                     The Embarrassing Second Amendment                         
                                    by                                         
                             Sanford Levinson                                  
                                                                               
                   From The Yale Law Journal, Volume 99                        
                                                                               
                                                                               
                                                                               
                                - FORWARD -                                    
                                                                               
          I am a Charles Tilford McCormick Professor of Law at the             
     University of Texas Law School. This essay was initially prepared         
     for delivery at a symposium on Interpretation and the Bill of             
     Rights at Williams College on November 4, 1988. I am grateful for         
     the thought and effort put into that conference by its organizer,         
     Professor Mark Taylor. It was he who arranged for Wendy Brown,            
     then a member of the Williams Department of Political Science, to         
     deliver the excellent response that can be found following this           
     article. A timely letter from Linda Kerber contributed to the             
     reorganization of this article. Two long-distance friends and             
     colleagues, Akhil Reed Amar and Stephen Siegel, contributed               
     special and deeply appreciated insights and encouragement.                
     Finally, as always, I took full advantage of several of my                
     University of Texas Law School colleagues, including Jack Balkin,         
     Douglas Laycock, and Lucas Powe.                                          
                                                                               
          I should note that I wrote (and titled) this article before          
     reading Nelson Lund's The Second Amendment, Political Liberty,            
     and the Right to Self-Preservation, 39 Ala. L. REV. 103 (1987),           
     which begins, "The Second Amendment to the United States                  
     Constitution has become the most embarrassing provision of the            
     Bill of Rights." I did hear Lund deliver a talk on the Second             
     Amendment at the University of Texas Law School during the winter         
     of 1987, which may have penetrated my consciousness more than I           
     realized while drafting the article.                                      
                                                                               
     Sanford Levinson                                                          
                                                                               
                                                                               
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          One of the best known pieces of American popular art in this         
     century is the New Yorker cover by Saul Steinberg presenting a            
     map of the United States as seen by a New Yorker. As most readers         
     can no doubt recall, Manhattan dominates the map; everything west         
     of the Hudson is more or less collapsed together and minimally            
     displayed to the viewer. Steinberg's great cover depends for its          
     force on the reality of what social psychologists call "cognitive         
     maps." If one asks inhabitants ostensibly of the same cities to           
     draw maps of that city, one will quickly discover that the images         
     carried around in people's minds will vary by race, social class,         
     and the like. What is true of maps of places--that they differ            
     according to the perspectives of the mapmakers--is certainly true         
     of all conceptual maps.                                                   
                                                                               
          To continue the map analogy, consider in this context the            
     Bill of Rights: Is there an agreed upon "projection" of the               
     concept? Is there even a canonical text of the Bill of Rights?            
     Does it include the first eight, nine, or ten Amendments to the           
     Constitution?[1] Imagine two individuals who are asked to draw a          
     "map" of the Bill of Rights. One is a (stereo-) typical member of         
     the American Civil Liberties Union (of which I am a cardcarrying          
     member); the other is an equally (stereo-) typical member of the          
     "New Right." The first, I suggest, would feature the First                
     Amendment [2] as Main Street, dominating the map, though more,            
     one suspects, in its role as protector of speech and prohibitor           
     of established religion than as guardian of the rights of                 
     religious believers. The other principal avenues would be the             
     criminal procedure aspects of the Constitution drawn from the             
     Fourth, [3] Fifth, [4] Sixth, [5] and Eighth [6] Amendments. Also         
     depicted prominently would be the Ninth Amendment, [7] although           
     perhaps as in the process of construction. I am confident that            
     the ACLU map would exclude any display of the just compensation           
     clause of the Fifth Amendment [8] or of the Tenth Amendment.[9]           
                                                                               
          The second map, drawn by the New Rightist, would highlight           
     the free exercise clause of the First Amendment, [10] the just            
     compensation clause of the Fifth Amendment, [11] and the Tenth            
     Amendment.[12] Perhaps the most notable difference between the            
     two maps, though, would be in regard to the Second Amendment: "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." What would be at most only a blind alley for the ACLU         
     mapmaker would, I am confident, be a major boulevard in the map           
     drawn by the New Right adherent. It is this last anomaly that I           
     want to explore in this essay.                                            
                                                                               
                                                                               
     I.   THE POLITICS OF INTERPRETING THE SECOND AMENDMENT                    
                                                                               
          To put it mildly, the Second Amendment is not at the                 
     forefront of constitutional discussion, at least as registered in         
     what the academy regards as the venues for such discussion--law           
     reviews, [13] casebooks, [14] and other scholarly legal                   
     publications. As Professor LaRue has recently written, "the               
     second amendment is not taken seriously by most scholars."[15]            
                                                                               
          Both Laurence Tribe [16] and the Illinois team of Nowak,             
     Rotunda, and Young [17] at least acknowledge the existence of the         
     Second Amendment in their respective treatises on constitutional          
     law, perhaps because the treatise genre demands more encyclopedic         
     coverage than does the casebook. Neither, however, pays it the            
     compliment of extended analysis. Both marginalize the Amendment           
     by relegating it to footnotes; it becomes what a                          
     deconstructionist might call a "supplement" to the ostensibly             
     "real" Constitution that is privileged by discussion in the               
     text.[18] Professor Tribe's footnote appears as part of a general         
     discussion of congressional power. He asserts that the history of         
     the Amendment "indicate[s] that the central concern of [its]              
     framers was to prevent such federal interferences with the state          
     militia as would permit the establishment of a standing national          
     army and the consequent destruction of local autonomy."[19] He            
     does note, however, that "the debates surrounding congressional           
     approval of the second amendment do contain references to                 
     individual self-protection as well as to states' rights," but he          
     argues that the presence of the preamble to the Amendment, as             
     well as the qualifying phrase "'well regulated' makes any                 
     invocation of the amendment as a restriction on state or local            
     gun control measures extremely problematic."[20] Nowak, Rotunda,          
     and Young mention the Amendment in the context of the                     
     incorporation controversy, though they discuss its meaning at             
     slightly greater length.[21] They state that "[t]he Supreme Court         
     has not determined, at least not with any clarity, whether the            
     amendment protects only a right of state governments against              
     federal interference with state militia and police forces . . .           
     or a right of individuals against the federal and state                   
     government[s]."[22]                                                       
                                                                               
          Clearly the Second Amendment is not the only ignored patch           
     of text in our constitutional conversations. One will find                
     extraordinarily little discussion about another one of the                
     initial Bill of Rights, the Third Amendment: "No Soldier shall,           
     in time of peace be quartered in any house, without the consent           
     of the Owner, nor in time of war, but in a manner to be                   
     prescribed by law." Nor does one hear much about letters of               
     marque and reprisal [23] or the granting of titles of                     
     nobility.[24] There are, however, some differences that are worth         
     noting.                                                                   
                                                                               
          The Third Amendment, to take the easiest case, is ignored            
     because it is in fact of no current importance whatsoever                 
     (although it did, for obvious reasons, have importance at the             
     time of the founding). It has never, for a single instant, been           
     viewed by any body of modern lawyers or groups of laity as highly         
     relevant to their legal or political concerns. For this reason,           
     there is almost no case law on the Amendment.[25] I suspect that          
     few among even the highly sophisticated readers of this Journal           
     can summon up the Amendment without the aid of the text.                  
                                                                               
          The Second Amendment, though, is radically different from            
     these other pieces of constitutional text just mentioned, which           
     all share the attribute of being basically irrelevant to any              
     ongoing political struggles. To grasp the difference, one might           
     simply begin by noting that it is not at all unusual for the              
     Second Amendment to show up in letters to the editors of                  
     newspapers and magazines.[26] That judges and academic lawyers,           
     including the ones who write casebooks, ignore it is most                 
     certainly not evidence for the proposition that no one cares              
     about it. The National Rifle Association, to name the most                
     obvious example, cares deeply about the Amendment, and an                 
     apparently serious Senator of the United States averred that the          
     right to keep and bear arms is the "right most valued by free             
     men."[27] Campaigns for Congress in both political parties, and           
     even presidential campaigns, may turn on the apparent commitment          
     of the candidates to a particular view of the Second Amendment.           
     This reality of the political process reflects the fact that              
     millions of Americans, even if (or perhaps especially if) they            
     are not academics, can quote the Amendment and would disdain any          
     presentation of the Bill of Rights that did not give it a place           
     of pride.                                                                 
                                                                               
          I cannot help but suspect that the best explanation for the          
     absence of the Second Amendment from the legal consciousness of           
     the elite bar, including that component found in the legal                
     academy, [28] is derived from a mixture of sheer opposition to            
     the idea of private ownership of guns and the perhaps                     
     subconscious fear that altogether plausible, perhaps even                 
     "winning," interpretations of the Second Amendment would present          
     real hurdles to those of us supporting prohibitory regulation.            
     Thus the title of this essay--The Embarrassing Second Amendment--         
     for I want to suggest that the Amendment may be profoundly                
     embarrassing to many who both support such regulation and view            
     themselves as committed to zealous adherence to the Bill of               
     Rights (such as most members of the ACLU). Indeed, one sometimes          
     discovers members of the NRA who are equally committed members of         
     the ACLU, differing with the latter only on the issue of the              
     Second Amendment but otherwise genuinely sharing the libertarian          
     viewpoint of the ACLU.                                                    
                                                                               
