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The Second Amendment in Context: the Case of the Vanishing Predicate

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The Second Amendment in Context: the Case of the Vanishing Predicate Chicago-Kent Law Review Volume 76 Issue 1 Symposium on the Second Amendment: Article 11 Fresh Looks October 2000 The Second Amendment in Context: The Case of the Vanishing Predicate H. Richard Uviller William G. Merkel Follow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreview Part of the Law Commons Recommended Citation H. R. Uviller & William G. Merkel, The Second Amendment in Context: The Case of the Vanishing Predicate, 76 Chi.-Kent L. Rev. 403 (2000). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol76/iss1/11 This Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact [email protected], [email protected]. THE SECOND AMENDMENT IN CONTEXT: THE CASE OF THE VANISHING PREDICATE H. RICHARD UVILLER* & WILLIAM G. MERKEL** INTRODUCTION: THE SOCIAL AND JUDICIAL FOUNDATIONS OF TH E D ISPU TE ................................................................................ 406 I. ARMS, THE MAN, AND THE MILITIA: THE HISTORY OF A C O N CE PT ....................................................................................... 432 A. The Militia and the Militia Ideal in the Historiography of the American Revolution .................................................. 432 1. Civic H um anism .............................................................. 440 2. The English Civil War and the Classical R epublicans ..................................................................... 442 3. The Glorious Revolution and the English Bill of R ights of 1689 .................................................................. 448 4. The Opposition Tradition and Its American R eception ......................................................................... 456 * Arthur Levitt Professor of Law, Columbia University. Professor Uviller wishes to thank Columbia Law School colleagues Professors Barbara A. Black, Henry P. Monaghan, and Gerald L. Newman for reading earlier versions of the manuscript and offering useful comments and suggestions. ** J.D., Columbia University, 1996; D. Phil. candidate, Oxford University. Mr. Merkel would like to acknowledge the generous assistance of several friends and colleagues. Dr. Gareth Davies (St. Anne's College, Oxford) read various sections of the manuscript and offered helpful commentary, and Dr. Lelia Roeckell (Molloy College, New York) offered encouragement on early drafts. Dr. Davies's input was particularly helpful regarding twentieth- century American history, as was that of Dr. Christopher B. Howard (Bristol-Myers Squib and U.S.A.F. Reserves) on twentieth-century American politics and military affairs. Victoria Wilson (lately of Trinity College, Oxford, and now a rising pupil at Gray's Inn) offered guidance on finer points of English and Latin grammar and refined my appreciation of classical history and political thought. Dr. David Lecomber (Trinity College, Oxford) provided invaluable computing assistance. Eleni Canellos (lately of London's Courthauld Institute) kindly per- mitted me to use her laptop computer for several months, and never badgered me for its return. Dr. Sarah Anne Swash (lately of International Export, Beijing, now Her Majesty's Customs and Excise, London) arranged accommodation in an Oxford garret where the paper was substantially revised, and the Columbia Law School in New York generously provided office space and lodging during a critical week of consultations with Professor Uviller. My parents, George and Nancy Merkel of Springfield, Virginia, were unfailingly supportive and also conducted valuable emergency research. Finally, I must thank my coauthor for his forbearance and patience, and for graciously yielding on far too many points of emphasis and style. Excepting the joint authors, none of the above-named individuals is responsible in any way for the conclusions and opinions expressed herein. CHICAGO-KENT LAW REVIEW [Vol. 76:403 5. Rethinking the Provincial Militia during the Great W ar for Em pire ............................................................... 459 6. A Constitutional Crisis and a Standing Army: The Republican Nightmare Becomes Reality ..................... 461 7. The Continental Army and the Militia during the American Revolution ..................................................... 467 B. Madisonian Structuralism:The Place of the Militia in the New American Science of Government......................... 470 1. The Confederation Government Tries-and Fails-to Organize the Militia ....................................... 470 2. The Military, the Militia, and the Philadelphia C onvention ....................................................................... 