THE SECOND AMENDMENT AND STATES' RIGHTS: A THOUGHT EXPERIMENT


	GLENN HARLAN REYNOLDS*
	DON B. KATES**

Opponents of gun ownership sometimes claim that the Second Amendment
does not guarantee a right of people to own guns, but instead
guarantees the right of states to have militias. Invariably, the claim
is not offered as an explanation of what the Second Amendment does
mean, but instead as a rhetorical negation of the Second Amendment as
an individual right. If the Second Amendment were a state's right,
what exactly would the right guarantee? That is the question answered
by this article, as the authors carefully explain how a "state's
rights" theory of the Second Amendment is logically incoherent. This
article was originally published in volume 36 of the William and Mary
Law Review, and is reprinted here, in edited form, with permission.
Glenn Harlan Reynolds is a professor at the University of Tennessee
Law School. He is the author of, among other works, "Kids, Guns, and
the Commerce Clause: Is the Court Ready for Constitutional
Government?" (Washington: Cato Institute, 1994). Criminologist Don
Kates is the the editor of two books, and author of numerous articles
and chapters in books, most recently "Bad Medicine: Doctors and Guns,"
in Guns: Who Should Have Them? (Prometheus: 1995).

	The Second Amendment to the United States Constitution
provides: "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."1 As Professor Sanford Levinson has noted, this
Amendment is, on its face at least, one of the murkier constitutional
provisions.2 In recent years, the public debate over the meaning of
the Amendment has become more heated, even as the scholarly literature
has grown. One major feature of this debate has been disagreement over
what the Second Amendment protects. The great majority of recent law
review commentary sees the Amendment as recognizing a right of
individuals, enforceable by them in the courts after the fashion of,
say, the First Amendment.3 While acknowledging that, like freedom of
expression, the right to arms was perceived as having social values as
well as individual ones,4 the scholarly literature portrays the
Amendment as intimately connected with self-defense, which the
Founders saw as the cardinal natural right_a right of individual and
collective resistance to tyranny and other forms of criminal conduct.5
In contrast to the individual rights view, advocates of restricting
gun ownership have championed a "states' right" view of the Second
Amendment, contending that its goal is to guarantee only the states'
right to have armed militias, usually characterized as the
contemporary National Guard.6 	We will not enter that debate in this
Article. Instead, we will undertake what physicists term a "thought
experiment." We will take as a given that the Second Amendment does
what states' rights advocates say it does, protecting only the right
of states to maintain organized military forces such as the militia
and the National Guard, without creating any rights enforceable by
ordinary individuals. We will then explore an issue that has been
ignored even by proponents of the "states' rights" interpretation of
the Second Amendment: If the Second Amendment grants rights to states,
rather than individuals, what exactly are those rights, and what are
the consequences for the Constitution and other aspects of state and
federal relations? The answers to these questions turn out to be
rather startling and likely will displease gun control advocates every
bit as much as their opponents. From this conclusion we draw a few
lessons on the contemporary state of popular constitutional
scholarship and make a modest proposal for improving matters.


I.  STATES' RIGHTS AND INDIVIDUAL RIGHTS

	We all know what it means to say that the Bill of Rights
creates an individual right. It means that the provision in
question_for example, the First Amendment's free-speech clause_carves
out an area that is exempt from government control, except perhaps in
the most compelling circumstances.7 Individuals whose rights are
violated because the government subjects protected behavior to control
absent such compelling circumstances have the right to sue and obtain
an injunction or other judicial relief against the government. The
meaning of an individual right to bear arms under the Second Amendment
would thus be fairly clear. An individual subjected to firearms laws
not justified by highly compelling circumstances would be able to have
the laws struck down by a court as unconstitutional.8 Such laws would
be analyzed in the same fashion as laws entrenching upon other rights
protected by the Bill of Rights.	What a states' right
interpretation would mean is a bit less clear. The Supreme Court has
not done much with states' rights in recent years, and the term itself
still suffers a certain amount of opprobrium resulting from its use
(more as slogan than legal argument) in the civil rights battles of
the 1950s and 1960s.9 Look into Va. & Ky. resolutions purporting to
nullify the Brown decision.Nor is the Constitution very helpful.
Typically, when describing state functions that are protected from
federal interference (or, for that matter, when describing
governmental authority generally) it uses the term "powers," rather
than rights, as in the Tenth Amendment.10 	Presumably, however, a
"state's right" is one that is also enforceable in court. Thus the
Supreme Court consistently enforces the states' Eleventh Amendment
"right" not to be sued in federal courts.11 By the same token, if
Congress were to pass a statute establishing a new state of "Calizona"
out of parts of California and Arizona without the consent of the
legislatures of those states, the courts likely would strike down such
an action as violative of the provision in Article IV, section 3 that
"no new State shall be formed or erected within the Jurisdiction of
any other State; nor any State be formed by the Junction of two or
more States, or Parts of States, without the Consent of the
Legislatures of the States concerned . . . ."12 The right of
territorial integrity guaranteed by Article IV would hardly be a right
at all if courts did not enforce it.	Thus, a states' right
interpretation of the Second Amendment must mean_if it is to mean
anything at all_that a federal action that invades a state's protected
interests can be challenged in court, and that it can be struck down
where it is not justified by highly compelling circumstances. This, of
course, leaves open two important questions. The first question is
what state interests, exactly, are protected by a "states' rights"
interpretation of the Second Amendment. The second question is what
are the consequences of recognizing such rights today. In addressing
these questions, we first will look at the purposes such a right might
serve, then at how it might be applied today, and finally at the
relationship between states and the federal government that such an
interpretation implies.


II.  A STATE RIGHT TO KEEP AND BEAR ARMS

	In trying to determine the purposes of a state right under the
Second Amendment, the obvious place to look first is in the writings
of those who champion such an interpretation.13 Unfortunately, they
provide little help. The states' right interpretation appears to be
employed against the individual right interpretation in much the same
fashion as a chain of garlic against a vampire, pulled out and
brandished at need but then hastily tossed back into the cellar lest
its odor offend.

	However, even in this commentary there is some guidance. For
example, gun-control activist Dennis Henigan14 writes that "[t]he
purpose of the [Second] Amendment was to affirm the people's right to
keep and bear arms as a state militia, against the possibility of the
federal government's hostility, or apathy, toward the militia."15 He
describes his interpretation of the Second Amendment as providing
"that the Second Amendment guarantees a right of the people to be
armed only in service to an organized militia"16 and argues that James
Madison interpreted the Amendment as ensuringthat the Constitution
does not strip the states of their militia, while conceding that a
strong, armed militia is necessary as a military counterpoint to the
power of the regular standing army. . . . Madison saw the militia as
the military instrument of state government, not simply as a
collection of unorganized, privately armed citizens. Madison saw the
armed citizen as important to liberty to the extent that the citizen
was part of a military force organized by state governments, which
possesses the people's "confidence and affections" and "to which the
people are attached." This is hardly an argument for the right of
people to be armed against government per se.17 	So in
Henigan's view, which it seems safe to regard as representative of the
"states' rights" camp,18 the purpose of the Second Amendment is to
guarantee the existence of state military forces that can serve as a
counterweight to a standing federal army. Thus, it seems fair to say,
the scope of any rights enjoyed by the states under the Second
Amendment would be determined by the goal of preserving an independent
military force not under direct federal control.	The
consequences of such a right are likely to be rather radical. In
short, if the Second Amendment protects only a state right to maintain
an independent military force, it creates no purely individual right
to keep and bear arms, exactly as gun-control proponents argue
(although it is possible that courts might derive some individual
rights by way of inference). However, the consequences go far beyond
that particular result. If the Second Amendment creates a right on the
part of the states, rather than individuals, then by necessity it
works a pro tanto repeal of certain limitations on state military
power found in the Constitution proper, renders the National Guard
unconstitutional, at least as currently constituted, and creates a
power on the part of state legislatures to nullify federal gun-control
laws, if such laws are inconsistent with that state's scheme for
organizing its militia. Although these results may seem far-fetched,
closer examination will reveal that they are inevitable results of a
states' right formulation.


A.  An Independent State Military Power

	Advocates of the states' right view are certainly on firm
ground when they describe the Framers' fear of a standing federal
army. The evidence that the Framers entertained such fears is
substantial and uncontradicted.19 The individual rights view does not
deny this. It sees the right as an aspect of the natural-law right of
self-defense, which was deemed to include the right to arms and which
("writ large") included the right of an armed populace to join
together to resist tyranny. The difference between the two views is
that the individual right approach has no particular state versus
federal implications. Indeed, one additional aspect of the armed
populace was their ability to join the federal government in resisting
state tyranny.20 But if the Second Amendment was designed to create an
independent state counterweight to federal military power, then it
must at the very least protect those aspects of state military forces
that are independent and that serve as counterweights to federal
power. Those aspects turn out to be substantial.

	To begin with, a states' right version of the Second Amendment
is probably inconsistent with some provisions of the pre-amendment
Constitution; because it is later in time, it must thus be viewed as
an implicit repeal or modification of those provisions. Three
pre-amendment provisions of Article I appear inconsistent with the
role of state armed forces as independent counterparts to the federal
standing army.