          It is not my style to offer "correct" or "incorrect"                 
     interpretations of the Constitution.[29] My major interest is in          
     delineating the rhetorical structures of American constitutional          
     argument and elaborating what is sometimes called the "politics           
     of interpretation," that is, the factors that explain why one or          
     another approach will appeal to certain analysts at certain               
     times, while other analysts, or times, will favor quite different         
     approaches. Thus my general tendency to regard as wholly                  
     untenable any approach to the Constitution that describes itself          
     as obviously correct and condemns its opposition as simply wrong          
     holds for the Second Amendment as well. In some contexts, this            
     would lead me to label as tendentious the certainty of NRA                
     advocates that the Amendment means precisely what they assert it          
     does. In this particular context--i.e., the pages of a journal            
     whose audience is much more likely to be drawn from an elite,             
     liberal portion of the public--I will instead be suggesting that          
     the skepticism should run in the other direction. That is, we             
     might consider the possibility that "our" views of the Amendment,         
     perhaps best reflected in Professor Tribe's offhand treatment of          
     it, might themselves be equally deserving of the "tendentious"            
     label.                                                                    
                                                                               
                                                                               
     II. THE RHETORICAL STRUCTURES OF THE RIGHT TO BEAR ARMS                   
                                                                               
          My colleague Philip Bobbitt has, in his book Constitutional          
     Fate, [30] spelled out six approaches--or "modalities," as he             
     terms them--of constitutional argument. These approaches, he              
     argues, comprise what might be termed our legal grammar. They are         
     the rhetorical structures within which "law-talk" as a                    
     recognizable form of conversation is carried on. The six are as           
     follows:                                                                  
                                                                               
          1)   textual argument--appeals to the unadorned                      
               language of the text;[31]                                       
                                                                               
          2)   historical argument--appeals to the historical                  
               background of the provision being considered,                   
               whether the history considered be general, such as              
               background but clearly crucial events (such as the              
               American Revolution), or specific appeals to the                
               so-called intentions of the framers;[32]                        
                                                                               
          3)   structural argument--analyses inferred from the                 
               particular structures established by the                        
               Constitution, including the tripartite division of              
               the national government; the separate existence of              
               both state and nation as political entities; and                
               the structured role of citizens within the                      
               political order;[33]                                            
                                                                               
          4)   doctrinal argument--emphasis on the implications                
               of prior cases decided by the Supreme Court;[34]                
                                                                               
          5)   prudential argument--emphasis on the consequences               
               of adopting a proffered decision in any given                   
               case;[35] and, finally,                                         
                                                                               
          6)   ethical argument--reliance on the overall "ethos"               
               of limited government as centrally constituting                 
               American political culture.[36]                                 
                                                                               
          I want to frame my consideration of the Second Amendment             
     within the first five of Bobbitt's categories; they are all               
     richly present in consideration of what the Amendment might mean.         
     The sixth, which emphasizes the ethos of limited government, does         
     not play a significant role in the debate of the Second                   
     Amendment.[37]                                                            
                                                                               
                                                                               
     A.   TEXT                                                                 
                                                                               
          I begin with the appeal to text. Recall the Second                   
     Amendment: "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." No one has ever described the         
     Constitution as a marvel of clarity, and the Second Amendment is          
     perhaps one of the worst drafted of all its provisions. What is           
     special about the Amendment is the inclusion of an opening                
     clause--a preamble, if you will--that seems to set out its                
     purpose. No similar clause is a part of any other Amendment,[38]          
     though that does not, of course, mean that we do not ascribe              
     purposes to them. It would be impossible to make sense of the             
     Constitution if we did not engage in the ascription of purpose.           
     Indeed, the major debates about the First Amendment arise                 
     precisely when one tries to discern a purpose, given that                 
     "literalism" is a hopelessly failing approach to interpreting it.         
     We usually do not even recognize punishment of fraud--a classic           
     speech act--as a free speech problem because we so sensibly               
     assume that the purpose of the First Amendment could not have             
     been, for example, to protect the circulation of patently                 
     deceptive information to potential investors in commercial                
     enterprises. The sharp differences that distinguish those who             
     would limit the reach of the First Amendment to "political"               
     speech from those who would extend it much further, encompassing          
     non-deceptive commercial speech, are all derived from different           
     readings of the purpose that underlies the raw text.[39]                  
                                                                               
          A standard move of those legal analysts who wish to limit            
     the Second Amendment's force is to focus on its "preamble" as             
     setting out a restrictive purpose. Recall Laurence Tribe's                
     assertion that that purpose was to allow the states to keep their         
     militias and to protect them against the possibility that the new         
     national government will use its power to establish a powerful            
     standing army and eliminate the state militias. This purposive            
     reading quickly disposes of any notion that there is an                   
     "individual" right to keep and bear arms. The right, if such it           
     be, is only a state's right. The consequence of this reading is           
     obvious: the national government has the power to regulate--to            
     the point of prohibition--private ownership of guns, since that           
     has, by stipulation, nothing to do with preserving state                  
     militias. This is, indeed, the position of the ACLU, which reads          
     the Amendment as protecting only the right of "maintaining an             
     effective state militia.... [T]he individual's right to bear arms         
     applies only to the preservation or efficiency of a well-                 
     regulated [state] militia. Except for lawful police and military          
     purposes, the possession of weapons by individuals is not                 
     constitutionally protected."[40]                                          
                                                                               
          This is not a wholly implausible reading, but one might ask          
     why the Framers did not simply say something like "Congress shall         
     have no power to prohibit state-organized and directed militias."         
     Perhaps they in fact meant to do something else. Moreover, we             
     might ask if ordinary readers of late 18th Century legal prose            
     would have interpreted it as meaning something else. The text at          
     best provides only a starting point for a conversation. In this           
     specific instance, it does not come close to resolving the                
     questions posed by federal regulation of arms. Even if we accept          
     the preamble as significant, we must still try to figure out what         
     might be suggested by guaranteeing to "the people the right to            
     keep and bear arms;" moreover, as we shall see presently, even            
     the preamble presents unexpected difficulties in interpretation.          
                                                                               
                                                                               
     B.   HISTORY                                                              
                                                                               
          One might argue (and some have) that the substantive right           
     is one pertaining to a collective body--"the people"--rather than         
     to individuals. Professor Cress, for example, argues that state           
     constitutions regularly used the words "man" or "person" in               
     regard to "individual rights such as freedom of conscience,"              
     whereas the use in those constitutions of the term "the people"           
     in regard to a right to bear arms is intended to refer to the             
     "sovereign citizenry" collectively organized.[41] Such an                 
     argument founders, however, upon examination of the text of the           
     federal Bill of Rights itself and the usage there of the term             
     "the people" in the First, Fourth, Ninth, and Tenth Amendments.           
                                                                               
          Consider that the Fourth Amendment protects " [t]he right of         
     the people to be secure in their persons," or that the First              
     Amendment refers to the "right of the people peaceably to                 
     assemble, and to petition the Government for a redress of                 
     grievances." It is difficult to know how one might plausibly read         
     the Fourth Amendment as other than a protection of individual             
     rights, and it would approach the frivolous to read the assembly          
     and petition clause as referring only to the right of state               
     legislatures to meet and pass a remonstrance directed to Congress         
     or the President against some governmental act. The Tenth                 
     Amendment is trickier, though it does explicitly differentiate            
     between "states" and "the people" in terms of retained                    
     rights.[42] Concededly, it would be possible to read the Tenth            
     Amendment as suggesting only an ultimate right of revolution by           
     the collective people should the "states" stray too far from              
     their designated role of protecting the rights of the people.             
     This reading follows directly from the social contract theory of          
     the state. (But, of course, many of these rights are held by              
     individuals.)                                                             
                                                                               
          Although the record is suitably complicated, it seems                
     tendentious to reject out of hand the argument that one purpose           
     of the Amendment was to recognize an individual's right to engage         
     in armed self-defense against criminal conduct.[43] Historian             
     Robert E. Shalhope supports this view, arguing in his article The         
     Ideological Origins of the Second Amendment [44] that the                 
     Amendment guarantees individuals the right "to possess arms for           
     their own personal defense."[45] It would be especially                   
     unsurprising if this were the case, given the fact that the               
     development of a professional police force (even within large             
     American cities) was still at least a half century away at the            
     end of the colonial period.[46] I shall return later in this              
     essay to this individualist notion of the Amendment, particularly         
     in regard to the argument that "changing circumstances,"                  
     including the development of a professional police force, have            
     deprived it of any continuing plausibility. But I want now to             
     explore a second possible purpose of the Amendment, which as a            
     sometime political theorist I find considerably more interesting.         
                                                                               
          Assume, as Professor Cress has argued, that the Second               
     Amendment refers to a communitarian, rather than an individual,           
     right.[47] We are still left the task of defining the                     
     relationship between the community and the state apparatus. It is         
     this fascinating problem to which I now turn.                             
                                                                               
          Consider once more the preamble and its reference to the             
     importance of a well-regulated militia. Is the meaning of the             
     term obvious? Perhaps we should make some effort to find out what         
     the term "militia" meant to 18th century readers and writers,             
     rather than assume that it refers only to Dan Quayle's Indiana            
     National Guard and the like. By no means am I arguing that the            
     discovery of that meaning is dispositive as to the general                
     meaning of the Constitution for us today. But it seems foolhardy          
     to be entirely uninterested in the historical philology behind            
     the Second Amendment.                                                     
                                                                               
          I, for one, have been persuaded that the term "militia" did          
     not have the limited reference that Professor Cress and many              
     modern legal analysts assign to it. There is strong evidence that         
     "militia" refers to all of the people, or at least all of those           
     treated as full citizens of the community. Consider, for example,         
     the question asked by George Mason, one of the Virginians who             
     refused to sign the Constitution because of its lack of a Bill of         
     Rights: "Who are the Militia? They consist now of the whole               
     people."[48] Similarly, the Federal Farmer, one of the most               
     important Anti-Federalist opponents of the Constitution, referred         
     to a "militia, when properly formed, [as] in fact the people              
     themselves."[49] We have, of course, moved now from text to               
     history. And this history is most interesting, especially when we         
     look at the development of notions of popular sovereignty. It has         
     become almost a cliche of contemporary American historiography to         
     link the development of American political thought, including its         
     constitutional aspects, to republican thought in England, the             
     "country" critique of the powerful "court" centered in London.            
                                                                               
