“When large numbers of citizens begin arming against their own government and are ready to believe even the silliest rumors about that government’s willingness to evade the Constitution, there is a problem that goes beyond gullibility. This country’s political establishment should think about what it has done to inspire such distrust—and what it can do to regain the trust and loyalty of many Americans who no longer grant it either.“
That was what Glenn Harlan Reynolds, an associate law professor at the University of Tennessee, wrote in a commentary for the Chicago Tribune that was published on Jan. 30, 1995. Although it pre-dated the Oklahoma City bombing by almost three months, that comment can easily serve as the perfect rejoinder to efforts by pro-control advocates to use that bombing in an effort to discredit those of us who have such concerns.
Reynolds is one of the many thoughtful Americans who have determined that the Second Amendment does indeed mean what it says; he wrote one of the articles published in last spring’s issue of the Tennessee Law Review, a symposium on the Second Amendment.
This symposium, which your editor obtained only just in time to review for this issue, is a classic illustration of what I have been saying since The Armed Genius began publication three years ago: that the weight of intelligent argument is on our side, and the momentum of the debate would turn our way and wash away our opponent’s every pretense of objection.
Lest any pro-controller dismiss Reynolds out of hand, I will note that his law degree comes from Yale—the same school that produced pro-control darling Bill Clinton. Yet clearly Prof. Reynolds has chosen the path of honest scholarship in our Constitution and its underlying principles. In contrast, he notes that “it is probably fair to say that those who support gun control have generally tended either to ignore the Second Amendment entirely or to adopt an interpretation that leaves it entirely without effect.“
Prof. Reynolds’ article is the second in the symposium issue, titled “A Critical Guide to the Second Amendment.“ It discusses the two predominant views of the amendment in today’s America: the pro-freedom “Standard Model,“ and the collectivist view, and finds that the former is at least rooted in things that can be verified: the amendment’s own text and the true historical underpinnings of the right to keep and bear arms.
To someone accustomed to reading the balderdash lofted as “scholarship” by advocates of control, Reynolds’ conclusion comes as a breath of fresh air: “[T]he states’ rights interpretation of the Second Amendment, which pays little attention to text, history, or structural sense, is not really constitutional law. It is simply a slogan.“ How’s that for ammunition?
Reynolds does not simply arrive at this conclusion on the basis of sentiment. His examination of the two models draws upon extensive recent scholarship and on a great deal of historical substantiation with which many of you are already familiar. Reynolds refers to Don Kates’ 1983 Michigan Law Review article, “Handgun Prohibition and the Original Meaning of the Second Amendment,“ and Sanford Levinson’s slightly better known article, “The Embarrassing Second Amendment,“ which first appeared in the Yale Law Journal in 1989, noting that since the appearance of these there seems to have been a flood of similar articles upholding the pro-freedom position. Meanwhile, as Kates himself noted in an amicus brief filed with the U.S. Supreme Court not long ago, the pro-control scholarship has been little more than activist boilerplate.
Prof. Reynolds finds that the precursor to our Second Amendment is a provision in the English Bill of Rights of 1689 which recognized the right to keep and bear arms. The professor adds that Standard Model scholars “stress that the right…was seen as serving two purposes. First, it allowed individuals to defend themselves from outlaws of all kinds—not only ordinary criminals, but also soldiers and government officials who exceeded their authority, for in the legal and philosophical framework of the time no distinction was made between the two. Just as importantly, the presence of an armed populace was seen as a check on government tyranny and on the power of a standing army.“
No distinction between officials overstepping their authority and ordinary criminals! Truly, an enlightened age!
Then there’s this priceless, terse comment: “[A]s William Van Alstyne points out, the ‘right of the people’ described in the Second Amendment is ‘to keep and bear arms,‘ not to belong to a militia.“
Reynolds does afford pro-control advocates their fair shot at making their case, but they do make a hash of it. In examining David Williams’ objection, “The Terrifying Second Amendment,“ Reynolds finds an individual-rights critic who starts from within the “Standard Model.“
While Williams accepts the universality of the militia mentioned in the amendment, he objects that gun owners today are no more universal than the National Guard, so that the idea of gun owners as a militia is every bit as flawed (in Williams’ view) as the National Guard idea.
Williams also “argues that the ideal of the militia was founded on notions of public service and widespread virtue that are not present today. In the absence of these ‘conditions precedent,‘ the basic purpose of the Second Amendment cannot be fulfilled.“
Reynolds, however, counters that Williams’ analysis “is one of those arguments that ‘proves too much.‘ If the failure of universality and public-spiritedness means that the Second Amendment’s rights are now passé, then it is hard to see why the jury system should not go too.“ Or, for that matter, the practice of holding elections.
Williams’ objection seems the most challenging one Reynolds finds, as the rest seem to spring from the collectivist view. To cover those, he quotes from Stephen Halbrook’s famous book, That Every Man Be Armed:
“In recent years it has been suggested that the Second Amendment protects the ‘collective’ right of states to maintain militias, while it does not protect the right of ‘the people’ to keep and bear arms. If anyone entertained this notion in the period during which the Constitution and Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the eighteenth century, for no known writing surviving from the period between 1787 and 1791 states such a thesis.“
Why, then, does the pro-control view continue to have such influence among the media and academic elites of today? A partial answer is that there is so little Supreme Court precedent on the question. Until this century, when the collectivist view began to appear in arguments for, among other things, the “Sullivan Law” in New York, the U.S. Supreme Court had no cause to be questioned on the meaning of the Second Amendment. There was such a consensus—as Halbrook’s observation makes plain—that it would have been one of history’s great wastes of time and energy to ask the highest court in the land to ratify it. Not that the high court has been silent, as we well know; it simply has not ruled definitively. Yet.
The Spring 1995 symposium issue of the Tennessee Law Review has been widely distributed by pro-freedom organizations, but if you have not obtained a copy you might write to Micki Fox, Business Manager, Tennessee Law Review, 915 Volunteer Blvd., College of Law—Dunford Hall, Knoxville, TN 37996-4070, for information.
In either case, do try to read it—and have a highlighter pen handy. It’ll be more fun than you might think.