	Article I, section 8, clause 15 (the first of the Militia
Clauses) grants to Congress the power:

To provide for calling forth the Militia to execute the Laws of the
Union, suppress Insurrections and repel Invasions.21

Article I, section 8, clause 16 (the other Militia Clause) grants Congress the power:

To provide for organizing, arming, and disciplining, the Militia, and
for governing such Part of them as may be employed in the Service of
the United States, reserving to the States respectively, the
appointment of the Officers, and the Authority of training the Militia
according to the discipline prescribed by Congress.22

Finally, Article I, section 10, clause 3 provides that:

No State shall, without the Consent of the Congress, . . . keep
Troops, or Ships of War in time of Peace . . . .23

What is wrong with these provisions? In the states' right formulation,
we know two things about them. First, they were not sufficient in
themselves to address concerns that state military forces might be
under too much federal control_otherwise the Second Amendment would
not have been needed. Indeed, these provisions helped give rise to
precisely the kind of fears that the states' right interpretation
claims the Second Amendment was intended to address. Second, they are
in many ways inconsistent with the states' rights theory's stated
purpose of the Second Amendment, because some of the powers granted to
the federal government in Article I, and some of the prohibitions
imposed on the states, might destroy or impair the role of state
military forces as a counterweight to the federal standing army.

The calling-out provision of clause 15 is the least suspect. Here, if
the Second Amendment works any change at all, it would simply prevent
the federal government from calling out state military forces in a way
that would effectively end state control_for example, a perpetual
call-up that would have the effect of placing the state forces under
long-term federal command, destroying their independence. Note,
however, that the clause does contain limitations on the purpose for
which the militia can be called out, limiting such call-outs to
execution of the laws, suppression of insurrections, and repelling
invasions.24

Clause 16, having to do with organization, arming, and discipline, is
on shakier ground. According to Henigan, the Framers worried that
congressional authority in this regard might allow the federal
government to undermine or destroy the militia as an institution
either by refusing to make any provision for arming, disciplining, or
training the militia or by warping it into a federal rather than a
state institution.25 Indeed, the crux of his argument is that the
Second Amendment was intended to address precisely this concern.26
Thus, under a states' rights view, the authority of Congress to
regulate the arming, discipline, or training of the state militia
would be limited by the Second Amendment's purpose of maintaining
state militias as an independent force that citizens correctly would
identify as belonging to their state government, rather than as a
federal institution. Accordingly, any regime providing for systems of
arming, training, or disciplining state forces that is inconsistent
with such a purpose would be unconstitutional. For example, a rule
that state militias could be armed only from federally-controlled
armories, or trained only with "dummy" or nonlethal weapons, or that
they must be overseen by federal political officers to ensure loyalty
to the United States, would violate the independence of state military
forces and thus the Second Amendment.27

The Second Amendment also raises questions with regard to Article I,
section 10's prohibition on states' maintaining troops or ships of war
without the consent of Congress. If the Second Amendment is intended
to preserve a measure of state military independence, then a
prohibition on state military forces is surely suspect, and might be
regarded as having been implicitly repealed by the Second Amendment.
However, it is possible to avoid at least the "Troops" part of this
problem by distinguishing between "Troops," who are probably meant to
be regular professional soldiers, and the "Militia," which was always
a part-time body drawn from the citizenry at large.28 Thus, it is
possible to read these two provisions together as protecting the
independence of a state militia made up of citizens while prohibiting
the maintenance of full-time, professional armed forces by the states.
Given that the Second Amendment resulted in large part from a fear of
standing armies, this reading makes sense and avoids any conflict
between the two provisions. Unfortunately, it runs afoul of the basic
philosophy behind the states' right approach.29

Both sides in the modern Second Amendment debate recognize that
Madison proposed, and the Federalist First Congress passed, the Bill
of Rights in response to Antifederalist criticism of the Constitution.
Unlike the individual right view, however, the states' right view
presupposes the Amendment's hostility to parts of the Constitution to
which the Antifederalists were deeply opposed. The Antifederalists had
opposed ratification of the Constitution on two very different kinds
of grounds. One involved deep suspicion about specific provisions,
particularly those allowing a standing army and providing for federal
supervision of the militia.30 Entirely independent of those specifics,
the Antifederalists, and many other Americans, were critical of the
failure to append to the Constitution a charter of basic human rights
that the federal government could not infringe under any
circumstances.31

The individual right view sees the Second Amendment, and the Bill of
Rights in general, as responding to this second kind of criticism.
During the ratification debate, the Federalists vehemently denied that
the federal government would have the power to infringe freedom of
expression, religion, and other basic rights_expressly including the
right to arms.32 In this context, Madison secured ratification by his
commitment to support the addition by amendment of a charter that
would guarantee basic rights. But that commitment extended only to
safeguarding the fundamental rights that all agreed should never be
infringed. It did not involve conceding any issue on which the
Federalists and Antifederalists disagreed, i.e. the latter's
opposition to specific provisions of the Constitution. Indeed, a few
days after their submission, Madison said he had "deliberately
proposed amendments that would not detract from federal powers, among
them a right for the citizenry to be armed."33

In contrast, the states' right view points to the Militia Clause of
the Second Amendment as evidence that the Amendment embodies
Antifederalist opposition to the Militia Clauses of Article I. Thus,
despite the general presumption that ordinarily differing provisions
of the Constitution and/or its amendments ought to be harmonized
whenever possible, the states' right view freights the Second
Amendment with a presumption that it conflicts with, and therefore
repeals, or at least modifies, some aspects of the original
Constitution.

It is inescapable, then, that the states' right interpretation of the
Second Amendment implies the repeal or modification of other language
in the Constitution_something that Henigan admits, albeit without
giving any examples.34 The consequences of a states' right approach,
however, go much farther than these, and much beyond the abolition of
an individual right to keep and bear arms, as the following discussion
makes clear.

B.  Present Day Consequences

If, as states' right advocates would have it, the Second Amendment
creates a right of the states to possess a measure of independent
military power as described above, what are the consequences of
applying that right in the present day? Our discussion must be
hypothetical, as the Supreme Court never has applied the states' right
approach in a Second Amendment case, but we will focus on a couple of
fairly easy cases: state nullification of federal gun laws and the
status of the National Guard as currently constituted.

1.  State Militias and Federal Gun Laws

As we have already seen, the states' right interpretation of the
Second Amendment means that state militias must be sufficiently
independent to serve as an effective counterweight to the federal
standing army. Among other things, this requirment means that state
militias must be large. Although there has been much romanticism about
the effectiveness of part-time citizen soldiers, many Framers did not
labor under the belief that an armed citizenry was a one-to-one match
for professional soldiers. Their own Revolutionary War experience
clarified this fact, which is why their discussion of the militia's
usefulness often tended to emphasize its size.35 Unfortunately,
outfitting a large force is expensive, and many states are
poor_especially by comparison to the federal government. Expense was
precisely the problem faced by the early Congress when it passed the
Militia Act of 1792.36 That act established a "Uniform Militia
throughout the United States,"37 consisting of every able-bodied male
citizen between the ages of eighteen and forty-five and provided:

That every citizen so enrolled and notified, shall, within six months
thereafter, provide himself with a good musket or firelock, sufficient
bayonet and belt, two spare flints, and a knapsack, a pouch with a box
therein to contain not less than twenty-four cartridges, suited to the
bore of his musket or firelock, each cartridge to contain a proper
quantity of powder and ball: or with a good rifle, knapsack,
shot-pouch and powder-horn, twenty balls suited to the bore of his
rifle, and a quarter of a pound of powder; and shall appear, so armed,
accoutred and provided, when called out to exercise, or into service,
except, that when called out on company days to exercise only, he may
appear without a knapsack.38

One well might imagine a state choosing to equip its militia in the
same fashion: rather than purchasing the equipment and distributing it
to citizens, it simply might require citizens to possess the requisite
arms, ammunition, clothing, etc. and keep them in readiness. It is
easy to imagine why a state might want to impose such requirements,
not only for the cost savings (likely the main motivation), but also
recognizing the advantage that when the militia is called out, its
members will be already familiar with their weapons and will not need
to proceed to an armory or other facility to receive weapons and
supplies. Such convenience could be very useful in the kinds of major
emergencies_earthquakes, hurricanes, riots, and military coups_for
which the militia is intended when travel might be disrupted. In fact,
some state militia laws contain such provisions.39

Under a states' right view, such an approach raises potential
conflicts with federal legislation. For example, what if a state were
to require its militia-eligible citizens to be equipped with "assault
rifles"_that is, semiautomatic rifles of military styling (perhaps
derived from military designs) and equipped with military-type
features such as bayonet lugs, flash suppressors, folding stocks,
bipods, or large-capacity magazines? Or, for that matter, what if a
state were to require actual military weapons capable of fully
automatic fire? (After all, countries like Switzerland and Israel do
this as a matter of course.)40 Such weapons normally cannot be
possessed by individuals without running afoul of various federal
firearms laws.41

Yet the states' rights approach would make such federal laws
unconstitutional as applied to the members of state militias, so long
as the state required, or permitted, them to keep such weapons at
hand. Because the purpose of the Second Amendment is, according to the
states' right interpretation, to protect the independence of state
militias vis-a-vis the federal government, allowing the federal
government to fully or partially disarm state militias would frustrate
the core purpose of the amendment. Thus, most federal firearms laws
would not be applicable to citizens covered by state militia
laws_though no doubt the federal government would retain the power to
outlaw weapons obviously unsuited for militia use such as derringers,
wallet-guns, umbrella-guns, and sawed-off shotguns.42

Furthermore, because the militia is conceived as a large body of
citizens (which it must be if it is to counter the federal standing
army) federal gun control laws could, in effect, be nullified by state
legislation that requires militia members to possess banned
weapons_legislation that might well reach a majority of the state's
population. Some citizens would not benefit from such an action,43 but
the loophole thus opened in federal gun control laws would be large
enough through which to march an army_or at least a militia.

