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FORUM: COMMENT


Scottish Factors and the Origins of the Second Amendment: Some Reflections on David Thomas Konig's Rediscovery of the Caledonian Background to the American Right to Arms

H. Richard Uviller and William G. Merkel


David Konig has written an important article that makes a welcome contribution to the rapidly evolving field of Second Amendment scholarship.1 In the essay that forms the focal piece of this forum, Konig argues that two rival, hotly contested interpretations of the Second Amendment fail to recapture the original meaning of the constitutional right to keep and bear arms. To Konig, neither the individual rights nor the states' rights model of the Second Amendment accurately reflects the conceptual universe shared by the drafters and ratifiers of the Bill of Rights. Neither model (and particularly not the individual rights model), Konig maintains, would have made sense to the persons who left behind a now familiar and much-discussed documentary record related to the call for amendments to the Constitution in 1788, the drafting of the Bill of Rights in 1789, and its ratification in 1791. 1
      Konig's most significant contribution is to call our attention to a neglected source of background assumptions and received memories that colored provincial America's consideration of issues relating to collective security, the militia, and the right to arms. This narrative, previously ignored by scholars of the Second Amendment, concerns the disappearance of the militia and the right to arms in Scotland after the Union of the English and Scottish Parliaments in 1707 created the new country of Great Britain. The protracted efforts of Scottish reformers to win acquiescence from the British Parliament for reestablishment of the Scottish militia and recognition of the right of respectable Scots to bear arms had not yet borne fruit when the Second Amendment became part of the American Constitution, but as Konig ably demonstrates, the Scottish story had struck a chord with Americans considering parallel problems on the opposite side of the Atlantic. 2
      On the whole, Konig's account is both insightful and persuasive. It is also highly thought-provoking. From the present writers' perspectives, some of the more stimulating questions inspired by Konig's essay concern whether the Scottish example might not teach other (and slightly different) lessons from those Konig has suggested. We shall turn to these points and a short quibble over emphasis toward the end of our response. We should start, however, by confirming our general agreement with Konig's basic premise concerning the inability of either the private rights or states' rights models fully to recover the revolutionary generation's understanding of the right to arms. In our recent book, The Militia and the Right to Arms, Or, How the Second Amendment Fell Silent, we make a substantially similar argument.2 Indeed, we are not the only writers of the last few years to attempt to move away from the two-tracked, dichotomous debate on the right to arms. As Konig acknowledges, Saul Cornell (the other participant in this forum)3 and Richard Primus4 have each called for creation of a new model outside the established contours of the states' rights–private rights controversy that has dominated Second Amendment literature since its academic revitalization over a decade ago.5 3
      While Konig, Cornell, Primus, and Uviller and Merkel have all urged abandonment of both the states' rights and private rights approaches, each of us has generally reserved the greater part of his critique and condemnation for the private rights interpretation to the Second Amendment. Indeed, in attacking the private rights model, we frequently cite the work of Jack Rakove, Carl Bogus, Paul Finkelman, and other scholars who remain more or less firmly attached to the familiar states' rights reading.6 Perhaps more clearly neutral in his embrace of "a third way" is David C. Williams, author of several major articles7 and a new book8 on the Second Amendment. Williams (like Uviller and Merkel) stresses the civic republican roots of the amendment; he then goes on to develop intriguing arguments concerning the difficulty and desirability of applying the civic republican–inspired text of the amendment in a decidedly postvirtuous—and now indelibly liberal—society. 4
      Thus, Konig is not the first to break the bounds of the established dichotomy. Moreover, the established dichotomy has become more fissured than is generally acknowledged by those who call for its abandonment; without too much straining, one could fairly easily tally up at least six variants of Second Amendment thought prominently debated in recent literature. The familiar two models of states' right and private rights are now joined at the heart of the debate by an emerging centrist path, espoused by Konig, Williams, ourselves, and (we think probably) Saul Cornell,9 describing a personal liberty that has meaning and substance only in the social context of civic obligation carried out within a public organization. In addition, a highly significant variation of the states' rights model has been put forward by Carl Bogus, in which the right to arms is tainted by its linkage to slavery and the "hidden" purpose of protecting the slave patrols of the South against Federal disarmament.10 The private rights reading, for its part, may or may not emphasize a right to insurrection allegedly attendant to the right to arms.11 And finally, several interesting attempts have been made to explore the impact of the Fourteenth Amendment on the Second Amendment including, most prominently, Akhil Reed Amar's argument that the individualistic Privileges and Immunities Clause of the Fourteenth Amendment severed the right to arms from its communal roots in the militia, thereby creating a purely private right designed to allow the freed people of the South to protect themselves against racist reprisals by discontented ex-Confederates reorganized into the Ku Klux Klan and other hate groups.12 5
