Document Type
Article
Abstract
Part I of the Article engages the revisionists squarely on the turf they have staked out: the intent of those who framed and ratified the Second Amendment. Here I credit the revisionists with some important insights. Their research reminds us how greatly the world in which the Second Amendment was adopted differed from our own. This perspective helps us understand how the Founders could have placed the right to bear arms on par with the right to free speech--a decision that baffles many modern Americans. Yet while the revisionists correctly perceive that the right to keep and bear arms was crucial to the Founders, they misunderstand precisely why the right was so important. I will argue that the Founders' overriding concern was to ensure that the new nation's military force would be composed of state militias instead of, or at least in addition to, a federal standing army. To the Founders, a standing army posed a threat of both tyranny and ruinous military adventurism. To counter this threat, the Constitution meticulously allocated military power between the federal army and the state militias. The purpose of the Second Amendment was to protect this allocation.
Part II is analytic. My goal is to clarify the debate by identifying the argument at the core of the revisionists' attack on the courts. First, in light of the history recounted in Part I, I hope to discredit a libertarian version of the revisionist approach, which sees activities like hunting and recreational shooting as interests protected by the Second Amendment. This position, while it may be widespread among lay Second Amendment enthusiasts, cannot be supported by the historical record. An alternate version of the revisionist argument, however, is more plausible. According to this theory, the Amendment protects the rights of individual Americans to arm themselves so they can serve as the “unorganized militia” of the several states. This “Unorganized Militia Approach” is a fair reading of the Founders' intent; were we living in the early Nineteenth Century, it would provide the basis for any judicial implementation of the Second Amendment.
In Part III, I seek to explain this repudiation as a consequence of the Fourteenth Amendment. The Civil War destroyed the Founders' carefully wrought design; by initiating a federal draft, Lincoln replaced the Founders' decentralized military structure with a national army. I will argue that the Fourteenth Amendment made Lincoln's innovations a permanent part of the constitutional framework. One of that Amendment's many ramifications was to legitimize a federal military draft, and concomitantly undermine the role of the states' militia. With the militia rendered constitutionally obsolete, the purpose of the Second Amendment evaporated.
In Part IV, I consider a new strand of the revisionist argument, which understands the impact of the Fourteenth Amendment to be precisely the opposite of what I am suggesting. This argument, made most persuasively by Akhil Amar, claims that the Fourteenth Amendment was intended to reaffirm and expand--“incorporate,” in modern parlance--the Bill of Rights. As the Second Amendment is part of the Bill, Amar argues, we should understand the Fourteenth Amendment to have strengthened, not weakened, its protections. I will argue, however, that Amar's argument is seriously flawed because it ignores the particular historical circumstances in which contemporary incorporation doctrine developed. For Amar, incorporation should be understood as simply putting into effect the intentions of the framers of the Fourteenth Amendment. In fact, the Supreme Court formulated the incorporation doctrine only after the New Deal rendered unusable earlier interpretations of the Fourteenth Amendment; accordingly, a full understanding of the Fourteenth Amendment's effect on the Bill of Rights--including the Second Amendment--must explain why the incorporation doctrine emerged only after the New Deal, and not before.
I then provide a brief start toward such an explanation by contrasting the rebirth of the First Amendment after the New Deal with the dormancy of the Second. I conclude by suggesting the need for further work by courts and scholars to give the Second Amendment meaning in the context of the post-New Deal Constitution.
Recommended Citation
David Yassky, The Second Amendment: Structure, History, and Constitutional Change, 99 Mich. L. Rev. 588 (2000), http://digitalcommons.pace.edu/lawfaculty/928/.