Under a states' right interpretation, the states themselves would be
free to regulate, or even entirely forbid, gun ownership, subject only
to general constitutional guarantees, such as due process and equal
protection.44 But this result would not be achieved without cost:
Federal power to restrict firearms ownership necessarily would be
concomitantly limited. By long-established tradition, states do not
arm civilians they call upon for armed service: Militiamen, civilian
volunteers, and persons called for service in the posse comitatus are
expected to provide their own arms.45 At the same time, however, the
great majority of states allow law-abiding, responsible adults to
possess a wide variety of firearms under extensive regulation,46 while
felons and juveniles, for example, generally are forbidden firearms.47
Given the tradition of extensive firearms regulation and of a
self-armed militia, a state's failure to outlaw general possession of
particular kinds of weapons could be deemed to reflect an affirmative
judgment that such possession serves a policy of maintaining an armed
citizenry as the state's ultimate military reserve.48 If so construed,
a state's mere failure to outlaw certain arms would preempt the
application in that state of any federal law banning those arms. Such
a "negative pregnant" application of state gun laws would give
suitable deference to the imperative for state control over militia
arms, which is basic to the view that the Second Amendment confers a
states' right.

If the courts accepted a negative pregnant application of state gun
laws, it would, as a matter of constitutional law, confine federal gun
legislation to the limited role to which it traditionally has been
confined as a matter of policy_reinforcing state gun laws by
prohibiting the movement of firearms in interstate commerce from those
states in which they are legal to states in which they are
prohibited.49 This result would have many interesting implications,
not the least of which would be its effect on the long-standing (and
surprisingly large) American market for denatured World War II fighter
planes and Soviet jet fighters, which are currently available at
prices as low as $50,000.50 In the many states whose laws allow
machine gun ownership, the "recreational fighter pilots" who flock to
buy these denatured aircraft could re-equip them with machine guns and
automatic cannon for service in the unorganized militia. Although
seemingly far-fetched, this result is a natural consequence of the
states' right approach, though not, as will be discussed, of the
individual right approach.51

Nor is this prospect illusory even if the negative pregnant
interpretation of state gun law patterns is rejected. In addition to
the states that simply do not outlaw machine guns, other states
license appropriate applicants, such as security company operators, to
possess them.52 Such laws are currently thought to be preempted by
federal legislation.53 Under the states' right view of the Second
Amendment, however, such affirmative permission could be construed as
preempting application to those licensees of the federal law
prohibiting civilian purchases of machine guns manufactured after May
19, 1986.54

It bears emphasis that the issues raised in the last two paragraphs
involve only the particular means by which state preemption of federal
gun laws would operate. That such preemption would operate cannot be
doubted under the states' right approach because it is inherent in
that view. Certainly, any state could preempt the operation of any
contrary federal gun law within its borders by enacting laws
affirmatively authorizing the military-age citizenry of the state to
arm themselves with any kind of weaponry specified, including machine
guns, bazookas, fighter planes, armored personnel carriers, tanks,
PT-boats, and other armed ships.55 Without such preemptive power, the
"right" of the states under the states' right theory would be
illusory.

Moreover, under the states' right view, the Second Amendment
guarantees a vastly greater range of weaponry (to state-authorized
civilians or to the states themselves) than is implied by the
individual right view. Exponents of the latter view have been at some
pains to show that the Amendment extends to small arms only. Warships,
tanks, artillery, missiles, atomic bombs, and so forth are excluded
from its guarantee for several reasons, including the Amendment's
text,56 the history of the common law right to arms,57 and the logic
of the individual right position.58

Of course, none of the limitations implicit in the individual right
view applies to the states' right view because the common law imposed
no limitations on the kinds of arms the government might possess. If
the incongruity of the Amendment describing a state as "bearing" arms
can be ignored, which the states' right view necessarily does, a state
is obviously no more incapable of "bearing" cannon than any other kind
of arms. Moreover, if the purpose of the Second Amendment is to
guarantee the existence of state military forces that can serve as "a
military counterpoint to the regular standing army,"59 the arms it
guarantees the states logically could include even the most
destructive implements of modern war. However unsettling these results
may be, they inevitably result from the Antifederalist critique of the
original Constitution upon which proponents of the states' right view
rely.

Although it is doubtful that Mr. Henigan and other enthusiasts of the
states' right approach desire this result, it seems an unavoidable
consequence of arguing that the Second Amendment protects the right of
states to maintain militias. One might attempt to avoid this
consequence by arguing that the only militia covered by the Second
Amendment is the National Guard, but, as demonstrated below, the
consequences of that approach are also rather radical.


2.  The National Guard and the Second Amendment

If the Second Amendment serves to protect the independence of state
militias, or as former Chief Justice Burger calls them, "state
armies,"60 can the National Guard as currently constituted withstand
Second Amendment scrutiny? Although the Supreme Court has never
addressed this issue, the answer appears to be no because as the
Supreme Court has held, the National Guard is not at all
independent.61

Originally, the militia was organized as the entire able-bodied male
citizenry between eighteen and forty-five years of age, self-equipped,
and required to turn out regularly (usually once per year) to
demonstrate that it was properly equipped and armed.62 Unfortunately,
the militia was not adequate to the needs of an expanding nation with
territorial ambitions outside its borders. There were repeated
incidents in which the militia refused to invade Canada, Mexico, and
various other locations, or in which federal attempts to so employ the
militia were held illegal.63 This produced a series of "reforms" that
created a force far more effective on the battlefield and, more
importantly, far better suited to employment in wars abroad.64
However, in the process of transforming the traditional militia into
the modern-day National Guard, these reforms transformed the National
Guard into a federal, rather than state, institution.65

Under the current system, National Guard officers have dual status:
They are members of both the State Guard and the federal armed
forces.66 They are armed, paid, and trained by the federal
government.67 They can be called out at will by the federal
government, and such call-outs cannot be resisted, in any meaningful
fashion, by their states.68 They are subject to federal military
discipline on the same basis as members of the national government's
armed forces.69 And they are required to swear an oath of loyalty to
the United States government, as well as to their states.70

This de facto federal control makes it difficult to argue that the
National Guard is capable of carrying out the militia's role, central
to the states' right interpretation, of serving as a counterweight to
the power of the federal standing army. As one military officer
states:

By providing for a militia in the Constitution, the Framers sought to
strengthen civilian control of the military. They postulated that a
militia composed of citizen-soldiers would curb any unseemly ambitions
of the small standing army. Today's National Guard is often perceived
as the successor to the militia, and observers still tout the Guard's
role as the ultimate restraint on the professional military.

The reality, however, is much different. Today's National Guard is a
very different force from the colonial-era militia. With 178,000
full-time federal employees and almost all of its budget drawn from
the federal government, the National Guard is, for all practical
purposes, a federal force. Indeed, one commentator concluded that it
is very much akin to the "standing army" against which the Founding
Fathers railed.71

If the National Guard is organized in a way that makes it inconsistent
with the role that the Second Amendment envisions_and, under the
states' right view, mandates_for the militia, there are only two
possibilities. One is that the National Guard is not the militia to
which the Second Amendment refers; the other is that the National
Guard is that militia, but that its current configuration, however
well-suited to support of foreign military ventures, is
unconstitutional because it is inconsistent with the Second Amendment.

The existing case law suggests the former answer. In Perpich v.
Department of Defense,72 the Supreme Court addressed the question of
what limitations are imposed on the National Guard under the militia
clauses. The question before the Court was whether state governors
could prevent their National Guard units from being sent abroad for
highly controversial training missions in Central America.73 In short,
the Court concluded that Congress' powers to raise armies and make
war, rather than its militia powers, were implicated.74 While not
dispositive on the Second Amendment issue (perhaps significantly, the
Court did not discuss the Second Amendment at all) this case suggests
that the National Guard should be viewed constitutionally as it really
is_a fundamentally federal force with a (very) thin patina of state
control rather than the "well-regulated militia" that the Second
Amendment deems "necessary to the security of a free State."75 That
militia must be found elsewhere_and it is.

