Teaching the Meaning of the Second Amendment: A Brief Note on Recent Research | Judicial History

“A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.”

—The Second Amendment to the U.S. Constitution.

Over the last twenty-five years, gun control has become an issue that refuses to go away. Because it is tied into the Bill of Rights, the controversy takes on the added heat of constitutionalism. While it is not the purpose of this piece to argue the issue one way or the other, those of us in the teaching profession must be up-to-date on the emerging scholarly arguments concerning the Second Amendment when we are teaching the Bill of Rights. Regardless of one’s personal views on the topic of gun control, we owe it to our students to be familiar with the Second Amendment’s current standing in legal and historical literature; for whatever the resolution of the gun control debate might be, we must base our ideas (and teach our students to base theirs) on a firm foundation of accurate knowledge.

This essay provides a brief overview of historical and legal scholarship on this topic. We shall limit our attention to works by acknowledged scholars in legal and historical studies, and not the op-ed barrages emanating from the pro- and anti-gun control organizations. The teacher looking for more information will find the noted sources well-documented and fertile ground for locating more material on both sides of the issue.

Arguments over the Second Amendment, both scholarly and otherwise, tend to fall broadly into two camps: those who assert that the Second Amendment guarantees an individual’s right to own a firearm, and those who contend that it merely guarantees the right of the states to maintain militias, and thus does not guarantee an individual right. Both sides seek to legitimize their positions by citing court cases, Anglo-American history, and the intentions of the founders when drafting the Second Amendment. Confounding such attempts, however, is the fact that, until recently, the Second Amendment had not generated much scholarly discussion, perhaps due to the relative dearth of court cases relating to it.

While the First and Fourth Amendments, for example, have provided fertile legal ground, the Second Amendment has rarely been adjudicated by the Supreme Court, and even then not broadly and conclusively. The frequently cited case of U.S. v. Miller, et al. (1939) is a classic example; in Miller, the Supreme Court ruled out of “both sides of its mouth,” claiming “nonmilitary weapons” could be regulated or prohibited (seeming to give a boost to the “militia argument”), but at the same time asserting that individual Americans were expected to appear for militia service bearing arms they themselves owned and provided (seeming to endorse the “individual rights” position).

In other instances, the Supreme Court has made indirect statements on the controversy in cases that are not directly gun-related, as in U.S. v. Verdugo-Urquidez (1990), wherein the court ruled that the term “people” meant the same thing (individuals) in the First, Second, Fourth, Ninth, and Tenth Amendments. This murkiness may change in the future, but for now, scholars have been forced to explore centuries of writings by everyone from Plato to James Madison in order to comprehend what the founders intended when they crafted the Second Amendment.

In 1982, Robert E. Shalhope, professor of history at the University of Oklahoma, published “The Ideological Origins of the Second Amendment” in the December issue of the Journal of American History. Shalhope argued that the problem with the Second Amendment stems from the view that it provides an “either/or” situation. The founders “must” have meant either a collective states’ right to a militia, or an individual’s right to keep and bear arms. Drawing on a vast array of republican writers, including Machiavelli, John Trenchard, Thomas Gordon, James Harrington, and James Burgh, as well as early national American leaders and thinkers such as James Madison, George Washington, and Joseph Story, Shalhope asserted that the founders meant both a state’s right to a militia and an individual’s right to own firearms, seeing the two “halves” as inseparable, and thus offering some explanation for the seemingly clumsy wording of the Second Amendment. Shalhope, while not seeking to take a stand on the issue of gun control, nonetheless aptly summarized his argument by observing: “But advocates of the control of firearms should not argue that the Second Amendment did not intend for Americans...to possess arms for their own defense, for the defense of their states and their nation, and for the purpose of keeping their rules sensitive to the rights of the people.”

Shalhope’s article prompted a response from Professor Lawrence Delbert Cress of Texas A & M University, in the June 1984 issue of the Journal of American History. In “An Armed Community: The Origins and Meaning of the Right to Bear Arms,” Cress took the more limited view that the founders intended only a militia right. To support this view he cited Machiavelli’s concept that, as Cress phrased it, “Military service should be the responsibility of every citizen...but soldiering should be the profession of none.” Cress noted that Machiavelli drew on the example of ancient republican Rome, where a militia was virtually synonymous with a republican government by a virtuous people. Such a model was well-known and attractive to the founders, for they believed a militia based on the people promised safety from both foreign and domestic threats, both of which were demonstrated in the 1770s and 1780s in the Revolution and in episodes such as Shays’s Rebellion.

