The Miseducation of Danny GloverNicholas Johnson in Library of Law and Liberty (blog), January 28, 2013
by Nicholas Johnson
In a January 17 speech to students at Texas A&M University, Danny Glover, the actor from Lethal Weapon etc., attempted to disparage the constitutional right to arms with the critique that “The Second Amendment comes from the right to protect themselves from slave revolts, and from uprisings by Native Americans.”
This is abundantly wrong and I hope the students will not consider Mr. Glover a definitive source on the question. But I will give him credit for the try. He attempted to engage the issue by at least skimming one piece of the voluminous scholarship in this area.
His comment seems based on a cursory reading of a 1998 law review article by Professor Carl Bogus. First, it warms the academic’s heart that a Hollywood actor would sit down and read a law review article, although I acknowledge the possibility that someone just told him about it.
Either way, his education is incomplete (as is true for all of us). Mr. Glover’s mistake is to have taken one dubious thing and run with it. That is almost always a mistake and especially so in the gun debate. But Danny Glover’s mistake is also a teaching tool that illuminates the broader conversation.
The article by Prof. Bogus is a useful illustration of the long and ongoing enterprise to render the Second Amendment substantively meaningless. There are many flaws in his approach, primarily that it simply ignores the straight forward individual rights assessment that in the literature is dubbed the “standard model”. Rather than repeat the standard model assessment, which is stated well by the majority in D.C. v. Heller, I thought it would advance the debate to put Prof. Bogus’ article in the broader context of the various other efforts to hollow out the Second Amendment.
For people who pine for a gun-free society, the “right of the people to keep and bear arms” is a substantial impediment. Since most Americans support the idea of a private right to guns the chance of amending the constitution to repeal the Second Amendment is nil. So the alternative tactic has been to argue that the Second Amendment, despite providing a far stronger textual and historical foundation for a constitutional right to arms than we have for other controversial rights (e.g., the abortion right), really is no barrier to stringent supply side gun controls.
That enterprise is instructive because it has generated so many different and sometimes conflicting efforts. The article that fuels Mr. Glover’s attempt at constitutional wisdom is one of those. One of the most damming indictments of these projects is that there are so many different ones.
Most people appreciate that when someone continually changes their story, it diminishes their credibility and this is doubly true for legal claims. This is the burden on the various and conflicting hollow Second Amendment arguments. There are at least eight of them, including the one that Mr. Glover has championed. I summarize them here.
The right of the people really means the right of the states – In a lower court decision from the 1940’s U.S. v. Tot, the Federal District Court concluded that the Second Amendment, “was not adopted with individual rights in mind, but as a protection for the states in the maintenance of their militia organizations against possible encroachments by the federal power[emphasis added] .” Other courts repeated this. The problem here was sustaining the linguistic absurdity that right of the “people” really means right of the “states”, even though the clear distinction between those two things is evident throughout the Constitution. Smart people still say this is what the amendment means even though not even the dissenters in Heller tried to keep this view afloat.
Justice Stevens’ incoherent “individual militia right” - The now dominant version of the hollow Second Amendment (though some have not gotten the memo and continue to tout the states’ rights view above) is advanced by Justice Stevens’ dissent in Heller. At the outset, Stevens dispenses with the idea that the Second Amendment does not protect an individual right. Then he glibly advances a view of the Second Amendment that purportedly protects some very narrow individual militia right. “The question presented by this case is not whether the Second Amendment protects a ‘collective right’ or an ‘individual right’. Surely it protects a right that can be enforced by individuals.”
Stevens’ individual militia right is simply incoherent. It is nearly impossible to imagine a realistic scenario that triggers it. The majority captures the problem this way: “If petitioners are correct, the Second Amendment protects citizens’ right to use a gun in an organization from which Congress has plenary authority to exclude them.” In another permutation, Justice Scalia chides that Stevens’ formulation is “worthy of the Mad Hatter”.
Stevens’ supposed individual militia right really is just a carbon copy of militia duty. His historical examples of the “right” in operation are all just duties. Militiamen could be required to possess certain arms and accoutrements, to enroll, to muster, to military discipline, to risk and even sacrifice their lives in service of the state. By eliding the fundamental distinction between militia as duty and arms as right, Stevens renders an empty and incoherent version of the Second Amendment
Steven’s aim of course is not to give the Second Amendment any real content. Just the opposite, his aim is to say it’s an individual right, without having that translate into anything practical for citizens or any real limit on state power to regulate or ban guns.
A Leading Historian and the ABA Say the Second Amendment Means Nothing at All – For a time, skeptics would argue with a straight face that the Second Amendment to the United States Constitution really means nothing at all. It is a startling claim to make about any provision of our vaunted Bill of Rights. But in 1975, the American Bar Association put it this way: “It is doubtful that the founding fathers had any intent in mind with regard to the meaning of this amendment.” A similar view was advanced in 1995 by historian Gary Wills who, claimed that it really was just a clever ruse by Madison that actually had no real meaning.