      It is not, then, Konig's call to break away from the tired two-tracked debate—legitimate and well presented as that call is—that makes his piece so engaging and so novel. The truly exciting part of Konig's article, in our judgment, is the discussion of the Scottish militia controversy and its relevance to the American provincials. Konig's Scottish thesis should significantly expand the framework and perspective of the less polemical investigators of the Second Amendment's meaning. Thirty years ago, another Washington University professor, J. G. A. Pocock, reinvigorated the discussion of the origins of American political thought by reminding us that the European and British inheritance of revolutionary Americans extended far beyond a simplified, a historical Lockean liberalism.13 In the context of the contested meaning of the Second Amendment, Konig's essay should have a similarly salutary effect by reminding modern Americans that, for American colonials and revolutionaries, Britain and England were not synonymous and that Britain itself, like the larger British Empire, was—if not perfectly federal or confederated—anything but monolithic. 6
      Before the Union of Parliaments created the seeming model of the unitary state (albeit one with two systems of laws!), the Union of Crowns embracing England and Scotland raised problems essentially (con)federal in character.14 These had their analogues and precursors respecting the English monarch's authority in other kingdoms and principalities beholden to the Crown but not to the Westminster Parliament: the several Channel Islands, the Isle of Man, Wales before its incorporation into England in 1536, Ireland, the English dominions in France, and the overseas Empire. Back in the American bicentennial year, Barbara Black argued ingeniously that notwithstanding Robert Schuyler's besting of Charles McIlwain in a famous scholarly debate of the 1920s, American theorists of the Constitution of the British Empire essentially had it right as a matter of legal history; for reasons more complex than those McIlwain suggested, the legislative Parliament in Westminster really did have no more authority to bind the thirteen colonies than the conciliary Parliament had in the late Middle Ages to bind the king's non-English dominions.15 Black's case, like the colonists' case, required proof that the Revolution of 1688–89 did not diminish the scope of the royal prerogative outside of England and that the Union of 1707 did not grant Parliament authority outside of Britain. Therein lies, of course, a great irony, for the American Revolutionaries considered themselves preeminently Whigs and anything but prerogative men; that is to say, they saw themselves as champions of legislative supremacy over monarchical authority. In essence, then, Black has shown how the Americans would have things both ways. 7
      From 1707 onward, the Scots, too, confronted a dilemma of interpreting their (Parliamentary) Union with England. The Scottish question likewise highlighted the tensions between the advantages and disadvantages of Union. For those most concerned with maximizing the rights of North-Britons, the theory underpinning Union was a matter of immense practical consequence. If the Union of 1707 represented a merger of Parliaments, presumably Scottish practice and doctrine prior to the Union continued to have force within Britain, but if the Union in essence dissolved the Scottish Parliament into the English Parliament, the Scottish Parliament presumably ceased to exist.16 Indeed, the same question echoes anew in the postdevolution Scottish constitutional politics of our own time, for if the pre-Union Scottish Parliament endured in merged fashion within the West-minster Parliament until 1999, then the devolved Scottish Parliament of today is not a new creation but the lineal successor of the Parliament that sat in the once (and future, according to the SNP) sovereign and independent Scotland.17 8
      Konig discusses with great insight the effects of the Union of 1707 on the status of the right to arms in Scotland and the status of the Scottish militia, while showing how protests of Scottish militia champions linked into larger questions of interpretation of the Union. Was the Union egalitarian or colonial in character? Were the rights of Englishmen constitutionally guaranteed to Scotsmen? Did the rights of Scotsmen survive the Union? Eighteenth-century Americans, living their lives of benign imperial neglect, were not pressed into asking parallel questions until Westminster endeavored to impose a new tax-collecting regime in the colonies after the Seven Years/French and Indian War, but when the questions suddenly pressed the public consciousness in the 1760s, the Scottish background described by Konig doubtless assumed obvious and inescapable relevance. 9
      But—and here is where we quibble slightly with Konig—the Scottish background, for all of its importance to British Americans of Scottish and non-Scottish provenance, was, in our view, not the determinative nor even the principal influence upon the minds of the revolutionaries, let alone the framers and ratifiers of the Constitution. We cannot say for certain that Konig intends to say that it was.18 But one could certainly read his text that way or, at least, take away from his many informed examples of Scottish influences the sense that this is his implication. Most prominently, Konig emphasizes the wide American distribution of the Scotsman James Burgh's Political Disquisitions of 1775. Burgh was certainly an important figure for the revolutionaries (one whom we unjustly neglected in our book), but there were other writers, many with a specifically English or Anglo-American perspective, who were just as influential. The Anglo-American Thomas Paine, who emigrated to Philadelphia in the same momentous year Burgh's Disquisitions went to press, enjoyed an even wider circulation than Burgh.19 So did reprints of the early eighteenth-century English writers John Trenchard and Thomas Gordan, appearing in the form of Cato's Letters.20 The seventeenth-century English Whigs—Locke, Molesworth, Hamden, and Sidney—greatly influenced American thought concerning revolution, legitimacy, constitutional rule, arms, and arms confiscation; so did native-born contemporary theorists such as Otis and Jefferson.21 10
