To Keep and Bear Arms: An Exchange

To the Editors:

Garry Wills interprets the Second Amendment as a cynical maneuver by James Madison [“To Keep and Bear Arms,” NYR, September 21]. Anti-nationalists (misleadingly labeled “anti-federalists”) had threatened rejection of the 1787 Constitution unless its proponents agreed to add certain guarantees to protect the American people against a potentially corrupt and tyrannical national government. For Wills, Madison’s acquiescence to this demand was disingenuous, for he managed to place in the Constitution new text that only appeared to assuage anti-Federalist fears. Wills reads the opening clause of the 1791 amendment, “A well regulated Militia, being necessary to the security of a free State” as entirely subordinated to the 1787 language of Article I, Section 8 giving Congress the power “[t]o provide for organizing, arming, and disciplining, the Militia….” Thus, the final clause of the Amendment, referring to “the right of the people to keep and bear Arms” and commanding that this right “shall not be infringed” for Wills really means that Congress faces no constitutional barriers at all if, for example, it determines that the Militia should consist only of a relatively few number of people, all vetted by federal authority, and that no one else shall have any protected constitutional right “to keep and bear arms.”

This may be a logically possible meaning of the Second Amendment, even though, by Wills’s own admission, it changes (or even clarifies) nothing in the 1787 Constitution. Far more plausible, though, is Justice Joseph Story’s analysis in his 1833 Commentaries on the Constitution:

The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defense of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers…. [L]arge military establishments and standing armies in time of peace…afford to ambitious and unprincipled rulers [means] to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms…offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them….^*

American political thought, including its constitutional dimension, must be read against the background of our origin, both actual and mythic, in the armed popular overthrow of a well-established government that was, nonetheless, deemed corrupt and illegitimate. And the 1787 Constitution was, as Madison emphasized, only an “experiment,” one that could conceivably emulate the British constitution by allowing the descent into intolerable corruption.

American thought is significantly anti-statist, and “We the People” retain what might be deemed an “inalienable right” to judge our agents who fill governmental positions. The first alternative open to us if we fear that our agents are becoming corrupt is to write angry letters to the editor, march in demonstrations, and, of course, throw the rascals out in free elections. But what if all of these fail? Unless one believes that such failure is literally unthinkable, there must remain the possibility of a Lockean “appeal to heaven,” including armed revolt against the government.

The Second Amendment is most plausibly read as acknowledging the right of otherwise peaceable and law-abiding American citizens “to keep and bear arms” against the dreaded possibility that they will find it necessary to join with other citizens in making the Lockean appeal against an overweening national government. I believe that most ordinary Americans in 1791 were likely to agree with George Mason, a Virginia delegate to Philadelphia who refused to sign the Constitution because it lacked sufficient protection of popular rights: “Who are the Militia? They consist now of the whole people.” To be sure, as Wills suggests, the 1787 notion of “the whole people” was egregiously less inclusive than our own. That, however, is true in regard to far more than the right to bear arms, and one wonders if Wills generally embraces a constitutional hermeneutic of “original intent” that would limit constitutional meaning to the most crabbed interpretation possible. One is curious, for example, about Wills’s readings of the Commerce Clause or of the First and Fourteenth Amendments.

The clause “A well regulated Militia being necessary to the security of a free State” was, I think, likely to be translated by most (though perhaps not all) state legislators of the time—and the views of ratifying state legislators trump any private views held by Madison—as (something like) “an armed citizenry being necessary to maintaining a state of freedom,” with its then following that the general mass of citizens retains a right protected against congressional interference to keep and bear arms. This interpretation is faithful to anti-nationalist impulses behind the Bill of Rights, and it avoids the “maximalist” interpretation of the Amendment that would prohibit even much state regulation. (The maximalist interpretation depends on one’s understanding of the limitations on state power imposed by the Ninth or Fourteenth Amendments, though one notes that Story even in 1833 referred to generalized “rulers.”) What limits the attraction of this interpretation, at least to those who support further regulation of guns, is that the constitutions of some forty states offer some degree of protection to private gun ownership.

There are good reasons to believe that historical fidelity is not particularly important when interpreting the Constitution. But that is not Wills’s argument; he offers an historical account claiming that the Second Amendment as originally understood leaves the national government unfettered in regulating firearms in any ways it sees fit. It is that claim that I dispute.

