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Scottish Factors and the Origins of the Second Amendment: Some Reflections on David Thomas Konig's Rediscovery of the Caledonian Background to the American Right to Arms

Published online by Cambridge University Press:  28 October 2011

H. Richard Uviller  and
William G. Merkel
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Extract

David Konig has written an important article that makes a welcome contribution to the rapidly evolving field of Second Amendment scholarship. In the essay that forms the focal piece of this forum, Konig argues that two rival, hotly contested interpretations of the Second Amendment fail to recapture the original meaning of the constitutional right to keep and bear arms. To Konig, neither the individual rights nor the states' rights model of the Second Amendment accurately reflects the conceptual universe shared by the drafters and ratifiers of the Bill of Rights. Neither model (and particularly not the individual rights model), Konig maintains, would have made sense to the persons who left behind a now familiar and much-discussed documentary record related to the call for amendments to the Constitution in 1788, the drafting of the Bill of Rights in 1789, and its ratification in 1791.

Type
Forum: Comment
Information
Law and History Review , Volume 22 , Issue 1 , Spring 2004 , pp. 169 - 177
Copyright
Copyright © the American Society for Legal History, Inc. 2004

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References

1. H. Richard Uviller is the Arthur Levitt Professor of Law Emeritus atthe Columbia Law School. William G. Merkel is a D. Phil, candidate in Modern History at Oxford University, and Associate in Law, Columbia Law School, 2003–2005. This review was written by Mr. Merkel with modest editorial assistance and the full accord of Professor Uviller. Our title, somewhat jokingly, plays on the double meaning of “factor’ however, we should own openly at this early point that we have absolutely nothing to say about Scottish factors in the sense of resident agents of British merchants and bankers who were blamed by many late colonial Virginians for provincial debt and attendant issues of imperiled esteem; see, e.g., Breen, T. H., Tobacco Culture: The Mentality of the Great Tidewater Planters on the Eve of Revolution (Princeton: Princeton University Press, 1985).Google Scholar

2. Uviller, H. Richard and Merkel, William G., The Militia and the Right to Arms, Or, How the Second Amendment Fell Silent (Durham, N.C.: Duke University Press, 2003).Google Scholar Our argument is that the Second Amendment responded to the anti-federalists' classically republican fears of centrally controlled standing armies and the dangers they posedto balanced, constitutional rule. In drafting the Bill of Rights, James Madison and the large federalist majority in the First Congress hoped to win over principled Antifederalists to the new Constitution. By reassuring their countrymen of the newly independent states' and newly formed Union's ability to rely on the less dangerous and more virtuous citizen militia for defense against civil unrest, foreign invasion, and would-be tyrants, the framers aimed to preserve not a state right but a personal entitlement to arms. They did so in expressed understanding that this right would be exercised in the civic forum of a well-regulated militia. The right against disarmament, the ratifiers hoped, would preserve the militia, therebyeliminating the most likely excuse for congressional funding of an overlarge regular army.

3. See Cornell, Saul, “Commonplace or Anachronism: The Standard Model, the Second Amendment, and the Problem of History in Contemporary Constitutional Theory,” Constitutional Commentary 16 (1999): 221Google Scholar; and Cornell, , “‘Don't Know Much About History’: The Current Crisis in Second Amendment Scholarship,” Northern Kentucky Law Review 29 (2002): 657.Google Scholar

4. Primus, Richard, The American Idea of Rights (Cambridge: Cambridge University Press, 1999), 102–3.CrossRefGoogle Scholar

5. We too agree that Levinson's, Sanford “The Embarrassing Second Amendment,” Yale Law Journal 99 (1991): 637CrossRefGoogle Scholar, succeeded ably in its proclaimedpurpose of igniting sustained interest among professional academics in a field that had long been ignored by both historians and law professors. We do not agree, however, with Professor Levinson's suggestions in “The Embarrassing Second Amendment” that the right to arms has an existence unrelated to militia service, or that the right to arms encompasses aright to revolution. See our discussion in The Militia and the Right to Arms, at 168–78.

6. See, e.g., Rakove, Jack N., “The Second Amendment: The Highest State of Originalism,” Chicago-Kent Law Review 76 (2000): 103Google Scholar; Bogus, Carl T., “The History and Politics of Second Amendment Scholarship: A Primer,” Chicago-Kent Law Review 76 (2000): 3Google Scholar; and Finkelman, Paul, “‘A Well Regulated Militia’: The Second Amendment in Historical Perspective,” Chicago-Kent Law Review 76 (2000): 195.Google Scholar

7. See, e.g., Williams, David C., “Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment,” Yale Law Journal 101 (1991): 551CrossRefGoogle Scholar; Williams, , “The Militia Movement and the Second Amendment: Conjuring with the People,” Cornell Law Review 81 (1996): 879Google Scholar; Williams, , “The Unitary Second Amendment,” New York University Law Review (1998): 822Google Scholar; and see our discussion of Williams's articles in The Militia and the Right to Arms, at 250–52.