Although the National Guard may have its roots in the classical
militia, it clearly has been transformed into something else
entirely_a federal institution with only tenuous ties to the states.
However, the National Guard is not the last word in militias, even
today. While the National Guard may be an organized militia76 (what
the Framers would have called a "select" militia)77 there exists, both
at the federal and state level, a militia of the sort that the Framers
intended. Federal law continues to recognize an unorganized militia
composed of males age eighteen to forty-five,78 as do the laws of most
states,79 except that many now include women.80

Under the states' right theory, the existence of state militias of
this kind would have to be protected against federal interference by
the Second Amendment_even, as mentioned above,81 to the extent of
nullifying federal firearms laws. It is not clear whether the Second
Amendment would create an affirmative duty on the part of the states
to maintain state militias. However, if the state role is as important
as the states' right interpretation insists, such a duty is at least
plausible. With regard to most states, however, state constitutional
provisions probably create such a duty anyway.82 Regardless, states
clearly do not serve the ends of the Second Amendment by maintaining a
National Guard. Rather, they serve the ends (however admirable) of the
national government.III.  The States' Right View of State-Federal
Relations

Under the classical view of the Constitution, authority is delegated
by the people to two kinds of governments, state and federal. State
governments are not creations of the federal government, nor is the
federal government the creature of the states. Both exercise authority
delegated to them by the true sovereigns, the people.83 The real
question in assessing any governmental action is whether that action
is consistent with the authority delegated by the people, or whether
it exceeds that authority and is thus ultra vires.84

But there is another view. In this view, the state governments
represent the "real" governments of the people. The federal government
exists as a somewhat mistrusted agent of the states, with states
retaining the power to protect their people by checking the actions of
the federal government when necessary to prevent overreaching. This
view seems to be that embodied by the states' right interpretation, in
which state organizations are set against the federal government and
in which state legislators retain the power to nullify federal
firearms laws that would otherwise frustrate state prerogatives.85

If applied across the board, this view would have rather dramatic
consequences, going far beyond those outlined above. States' rights,
and a view of state governments as interposed between the federal
government and their citizens, after all, formed the core of the
losing argument in Brown v. Board of Education86 _and, for that
matter, of the Civil War.87 Yet if we are to decide that the Second
Amendment embodies this general theory of the relations between the
state and federal governments, there seems no reason to assume that
the Framers had different intentions elsewhere in the same
Constitution. Thus, unless we are to be entirely incoherent, we must
seriously consider rethinking constitutional history all the way back
to Brown, and indeed to McCulloch v. Maryland. Yet it seems unlikely
that we will be willing to go that far.

The view of states as the primary constituents of our Constitution,
although it has an ancient (if not always honorable) history, is not
one that enjoys great esteem or adherence today given the past
circumstances of its invocation. Nor is it particularly consistent
with either the language or the history of the Constitution. The
Preamble, after all, states that the Constitution was ordained and
established by "We the People," not "We the States."88 And the
Constitution was ratified by special conventions of the people, not by
state legislatures.89 So there seems to be good reason to label the
states' right theory "can of worms," and set it on the shelf.

Under the individual right view, on the other hand, the Second
Amendment is seen as protecting precisely what its language describes:
a "right of the people,"90 with the militia seen as an organization of
the people_regulated to some degree by the state, but there to serve
the interests not of the state (or the States) but of the people. This
view, unlike the states' right view, is consistent with both the text
of the Second Amendment and the interpretive approach taken with
regard to the rest of the Constitution. It also avoids the kind of
state-federal confrontations that the states' right approach seems
likely_and even intended_to create.

The only problem with the individual right approach is that it
requires precisely what advocates of the states' right approach wish
to deny: an individual right to keep and bear arms. But criticism of a
constitutional provision on the basis that it grants people rights
that one does not like_though an approach also possessed of a long, if
not distinguished, history_is not very persuasive. The purpose of the
Constitution, after all, and especially of the Bill of Rights, is not
to make it easy for us to do what we want. For those unhappy with the
notion of an individual right to arms, the solution is to amend the
Constitution through the procedures set out in Article V, not to amend
the Constitution through specious interpretive schemes.91 IV.
Conclusion

Our thought experiment has thus produced two noteworthy results. The
first is the realization that the states' right interpretation of the
Second Amendment, if taken seriously, would produce rather radical
consequences_consequences that (perhaps deliberately) have not been
discussed by its proponents. In light of those radical consequences,
and the interpretation's general inconsistency with the rest of the
Constitutional scheme, the states' right theory looks like a dud.92
What is amazing is that it has achieved such currency, at least in the
popular constitutional debate.

And that is the second lesson. Although the states' right
interpretation has obtained very little in the way of scholarly
support in journals that require footnotes,93 it has been widely
circulated in the popular press, even by respectable scholars who
should (and, one suspects, do) know better.94 And this suggests a
rather unfortunate fact: the constitutional currency has become rather
debased. In the Reagan era, right-wing scholars and spokespeople were
trying to narrow constitutional rights through specious
interpretations. Now, with political power having shifted, the disease
has spread to those on the left. Meeseism, it would seem, respects no
ideological bounds.

This state of affairs is unfortunate, and for those of us who at least
try to take the Constitution seriously, it is frustrating.  And, since
the Constitution is our blueprint for living together without killing
or tyrannizing each other, it may even be dangerous Interpreting the
Constitution faithfully is hard work, and is certain to generate some
answers that the interpreter does not like_at least, it is certain to
do so if the interpreter is being honest.95 We thus should be
suspicious of those whose theories generate only results that they
like, whatever their ideological stripe.96 Although it is certainly
true that constitutional interpretation is an inexact science, and
that there may be a wide range of "right" answers to constitutional
questions, it is also true that some answers are better than others:
more in accord with principles of craft, more consistent with the
constitutional scheme, or better grounded in history.97 By this
standard, the states' right argument fails. But by the more modern
standard, of newspaper advertisements and political talking-head
shows, that matters little. It may well be that there is a "Gresham's
Law" of pop constitutionalism, with the bad scholarship (if that is
the word) driving out the good.

The solution to this problem is beyond the scope of this Article,
which has merely served to illustrate its existence in one particular
context. But having already made use of the "thought experiment"
technique, perhaps we could take another lesson from the world of
scientists, where publication of research is seen as a test of its
authors' seriousness. Instead of allowing law professors to opine
freely based on some general sense of their expertise, perhaps we
should challenge them by asking if their views are supported by
published articles_their own, or other people's. This rather minimal
requirement, that arguments be set out in writing and supported by
research, would nonetheless provide a substantial amount of discipline
to the world of talking-head constitutionalism. It also would ensure
to some degree that those who make constitutional arguments in the
public arena have spent some time thinking them through first. That
too, to judge from current circumstances, would be a step forward.

Until the happy day arrives when this proposal is adopted, we can at
least criticize talking-head constitutionalism in the law reviews,
with the hope that such criticism will percolate back into the general
society. (Such criticism, after all, is a major reason for having law
reviews.) The Constitution, and especially the Bill of Rights, is a
package deal: It is all or nothing, and for each of us there are
likely to be parts we dislike. Where such parts exist, the answer is
either to live with them or to amend the Constitution, not to
interpret pieces of it out of existence. There always will be a market
for those who feel otherwise just as there always will be a market for
"miracle" diets that purport to let people eat all they want and not
exercise. But the Constitution, unlike the diet industry or the mass
media, is not founded on giving the people what they want. We forget
that at our peril, and as the mass-marketing of the states' right
interpretation of the Second Amendment demonstrates, we appear
perilously close to forgetting it now.

* Associate Professor of Law, University of Tennessee. J.D. Yale Law
School, 1985; B.A. University of Tennessee, 1982.

**Author, FIREARMS AND VIOLENCE: ISSUES OF PUBLIC POLICY (2d ed.
forthcoming 1995). Civil rights lawyer, San Francisco, California.
Ll.B. Yale Law School, 1966.

The authors would like to thank the following individuals for their
advice, comments, and encouragement: Akhil Amar, Randy Barnett, Neil
Cohen, Robert Cottrol, Larry Dessem, C.B. Kates, Bob Lloyd, Rob
Merges, William Van Alstyne, and Dick Wirtz. Brannon Denning provided
excellent research assistance. As the usual disclaimer provides, none
of the above are responsible for any errors.

1 .  U.S. Const. amend. II.

2 .  "No one has ever described the Constitution as a marvel of
clarity, and the Second Amendment is perhaps one of the worst drafted
of all its provisions." Sanford Levinson, The Embarrassing Second
Amendment, 99 YALE L.J. 637, 643-44 (1989).

