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The Journal of Military History 68.1 (2004) 248-249



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The Militia and the Right to Arms, or, How the Second Amendment Fell Silent. By H. Richard Uviller and William G. Merkel. Durham, N.C.: Duke University Press, 2002. ISBN 0-8223-3017-2. Illustrations. Notes. Index. Pp. x, 338. $19.95.

H. Richard Uviller and William G. Merkel have produced a provocative and accessible yet deeply flawed attack on the notion that the Constitution recognizes an individual's right to keep and bear arms. Although much of the first two-thirds of the book merely synthesizes well-known scholarship on republicanism, the early American militia, and the rise of the National Guard, the final section—which focuses on interpretations of the Second Amendment—advances a novel thesis. The constitutional right to arms, the authors argue, is contingent on individuals' membership in state militias that, for all practical purposes, no longer exist. Thus the "incidental" gun rights of Americans have "atrophied" and "the Second Amendment has no voice" in debates over gun control (pp. 228, 229).

Their argument suffers from several problems, the most important of which relates to their opportunistic method of constitutional interpretation. Despite the fact that Uviller and Merkel claim to "take seriously the words chosen by the drafters, and seek their meaning to the ratifying generation" (p. 37), they ignore or minimize the testimony of numerous Americans (Federalist as well as Anti-Federalist) who argued that gun rights derived from an individual's prerogative to protect not only his government but also his life, liberty, and property. They portray as outsiders the majority of New Hampshire's ratifying convention, which went so far as to propose that the federal Constitution be amended to guarantee that "Congress shall never disarm any Citizen" not seeking to overthrow the government (pp. 81-82). Yet Randy E. Barnett, a Boston University law professor, reminds us ("Is the Right to Keep and Bear Arms Conditioned on a Militia?," William and Mary Bill of Rights Journal 12 [December 2003]) that New York, North Carolina, Rhode Island, and Virginia also proposed broad amendments protecting the right to arms. In addition, several revolutionary-era state charters universalized the individual right to self-defense and made no mention of militias. Pennsylvania's 1776 Constitution, for example, maintained "that the people have the right to bear arms for themselves and the state"; its 1790 Constitution reaffirmed "that the right of citizens to bear arms, in defense of themselves and the state, shall not be questioned." The 1777 constitution of [End Page 248] Vermont used similar language and also failed to mention the militia. These states, as Barnett points out, assented to the Second Amendment. It seems highly unlikely that they could have approved of the authors' peculiarly narrow interpretation—especially since Uviller and Merkel fail to name even a single member of the revolutionary generation who insisted that the constitutional right to arms was conditioned on one's affiliation with a militia.

Other problems also undermine the authors' argument. Bad enough that Uviller and Merkel seek to analyze nineteenth-century Supreme Court cases in order to illuminate the original meaning of the Second Amendment; worse yet, they ignore the fact that Chief Justice Roger Taney, in his infamous opinion in Dred Scott v. Sandford (1857), became the first justice to reference the amendment when he denied that African Americans could be U.S. citizens entitled to the same rights as whites, who could "keep and carry arms wherever they went." (The Freedman's Bureau Act of 1866, which foreshadowed the Fourteenth Amendment, took seriously Taney's claim when it insisted that black Americans should also be able to bear arms for personal security.) Moreover, the authors consider "highly significant" (p. 23) the odd structure of the amendment, which begins: "A well regulated Militia, being necessary to the security of a free state." This is their best argument, but it fails to consider that drafts of the amendment by James Madison and others did not contain such...

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