St. George Tucker and the Second Amendment: original understandings and modern misunderstandings.

Author:Cornell, Saul
Position:The Legacy of St. George Tucker
 
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In his View of the Constitution of the United States, St. George Tucker described the Second Amendment as "the true palladium of liberty." (1) Supporters of gun rights have argued that Tucker's comments provide irrefutable proof that the right to bear arms was originally understood to protect an individual right to keep and use firearms for personal self-defense, hunting, and any other lawful activity. (2) This claim rests on a serious misreading of Tucker's constitutional writings. Tucker was a product of an eighteenth-century world quite alien to our own, and his view of the Second Amendment was a product of the struggles of his own day, not the modern debate between gun rights and gun control. The individual rights misreading of Tucker is merely the latest example of how constitutional scholarship has been hijacked for ideological purposes in this bitter debate. (3) To understand what Tucker meant by the phrase "the true palladium of liberty," one must pay careful attention to the political context in which he wrote and the role that the right to bear arms played in his constitutional theory. While partisans of the individual rights theory have misinterpreted Tucker's understanding of the Second Amendment, they are certainly correct to insist that Tucker's views of the Second Amendment are important and merit close attention. (4) Tucker was one of the leading legal thinkers of the Founding Era, and his magisterial study of Blackstone's Commentaries was an influential work of constitutional theory that helped shape the terms of constitutional discourse in the early republic. (5) For originalists, Tucker's Blackstone is particularly important because it drew heavily on the learned jurist's own William and Mary law lectures, which were composed almost contemporaneously with the framing and adoption of the Second Amendment. (6) While originalists are correct to note that Tucker's law lectures provide the first systematic effort to describe the meaning of the Second Amendment and its role in American constitutionalism, Tucker's earliest commentary on the Second Amendment does not support the individual rights view. Indeed, in his unpublished law lectures Tucker not only explicitly described the Second Amendment as a right of the states, but he noted that its inclusion in the Constitution was designed to assuage Anti-Federalists' fears about the Constitution's power over the militia discussed in Article I, Section 8. (7) To underscore the Second Amendment's role as a guardian of states' rights within the federal system, Tucker also linked its function with the Tenth Amendment, the provision of the Bill of Rights most closely associated with federalism, (8) Tucker's earliest writings about the Second Amendment challenge the often-repeated claim that the states' rights theory of the Second Amendment is a modern invention quite alien to the Founding Era. (9)

Tucker's analysis of the Second Amendment in the unpublished law lectures also sheds new light on his discussion of "the true palladium of liberty" more than a decade later. (10) When Tucker's early thoughts about the Second Amendment are set against his later published writing on the same topic, it is possible to see how this issue fits into the structure of his more mature constitutional theory. Tucker's understanding of the role of the right to bear arms in American constitutionalism evolved over the course of the 1790s, and these changes reflected his attempt to adapt his theory to the rapidly changing circumstances of American politics in the Federalist Era. (11) Tucker greatly expanded his discussion of the meaning of the Second Amendment in his published treatise. (12) He did not abandon his earlier commitment to states' rights, but he did refine and enlarge his analysis of the structural role of the Second Amendment in supporting federalism, giving additional attention to the role of the Second Amendment as a civic right. (13) According to that notion, the right to bear arms in a well-regulated militia was a judicially enforceable privilege and immunity of federal citizenship. (14) Ironically, Tucker, a staunch defender of states' rights, articulated a view of the Second Amendment that would be adopted by the nationalist-minded Republicans in the Department of Justice during Reconstruction. (15)