          One of this school's important writers, of course, was James         
     Harrington, who not only was influential at the time but also has         
     recently been given a certain pride of place by one of the most           
     prominent of contemporary "neo-republicans," Professor Frank              
     Michelman.[50] One historian describes Harrington as having made          
     "the most significant contribution to English libertarian                 
     attitudes toward arms, the individual, and society."[51] He was a         
     central figure in the development of the ideas of popular                 
     sovereignty and republicanism.[52] For Harrington, preservation           
     of republican liberty requires independence, which rests                  
     primarily on possession of adequate property to make men free             
     from coercion by employers or landlords. But widespread ownership         
     of land is not sufficient. These independent yeoman should also           
     bear arms. As Professor Morgan puts it, "[T]hese independent              
     yeomen, armed and embodied in a militia, are also a popular               
     government's best protection against its enemies, whether they be         
     aggressive foreign monarchs or scheming demagogues within the             
     nation itself."[53]                                                       
                                                                               
          A central fear of Harrington and of all future republicans           
     was a standing army, composed of professional soldiers.                   
     Harrington and his fellow republicans viewed a standing army as a         
     threat to freedom, to be avoided at almost all costs. Thus, says          
     Morgan, "A militia is the only safe form of military power that a         
     popular government can employ; and because it is composed of the          
     armed yeomanry, it will prevail over the mercenary professionals          
     who man the armies of neighboring monarchs."[54]                          
                                                                               
          Scholars of the First Amendment have made us aware of the            
     importance of John Trenchard and Thomas Gordon, whose Cato's              
     Letter's were central to the formation of the American notion of          
     freedom of the press. That notion includes what Vincent Blasi             
     would come to call the "checking value" of a free press, which            
     stands as a sturdy exposer of governmental misdeeds.[55] Consider         
     the possibility, though, that the ultimate "checking value" in a          
     republican polity is the ability of an armed populace,                    
     presumptively motivated by a shared commitment to the common              
     good, to resist governmental tyranny.[56] Indeed, one of Cato's           
     letters refers to "the Exercise of despotick Power [as] the               
     unrelenting War of an armed Tyrant upon his unarmed                       
     Subjects...."[57]                                                         
                                                                               
          Cress persuasively shows that no one defended universal              
     possession of arms. New Hampshire had no objection to disarming           
     those who "are or have been in actual rebellion," just as Samuel          
     Adams stressed that only "peaceable citizens" should be protected         
     in their right of "keeping their own arms."[58] All these points          
     can be conceded, however, without conceding as well that                  
     Congress--or, for that matter, the States--had the power to               
     disarm these "peaceable citizens."                                        
                                                                               
          Surely one of the foundations of American political thought          
     of the period was the well-justified concern about political              
     corruption and consequent governmental tyranny. Even the                  
     Federalists, fending off their opponents who accused them of              
     foisting an oppressive new scheme upon the American people, were          
     careful to acknowledge the risks of tyranny. James Madison, for           
     example, speaks in Federalist Number Forty-Six of "the advantage          
     of being armed, which the Americans possess over the people of            
     almost every other nation."[59] The advantage in question was not         
     merely the defense of American borders; a standing army might             
     well accomplish that. Rather, an armed public was advantageous in         
     protecting political liberty. It is therefore no surprise that            
     the Federal Farmer, the nom de plume of an anti-federalist critic         
     of the new Constitution and its absence of a Bill of Rights,              
     could write that "to preserve liberty, it is essential that the           
     whole body of the people always possess arms, and be taught               
     alike, especially when young, how to use them...."[60] On this            
     matter, at least, there was no cleavage between the pro-                  
     ratification Madison and his opponent.                                    
                                                                               
          In his influential Commentaries on the Constitution, Joseph          
     Story, certainly no friend of Anti-Federalism, emphasized the             
     "importance" of the Second Amendment.[61] He went on to describe          
     the militia as "the natural defence of a free country" not only           
     "against sudden foreign invasions" and "domestic insurrections,"          
     with which one might well expect a Federalist to be concerned,            
     but also against "domestic usurpations of power by rulers."[62]           
     "The right of the citizens to keep and bear arms has justly been          
     considered," Story wrote, "as the palladium of the liberties of a         
     republic; since it offers a strong moral check against the                
     usurpation and arbitrary power of rulers; and will generally,             
     even if these are successful in the first instance, enable the            
     people to resist and triumph over them."[63]                              
                                                                               
          We also see this blending of individualist and collective            
     accounts of the right to bear arms in remarks by Judge Thomas             
     Cooley, one of the most influential 19th century constitutional           
     commentators. Noting that the state might call into its official          
     militia only "a small number" of the eligible citizenry, Cooley           
     wrote that "if the right [to keep and bear arms] were limited to          
     those enrolled, the purpose of this guaranty might be defeated            
     altogether by the action or neglect to act of the government it           
     was meant to hold in check."[64] Finally, it is worth noting the          
     remarks of Theodore Schroeder, one of the most important                  
     developers of the theory of freedom of speech early in this               
     century.[65] "[T]he obvious import [of the constitutional                 
     guarantee to carry arms]," he argues, "is to promote a state of           
     preparedness for self-defense even against the invasions of               
     government, because only governments have ever disarmed any               
     considerable class of people as a means toward their                      
     enslavement."[66]                                                         
                                                                               
          Such analyses provide the basis for Edward Abbey's revision          
     of a common bumper sticker, "If guns are outlawed, only the               
     government will have guns."[67] One of the things this slogan has         
     helped me to understand is the political tilt contained within            
     the Weberian definition of the state--i.e., the repository of a           
     monopoly of the legitimate means of violence [68]--that is so             
     commonly used by political scientists. It is a profoundly statist         
     definition, the product of a specifically German tradition of the         
     (strong) state rather than of a strikingly different American             
     political tradition that is fundamentally mistrustful of state            
     power and vigilant about maintaining ultimate power, including            
     the power of arms, in the populace.                                       
                                                                               
          We thus see what I think is one of the most interesting              
     points in regard to the new historiography of the Second                  
     Amendment--its linkage to conceptions of republican political             
     order. Contemporary admirers of republican theory use it as a             
     source both of critiques of more individualist liberal theory and         
     of positive insight into the way we today might reorder our               
     political lives.[69] One point of emphasis for neo-republicans is         
     the value of participation in government, as contrasted to mere           
     representation by a distant leadership, even if formally elected.         
     But the implications of republicanism might push us in                    
     unexpected, even embarrassing, directions: just as ordinary               
     citizens should participate actively in governmental decision             
     making through offering their own deliberative insights, rather           
     than be confined to casting ballots once every two or four years          
     for those very few individuals who will actually make decisions,          
     so should ordinary citizens participate in the process of law             
     enforcement and defense of liberty rather than rely on                    
     professionalized peacekeepers, whether we call them standing              
     armies or police.                                                         
                                                                               
                                                                               
     C. Structure                                                              
                                                                               
          We have also passed imperceptibly into a form of structural          
     argument, for we see that one aspect of the structure of checks           
     and balances within the purview of 18th century thought was the           
     armed citizen. That is, those who would limit the meaning of the          
     Second Amendment to the constitutional protection of state-               
     controlled militias agree that such protection rests on the               
     perception that militarily competent states were viewed as a              
     potential protection against a tyrannical national government.            
     Indeed, in 1801 several governors threatened to call out state            
     militias if the Federalists in Congress refused to elect Thomas           
     Jefferson president.[70] But this argument assumes that there are         
     only two basic components in the vertical structure of the                
     American polity--the national government and the states. It               
     ignores the implication that might be drawn from the Second,              
     Ninth, and Tenth Amendments: the citizenry itself can be viewed           
     as an important third component of republican governance insofar          
     as it stands ready to defend republican liberty against the               
     depredations of the other two structures, however futile that             
     might appear as a practical matter.                                       
                                                                               
          One implication of this republican rationale for the Second          
     Amendment is that it calls into question the ability of a state           
     to disarm its citizenry. That is, the strongest version of the            
     republican argument would hold it to be a"privilege and immunity          
     of United States citizenship"--of membership in a liberty-                
     enhancing political order--to keep arms that could be taken up            
     against tyranny wherever found, including, obviously, state               
     government. Ironically, the principal citation supporting this            
     argument is to Chief Justice Taney's egregious opinion in Dred            
     Scott, [71] where he suggested that an uncontroversial attribute          
     of citizenship, in addition to the right to migrate from one              
     state to another, was the right to possess arms. The logic of             
     Taney's argument at this point seems to be that, because it was           
     inconceivable that the Framers could have genuinely imagined              
     blacks having the right to possess arms, it follows that they             
     could not have envisioned them as being citizens, since                   
     citizenship entailed that right. Taney's seeming recognition of a         
     right to arms is much relied on by opponents of gun control.[72]          
     Indeed, recall Madison's critique, in Federalist Numbers Ten and          
     Fourteen, of republicanism's traditional emphasis on the                  
     desirability of small states as preservers of republican liberty.         
     He transformed this debate by arguing that the states would be            
     less likely to preserve liberty because they could so easily fall         
     under the sway of a local dominant faction, whereas an extended           
     republic would guard against this danger. Anyone who accepts the          
     Madisonian argument could scarcely be happy enhancing the powers          
     of the states over their own citizens; indeed, this has been one          
     of the great themes of American constitutional history, as the            
     nationalization of the Bill of Rights has been deemed necessary           
     in order to protect popular liberty against state depredation.            
                                                                               
