The Amendment That Just Won't Go Away

H. Richard Uviller and William G. Merkel.The Militia and the Right to Arms, or, How the Second Amendment Fell Silent. Durham: Duke University Press, 2002. 352 pp. Acknowledgements, illustrations, notes, and index. $19.95.

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.

H. Richard Uviller and William G. Merkel's volume, The Militia and the Right to Arms, has appeared at an important moment in the debate over the meaning of the Second Amendment. During the 1990s, legal scholars embracing an individual rights interpretation of the Second Amendment flooded law reviews with articles promoting that interpretation as a return to constitutional orthodoxy. A number of early American historians, on the other hand, denounced the new interpretation as anachronistic and pronounced the historical scholarship of its authors to be shoddy at best. Among these historians was Michael Bellesiles, whose book Arming America was engulfed in a scandal that briefly overshadowed the debate as a whole. Scholars on both sides of the debate offered up briefs to the United States Court of Appeals for the fifth circuit in the recent gun control case of United States v. Emerson. ¹

This book is an expanded version of a long article published in the Chicago-Kent Law Review Symposium on the Second Amendment in 2000, and the authors apparently intended the book to serve as a "public brief" in the Emerson case, as their concluding chapter specifically addresses the 5^th Circuit Court of Appeals. ² The authors also have an opportunity to summarize, correct, and refocus the debate for a wider audience than it has hitherto reached. The volume is consequently sweeping in scope and extremely well written. The argument is detailed and never strays far from an intuitive and common sense construction of the amendment. The authors conclude that while the Second Amendment once extended to members of the state militias a right to keep and bear arms free from federal interference, the early national institution of the militia to which that right applied no longer exists. As a consequence, the amendment has "fallen silent," and no longer bears any enforceable meaning.

The authors' conclusion will be satisfying to many and appears designe519d to stake out some common ground at the center of the debate. The book must be judged, however, by the quality of the historical analysis that it employs and by the strength of the argument. Here the authors are only partially successful. They add important material to the historical context of the Second Amendment, but some of that material has been covered previously and the authors leave some critical gaps in their chronological narrative. When it comes to applying the history and the political theory that it reveals to the text of the Second Amendment, the authors advance a series of arguments that simply cannot be supported. Though informative and well written, the book will neither command the field nor significantly shape the ongoing debate.

The authors' thesis is fairly straightforward and, on its face, unobjectionable. They claim that the final text of the amendment should be read as follows: "Inasmuch as a well-regulated militia shall be necessary to the security of a free state, and so long as privately held arms shall be necessary to the maintenance thereof, the right of the people to keep and bear such arms shall not be infringed" (p. 24). In their view, any right granted by the amendment to potential members of the militia, individually or collectively, is subordinated to the grant's utility in advancing the military security of the polity. The authors make the case that the amateur, self-armed militia envisioned by the framers of the amendment no longer exists, and that if it did exist it would no longer advance its original purpose. As the conditions established in the first clause of the...