Tucker's analysis of the right to bear arms was far more sophisticated than modern Second Amendment theorists have recognized. His writings fit neither the modern collective nor individual rights models. (16) In his more mature writings, Tucker thus approached the right to bear arms as both a right of the states and as a civic right. (17) Tucker also dealt with the issue of individual self-defense, but he did not treat this right in the context of his discussion of the Second Amendment. (18) Tucker located this right in common law, not constitutional law. (19) One cannot hope to understand Tucker's legal theory without appreciating the different legal foundations for the two rights. Modern discussions of gun rights and gun control have generally ignored the common law, focusing instead on issues of constitutional law. (20) The obsession with constitutional law and the absence of attention to common law would have been puzzling to Tucker and others of the founding generation. The common law was absolutely essential to understanding the right of self-defense and a host of other issues in American law. (21) Indeed, the bulk of Tucker's study of Blackstone was not devoted to the Federal Constitution but to the common law. (22) Disentangling these two concepts is not only essential to understanding Tucker's legal theory, it provides important insights into the origins of our current impasse on the right to bear arms.

  1. TUCKER'S ORIGINAL UNDERSTANDING OF THE SECOND AMENDMENT

    Tucker himself noted that, had The Federalist treated the defects of the Constitution with equal candor as its strengths, it would have provided the best commentary on America's new frame of government. (23) Since The Federalist had not dealt honestly with those defects and had been written before the amendments were adopted subsequent to ratification, Tucker believed it was vital to provide his students with a detailed guide to the new law of the land. (24) Tucker's lectures were the first systematic effort by any figure in American law to describe the contours of the new system created by the amended Constitution. (25)

    Tucker was a moderate Anti-Federalist who had initially opposed ratification, but as Federalists scored one victory after another in the individual state ratification conventions, he was forced to rethink his stance. (26) He came to believe that, with proper amendments, the Constitution could effectively protect both the rights of the states and the liberty of individuals. (27) Admittedly, Tucker was not entirely pleased with the final shape of the Bill of Rights that emerged from Congress, which had not sufficiently scaled back the powers of the federal government. (28) Still, in his law lectures he expressed guarded optimism that America's new constitutional system could weather any future storms on the horizon. (29)

    Tucker's William and Mary law lectures defined the core around which he built his monumental study of Blackstone's Commentaries published in 1803. (30) Although his unpublished discussion of the Second Amendment in these lectures has not been discussed by modern scholars, it provides a remarkable source for understanding his earliest thinking about the Constitution and the Bill of Rights. (31)

    Tucker was well informed about congressional debates on the Bill of Rights. His brother, Thomas Tudor Tucker, was a member of Congress, and St. George corresponded with other leading politicians of his day about political matters. (32) While evidence of the crucial Senate debates over the wording of the Second Amendment have not survived, one tantalizing suggestion about the character of this discussion is provided in a letter Virginian John Randolph wrote to Tucker, declaring that "[a] majority of the Senate were for not allowing the militia arms." (33) Randolph happily reported that this proposal failed to garner a two-thirds majority and was defeated. (34) Randolph explained the significance of this decision as a victory for those who opposed the designs of the Federalists. (35) "They are," Randolph commented, "afraid that the Citizens will stop their full Career to Tyranny & Oppression." (36) Randolph's letter sheds light on the decision of the Senate to reject language that would have linked the right to bear arms to the common defense. While individual rights scholars have suggested that the Senate's rejection of this language clearly establishes that they intended to protect an individual right, (37) Randolph's letter casts the choice to excise this language in a radically different light. (38) The issue was not individual versus collective rights, as gun rights scholars have claimed, but clearly was federal versus state control. If the right to bear arms was restricted to common defense, that construction would have been viewed by proponents of states' rights as a threat to the militia. As Randolph's letter to Tucker suggests, the issue before the Senate was control of the militia, not an individual right to use guns for personal defense or hunting. (39)

    The connection between the Second Amendment and federalism emerges unambiguously in Tucker's law lectures. Tucker described the meaning of the Second Amendment in the following terms:

     If a State chooses to incur the expence of putting arms into the Hands of its own Citizens for their defense, it would require no small ingenuity to prove that they have no right to do it, or that it could by any means contravene the Authority of the federal Govt. It may be alledged indeed that this might be done for the purpose of resisting the Laws of the federal Government, or of shaking off the Union: to which the
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