                                                                               
     D. Doctrine                                                               
                                                                               
          Inevitably one must at least mention, even though there is           
     not space to discuss fully, the so-called incorporation                   
     controversy regarding the application of the Bill of Rights to            
     the states through the Fourteenth Amendment. It should be no              
     surprise that the opponents of gun control appear to take a "full         
     incorporationist" view of that Amendment.[73] They view the               
     privileges and immunities clause, which was eviscerated in the            
     Slaughterhouse Cases,[74] as designed to require the states to            
     honor the rights that had been held, by Justice Marshall in               
     Barron v. Baltimore in 1833,[75] to restrict only the national            
     government. In 1875 the Court stated, in United States v.                 
     Cruikshank,[76] that the Second Amendment, insofar as it grants           
     any right at all, "means no more than that it shall not be                
     infringed by Congress. This is one of the amendments that has no          
     other effect than to restrict the powers of the national                  
     government. . ." Lest there be any remaining doubt on this point,         
     the Court specifically cited the Cruikshank language eleven years         
     later in Presser v. Illinois, [77] in rejecting the claim that            
     the Second Amendment served to invalidate an Illinois statute             
     that prohibited "any body of men whatever, other than the regular         
     organized volunteer militia of this State, and the troops of the          
     United States. . .to drill or parade with arms in any city, or            
     town, of this State, without the license of the Governor                  
     thereof...."[78]                                                          
                                                                               
          The first "incorporation decision," Chicago, B. & Q. R. Co.          
     v. Chicago, [79] was not delivered until eleven years after               
     Presser; one therefore cannot know if the judges in Cruikshank            
     and Presser were willing to concede that any of the amendments            
     comprising the Bill of Rights were anything more than limitations         
     on congressional or other national power. The obvious question,           
     given the modern legal reality of the incorporation of almost all         
     of the rights protected by the First, Fourth, Fifth, Sixth, and           
     Eighth Amendments, is what exactly justifies treating the Second          
     Amendment as the great exception. Why, that is, should Cruikshank         
     and Presser be regarded as binding precedent any more than any of         
     the other "pre-incorporation" decisions refusing to apply given           
     aspects of the Bill of Rights against the states?                         
                                                                               
          If one agrees with Professor Tribe that the Amendment is             
     simply a federalist protection of state rights, then presumably           
     there is nothing to incorporate.[80] If, however, one accepts the         
     Amendment as a serious substantive limitation on the ability of           
     the national government to regulate the private possession of             
     arms based on either the "individualist" or "neo-republican"              
     theories sketched above, then why not follow the                          
     "incorporationist" logic applied to other amendments and limit            
     the states as well in their powers to regulate (and especially to         
     prohibit) such possession? The Supreme Court has almost                   
     shamelessly refused to discuss the issue, [81] but that need not          
     stop the rest of us.                                                      
                                                                               
          Returning, though, to the question of Congress' power to             
     regulate the keeping and bearing of arms, one notes that there            
     is, basically, only one modern case that discusses the issue,             
     United States v. Miller, [82] decided in 1939. Jack Miller was            
     charged with moving a sawed-off shotgun in interstate commerce in         
     violation of the National Firearms Act of 1934. Among other               
     things, Miller and a compatriot had not registered the firearm,           
     as required by the Act. The court below had dismissed the charge,         
     accepting Miller's argument that the Act violated the Second              
     Amendment.                                                                
                                                                               
          The Supreme Court reversed unanimously, with the arch-               
     conservative Justice McReynolds writing the opinion. [83]                 
     Interestingly enough, he emphasized that there was no evidence            
     showing that a sawed-off shotgun "at this time has some                   
     reasonable relationship to the preservation or efficiency of a            
     well regulated militia."[84] And "[c]ertainly it is not within            
     judicial notice that this weapon is any part of the ordinary              
     military equipment or that its use could contribute to the common         
     defense."[85] Miller might have had a tenable argument had he             
     been able to show that he was keeping or bearing a weapon that            
     clearly had a potential military use.[86]                                 
                                                                               
          Justice McReynolds went on to describe the purpose of the            
     Second Amendment as "assur[ing] the continuation and render[ing]          
     possible the effectiveness of [the Militia]."[87] He contrasted           
     the Militia with troops of a standing army, which the                     
     Constitution indeed forbade the states to keep without the                
     explicit consent of Congress. "The sentiment of the time strongly         
     disfavored standing armies; the common view was that adequate             
     defense of country and laws could be secured through the Militia-         
     -civilians primarily, soldiers on occasion."[88] McReynolds noted         
     further that "the debates in the Convention, the history and              
     legislation of Colonies and States, and the writings of approved          
     commentators [all] [s]how plainly enough that the Militia                 
     comprised all males physically capable of acting in concert for           
     the common defense."[89]                                                  
                                                                               
          It is difficult to read Miller as rendering the Second               
     Amendment meaningless as a control on Congress. Ironically,               
     Miller can be read to support some of the most extreme anti-gun           
     control arguments, e.g., that the individual citizen has a right          
     to keep and bear bazookas, rocket launchers, and other armaments          
     that are clearly relevant to modern warfare, including, of                
     course, assault weapons. Arguments about the constitutional               
     legitimacy of a prohibition by Congress of private ownership of           
     handguns or, what is much more likely, assault rifles, might turn         
     on the usefulness of such guns in military settings.                      
                                                                               
                                                                               
     E. Prudentialism                                                          
                                                                               
          We have looked at four of Bobbitt's categories--text,                
     history, structure, and case law doctrine--and have seen, at the          
     very least, that the arguments on behalf of a "strong" Second             
     Amendment are stronger than many of us might wish were the case.          
     This, then, brings us to the fifth category, prudentialism, or an         
     attentiveness to practical consequences, which is clearly of              
     great importance in any debates about gun control. The standard           
     argument in favor of strict control and, ultimately, prohibition          
     of private ownership focuses on the extensive social costs of             
     widespread distribution of firearms. Consider, for example, a             
     recent speech given by former Justice Lewis Powell to the                 
     American Bar Association. He noted that over 40,000 murders were          
     committed in the United States in 1986 and 1987, and that fully           
     sixty percent of them were committed with firearms. England and           
     Wales, however, saw only 662 homicides in 1986, less than eight           
     percent of which were committed with firearms.[90] Justice Powell         
     indicated that, "[w]ith respect to handguns," in contrast "to             
     sporting rifles and shotguns[,] it is not easy to understand why          
     the Second Amendment, or the notion of liberty, should be viewed          
     as creating a right to own and carry a weapon that contributes so         
     directly to the shocking number of murders in our society."[91]           
                                                                               
          It is hard to disagree with Justice Powell; it appears               
     almost crazy to protect as a constitutional right something that          
     so clearly results in extraordinary social costs with little, if          
     any, compensating social advantage. Indeed, since Justice                 
     Powell's talk, the subject of assault rifles has become a staple          
     of national discussion, and the opponents of regulation of such           
     weapons have deservedly drawn the censure even of conservative            
     leaders like William Bennett. It is almost impossible to imagine          
     that the judiciary would strike down a determination by Congress          
     that the possession of assault weapons should be denied to                
     private citizens.                                                         
                                                                               
          Even if one accepts the historical plausibility of the               
     arguments advanced above, the overriding temptation is to say             
     that times and circumstances have changed and that there is               
     simply no reason to continue enforcing an outmoded, and indeed            
     dangerous, understanding of private rights against public order.          
     This criticism is clearest in regard to the so-called                     
     individualist argument, for one can argue that the rise of a              
     professional police force to enforce the law has made irrelevant,         
     and perhaps even counterproductive, the continuation of a strong          
     notion of self-help as the remedy for crime.[92]                          
                                                                               
          I am not unsympathetic to such arguments. It is no purpose           
     of this essay to solicit membership for the National Rifle                
     Association or to express any sympathy for what even Don Kates, a         
     strong critic of the conventional dismissal of the Second                 
     Amendment, describes as "the gun lobby's obnoxious habit of               
     assailing all forms of regulation on 2nd Amendment grounds."[93]          
     And yet ....                                                              
                                                                               
          Circumstances may well have changed in regard to individual          
     defense, although we ignore at our political peril the good-faith         
     belief of many Americans that they cannot rely on the police for          
     protection against a variety of criminals. Still, let us assume           
     that the individualist reading of the Amendment has been vitiated         
     by changing circumstances. Are we quite so confident that                 
     circumstances are equally different in regard to the republican           
     rationale outlined earlier?                                               
                                                                               
          One would, of course, like to believe that the state,                
     whether at the local or national level, presents no threat to             
     important political values, including liberty. But our propensity         
     to believe that this is the case may be little more than a sign           
     of how truly different we are from our radical forbearers. I do           
     not want to argue that the state is necessarily tyrannical; I am          
     not an anarchist. But it seems foolhardy to assume that the armed         
     state will necessarily be benevolent. The American political              
     tradition is, for good or ill, based in large measure on a                
     healthy mistrust of the state. The development of widespread              
     suffrage and greater majoritarianism in our polity is itself no           
     sure protection, at least within republican theory. The                   
     republican theory is predicated on the stark contrast between             
     mere democracy, where people are motivated by selfish personal            
     interest, and a republic, where civic virtue, both in citizens            
     and leadership, tames selfishness on behalf of the common good.           
     In any event, it is hard for me to see how one can argue that             
     circumstances have so changed as to make mass disarmament                 
     constitutionally unproblematic.[94]                                       
                                                                               