      Konig has convinced us that the Scottish militia crisis of the eighteenth century figured prominently in the minds of Americans moving toward independence and later toward the Bill of Rights. But notwithstanding the prominence of Scottish writing in American libraries and of Scotsmen like Wilson, Witherspoon, and McKean among the Revolutionary leadership, we remain convinced, based on our own investigation of the same period, that the received memory of the English Revolution of 1688–89 formed the most important source of history and political prudence for the Americans contemplating independence, and that their own subsequent experiences in War and under the Articles of Confederation constituted the most important influence on the Americans who proposed and ratified the Bill of Rights.22 11
      But in the larger context of the modern debate over the Second Amendment's meaning, probably the most salient reflection—and here we expect Konig would agree—is that the English, Scottish, and American experiences, like the English, Scottish, and American political discourses they inspired, were mutually reinforcing. Outlying voices aside, the main currents of political thought in all three Protestant, English-speaking, Atlantic countries connected the right to arms to service in the lawfully established, locally controlled militia. The militia and the right to arms were inseparably linked, and very few if any Britons or former Britons even contemplated the possibility that the right to arms might have any authenticity outside that context. In short, as Konig argues convincingly in his article, hardly anyone in the closing decade of the eighteenth century would have severed the rights "clause" of the Second Amendment from its preamble. 12
      Our final thoughts on Konig's piece concern two of the many intriguing questions his essay (implicitly) suggests, but which time, space, nuance, and the want of knowledge and information do not permit us to explore fully in this forum. Perhaps others—or even Konig himself—may wish to take them up in the future, as they explore further the history Konig has uncovered, a history that is, at times, richly ambiguous. 13
      The first point concerns ethnicity. Konig has suggested that American knowledge of Scottish disarmament would have sensitized the colonials to the possibility that Westminster might visit the same harsh measures on His Majesty's subjects across the water. But before confiscation finally came to New Hampshire and Massachusetts in 1774–75, might not the staunchly English New Englanders have thought themselves immune to the treatment administered to non-English Britons north of the Tweed? Unlike the Highlanders, the New Englanders had no taint of past disloyalty. After all, the '45 in Scotland coincided with the New England militia's seizure of Louisburg (a supposedly impregnable French Canadian fortress) for king and country. And Jefferson's famous charge that George III had "sen[t] over not only soldiers of our (own) common blood but Scotch and foreign mercenaries to (destroy us) invade and deluge us in blood,"23 deleted from the final draft of the Declaration of Independence, implies that a very English definition of American identity remained current even outside New England up until the moment of separation. 14
      Our final observation for the present pursues one of the most intriguing parallels between Scotland and America that Konig has brought into focus—that related to the select militia controversy. In Scotland, as in America, some recognized that the general militia was useless, others feared that a select militia would be dangerous, and still others feared that service therein would be onerous. The select militia proposal in Burgh's Disquistions might be compared and contrasted with Washington's Sentiments on a Peace Establishment and Knox's General Arrangement, and a detailed analysis of the responses to these and other proposals might tell us much about the similar and divergent fears and discontents that informed American and Scottish principles respecting the militia and the right to arms.24 The same holds for a more detailed comparison of the emphasis on local authority to arm the militia in the two societies. The evidence Konig reports from Scotland highlights the reaction against active government disarmament; we suspect more detailed investigation of American sources might reveal much more in the way of analogous fears of arms confiscation by a corrupted central government than some commentators care to acknowledge. We do not mean to endorse the private rights histories imagined by so many of the gun rights scholars and advocates, but as American awareness of Scottish disarmament suggests, there was more at stake in the Second Amendment than suspicions that the new Federal government would not actively pursue its concurrent authority to arm the dual state/federal amateur soldiery of the nation. 15
      That Konig's essay will inspire further reflection and inquiry seems certain. Indeed, in our case, it has already done so. Rediscovery of the Scot-tish background to the American debates over the militia and the right to arms is an important achievement in its own right. It would be nice to think that that the light Konig has shed on the conceptual universe of the founding generation may also play a part in helping to liberate early American constitutional history from modern constitutional polemics, and in emancipating contemporary policy formation from passionate fidelity to irrational and inaccurate beliefs about early national history. That is a tall order, and it may be too much to hope for, but at the very least, David T. Konig's latest contribution will enhance the understanding of inquisitive and open-minded participants in the ongoing national debate over the original meaning of the right to arms. 16


