Is the right to bear arms an example of "unpopular constitutionalism"? Comparing modern and historical opinions on the Second Amendment.

• Author: Check, Terence

ABSTRACT

There are two major schools of thought on the meaning of the Second Amendment of the United States Constitution. The individualist view believes that the Amendment provides a private right to bear arms for all citizens, so that they may have means for their own self-defense. The collectivist view constrains the right to a strictly military context. Each view relies on the history of the Second Amendment and the beliefs of the Framers to give greater legitimacy to their particular, modern conceptions of the constitutional right. This article sets out to steer the debate regarding the Second Amendment away from historical debate, and urges the consideration of a larger question: If historical intentions and modern popular opinions are incongruent, should the Framer's views still matter?

TABLE OF CONTENTS I. INTRODUCTION II. HISTORICAL AND SOCIETAL ORIGINS OF THE RIGHT TO BEAR ARMS 1. The Implicit Right 2. The birth of the constitutional right: the Insurrectionary Second Amendment III. MODERN VIEWS ON THE RIGHT TO BEAR ARMS 1. American attitudes about the 2nd Amendment 2. Can foreign constitutions' treatment of the Right inform the domestic debate? IV. THE SECOND AMENDMENT AS "UNPOPULAR CONSTITUTIONALISM" V. CONCLUSION "[A]nd in order to eliminate all possibility of restoring the power of the exploiters, it is decreed that all workers be armed." (1)

"[T]he methodological differences that divide historians ... are nothing compared to the differences among the American people...." (2)

1. INTRODUCTION

   Constitutions often conflict with popular ideas about highly important issues. The right to bear arms, with its attendant controversies and tragedies, exemplifies this central dilemma. (3) Despite the tension between constitutions and democracy, scholars and people often reason that constitutions should receive a greater degree of legitimacy because constitutions should reflect popular values. (4) Put differently, constitutions are widely conceived as a form of "social contract" as they reflect the will of the citizenry to accept the conditions under which they are governed. (5) But what should happen when the terms of this social contract are unclear or, in the alternative, no longer reflect the will of the governed? (6)

   This difficult question becomes especially contentious regarding the right to bear arms. In the United States, private citizens have owned firearms throughout American history. (7) But despite inclusion in the text of the United States Constitution, (8) the right to bear arms remains controversial. As a result, the discourse regarding the constitutional right to bear arms has become "stark, black-or-white, all-or-nothing ... [in] the past forty years." (9) This discourse on the Second Amendment is split between two major interpretive camps. First, there is the individual view, which contends that the Second Amendment provides sweeping gun use and ownership rights to individuals. (10) Alternatively, the collective view gives greater meaning to the "militia" clause of the Second Amendment, and concludes that the true purpose of the Amendment is to provide the community with means for resisting internal and external threats to their personal liberties. (11) Both camps sharply disagree on not only what the Second Amendment means, but also on how that meaning should effect modern gun legislation and regulation. (12) Thus, years of scholarship and political action have failed to achieve a common consensus on gun policy because Americans sharply disagree on what the Second Amendment should mean. (13)

   An article by Professor Mila Versteeg may help redefine this debate. Her article, Unpopular Constitutionalism, argues that a disconnect exists between what rights ordinary citizens believe are important and what rights national constitutions actually provide. (14) Because most people want their constitutions to reflect the issues that they feel are important, and because most constitutions fail to do so, Versteeg concludes that the many constitutions exemplify "unpopular constitutionalism." (15) According to Versteeg's research, unpopular constitutionalism transcends regions, geographies, and politics--most nations that attempt to use their constitutions as some sort of "higher law" that transcends traditional lawmaking nevertheless enact unpopular constitutional provisions. (16)

   This article concludes that the Second Amendment is an example of "unpopular constitutionalism." In doing so, this article must answer two key questions. First, is there an objectively "correct" meaning of the Second Amendment? Second, if there is a correct meaning, does that meaning comport with modern, popular beliefs regarding the right to bear arms?