[The Second Amendment] was a remnant of old royal attempts to create a standing army by requisition of civilian facilities. It had no real meaning … but it was part of the anti-royal rhetoric of freedom that had shown up, …in state requests for amendments to the Constitution. … Madison knew that the best way to win acceptance of the new government was to accommodate its critics on the matter of a bill of rights. … Madison confided to a friend: “It will kill the opposition everywhere.” Sweet-talking the militia was a small price to pay for such a coup… [emphasis added]
Wills’ argument never caught on with courts, who have strong traditions and actual hard rules against dismissing statutory and constitutional provisions as meaningless. Its main appeal was to allow otherwise serious people to glibly dismiss individual rights claims for another decade or so.
Professor Bogus’ “Real” But “Secret” Meaning of The Second Amendment - In a 1998 article entitled The Hidden History of the Second Amendment, Professor Karl Bogus claimed that the Second Amendment actually “was written to assure the Southern states that Congress would not undermine the slave system by using its newly acquired constitutional authority over the militia to disarm the state militia and thereby destroy the South’s principal instrument of slave control.” On this account, not only is the Second Amendment irrelevant in our modern world, it also deserves the same disdain as other constitutional accommodations of slavery, which I think was Mr. Glover’s argument.
The unhidden history of the Second Amendment is that it affirmed the pre-existing right of Englishmen that the Supreme Court tracks at least to the English Bill of Rights. There is also the small matter of our Constitution establishing a federal government of limited enumerated powers, under which, the people retained the rights and powers not explicitly granted to the national government. It is that basic division that grounds all individual rights. Madison simply undertook to list some of the plain uncontroversial ones. We don’t need big conspiracy theories about slave power to understand why the existing right to arms would be affirmed in that list.
As far as the base political point, no doubt guns were used by slave patrols and slavers. But the other story is that fugitives and freedmen in the north under threat of kidnapping authorized by Federal Fugitive Slave laws, used guns in countless cases to fight off slave catchers. Moreover, as I will show in depth in my forthcoming book, (final title: Negroes and the Gun: The Black Tradition of Arms) fugitive slaves, abolitionists, Jim Crow objectors, and modern civil rights protesters all recognized guns as a crucial private resource.
A Narrow Definition of Militia Exposes the “Individual Militia Right”- In an article from 2000, Professor Bogus unintentionally acknowledges the core flaw of the supposed “individual militia right” advanced by Justice Stevens. “Militia”, says Bogus,
“is defined in the Constitution itself. The founders disagreed about how the militia ought to be organized. … However, they agreed as a constitutional matter to leave this up to Congress… Thus, the militia is what Congress decides it is, regardless of whether it differs from an eighteenth century model. Currently the militia is indisputably the National Guard because Congress has so decided.”
Here Bogus candidly affirms the point that fueled Scalia’s Mad Hatter assessment of Justice Stevens (that a right to participate in an organization over which Congress has plenary authority is an absurdity). The militia, acknowledges Bogus, is whatever Congress says it is – today the National Guard, tomorrow nothing at all. Which means that the supposed “individual militia right” has zero constitutionally protected content.
Collective Rights: A Gloss on States’ Rights – Within the case law, some courts attempted to answer the criticisms of the “states’ rights” version of the hollow Second Amendment, by saying it is “collective right”. This attempted to finesse the fact that the right is to the “people”, by saying that its “a collective right of the people”. In practical application, this collective right extended not to the people as individuals, but as an organized political group – i.e., the state. So the collective right was just the states’ rights Second Amendment gussied up in a new frock.
The Second Amendment Hollowed Out by Neorepublicanism. In 1991, David Williams published an article in the Yale Law Journal offering a version of the hollow Second Amendment grounded in republicanism:
Creating or maintaining a republic against the constant risk of corruption by particularistic interests is therefore the most difficult of tasks. Republican theory, however offers some structures to aid in this task, prominent among them the universal militia…
… the error of those who today seek to guarantee a private right to arms is that they would thereby consign the means of force to those who happen to possess firearms – a partial slice of society – rather than to the whole people assembled in militia…. At a minimum therefore any modern version of this militia must be so inclusive that its composition offers some meaningful promise that it will not become the tool of a slice of society, …
As we today have not such universal militia and no assurance that contemporary arms-bearers will be virtuous, the Second Amendment itself is – for now – outdated.
Williams rendered the Second Amendment not permanently hollow, leaving the right to arms contingent on the revival of a kind of virtuous citizenry that presumably he will alert us to, if and when it emerges.
A Prize Winning Historian Says American Gun Culture (and Thus the Right to Arms) is Myth. In 2000, historian Michael Bellesiles attempted to render the Second Amendment empty with the claim that historically Americans never really owned many guns, and by implication had no real expectation of a robust right to arms; claims of a robust individual right to arms were really just modern constructions of the gun lobby. He won a bunch of awards from people who liked his conclusions, but then it was uncovered that Bellesiles had fabricated much of his data and his book was withdrawn and pulped. Gary Wills, who had given the book a rave review in the New York Times, later said that he and others were “taken” by Bellesiles. Individual rights skeptics seemed to have abandoned the Bellesiles version of the hollow Second Amendment.
Upshot: The primary aim of the hollow Second Amendment enterprise is to knock down the individual right to arms. Proponents seem not to really care about the substance and implications of these various placeholders. That is why so many versions are so cavalierly advanced and then discarded when they fail to catch on. Mr. Glover has picked up one of these and taken it as gospel. Perhaps he will read further and appreciate his mistake. More crucially, let us hope that the students he spoke to will be skeptical and diligent enough to seek their own answers.