Sanford Levinson
University of Texas Law School
Austin, Texas

To the Editors:

Something in the Second Amendment seems to cause otherwise careful scholars to engage in oversimplification, distortion, and caricature. I regret that Garry Wills, whose past work I have admired, has so succumbed in his recent article “To Keep and Bear Arms” [NYR, September 21]. His thesis is that the framers of the Second Amendment did not intend to create a right to own arms so as to resist federal tyranny. To reach that conclusion, he selectively uses evidence and misrepresents the present state of Second Amendment scholarship.

The historical events leading up to the Second Amendment are not a matter of controversy. In 1776, the American colonies made a revolution against the British imperial government. Shortly thereafter, the colonies created a weak federal government under the Articles of Confederation. Dissatisfied with its impotence, the framers of the Constitution created a stronger federal government in 1787. Among the national government’s new powers was the authority to organize, arm, and discipline the state militias. Concerned about the possibility for tyranny in these new powers, the state legislatures urged Congress to adopt a Bill of Rights so as to curb federal overreaching. Among the new limits on government was the Second Amendment.

While the importance of these events is not in question, their constitutional significance is the subject of great disagreement. Wills argues that James Madison—the sponsor of the Bill of Rights—was an ardent nationalist and did not really want a Bill of Rights. To placate the state legislatures, he introduced the Second Amendment, but he had cleverly worded that amendment so that it would legally be meaningless. Before the amendment, the federal government had broad power over the state militias; after the amendment, it had the same power. The provision, in Madison’s mind, was only a rhetorical gesture to the worrywarts in the state legislatures. Frankly, I cannot believe that Wills really means that we should interpret the Constitution in this way. According to his view, we should ignore the intent of those many state legislators who wanted an amendment and instead heed only the intent of one opportunistic politician who did not want it. But that tactic would allow representatives—with a nod and a wink to their colleagues—to fob off the public with meaningless, cannily worded amendments.

Once we look beyond Madison’s own discomfort with the Bill of Rights, we find that its proponents meant for someone—the exact identity of that someone is harder to determine—to have a right to arms so as to resist federal tyranny. In proposing the Second Amendment, the state legislatures’ worry was that the federal government might disarm or fail to arm the state militias, so as to destroy their ability to resist federal tyranny. Wills argues that the state debates over the ratification of the Constitution are irrelevant to the Bill of Rights, which was adopted later. In fact, however, the states proposed the Bill of Rights at the same time that they ratified the Constitution, precisely because of their lingering disquiet over the wisdom of a strong central government. The origin of the Bill of Rights thus lies in the ratification struggle.

At a minimum, then, the amendment extends some sort of protection for the state militias so that they can protect the people from federal tyranny. The amendment might mean more than that; some have argued that it is a protection for the individual ownership of arms. With Wills, I believe that these arguments are on shaky ground. But the amendment plainly means something, and Wills reaches the contrary conclusion only by selective use of the evidence. His other recourse is to leave the historical evidence altogether and argue, on abstract principles, that a legal order cannot protect a legal right to overthrow that very legal order. But that way of putting the matter confuses the legal order with a particular set of office-holders. If government authorities have abandoned the Constitution, then the people armed may become the true defenders of the legal order. Only if we assume that the government will always hew to the constitution may we assume that a revolt against government is a revolt against the constitution. The framers were plainly not prepared to make that assumption.

To be sure, the right of revolution might not hold under present circumstances. Indeed, I have argued that it does not,¹ although Wills lumps my work in with those who endorse a private right to arms. This distortion is part of Wills’s general misrepresentation of the state of debate on the Second Amendment. In Wills’s account, every scholar in the field argues that the amendment guarantees a private right to arms. In fact, a group of writers believes that the amendment protects only the right of the states to raise and arm militias—now manifest in the National Guard system. The proponents of this view include advocates for Handgun Control, Inc., and yet they give the amendment more meaning than Wills does. In fact, Wills is alone in reducing the provision to a nullity.

In other words, the field of debate is rich in controversy and disagreement. Wills, however, flattens the picture: previous writers have offered one and only one view. Dominated by an “inner circle” of five, they have attempted to deceive the American people, but Garry Wills has arrived in time to expose this nefarious conspiracy and save the citizenry from its plots. In this rendition, it is perfectly understandable that Wills is alone in his view that the amendment means nothing, because the other writers have conspired to suppress the truth. This kind of caricature is more than tiresome; it makes intelligent, subtle and responsible debate in this field almost impossible, yet Wills is only mimicking a viciousness evident in the field before he arrived. Before Wills’s article, I had hoped that a major intellect from outside the field might help to curb these vices; Wills certainly had the stature and the ability to initiate such a transformation. Instead, the field’s vices seem to have infected him. His later work on the other subjects might return to his usual high standards, but our understanding of the Second Amendment will be no greater as a result of his review—and neither will our manners.