Notes

1.  H. Richard Uviller is the Arthur Levitt Professor of Law Emeritus at the Columbia Law School. William G. Merkel is a D. Phil. candidate in Modern History at Oxford University, and Associate in Law, Columbia Law School, 2003–2005. This review was written by Mr. Merkel with modest editorial assistance and the full accord of Professor Uviller. Our title, somewhat jokingly, plays on the double meaning of "factor"; however, we should own openly at this early point that we have absolutely nothing to say about Scottish factors in the sense of resident agents of British merchants and bankers who were blamed by many late colonial Virginians for provincial debt and attendant issues of imperiled esteem; see, e.g., T. H. Breen, Tobacco Culture: The Mentality of the Great Tidewater Planters on the Eve of Revolution (Princeton: Princeton University Press, 1985).

2.  H. Richard Uviller and William G. Merkel, The Militia and the Right to Arms, Or, How the Second Amendment Fell Silent (Durham, N.C.: Duke University Press, 2003). Our argument is that the Second Amendment responded to the anti-federalists' classically republican fears of centrally controlled standing armies and the dangers they posed to balanced, constitutional rule. In drafting the Bill of Rights, James Madison and the large federalist majority in the First Congress hoped to win over principled Antifederalists to the new Constitution. By reassuring their countrymen of the newly independent states' and newly formed Union's ability to rely on the less dangerous and more virtuous citizen militia for defense against civil unrest, foreign invasion, and would-be tyrants, the framers aimed to preserve not a state right but a personal entitlement to arms. They did so in expressed understanding that this right would be exercised in the civic forum of a well-regulated militia. The right against disarmament, the ratifiers hoped, would preserve the militia, thereby eliminating the most likely excuse for congressional funding of an overlarge regular army.

3.  See Saul Cornell, "Commonplace or Anachronism: The Standard Model, the Second Amendment, and the Problem of History in Contemporary Constitutional Theory," Constitutional Commentary 16 (1999): 221; and Cornell, "'Don't Know Much About History': The Current Crisis in Second Amendment Scholarship," Northern Kentucky Law Review 29 (2002): 657.

4.  Richard Primus, The American Idea of Rights (Cambridge: Cambridge University Press, 1999), 102–3.

5.  We too agree that Sanford Levinson's "The Embarrassing Second Amendment," Yale Law Journal 99 (1991): 637, succeeded ably in its proclaimed purpose of igniting sustained interest among professional academics in a field that had long been ignored by both historians and law professors. We do not agree, however, with Professor Levinson's suggestions in "The Embarrassing Second Amendment" that the right to arms has an existence unrelated to militia service, or that the right to arms encompasses a right to revolution. See our discussion in The Militia and the Right to Arms, at 168–78.

6.  See, e.g., Jack N. Rakove, "The Second Amendment: The Highest State of Originalism," Chicago-Kent Law Review 76 (2000):103; Carl T. Bogus, "The History and Politics of Second Amendment Scholarship: A Primer," Chicago-Kent Law Review 76 (2000): 3; and Paul Finkelman, "'A Well Regulated Militia': The Second Amendment in Historical Perspective," Chicago-Kent Law Review 76 (2000): 195.

