Earlier this evening I came across an interesting 2nd Amendment piece by Yale Professor Akhil Amar. I like a lot of what he has to say, but I have a few points of disagreement, so I’ve decided to write him an open letter, as it seems the best way to respond to his ideas, though I am a few years late.
Dear Professor Amar,
I recently stumbled across your 1999 article titled “What the right to bear arms really means” overall, I really enjoyed it, but there were a few sections that I took issue with. You lay out libertarian, statist, and communitarian definitions of the 2nd Amendment, and draw fairly sharp lines between them. While a statist definition is prima facie incompatible with the others, I feel the libertarian and communitarian understandings of the amendment have a great deal in common. I propose a combined libertarian-communitarian reading of the 2nd Amendment, supported by the historical use of arms by local militias, SCOTUS precedent, and the language of the amendment itself.
In defense of the portion of the libertarian notion most often attacked, the private ownership of firearms, it is important to note that virtually all of those arms used by militias during the revolution were privately owned. This occurred mostly out of necessity, but is an important element of the militia’s check upon state power. If the government were to control the arms used by the militia, people’s militias would cease to serve as an effective counter to the state. The Pennsylvania/Kentucky long rifle was the deadliest small arm of its day, contrary to your assertion that “the side with the most men often won”, the colonial militias were loathed by British Regulars for their use of ambush tactics, employing the superior range and accuracy of their rifles to kill English officers with some level of impunity. Many of the cannon used were also privately owned. If anything, a great appreciation of the communitarian aspect of the 2nd Amendment would lead to the private ownership of more small powerful arms. Practically, the militia ought to be well armed enough to make the cost of either invasion or a tyrannical coup, untenably high.
In the wake of the Newtown shooting, several states have passed stringent assault weapon bans These sorts of arms, semiautomatic versions of military service rifles, are among those most suited to use in a militia, and would seem to be protected under United States v. Miller.
“The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well-regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.”
Miller’s sawed-off shotgun was not considered to be protected under the 2nd Amendment because it was not seen as having any militia purpose. Had Miller’s legal counsel actually traveled to Washington to argue the case, perhaps he could have informed the court that short barreled shotguns were used by American soldiers during the First World War, and therefore may have some use in a militia. In any case, a more militia-centric interpretation would preclude modern assault weapons bans, but would not allow ownership without obligation.
As you correctly point out in your jury comparison, militia service was a positive duty tied to the right to bear arms. I would contend that it was a communal duty tied to an individual right, but that its regulation had little to do with the anything other than the most local of government. Firstly, regulate must be understood in its historical context. In this case it did not refer to political regulation, but instead to training in the use of arms. My 1971 Oxford English Dictionary supports this contention, giving “properly disciplined” as an obsolete definition of “regulated”. When General von Steuben created his “Regulations for the Order and Discipline of the Troops of the United States”, he did not seek to legally limit their choice of arms, but to ensure that they were well trained. This definition is further backed by Alexander Hamilton in Federalist 29
“. . . for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia . . .”
With this definition of regulation in mind, there is necessarily a communitarian responsibility built into the 2nd Amendment, but it does not justify modern gun control proposals, which, if anything, would undermine the ability of the militia to provide for the common defense. It would justify nearly universal, if rarely employed conscription, likely as much a concern for modern libertarians as it was for founding Quakers.
A communitarian interpretation of the 2nd Amendment conjures images of an America in which more citizens own rifles, but must be well trained in their use. The enforcement of this requirement, as well as any gun registration, would likely come at the local level, though one can envision towns being granted federal stipends for more advanced hardware. Perhaps the first Sunday of every month the men and women of the town would practice small unit tactics in a nearby state park, getting instruction in battlefield first aid from the local EMTs before learning how to use the milkman's new 105mm recoilless anti-tank rifle. Afterwards, they could review their performance at the local pub, watching footage taken from a Google employee's scouting drone. In my mind, this would likely lead to greater civic engagement and prevent our government from easily engaging in costly foreign wars, while preserving the spirit of the 2nd Amendment. These sorts of local militias might also be effective in dealing with natural disasters, understanding local topography and cultural norms better than out of state National Guard units.