8. Williams, David C., The Mythic Meanings of the Second Amendment: Taming Political Violence in a Constitutional Republic (New Haven: Yale University Press, 2003).CrossRefGoogle Scholar

9. At this writing, we have not yet seen Cornell's contribution to the Forum, but his recent pieces, cited in n. 3, point clearly in the direction of a civic, corporate reading of the right to arms.

10. See Bogus, Carl T., “The Hidden History of the Second Amendment,” U. C. Davis Law Review 31 (1998): 301Google Scholar, and our discussion in The Militia and the Right to Arms, at 178–91.

11. See our Madisonian critique of Levinson's influential formulation of the insurrectionary reading of the right to arms in The Militia and the Right to Arms, 170–78.

12. Amar, Akhil Reed, The Bill of Rights: Creation and Reconstruction (New Haven: Yale University Press, 1998), 182–86Google Scholar; also consider David Yassky's interesting (but demonstrably counterfactual) argument that the Fourteenth Amendment constitutionalized federal conscription, thereby rendering the federal militia, and the Second Amendment, irrelevant. Yassky, , “The Second Amendment: Structure, History, and Constitutional Change,” Michigan Law Review 99 (2000): 588CrossRefGoogle Scholar, and our discussion in The Militia and the Right to Arms, 209–11.

13. See Pocock, J. G. A., Politics, Language, and Time: Essays on Political Thought and History (London: Methuen, 1972)Google Scholar, and Pocock, , The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton: Princeton University Press, 1975).Google Scholar

14. See Black, Barbara A., “The Constitution of Empire: The Case for the Colonists,” University of Pennsylvania Law Review 124 (1976): 1157, 1165, 1172–91.CrossRefGoogle Scholar

15. See Black, “The Constitution of Empire: The Case for the Colonists.”

16. See Loveland, Ian, Constitutional Law: A Critical Introduction (Aldershot, England; Brookfield, Vt.: Ashgate/Dartmouth, 2000), 40–42.Google Scholar

17. See Loveland, Constitutional Law, at 616–27, on the constitutional principles involved in Scottish devolution. In one important respect, our assertion travesties the position of the Scottish Nationalists, for a majority of the party members probably now favor absorption into an integrated Europe as strongly as they do dissolving the bilateral ties linking Scotland to the rest of the United Kingdom.

18. To be fair, Konig even quotes Ned Landsman to the effect that the direct influence of the Scottish example was very small. See Landsman, , “The Legacy of British Union for the North American Colonies: Provincial Elites and the Problem of Imperial Union,” in A Union for Empire: Political Thought and the British Union of 1707, ed. Robertson, John (Cambridge: Cambridge University Press, 1995), 297.Google Scholar However, Konig stresses that coming to terms with membership in (or allegiance to?) an Imperial Union had profound repercussions on provincial American constitutional thinking.

19. See Foot, Michael and Kramnick, Isaac, ed., “Editors' Introduction,” in The Thomas Paine Reader (Harmondsworth, England; New York: Penguin Books, 1987), 10Google Scholar, putting American sales of Common Sense at 100,000, an astonishing figure when one reflects that the population of the thirteen colonies numbered about 3,000,000.

20. See Cress, Lawrence Delbert, Citizens in Arms: The Army and Militia in American Society to the War of 1812 (Chapel Hill: University of North Carolina Press, 1982), 34–35.Google Scholar

21. See our discussion in The Militia and the Right to Arms, 49–58, 60–64, 171–76, 301 n. 22, 312 n. 109.

22. See our discussion of the Glorious Revolution and its American image in The Militia and the Right to Arms, at 49–67, and our discussion of American reflections upon the militia and the right to arms during the tumultuous 1780s at 69–106.

23. From “the composition draft” reassembled from several fragments by the late Julian Boyd, editor-in-chief of the monumental and ongoing Princeton series of The Papers of Thomas Jefferson. It reflects the state of the developing text in mid-June 1776, after the Drafting Committee had delegated the writing to Jefferson, but beforehe submitted the original rough draft to them. See The Papers of Thomas Jefferson, ed. Boyd, Julian et al., 28 vols. (Princeton: Princeton University Press, 1950–), 1:420Google Scholar; Jefferson's own deletions appear here in (parenthesis).

24. On Washington's and Knox's plans for a select militia, see our discussion in The Militia and the Right to Arms, at 69–72, 112–15.