THE FOUNDERS’ SECOND AMENDMENT: ORIGINS OF THE RIGHT TO BEAR ARMS
by Stephen P. Halbrook. Chicago, IL and Oakland, CA: Ivan R. Dee in association with The Independent Institute, 2008. 425pp. Hardcover. $28.95. ISBN: 9781566637923.
Reviewed by Robert J. Spitzer, Distinguished Service Professor, Political Science Department, SUNY Cortland. Email: robert.spitzer [at] cortland.edu.
The continuing national debate over the meaning and consequences of the Constitution’s Second Amendment came to a boil this past June in the Supreme Court’s landmark ruling, D.C. v. HELLER. In its first express opinion on the amendment’s meaning in seven decades, the high court’s five member majority ruled, for the first time in American history, that the right to bear arms protects an individual right to own a handgun for the purpose of self-protection in one’s home. HELLER set another “first” in that it became the first federal court in history to strike down a gun regulation (D.C.’s strict ban on handgun possession, enacted in 1976) on Second Amendment grounds. While it did not overturn its 1939 ruling in U.S. v. MILLER, which interpreted the amendment’s meaning as a militia-based right, it now expanded the amendment’s protective umbrella to include at least a limited “individual” right, an interpretation that first gained prominence in the 1980s. In addition to personal self-defense, the other tenet of the individualist view – that the amendment somehow protects citizens’ rights to own guns to thwart tyrannical impulses of our own government – was mostly ignored by the court.
In his new book, lawyer Stephen Halbrook purports to offer “the first book-length account of the nature of the Second Amendment . . . during the generation of the Founders of the American republic” (p.ix). The author’s claim is disingenuous, however. While no book-length treatment focuses exclusively on the founding period, many books examine this ground in extravagant detail (e.g. Kennett and Anderson 1975; Cornell 2000, 2006; DeConde 2001; Spitzer 2001; Uviller and Merkel 2002; Bogus 2002). Unfortunately, these writings receive little or no attention from Halbrook. But more about that later.
Before proceeding with this review, a matter of the author’s credentials obliges mention. In two biographical notes accompanying this book, as in the author’s many previous publications (many of which I have read), Halbrook identifies himself as a prolific author, researcher, and “practicing attorney in Fairfax, Virginia.” What he steadfastly fails to mention, however, is that he has served for many years as counsel for the National Rifle Association (the NRA is headquartered in Fairfax), having represented the NRA and its legal views in court, before Congress, at NRA gatherings, and in many other venues. This advocacy role leads to an important question: is it possible for the NRA’s lead lawyer to produce writing that would ever deviate from this organization’s longstanding fealty to [*938] unfettered gun rights? It is a fair question. The nearest proximity to an answer lies in an evaluation of the work based on its own merits. I turn now to that evaluation.
Halbrook’s analysis covers the colonial period, the Revolutionary War, the period of Constitution formation and adoption, the formulation of the Bill of Rights during the First Congress, and the early Federal period. The book concludes with a brief summary of how, in the author’s view, the amendment should be interpreted today. Suffice it to say that Halbrook’s view closely matches that of the HELLER majority. In his lengthy chronicle, Halbrook searches documents, text, letters, articles, speeches, and other references to guns, arms, and rights. In Halbrook’s telling, the revolutionary struggle against the British, the establishment of the American states and state, and the eventual addition of the Second Amendment, involved militia activities by citizens of the sort referenced in the Second Amendment, which says: “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.” But Halbrook also insists these activities enshrined, and are inseparable from, an individual right to have guns unrelated to militia service, in the way modern-day individualists choose to read the amendment.
The underlying problem with Halbrook’s analysis is three-fold: first, it tries to paste a modern concept into an historical construct; second, it leaves by the wayside any context, evidence, arguments, or complexity that does not support his point of view; and third, Halbrook pursues his task like a lawyer trying to persuade a jury rather than like a researcher trying to understand what the past actually shows. Thus, historical references to individuals and guns prove his argument, but evidence that shows the opposite also somehow proves his argument, too. In Halbrook’s view, any early American who had a gun was exercising an “individual” right, regardless of who, why, or under what circumstances. A non-falsifiable argument may sway a jury, but it is not social science.
For example, Halbrook laces his writing with references to the bearing of arms as an “individual” right, repeatedly inserting the word or its synonym next to “right to bear arms” as if to make his point solely by sheer repetition. Even though historians largely agree that the Second Amendment phrase “keep and bear arms” had an almost exclusive military meaning – historian Garry Wills, for example, concludes plainly that the phrase “refers to military service” (Wills 1999, at 257) – Halbrook misses no opportunity to claim the opposite. For example, after a lengthy quote from Samuel Adams that quotes extensively from William Blackstone and that references arms for “self-preservation and defence” and similar phrasing, Halbrook dubs this the “individual right to have arms for self-defense” (p.20), gliding over the fact that the quoted essay is Adams’ commentary on the Glorious Revolution of 1688, which had nothing whatever to do with obtaining or using guns for personal self-defense in the modern “individualist” sense. It was indeed about revolution for one form of government and against another at a crossroads moment in British history, but it had nothing to do with what Halbrook dubs “individual [*939] preservation” (p.20) in the way that term would be used in modern society.