3 .E.g., Akhil R. Amar, The Bill of Rights and the Fourteenth
Amendment, 101 Yale L.J. 1193, 1205-11, 1261-65 (1992); Akhil R. Amar,
The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1162-73
(1991); Robert J. Cottrol & Raymond T. Diamond, The Second Amendment:
Toward an Afro-Americanist Reconsideration, 80 Geo. L.J. 309 (1991);
Stephen Halbrook, What the Framers Intended: A Linguistic Analysis of
the Second Amendment, 49 LAW & CONTEMP. PROBS. 151 (1986); Don B.
Kates, The Second Amendment and the Ideology of Self-Protection, 9
CONST. COMMENTARY 87 (1992) [hereinafter Kates, Self-Protection]; Don
B. Kates, The Second Amendment: A Dialogue, 49 LAW & CONTEMP. PROBS.
143 (1986) [hereinafter Kates, A Dialogue]; Don B. Kates, Handgun
Prohibition and the Original Meaning of the Second Amendment, 82 MICH.
L. REV. 203 (1983) [hereinafter Kates, Original Meaning]; Levinson,
supra note 2; Robert Shalhope, The Armed Citizen in the Early
Republic, 49 LAW & CONTEMP. PROBS. 125 (1986); William Van Alstyne,
The Second Amendment and the Personal Right to Arms, 43 DUKE L.J. 1236
(1994); F. Smith Fussner, Book Review, 3 CONST. COMMENTARY 582 (1986)
(reviewing STEPHEN P. HALBROOK, THAT EVERY MAN BE ARMED: THE EVOLUTION
OF A CONSTITUTIONAL RIGHT (1984); Joyce Malcolm, Book Review, 54 GEO.
WASH. L. REV. 452 (1986) (reviewing HALBROOK, supra). See also James
G. Pope, Republican Moments: The Role of Direct Popular Power in the
American Constitutional Order, 139 U. PA. L. REV. 287, 328 (1991)
(opining that a right of resistance held by the people was
incorporated by the Second Amendment); Elaine Scarry, War and the
Social Contract: Nuclear Policy, Distribution, and the Right to Bear
Arms, 139 U. PA. L. REV. 1257, 1268-86 (1991) (stating that the right
to bear arms is a distribution of political power, like taxation and
voting); David C. Williams, Civic Republicanism and the Citizen
Militia: The Terrifying Second Amendment, 101 YALE L.J. 551 (1991)
(observing that the original intent of the Second Amendment guarantees
a personal right to bears arms under a republican interpretation).

4 .  "When James Madison and his colleagues drafted the Bill of
Rights, they . . . firmly believed in two distinct principles: (1)
Individuals had the right to possess arms to defend themselves and
their property; and (2) states retained the right to maintain militias
composed of these individually-armed citizens." Shalhope, supra note
3, at 133.

5 .  Kates, Self-Protection, supra note 3, at 89; see Joyce L.
Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right
162 (1994).  The Second Amendment was meant to accomplish two distinct
goals . . . . First, it was meant to guarantee the individual's right
to have arms for self-defense and self-preservation . . . .  These
privately owned arms were meant to serve a larger purpose [defense of
public liberties] as well . . . .

 . . . [I]t is the coupling of these two objectives that has caused
the most confusion.  Id.

6 .  See Keith A. Ehrman & Dennis A. Henigan, The Second Amendment in
the Twentieth Century: Have You Seen Your Militia Lately?, 15 U.
Dayton L. Rev. 5 (1989); Dennis A. Henigan, Arms, Anarchy and the
Second Amendment, 26 Val. U. L. Rev. 107 (1991); Warren Spannaus,
State Firearms Regulation and the Second Amendment, 6 Hamline L. Rev.
383 (1983).

7 .  See, e.g., West Virginia State Bd. of Educ. v. Barnette, 319 U.S.
624, 639 (1943) (First Amendment rights "are susceptible of
restriction only to prevent grave and immediate danger to interests
which the State may lawfully protect."); Near v. Minnesota, 283 U.S.
697, 716 (1931) (permitting prior restraint only in exceptional
circumstances akin to "publication of the sailing dates of transports
or the number and location of troops").


8 .  A further point that is likely to be of more import to
enforcement of the Second Amendment than other rights, is that the
compelling interest must not be of a kind, or pursued in a manner,
that is fundamentally inconsistent with the right. This point is so
clear in relation to other rights that it is rarely necessary to
emphasize. No matter how compelling the interests in suppressing rape,
child abuse, adultery, homophobic violence, or even genocide, those
interests may not be pursued by banning writings or movies on the
ground that they promote beliefs or ideas that cause such behavior for
"the First Amendment's basic guarantee is of freedom to advocate
ideas." Kingsley Int'l. Pictures v. Regents, 360 U.S. 684, 688-89
(1959); see R.A.V. v. City of St. Paul, 112 S. Ct. 2538, 2542-44
(1992) (speech or expressive conduct cannot be proscribed because of
disapproval of the ideas expressed); American Booksellers Ass'n, Inc.
v. Hudnut, 771 F.2d 323, 327-32 (7th Cir. 1985), aff'd. without
opinion, 475 U.S. 1001 (1986). "Under the First Amendment the
government must leave to the people the evaluation of ideas." Id. at
327.

Concomitantly, within the individual right view of the Second
Amendment, a law barring visitors to prison inmates from carrying
weapons may well be justified as representing an interest that is at
once compelling and not fundamentally inconsistent. That could not be
said of banning all guns (or any guns) under the rationales commonly
offered. Examples of such rationales include the assertion "that
lethal violence even in self-defense only engenders more lethal
violence and that gun control should override any personal need for
safety," HEALTH, Mar./Apr. 1994, at 54 (quoting Betty Friedan), that
"the only reason for guns in civilian hands is for sporting purposes,"
David B. Kopel, Assault Ban Chicanery, WASH. TIMES, May 5, 1994, at
A18 (quoting Sarah Brady, Chairperson, Handgun Control, Inc.), and
that self-defense is an atavistic usurpation of the prerogatives of
the state, RAMSEY CLARK, CRIME IN AMERICA 106-07 (1970).


9 .  See, e.g., Dwight L. Greene, Justice Scalia and Tonto, Judicial
Pluralistic Ignorance, and the Myth of Colorless Individualism in
Bostick v. Florida, 67 TUL. L. REV. 1979, 2044 (1993).


10 .  "The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people." U.S. Const. amend. X. Indeed,
a reading of the Constitution will demonstrate that grants of
governmental authority are generally described as "powers." See, e.g.,
U.S. Const. art. I,  1 (describing "legislative powers"); U.S.
CONST. art. II,  1 ("executive power"); U.S. CONST. art. III,  1
("judicial power").


11 .  E.g., Edelman v. Jordan, 415 U.S. 651, 662-63 (1974).

12 .  U.S. Const. art. IV,  3.

13 .  See sources cited supra note 6.

14 .  Henigan is Director of the Legal Action Project at the Center to
Prevent Handgun Violence in Washington, D.C.

15 .  Henigan, supra note 6, at 119.

16 .  Id. at 120.

17 .  Id. at 121 (citations omitted).

18 .  Henigan is the author of two law review articles that adopt this
approach. See supra note 6. Former Chief Justice Warren Burger has
also made this argument, although not in a scholarly publication. See
Press Conference Concerning Introduction of the Public Health and
Safety Act of 1992, June 26, 1992, available in LEXIS, Nexis Library,
ARCNWS File.

[O]ne of the frauds_and I use that term advisedly_on the American
people has been the campaign to mislead the public about the Second
Amendment. The Second Amendment doesn't guarantee the right to have
firearms at all. . . . [The Framers] wanted the Bill of Rights to make
sure that there was no standing army in this country, but that there
would be state armies. Every state during the revolution had its own
army. There was no national army.

Id. (statement of Warren Burger). At any rate, taking Henigan as
representative of his school of thought is unlikely to work any
substantial unfairness, as Henigan himself makes similar use of an
article by Professor Sanford Levinson. See Henigan, supra note 6, at
110.


19 .  See, e.g., MalCOLM, supra note 5, at 146; 2 JOSEPH STORY,
COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 646 (Melville M.
Bigelow ed., 5th ed. 1891); THE FEDERALIST NO. 8, at 67 (Alexander
Hamilton) (Willmore Kendall & George W. Carey eds., 1966); THE
ANTIFEDERALISTS 57 (Cecilia M. Kenyon ed., 1966).


20 .  See Kates, Self-Protection, supra note 3.

21 .  U.S. Const. art. I,  8, cl. 15.

22 .  U.S. Const. art. I,  8, cl. 16.

23 .  U.S. Const. art. I,  10, cl. 3.

24 .  In fact, when the Army wanted to use militia units to chase
Mexican bandits south of the border, Attorney General Wickersham
opined that this clause prohibited the use of militia units outside
American borders. 29 Op. Att'y Gen. 322 (1912). Nor are fears that
such a call-up might destroy the independence_or even the existence_of
a state militia unfounded; they have some historical basis. As the
Supreme Court noted in Perpich v. Department of Defense, 496 U.S. 334
(1990), "[t]he draft of the individual members of the National Guard
into the Army during World War I virtually destroyed the Guard as an
effective organization." Id. at 345. Obviously, militia call-ups might
have the same effect.

25 .  Henigan, supra note 6, at 118-20.

26 .  See supra notes 15-18; see also Henigan, supra note 6, at
116-17.

The Bill of Rights was the outgrowth of the Antifederalist critique.
One consistent Antifederalist theme was that the Constitution had
created an excessively powerful central authority, which would lead to
the destruction of the states. For example, the Antifederalists feared
that the Militia Clauses of the Constitution had given the central
government excessive control over the state militia, which was
regarded as the guardian of the states' integrity. . . . The Virginia
debate is replete with expressions of fear that federal control over
the militias would destroy them.

