That Every Man Be Armed: The Evolution of a Constitutional Right. Revised and Updated Edition.

Afterword: Public Policy and the Right to Keep and Bear Arms

219 ✯ AFTERWORD PUBLIC POLICY AND THE RIGHT TO KEEP AND BEAR ARMS O ur War of the Revolution was, in good measure, fought as a protest against standing armies. Moreover, it was fought largely with a civilian army, the militia,” wrote Earl Warren in The Bill of Rights and The Military (1962).1 Warren’s remark came at a time when the role of the military again evoked public debate. The chief justice further explained that the people “were reluctant to ratify the Constitution without further assurances, and thus we find in the Bill of Rights Amendments 2 and 3, specifically authorizing a decentralized militia, guaranteeing the right to the people to keep and bear arms, and prohibiting the quartering of troops in any house in time of peace without the consent of the owner.”2 According to Roscoe Pound, “nothing in the Bill of Rights can or ought to be ignored, though some provisions, such as the right to bear arms, have a much altered significance under the conditions of popular uprisings against oppression under the conditions of military operations today.”3 This proposition is ambiguous—Pound apparently assumed that the Second Amendment encompasses the struggle against oppression, but he may have been overawed by the superior military technology of government. The “much altered significance” of the citizen’s right to bear arms, whatever Pound intended, becomes all the more crucial in a world of qualitatively “ AFTERWORD 220 more heavily armed and more oppressive governments. The victory of superiorly armed oppressors against truly “popular uprisings” of armed populaces is no more inexorable today than was the victory of the British in the American Revolution.4 Nor does sophisticated military equipment guarantee victory over small arms, as Vietnam proved a decade ago. Legal theorists heralding the obsolescence of the Second Amendment assume that the state’s guns will be used exclusively for legitimate purposes when private individuals are unarmed. Roscoe Pound, in Development of Constitutional Guarantees of Liberty (1957), asserted: “In the urban industrial society of today a general right to bear efficient arms so as to be able to resist oppression by the government would mean that gangs could exercise an extra-legal rule which would defeat the whole Bill of Rights.”5 Yet the argument made by the Founding Fathers, that government may become a “gang” and defeat the Bill of Rights when the people are defenseless, remains unrefuted . And even if wrong or stupid, the Founding Fathers may be overruled only by a constitutional amendment. In an uncharacteristic position Justice William O. Douglas, dissenting in Adams v. Williams (1972),6 put complete faith in the police: “There is no reason why all pistols should not be barred to everyone but the police.”7 Yet Douglas clarified this opinion to be based on his own arbitrary value judgment : “But if watering down is the mode of the day, I would prefer to water down the Second Amendment rather than the Fourth Amendment.”8 Curiously, Douglas also wrote in The Bill of Rights is not Enough (1963): “The closest the framers came to the affirmative side of liberty was in the right to bear arms. Yet this too has been greatly modified by judicial construction .”9 Douglas did not anticipate that, should his policy of disarming the people while leaving the police armed be implemented, a powerful police state ultimately could strike blows at the right of the people to be secure from unreasonable searches and seizures. Indeed, extensive arms searches in private dwellings were made by the British in their aggression against Scotland, Ireland, and America. The disastrous consequences to the right to be secure from unreasonable searches and seizures by legislative infringement on the right to keep arms was recognized in the dissenting opinion in State v. Buzzard (1843)10 : “Can [the legislature,] directly or indirectly, invade the sanctuaries of private life and of personal security, by authorizing a public inquisition to search for either open or concealed weapons?”11 AFTERWORD 221 In Miranda v. Arizona (1966),12 dissenting Justice White expressed concern for “those who rely on the public authority for protection and who without it can only engage in violent self-help with guns, knives and the help of their neighbors similarly situated.”13 However, America’s founders not only concurred with this philosophy but also regarded guns as necessary for violent self-help from the “public authority.” To them, the armed people...