In two chapters, Halbrook discusses early state constitutions, divining in all of them support for his individualist reading. Yet this forty page treatment studiously obscures the simple fact that, of the thirteen pre-1787 state constitutions, only five of them mentioned arms in any manner whatsoever; of those, only one – Pennsylvania’s – referenced anything even vaguely resembling an individual right. (The rest referenced exclusively military defense.) Here it is in its entirety: “That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.” Even leaving aside the obvious military nature of the wording taken as a whole, the reference to “defence of themselves” sounds to modern ears as something like an individual right. Yet a recent study of this language in Pennsylvania’s Constitution of 1776 (Kozuskanich 2007) concluded that this wording resulted from the chronic inability of the state government to protect Pennsylvanians from Indian attacks. The wording was an attempt to achieve community safety by establishing and enforcing a civic duty of all militia-eligible men to participate in defense from Indian attacks, not Halbrook’s individualist right. In fact, the pre-1787 state constitutional record undercuts rather than supports Halbrook’s thesis, but that does not deter him from proclaiming the opposite.
Nowhere is Halbrook’s cut-and-paste history more evident than in his discussion of the Second Amendment’s crucial formulation during the First Congress. He must contend with the fact that all the extant recorded debate and discussion regarding the right to bear arms and what became the text of the Second Amendment was military in nature. Nowhere is there any reference to a personal or individual right to have guns, whether related to personal self-defense or hunting, and certainly not to armed revolt against the new American government. Symptomatic of the concern with military matters, the subject most extensively discussed in congressional debate on the right to bear arms was whether an exemption from militia service for those “religiously scrupulous” (what today is designated as “conscientious objector” status for those seeking to avoid the military draft on religious grounds) should have been included in the amendment, as was the case in several drafts. After quoting Elbridge Gerry, who complained that the religious exemption should be limited only to those affiliated with a recognized religious sect, such as the Quakers, Halbrook offers this explanation of the quote’s meaning: “Keeping and bearing arms was a right of ‘the people,’ none of whom should be disarmed under any pretense, such as the government’s arbitrary determination that they are religiously scrupulous” (p.267). Halbrook twists the right to opt out of military service for religious reasons into a protection against the government from disarming those with religious beliefs!
And regarding Halbrook’s (and others’) notion that the Second Amendment somehow enshrines or protects a right of [*940] citizens, whether as individuals or as members of a militia, to keep guns to deter a tyrannical American government, the text of the Constitution itself dispels that proposition. As it says in Article I, Section 8, militias are to be used to “suppress Insurrections,” not cause them. Yes, American patriots took up arms in whatever manner they could to throw off British tyranny, but they were doing so not as private individuals, but as part of a collectivity in a great patriotic revolution. Even before the oppressor was defeated, Americans moved to create their own civil government, where citizens could express themselves through speech, ballots, the jury box, and peaceful petitioning of their government. The American Revolution was not, as Halbrook would have it, a struggle to use “the right to keep, bear, and use arms to check governmental oppression” (p.123); it was a struggle to replace oppressive British rule with a just American government, although the final form of that government took a decade to hammer out.
Halbrook sidesteps these manifold problems because he chooses not to confront the prodigious scholarly writing on these and other subjects. If the first job of any earnest scholarly investigation is to take account of other writing in the same field, Halbrook fails on that count alone. In particular, he ignores the most important recent book on the historical Second Amendment, Saul Cornell’s persuasive A WELL-REGULATED MILITIA (2006), which argues that both the modern individualist and collective views are defective. The amendment was about a civic obligation or civic right, he says. And he makes a strong case. How would Halbrook deal with Cornell’s argument? We do not know, because he ignores it.
As the Supreme Court made clear this past summer, judges can change the law, although there is less than consensus, even among conservatives, that Justice Antonin Scalia succeeded in making the case for the majority in HELLER. Federal Judge Richard Posner (2008) opined recently that Scalia’s opinion, though lengthy, “is not evidence of disinterested historical inquiry. It is evidence of the ability of well-staffed courts to produce snow jobs.” But even as judges can change law, they cannot change history. As much as Halbrook would like to bend history to suit the politics of his employer, he is not entitled to his own history. As the late Senator Daniel Patrick Moynihan was fond of saying, people are entitled to their own opinions, but not to their own facts. This axiom has escaped Mr. Halbrook.
Bogus, Carl (ed). 2000. THE SECOND AMENDMENT IN LAW AND HISTORY. New York: The New Press.
Cornell, Saul. 2000. WHOSE RIGHT TO BEAR ARMS DID THE SECOND AMENDMENT PROTECT? New York: Bedford/St. Martin’s. [*941]
Cornell, Saul. 2006. A WELL-REGULATED MILITIA: THE FOUNDING FATHERS AND THE ORIGINS OF GUN CONTROL IN AMERICA. New York: Oxford University Press.
DeConde, Alexander. 2001. GUN VIOLENCE IN AMERICA. Boston: Northeastern University Press.
Kennett, Lee, and James LaVerne Anderson. 1975. THE GUN IN AMERICA. Westport, CT: Greenwood Press.
Kozuskanich, Nathan. 2007. “Defending Themselves: The Original Understanding of the Right to Bear Arms.” 38 RUTGERS LAW JOURNAL 1041-70.
Posner, Richard A. 2008. “In Defense of Looseness.” THE NEW REPUBLIC, August 27.
Spitzer, Robert J. 2001. THE RIGHT TO BEAR ARMS: RIGHTS AND LIBERTIES UNDER LAW. Santa Barbara, CA: ABC-CLIO.
Uviller, H. Richard, and William G. Merkel. 2002. THE MILITIA AND THE RIGHT TO ARMS, OR, HOW THE SECOND AMENDMENT FELL SILENT. Durham, NC: Duke University Press.
Wills, Garry. 1999. A NECESSARY EVIL. New York: Simon and Schuster.
D.C. v. HELLER, 554 U.S. ____ (2008).
U.S. v. MILLER, 307 U.S. 174 (1939).
© Copyright 2008 by the author, Robert J. Spitzer.
Labels: Vol. 18 No. 10