David C. Williams
Indiana University School of Law
Bloomington, Indiana

To the Editors:

As someone interested in a civil and sensible debate on the Second Amendment, I am deeply disappointed in Gary Wills’s “To Keep and Bear Arms” [NYR, September 21]. Much like Robert Bork’s writings on the Ninth Amendment, Wills’s effort shows how strong feelings can provoke the very sins the author deplores. Wills’s article is a pastiche of ad hominem attacks, out-of-context quotes, non sequiturs, deliberate misreadings, and simple sneers. Because of length, a few examples must suffice.

Wills’s greatest non sequitur is his identification of Don Kates, Joyce Malcolm, Robert Shalhope, Robert Cottrol, and Stephen Halbrook as the core group among Second Amendment scholars, after which he immediately turns to an article of mine in an effort to discredit that group.² Wills suggests my quotation of Patrick Henry is misleadingly out of context, but in fact his reprinting of a lengthier excerpt changes nothing. Patrick Henry was talking about the necessity of having a universally armed citizenry, from which a militia of the whole could be drawn. Nothing in the extended quote changes that, and that purpose is emphasized by the Second Amendment scholarship.³ Wills also complains that it comes from the debate over the Constitution, predating the Second Amendment itself. Well, yes. It is hard to see why this matters, as it simply demonstrates that such issues were important before the Bill of Rights debate. (Anyway, Wills is not one to talk, as he similarly quotes Trenchard’s 1697 Argument.) Wills also seems to think Second Amendment scholars claim the right to arms applies only to nonmilitary weapons; here he has things pretty much backward, as my article makes clear.⁴

However, if it’s quotes that Wills wants, how about this one, from Tench Coxe at the time of the Second Amendment debate:

As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article [i.e., the Second Amendment] in their right to keep and bear their private arms.

This statement (which, a footnote points out, James Madison endorsed) appears in my article just prior to the Patrick Henry quote and seems rather inconsistent with Mr. Wills’s view of the Second Amendment, yet he fails to discuss it. Nor are Wills’s quotes irreproachable: to demonstrate the defensiveness of Second Amendment scholars he quotes a passage from Don Kates that actually discusses the public health debate over gun safety and has nothing to do with the Second Amendment.

Wills’s quote quibbles are particularly inappropriate because my article does not purport to be original historical research. As it states plainly, it is a survey of the literature, whose main thesis is that the scholarship in the field demonstrates considerable consensus, making it appropriate to talk about a “Standard Model” (a term borrowed from physicists) of Second Amendment interpretation that I then proceed to summarize and critique. Like the physicists’, this model does not preclude disagreement (my article has already been criticized by some Standard Model scholars for suggesting that gun registration does not violate the Second Amendment) but it does mean that the general framework for debate is regarded as settled.

Wills obviously does not disagree with my characterization, as he repeatedly uses the term “Standard Model” in his article in just the fashion I do. But in his haste to demolish straw men he completely fails to mention any of my significant criticisms of some aspects of Standard Model thinking, or my criticisms (shared by virtually all the Standard Model scholars) of the modern “militia movement.” Indeed, Wills’s hostility causes him to overlook the considerable agreement between him and the scholarly community on this subject: the similarities between his August 10 article on the militia movement in this Review (which I enjoyed) and the discussion of that subject in Randy Barnett’s contribution to the Tennessee Law Review are positively eerie.

Finally, Wills was obviously unpersuaded by the part of my article that called for better manners in this debate, given his shrill condescension and his characterization of Standard Model scholars as “wacky.” The “wacky” scholars to whom he refers include not only those named earlier, but also Akhil Amar of Yale Law School, Randy Barnett of Boston University, Raymond T. Diamond of Tulane, Sanford Levinson of Texas, William Van Alstyne of Duke, and David Williams of Indiana—all leading figures in constitutional law. They are judged “wacky” only by Wills, whose apparent criterion is that they disagree with him. Wills’s characterization of these scholars is the proverbial thirteenth chime of the clock: not only wrong in itself but discrediting all that has come before.

Like Robert Bork’s writings on the Ninth Amendment, Wills’s essay may comfort those who already agree with him, but, also like Bork, he has not seriously engaged his opponents’ arguments. That’s too bad. A clearly reasoned and civil response to the Standard Model scholarship would be a real contribution to the literature. Despite Wills’s efforts, however, no such response has yet been made.