473 3. Militia and Military Powers in the Constitution of 17 87 ...................................................................................477 4. The Antifederalist Critique of the Federal Military Power and the Crusade for a Bill of Rights .................. 480 5. The Second Amendment: The Last Act of Classical Republican Constitutionalism? ...................... ...............495 II. FROM MILITIA TO NATIONAL GUARD ..................................... 511 A. The Decay of the Old Militia, 1789-1840 ............................ 512 1. Federalism and the Militia: Attempts at National Revival under Federalists and Jeffersonians ................ 512 2. The Last Years of the Militia-of-the-Whole: Popular Discontent and Government Inertia .............. 522 B. The Era of the Volunteers, 1840-1903 ................................. 528 1. The Rise of the Volunteer Guards ................................ 528 2. A Nation of Volunteers: The Grand Army of the R epublic ........................................................................... 530 3. Revitalization and Professionalism ............................... 532 C. The United States Army and the United States Army National Guard in the Twentieth Century ........................... 534 1. Birth of the Modern National Guard ............................ 534 2. Continued Evolution of the Guard and Reserves during the Age of Statism ............................................... 536 III. THE MEANING OF MEANING ..................................................... 548 A . Text and Context .................................................................... 548 1. Linguistic Context ........................................................... 549 2000] THE SECOND AMENDMENT IN CONTEXT 405 2. Social C ontext .................................................................. 551 B. The Metamorphosis of the Concept of a Militia ................. 552 C . Generic Fidelity ..................................................................... 554 D. The Second Amendment Today ........................................... 554 E. Other InterpretationsConsidered ........................................ 561 1. Carl Bogus: An Armed Militia Being Necessary to the Security of a Slave State ........................................... 561 2. Sanford Levinson: Citizen Guerillas Being Necessary to the Security of a Free State ..................... 579 3. William Van Alstyne: The People Having a Right to Arms, the Security of a Well-Regulated Militia and a Free State Are Assured ........................................ 590 C O N CLU SIO N ........................................................................................... 598 CHICAGO-KENT LA W REVIEW [Vol. 76:403 That a well-organized militia is essential to the security of a free state is one of those fine sayings that, like the mild axiomatic truths which adorn Root's system of penmanship, are often copied, but never acted upon. We resolved it at town meetings; we proclaimed it in flaming editorials; it did yeoman-service in many a closely- contested election, on one side or [on the] other, or... on both; orators waxed eloquent upon it ... ; it was the favorite toast at many a banquet... ; Congress rang with it; the Executive endorsed it; it was lugged into the learned opinions of the Judiciary: but nothing came of it. - The United States Service Magazine, September 1864 INTRODUCTION: THE SOCIAL AND JUDICIAL FOUNDATIONS OF THE DISPUTE Owning and carrying personal firearms-or at least the unbridled right to do so-has become a freighted metaphor of American individualism. With obvious linkage to the muscular nineteenth-century frontier hero of myth and experience,1 the powerful image of pride can be traced to Renaissance Florence by way of English pamphlets popular in Revolutionary America.2 Mostly masculist, today's phantom of the armed pioneer limns the true American patriot as loyal to great quasi- religious principles thought to be the founders' creed. Emboldened by his proclaimed stance of sturdy independent autonomy, this present-day 1. On the symbolic significance of the frontiersmen's conquest of the West in crafting the American self-image, see SACVAN BERCOVITCH, THE RITES OF ASSENT: TRANSFORMATIONS IN THE SYMBOLIC CONSTRUCTION OF AMERICA 7 (1993); DANIEL J. BOORSTIN, THE AMERICANS: THE NATIONAL EXPERIENCE 51-52 (1966). In Boorstin's words: [O]f all American myths, none is stronger than that of the loner moving west across the land.... The courage to move to new places and try new things is supposed to be the same as the courage to go it alone, to focus exclusively and intensively and enterprisingly on one-self. Only so, we hear, could
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