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Book Review
| Saul Cornell, A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in Early America, Oxford: Oxford University Press, 2006. Pp. 270. $30.00 (ISBN 0-19-514786-3).
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| For the past twenty years, a lively scholarly debate has raged over the meaning of the Second Amendment to the United States Constitution. According to one school of thought, the provision was intended to protect an individual right to bear arms for self-defense and recreation. Others, however, believe that like many provisions of the Bill of Rights the Second Amendment was designed to limit federal overreaching and preserve the autonomy of states over their own militias. Saul Cornell, in this lively, engaging, and concise history, shows that both sides in this debate misread the evidence and fail to comprehend fully the context of the Founding generation. Recovering the lost meaning of the Second Amendment, Cornell shows that the Founders sought to establish a "civic right," which "guaranteed that citizens would be able to keep and bear those arms needed to meet [the citizens'] legal obligation to participate in a well-regulated militia" (2). The right to bear arms, as the Founders understood it, was intimately tied up with military service to the state. |
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The amendment was born of the Founders' fear of a standing army. They believed instead that defense of state and nation depended upon armed citizens serving in state militias. Individuals, therefore, were required to outfit themselves with a musket at their own expense, to report properly prepared to musters, and to bear their arms to protect their communities from attack. While modern generations tend to define rights in terms of negative liberty—individual choice free from government interference—the Founders understood the right to bear arms as involving both obligation to, and oversight by, the state. Government regulation was not antithetical to the Second Amendment but was integral. Individuals had to be adequately trained and disciplined for a militia to be a well-ordered, effective fighting force. The Founders' gun control included safe storage laws, mandatory musters, and the equivalent of gun registration. Without legal regulation, an armed citizenry threatened to devolve from a well-ordered militia into a destabilizing mob, such as that which rose up against the government of Massachusetts in Shays's Rebellion of 1786. |
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As an historian, Cornell recognizes that in any period there is always more than one, uniform meaning of a constitutional right. So although the civic right view of the Second Amendment was predominant among the Founders, Cornell argues, there were also competing forces and philosophies. The Anti-Federalists, for example, envisioned the Second Amendment, like other provisions in the Bill of Rights, as a bulwark against overreaching by the federal government. It is upon these sources that modern proponents of the state militia (or "collective rights") reading rely. Yet, as Cornell reminds us, the Anti-Federalists were a constitutional minority committed to a radical view of states' rights. Theirs was not a majority view. |
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The individual rights reading of the Second Amendment was not rooted in the Founding but rather arose in the Jacksonian era, when a new wave of gun control washed over the states. In response to the spread of handguns and bowie knives, state legislatures enacted bans on carrying concealed weapons, sparking a backlash. Gun control opponents reinterpreted the Second Amendment as protection for an individual right to possess a weapon regardless of any militia service. |
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In telling this story about the evolving Second Amendment, Cornell's book shows how the meaning of the constitutional text has been continually reshaped to fit the needs and controversies of different eras. Its original, civic right meaning was lost early on, as the successors to the Founders came to believe that a standing army was necessary for national defense. This rendered obsolete the Founders' minuteman ideal, by which citizens, armed with their own rifles, would rise up to repel enemies. During Reconstruction, the Second Amendment was refracted through the lens of that era's debates over federalism: Republicans thought that incorporation of the Bill of Rights would give Congress the ability to regulate the keeping and bearing of arms, while Democrats insisted that states, not the federal government, retained ultimate authority over guns. In the twentieth century, with its advent of the National Guard and the rise of gun-reliant organized crime, the federal courts held the Second Amendment to pose almost no barrier to state or federal gun control. For any student of constitutional law, with its vibrant debates over originalism, Cornell provides a glimpse of how messy history is and how even the most fundamental rights change and evolve in response to social forces. |
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This historical tale is immensely valuable in its own right as an example of constitutional historiography. But Cornell, familiar with the potential implications of his tale for the modern debate among lawyers about the Second Amendment, does not tell his story for aesthetic purposes alone. In a closing chapter that law students and professors will appreciate, Cornell also discusses the important policy implications of his story for current debates about guns. Perhaps the most significant contribution Cornell makes in this regard is to debunk the idea popular among some individual rights proponents that the Second Amendment's right to bear arms imposes strict limits on, or even outlaws entirely, government efforts to control guns. While some proponents, including many originalists, believe that the Second Amendment should be interpreted like the First Amendment's freedom of speech to bar government imposed restrictions on the underlying right, Cornell's history reveals that gun control was part and parcel of the Founders' vision of ordered liberty. |
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Whether Cornell's history will be acknowledged by courts charged with construing the Second Amendment is anyone's guess. As any reader of this well-written book is likely to conclude, however, whatever the courts do with the Second Amendment will undoubtedly be more a product of the concerns and perspectives of twenty-first century Americans than an accurate reflection of the Founders' original understanding. |
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| Adam Winkler
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| UCLA School of Law |
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