Id.

27 .  Of course, a requirement that such forces be commanded by
federal officers, rather than officers appointed by the states, would
not only raise Second Amendment concerns but also would violate the
specific language of Article I, section 8, clause 16 reserving the
appointment of militia officers to the states.

28 .  Compare Malcolm, supra note 5, at 4 ("The militia was first and
foremost a defensive force and could not be taken out of the realm.
Members were even reluctant to leave their own counties.") with id. at
23 ("With the Commonwealth threatened by internal insurrection and
foreign invasion [after the English Civil War] the new rulers had
ample excuse to maintain a large standing army. . . . And the country
that had always depended upon an impromptu militia found itself
supporting a standing army respected and feared throughout Europe.");
see also THE FEDERALIST NOS. 8, 19, 20, supra note 19, at 67-68, 131,
135 (using the word "troops" to refer to members of a professional
standing army, as opposed to the militia, which is made up of
citizen-soldiers). Note, however, that this interpretation does not
dispose of the question of "ships of war," which the states presumably
would remain free to keep, or of the issuance of letters of marque and
reprisal, also prohibited by Article I, section 10.

29 .  This discussion raises another crucial difference between the
states' right and individual right views. The latter clearly
distinguishes the "militia," as that term is used in the Second
Amendment, from "troops." The individual right view rests on the
18th-century meaning of "militia"_not a formal military unit but a
system that required each household and virtually every military-age
male to own arms and mandated the appearance of military-age males for
training or service when called to do so. See Kates, Original Meaning,
supra note 3, at 214-18. But in the states' right view, "militia"
refers to a formal military unit_a body of troops serving the state.
Indeed, it is an item of faith among partisans of that view that today
the "militia" means the National Guard. As discussed, if by "militia"
the Amendment means a formal military body, and if the Amendment
should be read as a guarantee of state power to arm such a body, the
Article I, section 10, clause 3 prohibition on states keeping "troops"
without the consent of Congress seems vulnerable. Id. These problems
are inescapable in the context of a states' right approach, unless we
entirely ignore the text of the Constitution and the Second Amendment.

30 .  See Malcolm, supra note 5, at 155-59; Henigan, supra note 6, at
116-17.

31 .  Id.

32 .  Id.; see Steven P. Halbrook, That Every Man Be Armed: The
EvOLUTION OF A CONSTITUTIONAL RIGHT 65-66 (1984); David T. Hardy,
Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second
Amendment, 9 HARV. J.L. & PUB. POL'Y 559, 598 (1986).

33 .  Malcolm, supra note 5, at 159 (emphasis added). For Madison's
long record of support for stronger federal military powers, see
Russell F. Weigley, History of the United States Army 79, 88 (1967).

Significantly, Madison's own proposal for integrating the Bill of
Rights into the Constitution was not to add them at the end (as they
have been) but to interlineate them into the portions of the original
Constitution they affected or to which they related. If he had thought
the Second Amendment would alter the military or militia provisions of
the Constitution he would have interlineated it in Article I, section
8, near or after clauses 15 and 16. Instead, he planned to insert the
right to arms with freedom of religion, the press and other personal
rights in  9 following the rights against bills of attainder and ex
post facto laws. Kates, Original Meaning, supra note 3, at 223.

34 .  "Of course, it must be acknowledged that the Second Amendment
did effect some change in the Constitutional scheme; presumably the
Framers did not adopt the Bill of Rights in 1791 with the intent to
leave things as they were in 1787." Henigan, supra note 6, at 116.

35 .  See, e.g., The Federalist No. 29, at 184-85 (Alexander Hamilton)
(Willmore Kendall & George W. Carey eds., 1966).

Little more can reasonably be aimed at with respect to the people at
large than to have them properly armed and equipped. . . .

This will not only lessen the call for military establishments, but if
circumstances should at any time oblige the government to form an army
of any magnitude that army can never be formidable to the liberties of
the people while there is a large body of citizens, little if at all
inferior to them in discipline and the use of arms, who stand ready to
defend their rights and those of their fellow citizens.

Id. Likewise, in THE FEDERALIST NO. 46, Madison notes that a regular
army that threatened liberty would find itself opposed by "a militia
amounting to near a half a million citizens with arms in their hands."
Id. at 299.

36 .  Act of May 8, 1792, ch. 33, 1 Stat. 271 (1792).

37 .  Id.

38 .  Id.

39 .  See Kates, Original Meaning, supra note 3, at 249.

40 .  See Switz. Const. art. 18 ("All members of the armed forces
shall be given their first arms, equipment and clothing free of
charge. The soldiers shall keep their personal arms under the
conditions federal legislation shall determine."); ZE'EV SCHIFF, A
HISTORY OF THE ISRAELI ARMY 50 (1985); Kates, Original Meaning, supra
note 3, at 249 n.193. Indeed, the Swiss go so far as to allow private
ownership of everything from howitzers to anit-aircraft guns and
missiles. See DAVID KOPEL, THE SAMURAI, THE MOUNTIE, AND THE COWBOY:
SHOULD AMERICA ADOPT THE GUN CONTROLS OF OTHER DEMOCRACIES? 283, 292,
295 (1991).

41 .  26 U.S.C.  5861 (1988), governs the sale, transportation, or
possession of "destructive devices," defined in 18 U.S.C.  921(a)(4)
(1988), as including rockets, bombs, and grenades. 18 U.S.C.  922(o)
(1988), prohibits civilian purchase of fully automatic weapons, except
for those manufactured prior to May 19, 1986. As to the permitted,
pre-1986 firearms, purchase is subject to registration requirements
and a $200 transaction fee. 26 U.S.C.  5811, 5812. Under the
states' right view, this tax likely could not be applied to prohibit
the purchase of fully automatic firearms by persons whom a state has
licensed to possess them.

42 .  Cf. United States v. Miller, 307 U.S. 174, 178 (1939)
(discussing suitability of sawed-off shotguns for militia use).

43 .  For example, infants and the elderly, as well as criminals and
the insane, would not benefit from nullification. See infra note 47
and accompanying text.

44 .  See Springfield Armory, Inc. v. City of Columbus, 29 F.3d 250
(6th Cir. 1994) (finding the definition of "assault weapon" to be
unconstitutionally vague).

45 .  Compare Kates, Original Meaning, supra note 3, at 271-72
(discussing various state militia forces during World War II); William
O. Treacy, Maryland Minute Men, 6 GLADES STAR 214 (1988) (same); with
United States v. Miller, 307 U.S. 174, 179 (1939) ("[W]hen called for
[militia] service [militia] men were expected to appear bearing arms
supplied by themselves and of the kind in common use at the time.").

46 .  See, e.g., Cal. Penal Code  12000-12809 (West 1992). A
generally accepted estimate is that as of 1980 there were about 20,000
firearms laws of one sort or another already on the books. JAMES D.
WRIGHT ET AL., UNDER THE GUN: WEAPONS, CRIME AND VIOLENCE IN AMERICA
244 (1983). For a survey of current federal gun laws, see United
States v. Lopez, 2 F.3d 1342 (5th Cir. 1993), cert. granted, 114 S.
Ct. 1536 (1994); GARY KLECK, POINT BLANK: GUNS AND VIOLENCE IN AMERICA
323-58 (1991).

47 .  See, e.g., Cal. Penal Code  12100-01, 12021 (West 1992).

48 .  In fact, the "unorganized militia" constitutes the ultimate
military reserve resource of both federal and state governments for
call-up in dire emergency; for example, in case earthquake, flood,
other natural disaster, or riot overwhelms police in circumstances in
which the National Guard and Army are overseas or otherwise
unavailable, perhaps because of transportation disruption. See, e.g.,
10 U.S.C.  311 (1988); CAL. MIL. & VET. CODE  121, 122 (West
1988); COLO. REV. STAT.  18-8-107, 28-3-102, -103(6) & (8), -104
(1989) (classifying the male population aged 18 to 45 as the
unorganized militia of, respectively, the United States, California,
and Colorado, subject to call at the command of designated public
officers).

49 .  See United States v. Lopez, 3 F.3d 1342, 1348-59 (5th Cir. 1993)
(providing a history of federal firearms laws).

50 .  For more on this unusual market sector, see Gavin Cordan, The
Private Pilots with Jet Warplanes, Press Assoc. Newsfile, Apr. 5,
1994, available in LEXIS, Nexis Library, CURNWS File (describing
growth of private market for military jets); Neal Gendler, An Air
Affair, STAR TRIBUNE (Minneapolis-St. Paul), June 26, 1994, at 1G
(describing privately owned fighters including MiG-15s, F-86 Sabres,
Saab Drakens, and even a privately owned B-57 Canberra jet bomber);
Dave Hirschman, Three Area Pilots Upsize in Jet from British Military,
COMMERCIAL APPEAL (Memphis), June 5, 1994, at 1C (reporting the
existence of over 200 privately owned fighter jets in the United
States, with MiG-17 and F-86 Sabre jets selling for $50,000 or less).

51 .  See infra note 57 and accompanying text.