Glenn Harlan Reynolds
University of Tennessee
Knoxville, Tennessee

To the Editors:

The latest issue of the Tennessee Law Review contains a very lengthy article I co-authored with a criminologist (Don Kates), a North Carolina State University bio-statistician, and two Harvard Medical School professors. The focus of our article is not the Second Amendment but the criminology of firearms and especially the medical literature on gun crime.

How much credence do Gary Wills’s complaints of misquotation by others deserve when his entire review of our article consists in taking a quote, truncating it to conceal that it refers to the medical literature, and misrepresenting it and our article as focusing on the legal literature on the Second Amendment?

Had Wills read beyond the first few pages of our article (where the quote appears), he would have discovered that criminological research does not sustain his faith that gun ownership by responsible, law abiding adults causes violence, rather than simply being a response thereto. Without even attempting to come to grips with the vast corpus of contrary criminological literature, Wills recapitulates his faith in bald conclusory statements scattered throughout his review. As an antidote, I hope you will allow me to summarize for your readers the facts documented in our article:

Scholars engaged in serious criminological research into “gun control” have found themselves forced (often very reluctantly) to negative appraisals: First, there simply is no persuasive evidence that owning guns causes ordinary people to murder or engage in any other criminal behavior, though guns can facilitate crime by those who were already inclined toward it. Second, firearms are more often used by victims to defend themselves from crime than they are used by criminals to commit crimes. Gun-armed victims who resist are much less likely to be raped or robbed than victims who submit. Moreover, victims who use firearms are only about half as likely to suffer injury as those who submit, and a third as likely as victims who resist with other weapons.

Repudiating his 1960s advocacy of handgun prohibition, Professor Hans Toch of the School of Criminal Justice at SUNY-Albany, writes: “When used for protection firearms can seriously inhibit aggression and can provide a psychological buffer against the fear of crime. Furthermore, the fact that national patterns show little violent crime where guns are most dense implies that guns do not elicit aggression in any meaningful way. Quite the contrary, these findings suggest that high saturations of guns in places, or something correlated with that condition, inhibit illegal aggression.”

The abstract value of gun control is crucially undercut by innate unenforceability. Unfortunately, there is an almost perfect inverse correlation between those who are affected by gun laws (particularly bans) and those whom it is desired to affect. Those easiest to disarm are the responsible and law abiding whose guns represent no meaningful social problem. But the irresponsible and/or criminal owners whose gun possession creates or exacerbates so many social ills are also the ones most difficult to disarm. The leading English analyst pessimistically observes, “in any society the number of guns always suffices to arm the few who want to obtain and use them illegally.” American criminologist Ted Robert Gurr concurs: “The irony of most gun control proposals is that they would criminalize much of the citizenry but have only marginal effects on professional criminals.”

In sum, while controls carefully targeted only at the criminal and/or irresponsible have a place in crime-reduction strategy, the capacity of any type of gun law to reduce dangerous behavior is only marginal. Criminologist Joseph Sheley emphasizes that violent crime “will not yield to simplistic, unicausal solutions. Gun possession by felons, juveniles and drug addicts, and everything else that leads to gun-related violence, is already against the law. What is needed are not new and more stringent gun laws but rather a concerted effort to rebuild the social structure of inner cities.”

Professor Gurr adds, “an overemphasis on (gun control) diverts attention from the kinds of conditions that are responsible for much of our crime, such as persisting poverty for the black underclass and some whites and Hispanics; the impact of post-industrial transition on economic opportunity for working-class youths; and the shortage of prison facilities that makes it difficult to keep high-risk, repeat offenders off the streets.” Indeed, Marxist criminologist Raymond Kessler sees gun bans as a false agenda designed to divert support away from major social reform while rendering the citizenry defenseless and dependent on the police—thereby increasing citizen support for burgeoning police power and civil liberties violations.

Exhaustive discussion and references for all the foregoing points will be found in our article which appears in Vol. 62 of the 1995 Tennessee Law Review, pp. 513–596.

John K. Lattimer, M.D., Sc.D.
College of Physicians and Surgeons
Columbia University,
New York City

Garry Wills replies:

1) The impression that I believe the Second Amendment “means nothing” (Williams), that it “changes (or even clarifies) nothing” (Levinson) was formed more from the cover title to my essay than from the essay itself. I had no knowledge of the misleading cover title “Why We Have No Right to Bear Arms,” before I read with dismay the printed issue. Of course the Amendment states a right that “we” do possess—but we possess it, as the Amendment itself says, in a “well-regulated militia.”

