A Well-Regulated Militia: The Founding Fathers and the Origin of Gun Control in America

By Hardy, David T. | The William and Mary Bill of Rights Journal, April 2007 | Go to article overview

A Well-Regulated Militia: The Founding Fathers and the Origin of Gun Control in America


Hardy, David T., The William and Mary Bill of Rights Journal


A WELL-REGULATED MILITIA: THE FOUNDING FATHERS AND THE ORIGIN OF GUN CONTROL IN AMERICA By Saul Cornell.[dagger] New York: Oxford University Press, 2006. Pp.277. $30.00

"Every thing of a controvertible nature," James Madison noted regarding his proposed Bill of Rights, "was studiously avoided."1 We may wonder what he would think of the 217 years of controversy that followed.

For most provisions of the Bill of Rights, the controversies have focused upon their boundaries and limitations. What is an "unreasonable search," a "compelled" self-incrimination, an "establishment" of religion? In the case of the Second Amendment2 the dispute is far more fundamental, going to the very question of whether it has any meaningful existence. Here, the conflict has been one between variants of two viewpoints:

(1) the "individual rights" view,3 which has two variants:

(a) The "standard model," which sees the Second Amendment as guaranteeing a personal right on par with other Bill of Rights protections;

(b) What I have termed the "hybrid" view, which sees it as guaranteeing an individual right but limited to private bearing of arms suited for military or militia use;4 and

(2) the "collective rights" view which likewise has two variants:

(a) The traditional "collective rights" approach, which sees the amendment as protecting only a state interest in an organized militia, i.e., National Guard units;5 and

(b) What the Fifth Circuit has termed the "sophisticated" collective rights approach, which sees it as protecting individual activity but only if directly linked to organized militia missions.6

As the first view treats the Second Amendment as a meaningful restriction on legislative action, while the second treats it as fundamentally meaningless,7 the conflict is absolute.

The history of the understanding of the American right to arms has followed an unusual course in which the advantage swayed back and forth between the two schools of thought. At its outset, the existence of an individual right was taken for granted by courts,8 commentators,9 and the general public10 throughout the eighteenth and nineteenth centuries. The collective rights view was first enunciated, by a state court, in 1905.11 1 In 1939, the United States Supreme Court declined to accept that approach in United States v. Miller;12 soon thereafter, however, two Circuits read Miller either as endorsing the collective rights approach13 or as setting only a threshold test that permitted them to go farther and accept such an approach.14 Most of the remaining circuits followed,15 and this reading of Miller became a matter of "received wisdom" to the point in which some decisions suggest the authors had not bothered to read Miller before interpreting it.16

Even as late as the early 1960s, Supreme Court justices and an article selected by the American Bar Foundation as the winner of its constitutional law essay competition were willing to acknowledge the essentially individual nature of the right protected by the Second Amendment, but that changed by the end of the 1960s. . . .

It is fair to say that by the 1970s the collective or states' rights theory had won the day with most jurists and legal and lay commentators who opined on the issue. . . . Throughout the 1970s and 1980s, expressed opinion on the part of the elite bar, the bench, and the legal academy was firmly on the side of those who denied the existence of an individual right to arms.17

The tide was, however, changing once again. When first I published on the subject in 1 974, 18 there were but a few scholarly treatments in print and none of any particular depth.19 Over the next decade, scholarship in the field expanded, largely as a result of the efforts of Stephen Halbrook, the late David Caplan, and Joyce Malcolm.20 In 1983, Don Kates published a lengthy breakthrough article in the Michigan Law Review.21 Thereafter, scholarly treatment of the individual rights approach grew exponentially. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

A Well-Regulated Militia: The Founding Fathers and the Origin of Gun Control in America
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.