          Indeed, only in recent months have we seen the brutal                
     suppression of the Chinese student demonstrations in Tianamen             
     Square. It should not surprise us that some N.R.A. sympathizers           
     have presented that situation as an object lesson to those who            
     unthinkingly support the prohibition of private gun ownership.            
     "[I]f all Chinese citizens kept arms, their rulers would hardly           
     have dared to massacre the demonstrators .... The private keeping         
     of hand-held personal firearms is within the constitutional               
     design for a counter to government run amok .... As the Tianamen          
     Square tragedy showed so graphically, AK-47s fall into that               
     category of weapons, and that is why they are protected by the            
     Second Amendment."[95] It is simply silly to respond that small           
     arms are irrelevant against nuclear-armed states: Witness                 
     contemporary Northern Ireland and the territories occupied by             
     Israel, where the sophisticated weaponry of Great Britain and             
     Israel have proved almost totally beside the point. The fact that         
     these may not be pleasant examples does not affect the principal          
     point, that a state facing a totally disarmed population is in a          
     far better position, for good or for ill, to suppress popular             
     demonstrations and uprisings than one that must calculate the             
     possibilities of its soldiers and officials being injured or              
     killed.'[96]                                                              
                                                                               
                                                                               
     III. TAKING THE SECOND AMENDMENT SERIOUSLY                                
                                                                               
          There is one further problem of no small import: If one does         
     accept the plausibility of any of the arguments on behalf of a            
     strong reading of the Second Amendment, but, nevertheless,                
     rejects them in the name of social prudence and the present-day           
     consequences produced by finicky adherence to earlier                     
     understandings, why do we not apply such consequentialist                 
     criteria to each and every part of the Bill of Rights?[97] As             
     Ronald Dworkin has argued, what it means to take rights seriously         
     is that one will honor them even when there is significant social         
     cost in doing so. If protecting freedom of speech, the rights of          
     criminal defendants, or any other part of the Bill of Rights were         
     always (or even most of the time) clearly cost less to the                
     society as a whole, it would truly be impossible to understand            
     why they would be as controversial as they are. The very fact             
     that there are often significant costs--criminals going free,             
     oppressed groups having to hear viciously racist speech and so            
     on--helps to account for the observed fact that those who view            
     themselves as defenders of the Bill of Rights are generally               
     antagonistic to prudential arguments. Most often, one finds them          
     embracing versions of textual, historical, or doctrinal argument          
     that dismiss as almost crass and vulgar any insistence that times         
     might have changed and made too "expensive" the continued                 
     adherence to given view. "Cost-benefit" analysis, rightly or              
     wrongly, has come to be viewed as a "conservative" weapon to              
     attack liberal rights.[98] Yet one finds that the tables are              
     strikingly turned when the Second Amendment comes into play. ere          
     it is "conservatives" who argue in effect that social costs are           
     irrelevant and "liberals" who argue for a notion of the "living           
     Constitution" and "changed circumstances" that would have the             
     practical consequence of removing any real bite from the Second           
     Amendment.                                                                
                                                                               
          As Fred Donaldson of Austin, Texas wrote, commenting on              
     those who defended the Supreme Court's decision upholding flag-           
     burning as compelled by a proper (and decidedly non-prudential)           
     understanding of the First Amendment, "[I]t seems inconsistent            
     for [defenders of the decision] to scream so loudly" at the               
     prospect of limiting the protection given expression "while you           
     smile complacently at the Second torn and bleeding. If the Second         
     Amendment is not worth the paper it is written on, what price the         
     First?"[99] The fact that Mr. Donaldson is an ordinary citizen            
     rather than an eminent law professor does not make his question           
     any less pointed or its answer less difficult.                            
                                                                               
          For too long, most members of the legal academy have treated         
     the Second Amendment as the equivalent of an embarrassing                 
     relative, whose mention brings a quick change of subject to               
     other, more respectable, family members. That will no longer do.          
     It is time for the Second Amendment to enter full scale into the          
     consciousness of the legal academy. Those of us who agree with            
     Martha Minow's emphasis on the desirability of encouraging                
     different "voices" in the legal conversation [100] should be              
     especially aware of the importance of recognizing the attempts of         
     Mr. Donaldson and his millions of colleagues to join the                  
     conversation. To be sure, it is unlikely that Professor Minow had         
     those too often peremptorily dismissed as "gun nuts" in mind as           
     possible providers of "insight and growth," but surely the call           
     for sensitivity to different or excluded voices cannot extend             
     only to those groups "we" already, perhaps "complacent[ly],"              
     believe have a lot to tell "us."[101] I am not so naive as to             
     believe that conversation will overcome the chasm that now                
     separates the sensibility of, say, Senator Hatch and myself as to         
     what constitutes the "right[s] most valued by free men [and               
     women]."[102] It is important to remember that one will still             
     need to join up sides and engage in vigorous political struggle.          
     But it might at least help to make the political sides appear             
     more human to one another. Perhaps "we" might be led to stop              
     referring casually to "gun nuts" just as, maybe, members of the           
     NRA could be brought to understand the real fear that the                 
     currently almost uncontrolled system of gun ownership sparks in           
     the minds of many whom they casually dismiss as "bleeding-heart           
     liberals." Is not, after all, the possibility of serious, engaged         
     discussion about political issues at the heart of what is most            
     attractive in both liberal and republican versions of politics?           
                                                                               
                              -= APPENDIX =-                                   
                                                                               
     1.   It is not irrelevant that the Bill of Rights submitted to            
          the states in 1789 included not only what are now the first          
          ten Amendments, but also two others. Indeed, what we call            
          the First Amendment was only the third one of the list               
          submitted to the states. The initial "first amendment" in            
          fact concerned the future size of the House of                       
          Representatives, a topic of no small importance to the Anti-         
          Federalists, who were appalled by the smallness of the House         
          seemingly envisioned by the Philadelphia framers. The second         
          prohibited any pay raise voted by members of Congress to             
          themselves from taking effect until an election "shall have          
          intervened." See J. GOEBEL, 1 THE OLIVER WENDELL HOLMES              
          DEVISE HISTORY OF THE SUPREME COURT OF THE UNITED STATES:            
          ANTECEDENTS AND BEGINNINGS TO 1801, at 442 n.162 (1971). Had         
          all of the initial twelve proposals been ratified, we would,         
          it is possible, have a dramatically different cognitive map          
          of the Bill of Rights. At the very least, one would neither          
          hear defenses of the "preferred" status of freedom of speech         
          framed in terms of the "firstness" of (what we know as) the          
          First Amendment, nor the wholly invalid inference drawn from         
          that "firstness" of some special intention of the Framers to         
          safeguard the particular rights laid out there.                      
                                                                               
     2.   "Congress shall make no law respecting an establishment of           
          religion . . . or abridging the freedom of speech, or of the         
          press; or the right of the people peaceably to assemble, and         
          to petition the Government for a redress of grievances."             
          U.S. CONST. amend. 1.                                                
                                                                               
     3.   "The right of the people to be secure in their persons,              
          houses, papers, and effects, against unreasonable searches           
          and seizures, shall not be violated; and no Warrants shall           
          issue but upon probable cause, supported by Oath or                  
          affirmation, and particularly describing the place to be             
          searched, and the persons or things to be seized." U.S.              
          CONST. amend. IV.                                                    
                                                                               
     4.   "No person shall be held to answer for a capital, or                 
          otherwise infamous crime, unless on a presentment or                 
          indictment of a Grand Jury, except in cases arising in the           
          land or naval forces, or in the Militia, when in actual              
          service in time of War or public danger; nor shall any               
          person be subject for the same offense to be twice put in            
          jeopardy of life or limb; nor shall be compelled in any              
          criminal case to be a witness against himself, nor be                
          deprived of life, liberty, or property, without due process          
          of law ...." U.S. CONST. amend. V.                                   
                                                                               
     5.   "In all criminal prosecutions, the accused shall enjoy the           
          right to a speedy and public trial, by an impartial jury of          
          the State and district wherein the crime shall have been             
          committed, which district shall have been previously                 
          ascertained by law, and to be informed of the nature and             
          cause of the accusation; to be confronted with the witnesses         
          against him; to have compulsory process for obtaining                
          witnesses in his favor, and to have the Assistance of                
          Counsel for his defense." U.S. CONST. amend VI.                      
                                                                               
     6.   "Excessive bail shall not be required, nor excessive fines           
          imposed, nor cruel and unusual punishments inflicted." U.S.          
          CONST. amend. VIII.                                                  
                                                                               
     7.   "The enumeration in the Constitution, of certain rights,             
          shall not be construed to deny or disparage others retained          
          by the people." U.S. CONST. amend. IX.                               
                                                                               
     8.   "[N]or shall private property be taken for public use,               
          without just compensation." U.S. CONST. amend. IV.                   
                                                                               
     9.   "The powers not delegated to the United States by the                
          Constitution, nor prohibited by it to the States, are                
          reserved to the States respectively, or to the people." U.S.         
          CONST. amend. X.                                                     
                                                                               
     10.  "Congress shall make no law ... prohibiting the free                 
          exercise thereof [religion]...." U.S CONST. amend 1.                 
                                                                               
