. I got the impression that Cornell accepts (as opposed to endorses) an individual right to gun ownership. This being the case, he lays out some potential regulations such as mandatory gun insurance to close off the book.
A Well-Regulated Militia lays out a strong case that the prevailing view of the Second Amendment for the first 100 years of our republic was that of a civic right to bear arms coupled with a duty to serve in state militias. This puts the lie to claims by proponents of today's prevailing views that theirs is the original intent of the Second Amendment. I also found the book interesting because it demonstrates that gun control and the meaning of Second Amendment are issues that have been with the United States from the start with a multiplicity of views on them that have morphed over time.
His prescriptive conclusion is perhaps the weakest part of the book. While there's much food for thought and I agree with a lot of it, I wish he had argued more forcefully against the prevailing individualist view. In addition, I think he would have been more persuasive had he explained better exactly why civic obligations and well-regulated liberty are desirable. He seems to say that they could heal divisions among Americans brought on by conflicting views of the Second Amendment and move citizens in a more virtuous direction. This argument is a bit nebulous and I'm unsure if these goals are desirable in and of themselves or more proximate. A discussion for another book.
For more on the subject in the same vein, check out Nathan Kozuskanich's essays "Defending Themselves: The Original Understanding of the Right to Bear Arms" and "Originalism, History, and the Second Amendment: What Did Bearing Arms Really Mean to the Founders?".
Here is Cornell on C-SPAN talking about A Well-Regulated Militia.
Postscript: Cornell has a long row to hoe in convincing people not only to be more virtuous, but to simply accept his conclusions about what the Second Amendment has meant through history. A Well-Regulated Militia was introduced as an historical authority in the case of Parker v. District of Columbia which was heard by the U.S. Court of Appeals for the District of Columbia. His view did not prevail. Instead the individualist view did and was affirmed in 2008 by the SCOTUS in District of Columbia v. Heller and again last year in McDonald v. Chicago.
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