To Keep and Bear Arms in the Early Republic
Shalhope, Robert E., Constitutional Commentary
When "The Ideological Origins of the Second Amendment" appeared seventeen years ago, my primary intent was to shed new light on the intellectual life of the early republic--to employ an analysis of the amendment as a window into the political culture of eighteenth-century America.(1) Previous research had convinced me of the powerful shaping influence of republicanism during this time;(2) consequently, I initiated this new investigation by subjecting the republican literature so central to Revolutionary thought to a fresh reading. It soon became apparent to me that four principles relevant to the formation of the Second Amendment coursed throughout this literature: the right of individual citizens to possess arms; the fear of professional standing armies; the reliance on militias composed of armed citizens; and the subordination of the military to civilian control. When the Second Amendment assumed its final form the emphasis on the armed citizen and organized militias assumed precedence. In my mind James Madison and his colleagues joined these two distinct yet vitally interrelated rights in an effort to balance as best they could individual rights with communal responsibilities.(3)
At the time "Ideological Origins" appeared, the Second Amendment had remained in relative obscurity since its ratification two hundred years earlier. This is most assuredly not the case today. In the last decade alone analysis of the Second Amendment has become a virtual cottage industry among law professors; law reviews from the most prestigious to the most obscure have published essay after essay dealing with various aspects of the Amendment.(4) Many of these authors borrowed liberally from "Ideological Origins" or cited it to support their arguments. Most displayed little if any interest in the political culture that spawned the Second Amendment; those that did displayed an appalling ignorance of this intellectual climate. The result was, of course, an incredibly anachronistic presentation of the Second Amendment. Quotations taken entirely out of context were strung together as if language conveyed the same meaning at all times and in all circumstances. Consequently, as these scholars subjected the words and phrases of the Amendment itself (as well as a wide range of late eighteenth- and early nineteenth-century literature) to the most tortured linguistic analysis, a flat, static vocabulary emerged that bore no relation to the dynamic culture of the early republic. The end result has been the "Standard Model"(5) of interpreting the Second Amendment and an equally strained and intemperate opposition to this mode of analysis.(6)
More than anything else, then, history has been the greatest casualty of this surge of publication. In their urgency to propound a particular view of the Amendment that fits their current ideological demands, jurists have either ignored the political culture of the early republic or framed it in such a way as to suit their needs. The dynamic relationship between text and context has been lost. Fortunately, several historians--Saul Cornell, Michael Bellesiles, and Gary Wills--have recently turned their attention to the historical circumstances within which the Second Amendment appeared. Their work promises to provide much greater depth and sophistication to our understanding of the early republic--an understanding that not only furthers our knowledge of that era, but sheds essential new light on the meaning of the Second Amendment within that culture.
In the essay written for this forum Professor Cornell, drawing upon an extensive knowledge of Antifederalism,(7) provides fresh insights into the intellectual and social context of the Second Amendment. He not only reveals the failure of Standard Modelers to place the language of the Founders and others within the context of the time, but exposes the weaknesses inherent in their insistence upon a consensus among eighteenth-century Americans regarding the true meaning of the Amendment. …