Vol. 14 No. 4 (April 2004), pp.284-287
THE MYTHIC MEANINGS OF THE SECOND AMENDMENT: TAMING POLITICAL VIOLENCE IN A CONSTITUTIONAL REPUBLIC by David C. Williams. New Haven, CT: Yale University Press, 2003. 416pp. Cloth $45.00. ISBN: 0-300-09562-7.
Reviewed by Robert J. Spitzer, Department of Political Science, SUNY Cortland. Email: Spitzerb@cortland.edu .
The Constitution’s Second Amendment has engendered prodigious writing in recent years, encompassing a multitude of books and journal articles spanning many disciplines. This new book, by law professor David C. Williams, purports to take a new look at the right to bear arms by arguing that the “well regulated militia” referred to in the amendment references “the Body of the People” who, he says, are granted by the amendment’s wording a constitutional “right to arms so as to make a revolution against a corrupt government” (p.2), by which Williams means against our government. This revolutionary meaning within the Second Amendment, he argues, has been obscured by the numerous mythic stories about the amendment that have grown up around it.
For Williams, our Constitution “contains some rulelike material, but in practice it has functioned largely through myth” (p.5). These Second Amendment legends include the populist myth, which describes those who believe, with Williams, that the Second Amendment protects a private right to arms to resist government corruption or tyranny; and a Framers’ myth, which ostensibly unites “popular unity on the use of political violence” (p.9) in a kind of checks and balances that merges it with congressional control over military affairs lodged in Article I. Another myth, receiving greater critical scrutiny by Williams, is what he calls the Weberian myth, which he says embodies those who believe that the amendment refers (as the text says) to a right to keep and bear arms in the context of a government militia. To Williams, the “body of the people” can function as a self-organized militia outside and beyond government control.
To his credit, Williams seeks at the outset to establish analytic caveats to explain how lawyers operate, as compared to historians, noting as he does that most historians dissent from the point of view Williams offers. He urges that all pertinent evidence be considered, regardless of where that evidence leads, and that one must not assume that the “conceptual world” of the Constitution’s Framers is the same as the one we find in the modern era. He further notes that “material closer to the actual legislative history of the Second Amendment is more relevant than material farther away” (p.19).
Yet Williams’ description of how historical analysis is to proceed from his lawyer’s perspective does little to assuage historians’ criticisms. Legal analysts cannot simply recite past events, he says, but must transform history into useable legal material. “[T]he facts of [*285] history have relevance to the modern interpretation of the Second amendment only as filtered through a legal screen” (p.17). Williams’ legal screen-or think of it as a legal brief-consists of his relativistic myths which allow him to compartmentalize arguments and facts in a manner that misstates, omits, and distorts. Worse, Williams abandons many of his own rules for research.
After extolling the virtue of “material closer to the actual legislative history,” he gives virtually no attention to the primary and central evidence pertaining to the construction and meaning of the Second Amendment - the debates at the Federal Convention of 1787, the deliberations during the First Congress convened in 1789, which debated, amended, and passed what became the Bill of Rights, and many court cases. This is, by itself, an inexplicable omission for someone who swears allegiance to “actual legislative history.” Williams confronts the writings of prominent historians who support the militia-based understanding of the Second Amendment, including Saul Cornell, Michael Bellesiles, and Garry Wills. Yet he fails to summarize their arguments fairly or accurately. For example, Williams insists that the losers in the constitutional struggle, the Antifederalists, were actually the winners. Certainly, Antifederalist pressures yielded the Bill of Rights. Yet in the case of the Second Amendment, Williams says that Garry Wills has it wrong in attributing the Second Amendment to James Madison and the Federalists, insisting instead that “the Second Amendment reflects Anti-Federalist ideas” (p.52) and that the Second Amendment was “what they [the Anti-Federalists] wanted” (p.53). Yet Williams does not deal with Wills’ evidence nor state his arguments accurately. As Wills notes (1999, p.121), the Antifederalists wanted the militias to substitute for the standing army; the co-existence of the two was not satisfactory to them; and the final proof that the Second Amendment was not an Antifederalist victory was the fact that they refused to support the amendment.