     11.  See supra note 8.                                                    
                                                                               
     12.  See supra note 9.                                                    
                                                                               
     13.  There are several law review articles discussing the                 
          Amendment. See, e.g., Lund, supra note *, and the articles           
          cited in Dowlut & Knoop, State Constitutions and the Right           
          to Keep and Bear Arms, 7 OKLA. CITY U.L. REV. 177, 178 n.3           
          (1982). See also the valuable symposium on Gun Control,              
          edited by Don Kates, in 49 LAW & CONTEMP. PROBS. 1-267               
          (1986), including articles by Shalhope, The Armed Citizen in         
          the Early Republic, at 125; Kates, The Second Amendment: A           
          Dialogue, at 143; Halbrook, What the Framers Intended: A             
          Linguistic Analysis of the Right to "Bear Arms," at 151. The         
          symposium also includes a valuable bibliography of published         
          materials on gun control, including Second Amendment                 
          considerations, at 251-67. The most important single article         
          is almost undoubtedly Kates, Handgun Prohibition and the             
          Original Meaning of the Second Amendment, 82 MICH. L. REV.           
          204 (1983). Not the least significant aspect of Kates'               
          article is that it is basically the only one to have                 
          appeared in an "elite" law review. However, like many of the         
          authors of other Second Amendment pieces, Kates is a                 
          practicing lawyer rather than a legal academic. I think It           
          is accurate to say that no one recognized by the legal               
          academy as a "major" writer on constitutional law has                
          deigned to turn his or her talents to a full consideration           
          of the Amendment. But see LaRue, Constitutional Law and              
          Constitutional History, 36 BUFFALO L. REV. 373, 375-78               
          (1988) (briefly discussing Second Amendment). Akhil Reed             
          Amar's reconsideration of the foundations of the                     
          Constitution also promises to delve more deeply into the             
          implications of the Amendment. See Amar, Of Sovereignty and          
          Federalism, 96 YALE L.J. 1425, 1495-1500 (1987). Finally,            
          there is one book that provides more in-depth treatment of           
          the Second Amendment: S. HALBROOK, THAT EVERY MAN BE ARMED,          
          THE EVOLUTION OF A CONSTITUTIONAL RIGHT (1984).                      
                                                                               
          George Fletcher, in his study of the Berhard Goetz case,             
     also suggests that Second Amendment analysis is not frivolous,            
     though he does not elaborate the point. G. FLETCHER, A CRIME OF           
     SELF-DEFENSE 156-58, 210-11 (1988).                                       
                                                                               
          One might well find this overt reference to "elite" law              
     reviews and "major" writers objectionable, but it is foolish to           
     believe that these distinctions do not exist within the academy           
     or, more importantly, that we cannot learn about the sociology of         
     academic discourse through taking them into account. No one can           
     plausibly believe that the debates that define particular periods         
     of academic discourse are a simple reflection of "natural"                
     interest in the topic. Nothing helps an issue so much as its              
     being taken up as an obsession by a distinguished professor from,         
     say, Harvard or Yale.                                                     
                                                                               
     14.  One will search the "leading" casebooks in vain for any              
          mention of the Second Amendment. Other than its being                
          included in the text of the Constitution that all of the             
          casebooks reprint, a reader would have no reason to believe          
          that the Amendment exists or could possibly be of interest           
          to the constitutional analyst. I must include, alas, P.              
          BREST & S. LEVINSON, PROCESSES OF CONSTITUTIONAL DECISION            
          MAKING (2d ed. 1983), within this critique, though I have            
          every reason to believe that this will not be true of the            
          forthcoming third edition.                                           
                                                                               
     15.  LaRue, supra note 13, at 375.                                        
                                                                               
     16.  L. TRIBE, AMERICAN CONSTITUTIONAL LAW (2d ed. 1988).                 
                                                                               
     17.  J. NOWAK, R. ROTUNDA & J. YOUNG, CONSTITUTIONAL LAW (3d ed.          
          1986).                                                               
                                                                               
     18.  For a brilliant and playful meditation on the way the legal          
          world treats footnotes and other marginal phenomena, see             
          Balkin, The Footnote, 83 NW. U.L. REV. 275, 276-81 (1989).           
                                                                               
     19.  TRIBE, supra note 16, at 299 n. 6.                                   
                                                                               
     20   Id.; see also J. ELY, DEMOCRACY AND DISTRUST 95 (1980)               
          ("[T]he framers and ratifiers . . . opted against leaving to         
          the future the attribution Of [other] purposes, choosing             
          instead explicitly to legislate the goal in terms of which           
          the provision was to be interpreted."). As shall be seen             
          below, see infra text accompanying note 38, the preamble may         
          be less plain in its meaning than Tribe's (and Ely's)                
          confident argument suggests.                                         
                                                                               
     21.  J. NOWAK, R. ROTUNDA & J. YOUNG, supra note 17, at 316 n.4.          
          They do go on to cite a spate of articles by scholars who            
          have debated the issue.                                              
                                                                               
     22.  Id. at 316 n. 4.                                                     
                                                                               
     23.  U.S. CONST. art. I, 10.                                              
                                                                               
     24.  U.S. CONST. art. I, 9, cl. 8.                                        
                                                                               
     25.  See, e.g., LEGISLATIVE REFERENCE SERV., LIBRARY OF CONGRESS,         
          THE CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS           
          AND INTERPRETATION 923 (1964), which quotes the Amendment            
          and then a comment from MILLER, THE CONSTITUTION 646 (1893):         
          "This amendment seems to have been thought necessary. It             
          does not appear to have been the subject of judicial                 
          exposition; and it is so thoroughly in accord with our               
          ideas, that further comment is unnecessary." Cf. Engblom v.          
          Carey, 724 F.2d 28 (2d Cir. 1983), aff'g 572 F. Supp. 44             
          (S.D.N.Y. 1983). Engblom grew out of a "statewide strike of          
          correction officers, when they were evicted from their               
          facility-residences . . . and members of the National Guard          
          were housed in their residences without their consent." The          
          district court had initially granted summary judgment for            
          the defendants in a suit brought by the officers claiming a          
          deprivation of their rights under the Third Amendment. The           
          Second Circuit, however, reversed on the ground that it              
          could not "say that as a matter of law appellants were not           
          entitled to the protection of the Third Amendment." Engblom          
          v. Carey, 677 F.2d 957, 964 (2d (Cir. 1982). The District            
          Court on remand held that, as the Third Amendment rights had         
          not been clearly established at the time of the strike, the          
          defendants were protected by a qualified immunity, and it is         
          this opinion that was upheld by the Second Circuit. I am             
          grateful to Mark Tushnet for bringing this case to my                
          attention.                                                           
                                                                               
     26.  See, e.g., The Firearms The Second Amendment Protects, N.Y.          
          Times, June 9, 1988, at A22, col. 2 (three letters); Second          
          Amendment and Gun Control, L.A. Times, March 11, 1989, Part          
          II, at 9 col. 1 (nine letters); What 'Right to Bear Arms'?,          
          N.Y. Times, July 20, 1989, at A23, col. 1 (national ed.)             
          (op. ed. essay by Daniel Abrams); see also We Rebelled To            
          Protect Our Gun Rights, Washington Times, July 20, 1989, at          
          F2, col. 4.                                                          
                                                                               
     27.  See SUBCOMMITTEE ON THE CONSTITUTION OF THE COMM. ON THE             
          JUDICIARY, THE RIGHT TO KEEP AND BEAR ARMS, 97th Cong., 2d           
          Sess. viii (1982) (preface by Senator Orrin Hatch)                   
          [hereinafter THE RIGHT TO KEEP AND BEAR ARMS].                       
                                                                               
     28.  See supra notes 13-14.                                               
                                                                               
     29.  See Levinson, Constitutional Rhetoric and the Ninth                  
          Amendment, 64 CHI.-KENT L. REV. 131 (1988).                          
                                                                               
     30.  P. BOBBITT, CONSTITUTIONAL FATE (1982).                              
                                                                               
     31.  Id. at 25-38.                                                        
                                                                               
     32.  Id. at 9-24.                                                         
                                                                               
     33.  Id. at 74-92.                                                        
                                                                               
     34.  Id. at 39-58.                                                        
                                                                               
     35.  Id. at 59-73.                                                        
                                                                               
     36.  Id. at 93-119.                                                       
                                                                               
     37.  For the record, I should note that Bobbitt disagrees with            
          this statement, making an eloquent appeal (in conversation)          
          on behalf of the classic American value of self-reliance for         
          the defense of oneself and, perhaps more importantly, one's          
          family. I certainly do not doubt the possibility of                  
          constructing an "ethical" rationale for limiting the state's         
          power to prohibit private gun ownership. Nonetheless, I              
          would claim that no one unpersuaded by any of the arguments          
          derived from the first five modes would suddenly change his          
          or her mind upon being presented with an "ethical" argument.         
                                                                               
     38.  Cf., e.g., the patents and copyrights clause, which sets out         
          the power of Congress "[t]o promote the Progress of Science          
          and useful Arts, by securing for limited Times to Authors            
          and Inventors the exclusive Right to their respective                
          Writings and Discoveries." U.S. CONST. art. I., 8.                   
                                                                               
     39.  For examples of this, see F. SCHAUER, FREEDOM OF SPEECH: A           
          PHILOSOPHICAL ENQUIRY (1982); Levinson, First Amendment,             
          Freedom of Speech, Freedom of Expression: Does It Matter             
          What We Call It? 80 NW. U.L. REV. 767 (1985) (reviewing M.           
          REDISH, FREEDOM OF EXPRESSION: A CRITICAL ANALYSIS (1984)).          
                                                                               
     40.  ACLU Policy #47. I am grateful to Joan Mahoney, a member of          
          the national board of the ACLU, for providing me with a text         
          of the ACLU's current policy on gun control.                         
                                                                               
     41.  Cress, An Armed Community: The Origins and Meaning of the            
          Right to Bear Arms, 71 J. AM. HIST. 22, 31 (1984).                   
                                                                               