2) The right to “resist federal tyranny” (Williams), to engage in an “appeal to heaven” (Levinson) is not granted anywhere in the Constitution, since it precedes and is superior to any Constitution. To say that the right exists is not to say that it is legislated here. In fact, Levinson, after criticizing me because I would make the Amendment “change nothing,” wants to have the Constitution ratify a right that it cannot change—that it can neither grant nor repeal. The “appeal to heaven” is not an appeal to the Second Amendment. (That would be statist, and would put the “divine” Second Amendment in conflict with the anti-establishment clause of the First Amendment.)

3) The effort to import into the Constitution a provision for its own overthrow falls back continually on a climate-of-opinion case—“such issues were important” (Reynolds), “American thought is significantly anti-statist” (Levinson)—or on the case made against the Constitution by Antifederalists (yes, Mr. Levinson, that is what they called themselves, in all the tracts collected by Herbert J. Storing).

But the Constitution did, precisely, establish a state—despite, not because of, anti-statism “in the air.” That state defines as treason the use of arms to “express anti-statism.” (None of my critics deals with the treason clause, or the Article I clause saying that militias are meant to suppress insurrections.)

The Antifederalist case is stated by Williams: Since the call for a Bill of Rights arose at the time of the ratification debates, those debates express the intent of the final Amendment. But the Antifederalists raised their objections to oppose passage of the Constitution, which—by their own admission—established a standing army. The Second Amendment, since it did not repeal the army clauses in Article One, did not suit the purpose of the Antifederalists any more. They admitted that, as I pointed out in my essay, by opposing the Amendment. To let opposition to the Constitution define its content goes against the rules of construction often stated by the Supreme Court and given expression by Jefferson when he said that the Constitution has “a meaning to be found in the explanations of those who advocated, not those who opposed it” (Elliot’s Debates 4.446). That is the reason why arguments from before the Constitution’s passage cannot be simply carried over into the interpretation of the Amendment-cum-Clause-I. It should be remembered that the ideology of the militia was not directed at “tyranny” in general but at the specific fear of a king’s standing army—a fear that both Madison and Hamilton said was inapplicable to the United States’ legislature-controlled standing army under the Constitution. (One never hears modern gun advocates attacking our immense military establishment, which, by the outmoded logic of the people they cite, like Patrick Henry, should be their proper concern.)

4) Reynolds asks why I did not address a quotation from Tench Coxe, and especially Reynolds’s own footnote stating that “James Madison approved of Coxe’s construction of the Second Amendment.” I said in my essay that I could not track down all the falsehoods used in the debate—and that footnote is plain false. Coxe wrote Madison that he would put an anonymous piece in the Philadelphia paper “to promote harmony among the late contending parties” (presumably by “ecumenical” interpretation). When he sent the resulting two-part article, which briefly described all the proposed amendments, Madison acknowledged receipt (without thanks) and hoped the writing would have “a healing tendency” (Madison Papers 12.239, 257). He spoke of the desired effect of the writing and said nothing about its content in general or about the treatment of any Amendment in particular. This does not mean that he agreed with Coxe’s un-Madisonian reduction of the First Amendment to restrain only “self-righteous” and “impious” religions. Madison no more endorsed Coxe’s construction of the Second Amendment than he did this view of the First. Madison’s ideas, to be found in his own writings, do not support the “Standard Modelers,” so they make up non-existent endorsements of others’ views.

5) Levinson’s quotation from Story shows what Story, an important but not infallible interpreter of the Constitution, thought (in 1840) of the Second Amendment. In paragraphs immediately preceding the ones Levinson quotes, Story told us what he thought of the First Amendment—that it meant “Christianity ought to receive encouragement from the State.” I prefer Madison, on both Amendments.

6) Lattimer does not say his “medical” complaints about critics do not also apply to legal critics. He cannot, because his co-author, Don Kates, has voiced the same grievances Reynolds and others express. I originally included a discussion of Lattimer’s argument, and had to cut it because of space. The gist of my response was this: Comparative statistics about gun ownership in different countries show that the mere quantity of gun possession does not dictate the rate of crime. Other factors have some influence—including culture. Precisely. Ours is a gun culture, formed on weak history and strong myths about “frontier” virtue. It is the gun culture, not mere gun ownership, that plagues us. And the gun culture thrives on perverted readings of the Second Amendment.