7.  See, e.g., David C. Williams, "Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment," Yale Law Journal 101 (1991): 551; Williams, "The Militia Movement and the Second Amendment: Conjuring with the People," Cornell Law Review 81 (1996): 879; Williams, "The Unitary Second Amendment," New York University Law Review (1998): 822; and see our discussion of Williams's articles in The Militia and the Right to Arms, at 250–52.

8.  David C. Williams, The Mythic Meanings of the Second Amendment: Taming Political Violence in a Constitutional Republic (New Haven: Yale University Press, 2003).

9.  At this writing, we have not yet seen Cornell's contribution to the Forum, but his recent pieces, cited in n. 3, point clearly in the direction of a civic, corporate reading of the right to arms.

10.  See Carl T. Bogus, "The Hidden History of the Second Amendment," U. C. Davis Law Review 31 (1998): 301, and our discussion in The Militia and the Right to Arms, at 178–91.

11. See our Madisonian critique of Levinson's influential formulation of the insurrectionary reading of the right to arms in The Militia and the Right to Arms, 170–78.

12.  Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (New Haven: Yale University Press, 1998), 182–86; also consider David Yassky's interesting (but demonstrably counterfactual) argument that the Fourteenth Amendment constitutionalized federal conscription, thereby rendering the federal militia, and the Second Amendment, irrelevant. Yassky, "The Second Amendment: Structure, History, and Constitutional Change," Michigan Law Review 99 (2000): 588, and our discussion in The Militia and the Right to Arms, 209–11.

13.  See J. G. A. Pocock, Politics, Language, and Time: Essays on Political Thought and History (London: Methuen, 1972), and Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton: Princeton University Press, 1975).

14.  See Barbara A. Black, "The Constitution of Empire: The Case for the Colonists," University of Pennsylvania Law Review 124 (1976): 1157, 1165, 1172–91.

15. See Black, "The Constitution of Empire: The Case for the Colonists."

16.  See Ian Loveland, Constitutional Law: A Critical Introduction (Aldershot, England; Brookfield, Vt.: Ashgate/Dartmouth, 2000), 40–42.

17.  See Loveland, Constitutional Law, at 616–27, on the constitutional principles involved in Scottish devolution. In one important respect, our assertion travesties the position of the Scottish Nationalists, for a majority of the party members probably now favor absorption into an integrated Europe as strongly as they do dissolving the bilateral ties linking Scotland to the rest of the United Kingdom.

18.  To be fair, Konig even quotes Ned Landsman to the effect that the direct influence of the Scottish example was very small. See Landsman, "The Legacy of British Union for the North American Colonies: Provincial Elites and the Problem of Imperial Union," in A Union for Empire: Political Thought and the British Union of 1707, ed. John Robertson (Cambridge: Cambridge University Press, 1995), 297. However, Konig stresses that coming to terms with membership in (or allegiance to?) an Imperial Union had profound repercussions on provincial American constitutional thinking.

19.  See Michael Foot and Isaac Kramnick, ed., "Editors' Introduction," in The Thomas Paine Reader (Harmondsworth, England; New York: Penguin Books, 1987), 10, putting American sales of Common Sense at 100,000, an astonishing figure when one reflects that the population of the thirteen colonies numbered about 3,000,000.

20.  See Lawrence Delbert Cress, Citizens in Arms: The Army and Militia in American Society to the War of 1812 (Chapel Hill: University of North Carolina Press, 1982), 34–35.

21.  See our discussion in The Militia and the Right to Arms, 49–58, 60–64, 171–76, 301 n. 22, 312 n. 109.

22.  See our discussion of the Glorious Revolution and its American image in The Militia and the Right to Arms, at 49–67, and our discussion of American reflections upon the militia and the right to arms during the tumultuous 1780s at 69–106.

23.  From "the composition draft" reassembled from several fragments by the late Julian Boyd, editor-in-chief of the monumental and ongoing Princeton series of The Papers of Thomas Jefferson. It reflects the state of the developing text in mid-June 1776, after the Drafting Committee had delegated the writing to Jefferson, but before he submitted the original rough draft to them. See The Papers of Thomas Jefferson, ed. Julian Boyd et al., 28 vols. (Princeton: Princeton University Press, 1950– ), 1:420; Jefferson's own deletions appear here in (parenthesis).

24.  On Washington's and Knox's plans for a select militia, see our discussion in The Militia and the Right to Arms, at 69–72, 112–15.

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