Words, Deeds, and Guns: Arming America and the Second Amendment

Jack N. Rakove

ALTHOUGH no case involving the Second Amendment has reached the Supreme Court since Hitler invaded Poland, its twenty-seven words are now among the most familiar passages of the Constitution. "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." The familiarity of this text is, perhaps perversely, a function of the fact that the justices, in their wisdom or discretion, have not revisited their holding in the strange case of United States v. Miller, in which two gangsters unsuccessfully invoked the Second Amendment in order to avoid prosecution for illegal possession of a sawed-off shotgun.1 Those Americans who now believe that ongoing efforts to regulate firearms in the interest of public health mask an insidious design to confiscate private weapons in the pursuit of future tyranny are eager to see the Miller decision reviewed and reversed. That belief underlies the work of such legal writers as Randy Barnett, Stephen Halbrook, Don Kates, Nelson Lund, and Glenn Harlan Reynolds. If the issue were to be reopened, they all argue, historical evidence would demonstrate that the adopters of the Second Amendment, as well as many early commentators, believed that "the people" of the main clause of the amendment meant all individuals or persons and that the "militia" of the preamble similarly identified the entire adult, free, male population, rather than a select group of citizens formally enrolled in units organized and regulated by state and federal law.2	1
The controversy over the interpretation of the Second Amendment is distinctive in several respects. First, the amendment is one of only two provisions of the Constitution that contains its own preamble, and this raises a question of the extent to which this statement of purpose should guide the interpretation of the substantive declaration of the final clause.3 Second, it would be difficult to identify any clause of the Constitution more open to the common sense objection that its modern interpretation should not be rooted in the concept of "original intent" or "original understanding," simply because firearms are now far more devastating than anyone in the eighteenth century could have plausibly imagined. Yet scholarly discussions of the amendment invariably take a pronounced originalist form.4 Third, the polemical tone of Second Amendment studies seems unlike any other realm of constitutional discourse--including even abortion. Where else does one encounter the self-congratulatory claim that one school has so dominated the field that it can justify calling itself the "Standard Model"?5	2
The furor over Michael Bellesiles's Arming America: The Origins of a National Gun Culture bears out the last point. Some significant chunk of the reaction the book has sparked must reflect its perceived implications for the interpretation of the Amendment and the ongoing debate over firearms regulation. It thus comes as something of a surprise to realize that Bellesiles devotes only a few pages (208–18) to exploring the general context for the adoption of the amendment--and these arguably more workmanlike and summative than sparkling and deeply analytical. Only half of the relevant section, headed "The Constitution and Guns," addresses the constitutional debates of 1787–1789, while the drafting of the amendment proper consumes a half-paragraph of two sentences. Bellesiles never tackles such vexed subjects as the significance of the Senate's decision to delete the key qualifying phrase "composed of the body of the people" that followed the mention of "militia" in the House version of the amendment or whether the usage of the word "people" in the Constitution is always tantamount to the aggregate of all individuals.6	. . .