52 .  See, e.g., Ark. Code Ann.  5-73-209 (Michie 1993); Cal. Penal
Code  12230 (West 1992); Md. Ann. Code art. 27,  379 (1992).

53 .  See 18 U.S.C.  927 (1988).

54 .  18 U.S.C.  922(o) (1988) (limiting civilian purchase of fully
automatic weapons to those manufactured prior to May 19, 1986, subject
to registration requirements under 26 U.S.C.  5812 (1988), and to a
$200 transaction fee under 26 U.S.C.  5811 (1988)). Under the
states' right view of the Second Amendment it is arguable that this
prohibitory $200 fee probably could not be applied to purchases of
fully automatic firearms by persons whom a state has licensed to
possess them.

55 .  The sale, transportation, or possession of "destructive
devices," defined in 18 U.S.C.  921(a)(4) (1988), as rockets, bombs,
grenades missiles, and mines, is governed by 26 U.S.C.  5861 (1988).

A further interesting question is whether localities, which are
legally agencies of the state, could engage in such preemptive
activity. If so, the several localities that have enacted resolutions
purporting to nullify all, or most, federal gun laws by creating local
militias have been doing more than simply expressing their anger. See,
e.g., Mike Tharp, The Rise of Citizen Militias, U.S. NEWS & WORLD
REP., Aug. 15, 1994, at 34 (describing efforts at organizing
previously dormant militia organizations).

Some sort of government sponsorship, however, is crucial to the
legitimacy of a militia, whether or not such membership has anything
to do with Second Amendment rights.  Although the militia was
conceived as external to the state in the sense of being an
institution of the people, the expectation was that the state, not
private groups, would provide the foundation upon which the structure
of the militia would be erected.  This dual character is difficult for
many modern Americans, with more European-influenced ideas of the
state and its institutions, to appreciate.  But perhaps the best
analogy would be to the institution of the jury.  The jury was
traditionally intended not just as a protection for individuals, but
far more importantly as a check against overweening state power, since
it could always refuse to convict in cases of political prosecution.
And, like the militia, the jury was intended to reflect the community,
and to function in many ways independent of state direction.

But the state provides the structure within which the jury operates:
no one can get together with eleven friends and proclaim themselves a
jury.  Similarly, although First Amendment associational rights may
provide some protection for individuals who band together and call
themselves a "militia," they do not thereby become the well regulated
militia that the Second Amendment describes, nor do they acquire any
additional Second Amendment rights by virtue of doing so.  As David
Williams explains, "Republicans did not intend to leave the
universality of the militia to the chance decision of every citizen to
arm herself.  The state was supposed to erect the necessary
scaffolding on which the militia could build itself, to muster the
militia, and to oblige every citizen to own a gun."  Williams, supra
note 3, at 593.  One might argue that the state and federal
governments have defaulted on this obligation, but that does not
create additional rights for groups formed without government
sponsorship.

There are similiar problems with militia theorists' invocation of the
right of revolt.  While the Framers certainly believed in such a
right, they also developed a rather exacting test for when it might be
properly exercised, a test that many theorists of discontent do not
address.  In short, as Williams summarizes:

This right of resistance is the second result of entrusting force to
the militia.  It is the only purpose of the Second Amendment
explicitly mentioned during its discussion in Congress. . . .

Republicans were aware of the danger implicit in vouchsafing this
right of resistance in the citizenry and sensitive to the charge that
they were inciting violence.  They developed a number of limits on the
right: It must be a product of the "body" of the people, i.e., the
great majority acting by consensus; it must be a course of last
resort; its inspiration must be a commitment to the common good; and
its object must be a true tyrant, committed to large-scale abuse, not
merely randomly unjust or sinful in private life.  An uprising that
failed to meet these criteria was considered an illegitimate
rebellion, rather than an act of true republican resistance.

Id. at 582.  The failure until recently of the academic community to
take the Second Amendment seriously, a topic discussed in more detail
later on in this essay, may in part be responsible for many of these
misunderstandings.  The consequences of such confusion may be serious:
Constitutional theory matters, not just in the academic world, but in
the real world as well.  For a considerably more detailed treatment of
these issues see Glenn Harlan Reynolds, A Critical Guide to the Second
Amendment, 62 TENN. L. REV. ___ (forthcoming Spring, 1995); Glenn
Harlan Reynolds, Up in Arms About a Revolting Movement, CHI. TRIB.,
Jan. 30, 1995 at 11.

56 .  Implicit in an individual's "right to keep and bear arms" is a
limitation on the kinds of arms an individual can possess; that is,
they include only weapons that can be picked up. See Kates, supra note
3, at 261.

57 .  See David T. Hardy, The Second Amendment and the Historiography
of the Bill of Rights, 4 J.L. & Pol. 1, 29 (1987).

58 .  The individual right view sees the Second Amendment as
expressing the Founders' belief that the right to arms is implicit in
the cardinal natural right of self-defense. Kates, Self-Protection,
supra note 3, at 89-103. The basic arms with which one might defend
home and family were, and are, the same ordinary civilian small arms
with which one would render militia service. In contrast, cannons and
warships are not the kinds of arms with which one would repel burglars
and rapists, they are not the kinds of weapons one can "bear," nor do
they conform to the history of the common law right the Amendment
incorporates. See David I. Caplan, The Right of the Individual To Bear
Arms: A Recent Judicial Trend, 1982 DET. C.L. REV. 789, 804-11;
Halbrook, supra note 3, at 157-60; Kates, A Dialogue, supra note 3, at
146-48; Kates, Original Meaning, supra note 3, at 259.

59 .  Henigan, supra note 6, at 119; see text accompanying supra note
15.

60 .  See supra note 18.

61 .  Perpich v. Department of Defense, 496 U.S. 334, 351 (1989).

62 .  See supra notes 38-39 and accompanying text.

63 .  See supra note 24. For a litany of complaints about the
militia's unsuitability in providing the kind of "global reach" needed
by a nascent superpower, see Frederick B. Wiener, The Militia Clause
of the Constitution, 54 Harv. L. Rev. 181, 189-93 (1940).

64 .  See Peter A. Fish, Note, The Constitution and the Training of
National Guardsmen: Can State Governors Prevent Uncle Sam from Sending
the Guard to Central America?, 4 J.L. & POL. 597, 605-10 (1988).

65 .  See id. at 612.

66 .  10 U.S.C.  311 (1988).

67 .  10 U.S.C.  101(10)(C) (1988).

68 .  10 U.S.C.  332 (1988); see also infra notes 72-75 and
accompanying text (discussing Perpich v. Department of Defense, 496
U.S. 334 (1990)).

69 .  10 U.S.C.  802(a)(3) (1988).

70 .  See 32 U.S.C.  304 (1988) (National Guardsmen's oath); 10
U.S.C.  3261(a)(2) (1988) (requiring members of the Guard to take
the oath).

71 .  Col. Charles J. Dunlap, Jr., Welcome to the Junta: The Erosion
of Civilian Control of the U.S. Military, 29 WAKE FOREST L. REV. 341,
384-85 (1994) (citing William S. Fields & David T. Hardy, The Militia
and the Constitution: A Legal History, 136 MIL. L. REV. 1, 2 (1992)).

72 .  496 U.S. 334 (1990).

73 .  Id. at 336-38.

74 .  Id. at 349-51.

75 .  Indeed, the Court was explicit on this point:

The Governor argues that this interpretation of the Militia Clauses
has the practical effect of nullifying an important state power that
is expressly reserved in the Constitution. We disagree. It merely
recognizes the supremacy of federal power in the area of military
affairs. The Federal Government provides virtually all of the funding,
the material, and the leadership for the State Guard units.

Id. at 351 (footnotes omitted).

76 .  Some commentators have suggested that the National Guard should
be considered "troops" raised with consent of Congress, under Article
I, section 10, rather than a militia of any sort. See, e.g., Fields &
Hardy, supra note 71.

77 .  See, e.g., Kates, Original Meaning, supra note 3, at 216-17;
Malcolm, supra note 5, at 142, 156. Note also the following:

Nowadays, it is quite common to speak loosely of the National Guard as
"the state militia," but 200 years ago, any band of paid,
semiprofessional, part-time volunteers, like today's Guard, would have
been called "a select corps" or "select militia"_and viewed in many
quarters as little better than a standing army. In 1789, when used
without any qualifying adjective, "the militia" referred to all
Citizens capable of bearing arms. . . . [Thus] the "militia" is
identical to "the people."

Amar, supra note 3, at 1166 (footnotes omitted).

78 .  10 U.S.C.  311 (1988); see also Fields & Hardy, supra note 71,
at 42 n.160 (noting that while the United States technically continues
to maintain a national "general" militia, for practical purposes this
militia does not play any significant role in the national defense).