Williams is on even softer ground when he seeks to marginalize the militia-based or collective view of the Second Amendment by saying that it “rests on a Weberian myth: with the sociologist Max Weber (although usually without referring to him) it holds that one of the defining characteristics of the state is its monopoly on the legitimate use of violence” (p.5). The problems with this construct are manifold. First, Williams cites no Second Amendment writers who refer to Weber in this connection, for the obvious reason that the Weberian device is Williams’s own construction. That these writers fail to “refer” to Weber owes no doubt to the fact that their writing has little to do with Weber. Second (and shockingly), Williams does not consult, quote, or cite any of Weber’s writings in his book, leaving the reader to wonder how and why Williams’ analysis is “Weberian.” Third, some of the collective or militia-based writing on the Second Amendment actually predates Weber, undercutting the notion that this line of reasoning derived from Weber’s writings or thought. Fourth, the views of state power he assigns to Weber are of earlier origin. Perhaps by assigning to Weber (whose life spanned 1864-1920) alone the idea that the state has a unique claim to authority regarding the use of force, [*286] Williams hopes to minimize the theoretical formulations behind the proposition. Not only does this notion sit at the epicenter of the modern nation state, it spans the writings of Hobbes and Locke (Williams devotes much of a chapter to Locke, but never makes the connections), and traces back to Aristotle and even before.
Williams is similarly cavalier in his treatment of the law. In his brief treatment of case law on the Second Amendment, he entirely dismisses, refusing to even discuss, the three 19th century cases on the subject (even though they continue to be cited as good law), one of which, PRESSER v. ILLINOIS (1886), roundly rejects Williams’ central assertions: “Military organization and military drill. . .under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law.” To deny the government such control over the militias, the Court continued, would “be to deny the right of the State to disperse assemblages organized for sedition and treason, and the right to suppress armed mobs bent on riot and rapine” (116 U.S. 252, 268). His coverage of lower federal court cases is limited to only five of the nearly fifty cases on the matter. With one exception, all of these cases also reject Williams’ tenets.
Finally, his central assertion - that the Second Amendment expressly condones revolution against the very government the Constitution creates - is dubious. He never explains exactly how corruption would be remedied by a revolution, or why a revolution would be needed in the first place if the body of the people were so unwaveringly united in a single purpose or cause. One can argue about the right of revolution from a natural law point of view, but not that it springs from a document that expressly grants to its governing institutions (both Congress and the president) the power to use the very militia mentioned in the Second Amendment to “suppress insurrections,” as noted in Article I. As Roscoe Pound (1957, p.90-91) noted, a “legal right of the citizen to wage war on the government is something that cannot be admitted” because it “would defeat the whole Bill of Rights.”
While Williams parses rebellions and revolutions, he fails to notice that, from the government’s point of view, there is no difference, especially since revolutions are historically made by minorities, not majorities. Williams’ sophistry about revolution is underscored by the definition he offers of it when he says that revolution may justly occur under the Second Amendment if it is “made by the people as a whole for the good of the whole” (p.2). By that definition, the American Revolution was not a revolution at all, as most historians agree that it was not supported by a majority of inhabitants. Neither were the Russian or Cuban revolutions, nor most that have occurred throughout history.
Fortunately, the Constitution is much more than a collection of subjective myths. It embodies real law, real history, real court cases, real statutory law, and real behavior. There’s plenty to argue about, plenty of ambiguity, and plenty of good writing already available.
Pound, Roscoe. 1957. THE DEVELOPMENT OF [*287] CONSTITUTIONAL GUARANTEES OF LIBERTY. New Haven, CT: Yale University Press.
Wills, Garry. 1999. A NECESSARY EVIL. New York: Simon & Schuster.
PRESSER v. ILLINOIS, 116 U.S. 252 (1886).
Copyright 2004 by the author, Robert J. Spitzer
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