     42.  See U.S. CONST. amend. X.                                            
                                                                               
     43.  For a full articulation of the the [sic] individualist view          
          of the Second Amendment, see Kates, Handgun Prohibition and          
          the Original Meaning of the Second Amendment, 82 MICH. L.            
          REV. 204 (1983). One can also find an efficient presentation         
          of this view in Lund, supra note *, at 117.                          
                                                                               
     44.  Shalhope, The Ideological Origins of the Second Amendment,           
          69 J. AM. HIST. 599 (1982).                                          
                                                                               
     45.  Id. at 614.                                                          
                                                                               
     46.  See Daniel Boorstin's laconic comment that "the requirements         
          for self-defense and food gathering had put firearms in the          
          hands of nearly everyone" in colonial America. D. BOORSTIN,          
          THE AMERICANS--THE COLONIAL EXPERIENCE 353 (1958). The               
          beginnings of a professional police force in Boston are              
          traced in R. LANE, POLICING THE CITY: BOSTON 1822-1855               
          (1967). Lane argues that as of the earlier of his two dates,         
          "all the major eastern cities . . . had several kinds of             
          officials serving various police functions, all of them              
          haphazardly inherited from the British and colonial past.            
          These agents were gradually drawn into better defined and            
          more coherent organizations." Id. at 1. However, as Oscar            
          Handlin points out in his introduction to the book, "to              
          bring into being a professional police force was to create           
          precisely the kind of hireling body considered dangerous by          
          conventional political theory." Id. at vii.                          
                                                                               
     47.  See Cress, supra note 41.                                            
                                                                               
     48.  3 J. ELLIOT, DEBATES IN THE GENERAL STATE CONVENTIONS 425            
          (3d ed. 1937) (statement of George Mason, June 14, 1788),            
          reprinted in Kates, supra note 13, at 216 n.51.                      
                                                                               
     49.  LETTERS FROM THE FEDERAL FARMER TO THE REPUBLICAN 123 (W.            
          Bennett ed. 1978) (ascribed to Richard Henry Lee), reprinted         
          in Kates, supra note 13, at 216 n. 51.                               
                                                                               
     50.  Michelman, The Supreme Court 1985 Term--Foreword: Traces of          
          Self-Government, 100 HARV. L. REV. 4, 39 (1986) (Harrington          
          is "pivotal figure in the history of the 'Atlantic' branch           
          of republicanism that would find its way to America").               
                                                                               
     51.  Shalhope, supra note 44, at 602.                                     
                                                                               
     52.  Edmund Morgan discusses Harrington in his recent book,               
          INVENTING THE PEOPLE 85-87 (1988) (analyzing notion of               
          popular sovereignty in American thought).                            
                                                                               
     53.  Id. at 156.                                                          
                                                                               
     54.  Id. at 157. Morgan argues, incidentally, that the armed              
          yeomanry was neither effective as a fighting force nor               
          particularly protective of popular liberty, but that is              
          another matter. For our purposes, the ideological                    
          perceptions are surely more important than the "reality"             
          accompanying them. Id. at 160-65.                                    
                                                                               
     55.  Blasi, The Checking Value in First Amendment Theory, 1977            
          AM. B. FOUND. RES. J. 521.                                           
                                                                               
     56.  See Lund, supra note *, at 111-16.                                   
                                                                               
     57.  Shalhope, supra note 44, at 603 (quoting 1755 edition of             
          Cato's Letters). Shalhope also quotes from James Burgh,              
          another English writer well known to American                        
          revolutionaries: The possession of arms is the distinction           
          between a freeman and a slave. He, who has nothing, and who          
          himself belongs to another, must be defended by him, whose           
          property he is, and needs no arms. But he, who thinks he is          
          his own master, and has what he can call his own, ought to           
          have arms to defend himself, and what he possesses; else he          
          lives precariously, and at discretion.                               
                                                                               
          Id. at 604. To be sure, Burgh also wrote that only men of            
     property should in fact comprise the militia: "A militia                  
     consisting of any others than the men of *property* in a country,         
     is no militia; but a mungrel army." Cress, supra note 41, at 27           
     (emphasis in original) (quoting J. BURGH, 2 POLITICAL                     
     DISQUISITIONS: OR, AN ENQUIRY INTO PUBLIC ERRORS, DEFECTS, AND            
     ABUSES (1774-75). Presumably, though, the widespread distribution         
     of property would bring with it equally widespread access to arms         
     and membership in the militia.                                            
                                                                               
     58.  See Cress, supra note 41, at 34.                                     
                                                                               
     59.  THE FEDERALIST NO. 46, at 299 (J. Madison) (C. Rossiter ed.          
          1961).                                                               
                                                                               
     60.  LETTERS FROM THE FEDERAL FARMER TO THE REPUBLICAN 124 (W.            
          Bennett ed. 1978).                                                   
                                                                               
     61.  3 J. STORY, COMMENTARIES 1890 (1833), quoted in 5 THE                
          FOUNDERS' CONSTITUTION 214 (P. Kurland & R. Lerner eds.              
          1987).                                                               
                                                                               
     62.  Id.                                                                  
                                                                               
     63.  Id. Lawrence Cress, despite his forceful critique of                 
          Shalhope's individualist rendering of the Second Amendment,          
          nonetheless himself notes that "[t]he danger posed by                
          manipulating demagogues, *ambitious rulers*, and foreign             
          invaders to free institutions required the vigilance of              
          citizen-soldiers cognizant of the common good." Cress, supra         
          note 41, at 41 (emphasis added).                                     
                                                                               
     64.  T. COOLEY, THE GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN           
          THE UNITED STATES OF AMERICA 298 (3d ed. 1898): The right of         
          the people to bear arms in their own defence, and to form            
          and drill military organizations in defence of the State,            
          may not be very important in this country, but it is                 
          significant as having been reserved by the people as a               
          possible and necessary resort for the protection of self-            
          government against usurpation, and against any attempt on            
          the part of those who may for the time be in possession of           
          State authority or resources to set aside the constitution           
          and substitute their own rule for that of the people. Should         
          the contingency ever arise when it would be necessary for            
          the people to make use of the arms in their hands for the            
          protection of constitutional liberty, the proceeding, so far         
          from being revolutionary, would be in strict accord with             
          popular right and duty. Cooley advanced this same idea in            
          The Abnegation of Self-Government, 12 PRINCETON REV. 213-14          
          (1883).                                                              
                                                                               
     65.  See Rabban, The First Amendment in Its Forgotten Years, 90           
          YALE L.J. 514, 560 (1981) ("[P]rodigious theoretical                 
          writings of Theodore Schroeder . . . were the most extensive         
          and libertarian treatments of freedom of speech in the               
          prewar period"); see also GRABER, TRANSFORMING FREE SPEECH           
          (forthcoming 1990) (manuscript at 4-12; on file with                 
          author).                                                             
                                                                               
     66.  T. SCHROEDER, FREE SPEECH FOR RADICALS 104 (reprint ed.              
          1969).                                                               
                                                                               
     67.  Shalhope, supra note 44, at 45.                                      
                                                                               
     68.  See M. WEBER, THE THEORY OF SOCIAL AND ECONOMIC ORGANIZATION         
          156 (T. Parsons ed. 1947), where he lists among "[t]he               
          primary formal characteristics of the modern state" the fact         
          that: to-day, the use of force is regarded as legitimate             
          only so far as it is either permitted by the state or                
          prescribed by it .... The claim of the modern state to               
          monopolize the use of force is as essential to it as its             
          character of compulsory jurisdiction and of continuous               
          organization.                                                        
                                                                               
     69.  See, e.g., Symposium: The Republican Civil Tradition, 97             
          YALE L.J. 1493-1723 (1988).                                          
                                                                               
     70.  See D. MALONE, 4 JEFFERSON AND HIS TIMES: JEFFERSON THE              
          PRESIDENT: FIRST TERM, 1801-1805, at 7-11 (1970) (republican         
          leaders ready to use state militias to resist should lame            
          duck Congress attempt to violate clear dictates of Article           
          II by designating someone other than Thomas Jefferson as             
          President in 1801).                                                  
                                                                               
     71.  Scott v. Sanford, 60 U.S. (19 How.) 393, 417 (1857).                 
                                                                               
     72.  See, e.g., Featherstone, Gardiner & Dowlut, The Second               
          Amendment to the United States Constitution Guarantees an            
          Individual Right to Keep and Bear Arms, in THE RIGHT TO KEEP         
          AND BEAR ARMS, supra note 27, at 100.                                
                                                                               
     73.  See, e.g., Halbrook, The Fourteenth Amendment and the Right          
          to Keep and Bear Arms: The Intent of the Framers, in THE             
          RIGHT TO KEEP AND BEAR ARMS, supra note 27, at 79. Not the           
          least of the ironies observed in the debate about the Second         
          Amendment is that N.R.A.-oriented conservatives like Senator         
          Hatch could scarcely have been happy with the wholesale              
          attack leveled by former Attorney General Meese on the               
          incorporation doctrine, for here is one area where some              
          "conservatives" may in fact be more zealous adherents of             
          that doctrine than are most liberals, who, at least where            
          the Second Amendment is concerned, have a considerably more          
          selective view of incorporation.                                     
                                                                               
     74.  83 U.S. 36 (1873).                                                   
                                                                               
     75.  32 U.S. (7 Pet.) 243 (1833).                                         
                                                                               
     76.  92 U.S. 542, 553 (1875).                                             
                                                                               
     77.  116 U.S. 252, 267 (1886). For a fascinating discussion of            
          Presser, see Larue, supra note 13, at 386-90.                        
                                                                               