79 .  See, e.g., Ariz. Const. art. XVI,  1; Iowa Const. art. VI, 
1; Ky. Const.  219; N.M. CONST. art. XVIII,  1; N.D. CONST. art.
XI,  16; OHIO CONST. art. IX,  1; S.C. CONST. art. XIII,  1;
S.D. CONST. art. XV,  1; UTAH CONST. art. XV,  1; WYO. CONST. art.
17,  1; ALA. CODE  31-2-2 to 31-2-5 (1975); ARK. CODE ANN. 
12-61-101(b) (Michie 1987); CAL. MIL. & VET. CODE  122 (West 1988);
CONN. GEN. STAT. ANN.  27-2 (West 1990); GA. CODE ANN.  38-2-3(d)
(1982 & Supp. 1994); IDAHO CODE  46-102 (1977); IND. CODE ANN. 
10-2-3-1 (Burns 1992); KAN. STAT. ANN.  48-904(e) (1983); MINN.
STAT. ANN.  190.06 (West 1992); MISS. CODE ANN.  33-5-1 (1990);
N.M. STAT. ANN.  20-2-2 (Michie 1989); N.Y. MIL. LAWS  2 (Consol.
1989); OR. REV. STAT.  396.105(3) (1994); R.I. GEN. LAWS  30-1-2
(1994); S.D. CODIFIED LAWS ANN.  33-2-2 (1994); TENN. CODE ANN. 
58-1-104(d) (1989); WYO. STAT.  19-2-102(a) (1977).

80 .  See, e.g., Ohio Const. art. IX,  1; Cal. Mil. & Vet. Code 
554 (West 1988 & Supp. 1995); Idaho Code  46-105 (1977); Kan. Stat.
Ann.  48-904(e) (1983).

81 .  See supra notes 35-58 and accompanying text.

82 .  See, e.g., Glenn H. Reynolds, The Right To Keep and Bear Arms
Under the Tennessee Constitution: A Case Study in Civic Republican
Thought, 61 Tenn. L. Rev. 647, 649-50 (1994).

83 .  See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 402 (1819);
Story, supra note 19, at 151, 154, 160. For a more extensive
discussion of sovereignty and federalism issues, see, Akhil R. Amar,
Of Sovereignty and Federalism, 96 Yale L.J. 1425 (1987).

84 .  See, e.g., McCulloch, 17 U.S. (4 Wheat.) at 421 (noting that
under the Constitution "the powers of the [federal] government are
limited, and that its limits are not to be transcended").

85 .  One interesting aspect of this view is that it seems
inconsistent with the view of state and federal relations generally
held by those favoring gun control (who are usually, though not
always, liberals). As Sanford Levinson has noted, the debate over the
Second Amendment creates a peculiar inversion, with conservatives
taking the approach of liberals and vice versa. See Levinson, supra
note 2, at 643-44. Gary Kleck has also commented on this phenomenon,
noting that:

When the issue is gun control, liberals and conservatives switch
places. Many liberals support gun laws that confer broad power on
government to regulate individual behavior, especially in private
places, whereas conservatives oppose them. Some liberals dismiss the
Second Amendment to the Constitution as an outmoded historical
curiosity. . . . [W]hereas conservatives defend a view of this
amendment that is every bit as broad as the American Civil Liberties
Union's (ACLU) view of the First Amendment . . . .

Kleck, supra note 46, at 3-4.

Although a states' right approach to constitutional affairs generally
tends to be identified with reactionary causes, it is identified here
with the "progressive" cause of gun control. (Meanwhile, as Kleck
notes, anti-gun control forces wax eloquent about the importance of
individual rights and the dangers of overbearing law enforcement
officials_complaints that are conspicuous by their absence in similar
contexts, for example the drug war. Id. at 4.) The conservative right,
however, has almost given up on states' right arguments as a loser,
and the left clings to them only in this one instance, which seems
more a case of constitutional wishful thinking than serious analysis.

86 .  347 U.S. 483 (1954).

87 .  See generally Don E. Fehrenbacher, Constitutions and
Constitutionalism in the Slave-Holding South 46-47 (1989) (describing
John Calhoun's theories of state government power to nullify federal
legislation, which the South Carolina legislature adopted as official
state doctrine); John C. Calhoun, A Discourse on the Constitution and
Government of the United States, in 1 THE WORKS OF JOHN C. CALHOUN
168-81 (Richard K. Cralle ed., 1851) (reissued 1968) (arguing that our
system of governance is by its nature a federal government with the
states, and not individuals, as its constituents).

88 .  U.S. Const. pmbl.

89 .  See U.S. Const. art. VII (calling for ratification by
"Conventions of nine States"). For a general history of the
ratification process, see DANIEL A. FARBER & SUZANNA SHERRY, A HISTORY
OF THE AMERICAN CONSTITUTION 175-218 (1990).

90 .  U.S. Const. amend. II. Compare the Second Amendment's use of the
phrase "right of the people" with the use of the same phrase in the
First, Fourth and Ninth Amendments.

91 .  Regarding the right against self-incrimination, the Supreme
Court has stated: "If it be thought that the privilege is outmoded in
the conditions of this modern age, then the thing to do is to [amend]
it out of the Constitution, not to whittle it down by the subtle
encroachments of judicial opinion." Ullmann v. United States, 350 U.S.
422, 427-28 (1956) (quoting Maffie v. United States, 209 F.2d 225, 227
(1st Cir. 1954)).

The other problem with specious interpretive schemes is that the law
of unintended consequences applies with a vengeance where
constitutional law is concerned. Indeed, the modern "militia movement"
appears to have arisen primarily as a response to anti-gun arguments
that the Second Amendment only protects militias. See generally Glenn
H. Reynolds, Up in Arms About a Revolting Movement, CHI. TRIB., Jan.
30, 1995, at 11; Patriot Games, TIME, Dec. 19, 1994, at 48.


92 .  It would be possible, of course, to avoid these problems by
proclaiming that the Second Amendment protects only a right of the
states, and then concluding that right does not "do" anything, but
such an approach is so obviously deficient as to merit no rebuttal. As
Henigan notes, and as its presence in the hotly debated and highly
important Bill of Rights rather obviously indicates, the Second
Amendment was certainly intended to do something. Henigan, supra note
6, at 116. Although there may be debate about what it was intended to
do, unquestionably, the Second Amendment has a purpose.

To doubt that the Second Amendment does anything, or to argue that it
is now obsolete and should be ignored might be called the "inkblot
approach" after Robert Bork's similar treatment of the Ninth
Amendment, which he likened to a Rorschach "inkblot" whose meaning
could not be deciphered by judges. See The Bork Disinformers, WALL ST.
J., Oct. 5, 1987, at 22. Bork's treatment of the Ninth Amendment was
rightly ridiculed as an abdication of judicial_and
intellectual_responsibility, and a similar approach to the Second
Amendment deserves the same degree of scorn.

93 .  Cf. sources cited in supra notes 3, 6.

94 .  For example, an advertisement, signed by 27 law professors smart
enough to know better, appeared in the New York Times. That
advertisement said that the Second Amendment protects only state
militias "i.e., the National Guard." The advertisement also suggested
that any belief to the contrary was a "fraud" that no respectable
constitutional scholar endorsed. N.Y. TIMES, May 2, 1994, at A9.
Compare id. with Glenn H. Reynolds, Letter to the Editor, N.Y. TIMES,
May 12, 1994, at A24 (quoting published articles by eminent professors
of constitutional law who support the interpretation that the Second
Amendment creates an individual right, and does not simply protect the
National Guard).

95 .  See, e.g., H. Jefferson Powell, Rules for Originalists, 73 Va.
L. Rev. 659, 677 (1987) ("Rule 8: If your history uniformly confirms
your predilections, it is probably bad history.").

96 .  "When, despite this distance [between 1787 or 1870 and the
present] [the Framers] seem to confirm our deepest wishes, we must
suspect that our portrait of them is in fact a mirror of ourselves."
Id. at 677-78.

97 .  See Glenn H. Reynolds, Penumbral Reasoning on the Right, 140 U.
Pa. L. Rev. 1333, 1347-48 (1992) (arguing that there are good reasons
for paying closer attention to the text and the intent of the Framers,
not in order to constrain judges, but rather, because "paying
attention to the text and to what its drafters were trying to
accomplish is what the craft of lawyering is all about"); Glenn H.
Reynolds, Chaos and the Court, 91 Colum. L. Rev. 110, 114 (1991)
(noting that "it [is] unlikely that the Court will ever reach a truly
'final' answer to very many questions that come before it"); Glenn H.
Reynolds, Sex, Lies and Jurisprudence: Robert Bork, Griswold, and the
Philosophy of Original Understanding, 24 GA. L. REV. 1045, 1108 (1990)
("[N]o additional judicial discipline would be imposed by the adoption
and honest implementation of 'original understanding'
jurisprudence.").
=+=+=
This information is presented as a service to the Internet community
by the Second Amendment Foundation and the Citizens Committee for the
Right to Keep and Bear Arms.  Some useful URLs: http://WWW.SAF.Org,
gopher://GOPHER.SAF.Org, wais://WAIS.SAF.Org, ftp://FTP.SAF.Org,
mailto:LISTPROC@SAF.Org (Send the word help as the body of a message)

SAF.org and CCRKBA.org are maintained by Mainstream.net
mailto:info@mainstream.net

    Source: geocities.com/capitolhill/lobby/1221

               ( geocities.com/capitolhill/lobby)                   ( geocities.com/capitolhill)