American Journal of Legal History (Temple)
39 (1995): 245
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain
a back issue.
BOOK REVIEW
Robert J. Cottrol, ed. Gun Control and the Constitution: Sources and Explorations on the Second Amendment, 3 vols. New York: Garland Publishing Co., 1993. xlviii, 298 pp. $57.00; 380 pp. $62.00; and 320 pp. $54.00. Robert J. Cottrol, ed. Gun Control and the Constitution: Sources and Explorations on the Second Amendment (paperback) New York: Garland Publishing Co., 1994. 400 pp. $18.95.
Any collection of essays provides an imposing challenge to a reviewer; a three-volume collection of primary and secondary sources is daunting. A short review, therefore, can hardly do justice to this wide-ranging collection of materials dedicated to a balanced assessment of the historical sources of the second amendment right to keep and bear arms; but anyone interested in this neglected constitutional right will be enlightened by one or another of the sources in these volumes.
The beneficial presence of the editor stands over all of these documents; hence, these volumes constitute an unusually well-integrated and effective anthology-and the same may be said for the one-volume paperback edition, which provides an ideal collection of "readings" for students in graduate-school or law-school seminars. Each volume provides a broad but focused look at the subtitled topic: Volume I - The Courts, Congress, and the Second Amendment, Volume 2 - Advocates and Scholars: The Modern Debate on Gun Control; and Volume 3 [end Page 245] - Special Topics on Gun Control. As with any collection of readings, however, copyright difficulties and editorial discretion mean that some readers' favorites, or certain informative studies, or both, will not be found in this set. For example, Allan Millett's study of the contours of the American notion of "the citizen soldier" would add much to volume 3; for given his thorough description of the evolution of federal policy concerning the militia and the national guard, Millett adds information crucial to a better understanding of exactly what the word "militia" might connote for a nuanced interpretation of the second amendment.1
Cottrol's masterly Introduction, however, more than compensates for any deficiencies vis-à-vis "missing favorites." Drawing on his unmatched knowledge of second amendment history, Cottrol provides a guide to the major historical issues that is lucid, coherent, and never marred by partisan advocacy. His Introduction moves the reader effortlessly from the ideas of the several historical schools, through their impact on the current political debate, and on toward the highground of a new, "multi-dimensional" debate, for which Cottrol provides the lines of inquiry in the concluding section if his Introduction.
Cottrol correctly explains that the modem gun-control debate has produced two antithetical interpretations of the right to keep and bear arms. On the one hand, gun-control advocates adhere to the "collective right" theory of the second amendment, arguing that its sole purpose was to insure that continued existence of state militias in the face of a powerful new central government. On the other hand, gun-control opponents advance an "individual right" view of the amendment. After emphasizing the surprisingly unemphasized (even overlooked) language of the amendment itself-it guarantees not a state right, but "the right of the people to keep and bear arms" (emphasis added)--they explain that in the eighteenth century, the "well regulated militia" mentioned in the amendment meant not a formal military unit like the National Guard, but a militia-of-the-whole, an informal system under which every freeman was required to own a firearm for defense of the community against all enemies, domestic and foreign, whether petty criminal or tyrannical ruler.
Cottrol provides many other surprising insights in his Introduction, for the historical approach opens perspectives that contemporary concerns so often shroud or distort. For example, the "collective right" theory, a hallmark of the contemporary liberal gun-control position, first began to attract the attention of the judiciary during the early twentieth century as nativism joined with urbanization to bring about increased state regulation of firearms and a far more restrictive view of the personal right to bear arms for self-defense. In short, the "collective right" view arose as an elitist theory for denying arms to black Southern and European immigrants to northern cities.
Cottrol also uncovers a largely overlooked philosophical stratum to the second amendment. He discloses that some of the strongest arguments for the Anglo-American individual right to arms coalesced around the fear of standing armies and tyrannical rulers. Thus, the second amendment was seen as a safeguard against tyranny, a right correlative to the natural right of revolution enshrined in the Declaration of Independence. This historical datum carries important implications for government attempts to ban or severely restrict private firearms ownership. As Cottrol explains, "If the purpose of the Second Amendment was purely military, then [the] right of the government to dissolve the militia-of-the-whole [end Page 246] and substitute more efficient police and military organizations is clear" (p. xxxv); but this "more sophisticated version of the collective rights view" (p. xxxv) is scotched by the deep background of liberty and self-reliance on which the second amendment is predicated. The armed population and the militia-of-the-whole were seen as thwarting "governmental tyranny and preventing the citizens from becoming overly dependent on government for survival" (p. xxxvi).2
Given this deeper political meaning to the second amendment, it becomes problematic for "the government, in effect, [to] extinguish the population's right to the means of potential resistance and self-reliance by making the reasonable determination" to rely on professional military and police organizations rather than the militia-of-the-whole (p. xxxvi). Such a claim amounts to an argument that the government itself can regulate away the only effective means of implementing the people's natural right to revolt against government, a classic reductio.
This brief rehearsal of only a few of the provocative insights contains in these volumes suggests that if honestly considered and pondered, Cottrol's collection should create ferment, in the best sense of the word, in the legal and historical professions-perhaps even producing that new, multi-dimensional debate Cottrol recommends in his Introduction. Measured by this standard, Gun Control and the Constitution should prove to be an unqualified success.
JAMES ÉTIENNE VIATOR
Loyola University (New Orleans) School of Law1. Allan R. Millet,"The Constitution and the Citizen-Solider," in R.H. Kohn, ed., The United States Military Under the Constitution of the United States, 1789-1980 (New York. 1991), pp. 97-119.