   This article folds out in four parts. First, it surveys the historical origins of the right to bear arms, paying particular emphasis to the American and English versions of the right. By engaging in this historical analysis, this article identifies an objectively "correct" interpretation of the Second Amendment. Second, this article evaluates popular domestic attitudes and foreign constitutional opinions regarding the right to bear arms. Third, this article considers whether the Second Amendment is, by reference to foreign and domestic attitudes, an example of "unpopular constitutionalism." Lastly, this article concludes by considering whether the Second Amendment's "unpopular constitutionalism" truly matters in the modern, politically-charged (17) discourse.

2. HISTORICAL AND SOCIETAL ORIGINS OF THE RIGHT TO BEAR ARMS

   The Second Amendment of the United States Constitution states: "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." (18) Despite the inclusion of the right to own and bear arms in the constitutional text, traditional scholarship has not yet yielded one definitive interpretation of the right. (19) As a result, it is necessary to first survey the historical origins of the right to bear arms and then proceed to look at the formation of the Second Amendment itself. (20) Following this survey, this article then concludes that the collective interpretation of the Right is the objectively "correct" one. (21)

   1. The Unwritten Right

      Both the Greeks and Romans regarded an individual's right to bear arms as the last, best defense against tyranny. (22) The English also held this unwritten right in high regard, as Englishmen had both a right and a corresponding duty to keep and even bear arms against England's foreign and domestic enemies. (23) This right had become important in the aftermath of the Glorious Revolution, which had replaced Catholic James II--who had endeavored to disarm the Protestants of the realm--with Protestant royals William and Mary. (24) This directly resulted in the inclusion of protective text in the English Bill of Rights of 1689, providing that "the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law". (25)

      In addition to the English Bill of Rights, jurist William Blackstone indicated that the bearing of arms enjoyed implicit acceptance and approval under the common law of England. (26) Importantly, even at these early stages, the right to bear arms was not without certain practical limitations. Blackstone noted that "the natural right of resistance and self-preservation [sic]" was available only "when the sanction of society and laws are found insufficient to restrain the violence of oppression." (27) Furthermore, the English Bill of Rights allowed for some practical restrictions--the bearing of arms was appropriate when "suitable for [citizen's] conditions," and only "when allowed by law." (28) Indeed, because the English right to bear arms was not constitutionally insulated from the ordinary political process, British lawmakers eventually overturned the rights of the English to bear arms in the twentieth century. (29) This historical analysis is particularly useful, if not completely dispositive. In the case of the 1689 Declaration, the text is unequivocal--the subjects "may have" arms, and such possession is further conditioned on additional laws. Nevertheless, the right, nay, the duty, to use arms in defense of the realm against external enemies, and to safeguard against tyranny, remained implicit and assumed-Blackstone recognized it as a fifth, albeit auxiliary, right, and many politicians articulated the same during the passage of the Firearms Act of 1920. But in the United States, the Second Amendment's language is far different--the right "to keep and bear arms ... shall not be infringed". (30) The only condition on the right (aside from membership in a militia, which would include most adult men under the conceptions of the time) (31) is that the militia be "well-regulated." (32) The implicit English "right" is exactly the opposite as it provides clear instances when the people may exercise their right to bear arms.

      This is not to say, however, that implicit or unwritten rights are not as strong. On the contrary, some nations have strong rights regarding arms, even though no provision providing such rights exists in their constitution. (33) Regardless of what happened to the English right to bear arms in later centuries, the American colonists inherited a strong proclivity for firearm possession and use, and it is that proclivity, that heritage, which then led to the Second Amendment.

   2. The Birth of the Constitutional Right: the Insurrectionary Second Amendment

      As discussed above, the right to bear arms grew out of a societal need to maintain an armed citizenry in order to repel foreign invasions, and to overthrow tyrants or usurpers. (34) This historical heritage supports what scholars call the "state's rights," or "collective," interpretation of the Second Amendment. (35) This "collective" interpretation focuses on the word "militia" in the text of the Second Amendment...