Cress, like Shalhope, drew upon Harrington, Trenchard, Burgh, as well as some of the founders. Unlike Shalhope, however, Cress argued that the main frame of reference for the founders was that a militia eliminated the need for a standing army, which was invariably the “tool of a tyrant.” Cress’s position, then, was best summarized in his statement that, “the Second Amendment assured ‘the people,’ through the agency of ‘a well-regulated Militia [sic],’ a role in the preservation...of the Republic. It did not guarantee the right of individuals...to closet armaments.” In the best tradition of the profession, Shalhope and Cress attempted to rebut each other in “The Second Amendment and the Right to Bear Arms: An Exchange,” in the December 1984 issue of the Journal.

One of the nation’s leading constitutional scholars weighed in with a somewhat surprising opinion in 1989, when Professor Sanford Levinson of the University of Texas Law School published “The Embarrassing Second Amendment” in the Yale Law Journal. Acknowledging his personal position as being pro-gun control, Levinson nonetheless came to the interesting conclusion that the Second Amendment does guarantee an individual right. Analyzing the Second Amendment in light of “text, history, structure, caselaw doctrine”, and prudentialism (which he defined as “attentiveness to practical consequences”), Levinson contended “that the arguments on behalf of a ‘strong’ [i.e., individual right] Second Amendment are stronger than many of us might wish were the case.” Addressing the relatively long academic silence on the Second Amendment, Levinson further opined, “For too long, most members of the legal academy have treated the Second Amendment as the equivalent of an embarrassing relative, whose mention brings a quick change of subject to other, more respectable family members. That will no longer do.”

In 1994, Professor Joyce Lee Malcolm of Bentley College published a book-length study entitled To Keep and Bear Arms: The Origins of an Anglo-American Right. Malcolm focused her study on how keeping and bearing arms evolved from a “duty” in seventeenth century England into a “right” in eighteenth century America. In her extensively documented and closely reasoned argument, Malcolm further developed Shalhope’s notion that the founders intended to combine both a general militia right and a specific, individual right “to keep and bear arms.” While not advancing a position on the current gun control debate, Malcolm nonetheless sounded a thoughtful note by warning, “For to ignore all evidence of the meaning and intent of one of those rights included in the Bill of Rights is to create the most dangerous sort of precedent, one whose consequences could flow far beyond this one issue and endangers the fabric of liberty.”

Space precludes an exhaustive survey of the approximately forty scholarly articles that have also appeared in legal journals over the last fifteen or so years. Interestingly, despite the stereotype of academics as liberals (read “anti-gun”), the vast majority of these scholarly articles have tended to take the individual rights position, which is frequently stereotyped as a conservative (“pro-gun”) view. While the typical pre-collegiate teacher usually does not have the many hours necessary to wade through dozens of law journals, there are some useful collections on the dimensions of the Second Amendment arguments in print and readily available. Two good ones are The Bill of Rights: Original Meaning and Current Understanding, edited by Professor Eugene W. Hickock, Jr. and Gun Control and the Constitution: Sources and Explorations on the Second Amendment, edited by Professor Robert J. Cottrol.

Where, then, does this leave those of us who have to illuminate the Bill of Rights and make it comprehensible to pre-collegiate students? As more literature appears, perhaps things will become clearer; perhaps the Supreme Court will render a clearly worded, broadly applicable decision in a case that is directly based on the Second Amendment. Barring those developments, it would seem that we can only try to maintain an awareness of the scholarly arguments and where they stand now, doing our best to put aside personal political views on either side in favor of academic and intellectual integrity. Professor Malcolm’s concluding thoughts in her book aptly summarize where we teachers ought to find ourselves in this particular circumstance: “I am not an advocate, but a historian and ask merely for a decent respect for the past. We are not forced into lockstep with our forefathers. But we owe them our considered attention before we disregard a right they felt it imperative to bestow upon us.”

On Teaching

Teaching the Meaning of the Second Amendment:
A Brief Note on Recent Research

Broeck N. Oder