     78.  116 U.S. at 253. There is good reason to believe this                
          statute, passed by the Illinois legislature in 1879, was             
          part of an effort to control (and, indeed, suppress)                 
          widespread labor unrest linked to the economic troubles of           
          the time. For the background of the Illinois statute, see P.         
          AVRICH, THE HAYMARKET TRAGEDY 45 (1984):                             
                                                                               
     79.  166 U.S. 226 (1897) (protecting rights of property owners by         
          requiring compensation for takings of property).                     
                                                                               
          As early as 1875, a small group of Chicago socialists, most          
     of them German immigrants, had formed an armed club to protect            
     the workers against police and military assaults, as well as              
     against physical intimidation at the polls. In the eyes of its            
     supporters . . . the need for such a group was amply demonstrated         
     by the behavior of the police and [state-controlled] militia              
     during the Great Strike of 1877, a national protest by labor              
     triggered by a ten percent cut in wages by the Baltimore and Ohio         
     Railroad, which included the breaking up of workers' meetings,            
     the arrest of socialist leaders, [and] the use of club, pistol,           
     and bayonet against strikers and their supporters .... Workers            
     ... were resolved never again to be shot and beaten without               
     resistance. Nor would they stand idly by while their meeting              
     places were invaded or their wives and children assaulted. They           
     were determined, as Albert Parsons [a leader of the anarchist             
     movement in Chicago] expressed it, to defend both "their persons          
     and their rights."                                                        
                                                                               
     80.  My colleague Douglas Laycock has reminded me that a similar          
          argument was made by some conservatives in regard to the             
          establishment clause of the First Amendment. Thus, Justice           
          Brennan noted that "[it] has been suggested, with some               
          support in history, that absorption of the First Amendment's         
          ban against congressional legislation 'respecting an                 
          establishment of religion' is conceptually impossible                
          because the Framers meant the Establishment Clause also to           
          foreclose any attempt by Congress to *disestablish* the              
          existing official state churches." Abington School Dist. v.          
          Schempp, 374 U.S. 203, 254 (1963) (Brennan, J., concurring)          
          (emphasis added). According to this reading, it would be             
          illogical to apply the establishment clause against the              
          states "because that clause is not one of the provisions of          
          the Bill of Rights which in terms protects a 'freedom' of            
          the individual," id. at 256, inasmuch as it is only a                
          federalist protection of states against a national                   
          establishment (or disestablishment). "The fallacy in this            
          contention," responds Brennan, "is that it underestimates            
          the role of the Establishment Clause as a co-guarantor, with         
          the Free Exercise Clause, of religious liberty." Id.                 
          Whatever the sometimes bitter debates about the precise              
          meaning of "establishment," it is surely the case that               
          Justice Brennan, even as he almost cheerfully concedes that          
          at one point in our history the "states-right" reading of            
          the establishment clause would have been thoroughly                  
          plausible, expresses what has become the generally accepted          
          view as to the establishment clause being some kind of               
          limitation on the state as well as on the national                   
          government. One may wonder whether the interpretive history          
          of the establishment clause might have any lessons for the           
          interpretation of the Second Amendment.                              
                                                                               
     81.  It refused, for example, to review the most important modern         
          gun control case, Quilici v. Village Of Morton Grove, 695            
          F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983),         
          where the Seventh Circuit Court of Appeals upheld a local            
          ordinance in Morton Grove, Illinois, prohibiting the                 
          possession of handguns within its borders.                           
                                                                               
     82.  307 U.S. 174 (1939).                                                 
                                                                               
     83.  Justice Douglas, however, did not participate in the case.           
                                                                               
     84.  Miller, 307 U.S. at 178.                                             
                                                                               
     85.  Id. at 178 (citation omitted).                                       
                                                                               
     86.  Lund notes that "commentators have since demonstrated that           
          sawed-off or short-barreled shotguns are commonly used as            
          military weapons." Lund, supra note *, at 109.                       
                                                                               
     87.  307 U.S. at 178.                                                     
                                                                               
     88.  Id. at 179.                                                          
                                                                               
     89.  Id.                                                                  
                                                                               
     90.  L. Powell, Capital Punishment, Remarks Delivered to the              
          Criminal Justice Section, ABA 10 (Aug. 7, 1988).                     
                                                                               
     91.  Id . at 11.                                                          
                                                                               
     92.  This point is presumably demonstrated by the increasing              
          public opposition of police officials to private possession          
          of handguns (not to mention assault rifles).                         
                                                                               
     93.  D. Kates, Minimalist Interpretation of the Second Amendment          
          2 (draft Sept. 29, 1986) (unpublished manuscript available           
          from author).                                                        
                                                                               
     94.  See Lund, supra note *, at 116.                                      
                                                                               
     95.  Wimmershoff-Caplan, The Founders and The AK-47, Washington           
          Post, July 6, 1989, at A18, col. 4, reprinted as Price of            
          Gun Deaths Small Compared to Price of Liberty, Austin                
          American-Statesman, July 11, 1989, at All. Ms. Wimmershoff-          
          Caplan is identified as a "lawyer in New York" who is "a             
          member of the National Board of the National Rifle                   
          Association." Id. One of the first such arguments in regard          
          to the events at Tianamen Square was made by William A.              
          Black in a letter, Citizens Without Guns, N.Y. Times, June           
          18, 1989 at D26, col. 6. Though describing himself as                
          "find[ing] no glory in guns [and] a very profound anti-              
          hunter," he nonetheless "stand[s] with those who would               
          protect our right to keep and bear arms" and cited for               
          support the fact that "none [of the Chinese soldiers] feared         
          bullets: the citizens of China were long ago disarmed by the         
          Communists." "Who knows," he asks, "what the leaders and the         
          military and the police of our America will be up to at some         
          point in the future? We need an armed citizenry to protect           
          our liberty."                                                        
                                                                               
          As one might expect, such arguments draw heated responses.           
     See Rudlin, The Founders and the AK-47 (Cont'd), Washington Post,         
     July 20, 1989, at A22, col. 3. Jonathan Rudlin accused Ms.                
     Wimmershoff-Caplan of engaging in Swiftian satire, as no one              
     could "take such brilliant burlesque seriously." Neal Knox,               
     however, endorsed her essay in full, adding the Holocaust to the          
     list of examples: "Could the Holocaust have occurred if Europe's          
     Jews had owned thousands of then-modern military Mauser bolt              
     action rifles?" See also Washington Post, July 12, 1989, at A22,          
     for other letters.                                                        
                                                                               
     96.  See Lund, supra note *, at 115: The decision to use military         
          force is not determined solely by whether the contemplated           
          benefits can be successfully obtained through the use of             
          available forces, but rather is determined by the ratio of           
          those benefits to the expected costs. It follows that any            
          factor increasing the anticipated cost of a military                 
          operation makes the conduct of that operation incrementally          
          more unlikely. This explains why a relatively poorly armed           
          nation with a small population recently prevailed in a war           
          against the United States, and it explains why governments           
          bent on the oppression of their people almost always disarm          
          the civilian population before undertaking more drastically          
          oppressive measures.                                                 
                                                                               
     97.  See D. Kates, supra note 93, at 24-25 n.13, for a discussion         
          of this point.                                                       
                                                                               
     98.  See, e.g., Justice Marshall's dissent, joined by Justice             
          Brennan, in Skinner v. Railway Labor Executive Ass'n, 109 S.         
          Ct. 1402 (1989), upholding the government's right to require         
          drug tests of railroad employees following accidents. It             
          begins with his chastising the majority for "ignor[ing] the          
          text and doctrinal history of the Fourth Amendment, which            
          require that highly intrusive searches of this type be based         
          on probable cause, not on the evanescent cost-benefit                
          calculations of agencies or judges," id. at 1423, and                
          continues by arguing that "[t]he majority's concern with the         
          railroad safety problems caused by drug and alcohol abuse is         
          laudable; its cavalier disregard for the Constitution is             
          not. There is no drug exception to the Constitution, any             
          more than there is a communism exception or an exception for         
          other real or imagined sources of domestic unrest." Id. at           
          1426.                                                                
                                                                               
     99.  Donaldson, Letter to the Editor, Austin American-Statesman,          
          July 8, 1989, at A19, col. 4.                                        
                                                                               
     100. See Minow, The Supreme Court 1986 Term--Foreword: Justice            
          Engendered, 101 HARV. L. REV. 10, 74-90 (1987). "We need             
          settings in which to engage in the clash of realities that           
          breaks us out of settled and complacent meanings and creates         
          opportunities for insight and growth." Id. at 95; see also           
          Getman, Voices, 66 TEX. L. REV. 577 (1988).                          
                                                                               
     101. And, perhaps more to the point, "you" who insufficiently             
          listen to "us" and to "our" favored groups.                          
                                                                               
     102. See supra note 27 and accompanying text.                             
                                                                               
                              -=-=-=-=-=-=-                                    
                                                                               
     Note from the Combat Arms BBS SysOp:                                      
                                                                               
          This concludes the article. Each of the references in the            
     appendix is noted within the text by brackets (such as [23]).             
     Reading this article, along with many others on the Combat Arms           
     BBS, should help you to better understand the Second Amendment            
     and be better skilled in arguing its support. Other articles are          
     also available for downloading that you should carefully read as          
     well. Lastly, if you do not already have a copy of "That Every            
     Man Be Armed" by Stephen P. Holbrook, get a copy. The cost is             
     $14.95. This book will provide you with a lot of background on            
     the Second Amendment. You are also invited to download a copy             
     of my master's thesis. The file is entitled BASH.ZIP and contains         
     a lot of research on the Second Amendment.                                
                                                                               
                                                                               
     Richard Bash                                                              
     Combat Arms BBS SysOp                                                     
                                                                               

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