The Second Amendment in Historical Context

By Higginbotham, Don | Constitutional Commentary, Summer 1999 | Go to article overview

The Second Amendment in Historical Context

Higginbotham, Don, Constitutional Commentary

A reading of Saul Cornell's essay brings several things to mind. First, there has been a torrential outpouring of writings on Second Amendment issues for quite some years. I initially became aware of this development sometime in the mid-1980s, but I only sensed that it was about to reach flood-tide proportions with a 1989 issue of the Dayton Law Review. It would be interesting to know just how many pieces in law reviews alone, to say nothing of books and op-ed newspaper pieces, have appeared in the last decade. Certainly part of the explanation for what has taken place has to do with hotly debated gun control issues. Even so, the reasons why passions run so high among academics is itself puzzling, especially in view of the fact that the United States Supreme Court has handed down only three direct opinions on the Second Amendment, the last one coming in 1939. Only the Third Amendment, forbidding the billeting of soldiers in private homes, has had less judicial attention than the Second. In any event, it is easier to fathom the motivations of the National Rifle Association and Brady legislation supporters than it is the dozens of those who reside in the halls of ivy. To further complicate matters, one finds both liberals and conservatives on each side of the debate.

Second, the vast preponderance of these writings have been by members of the legal fraternity. Their approach has on the whole been narrowly legalistic, and they have borrowed very heavily from each other, recycling the same body of information. That information often refers to the generalizations and conclusions of their lawyer colleagues at other institutions. When they have gone to original sources, as some surely have, they have drawn the great weight of their argument from charters, constitutions, and other formal parchments, as well as debates and interpretations in the writings of the leading lights of the Revolutionary generation--radicals and conservatives of 1776, Federalists and Anti-Federalists of the late 1780s, Hamiltonians and Jeffersonians of the Early Republic, and jurists of the following century. Perhaps none of the efforts of this Standard Model school of scholarship has received as much national attention as the special issue of the Tennessee Law Review that appeared in 1995, generating responses in such highly visible outlets as the New York Review of Books and the Chronicle of Higher Education.

If one encounters disappointingly little difference of opinion in this voluminous literature--what is surely now the Standard Model's fundamental testament--we do occasionally see a fresh approach from the lawyerly venue. One of the most provocative and worthy of consideration and further research is Carl T. Bogus's The Hidden History of the Second Amendment.(1) The author contends that influential Southerners feared that a federalized militia might well leave their region without adequate means to police the slave community and might provide slaves with an incentive to revolt. One reason, at least, for the Second Amendment was to address those concerns: the states would control their militias most of the time, and they would retain their authority to provide arms for their state militias if Congress failed to provide them with sufficient weapons. "In effect, the Second Amendment supplemented the slavery compromise made at the Constitutional Convention in Philadelphia and obliquely codified in other constitutional provisions."(2) If the pro-slavery motive is as powerful as Bogus contends, it may make Standard Modelers a bit uncomfortable and deprive them of some of the high ground they have sought to occupy. Although Bogus's thesis will doubtless be controversial, it is timely and valuable for two reasons: it will stimulate more research on the subject, and it contextualizes the question of origins and motivation by looking at the social order at the time Congress passed the Bill of Rights. Critics of the Standard Model approach will assuredly go along with one assertion of Bogus, which is that the evidence on the origins "of the Second Amendment strongly supports the collective rights position. …

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