The Mythic Meanings of the Second Amendment

408 Pages·2003·1.23 MB·English

by  Professor David C. Williams

The Mythic Meanings of the Second Amendment

D AV I D C . W I L L I A M S
The Mythic Meanings of
the Second Amendment
TAMING POLITICAL VIOLENCE IN
A CONSTITUTIONAL REPUBLIC
Yale University Press
New Haven
& London
Earlier versions of some of the arguments in this book appeared in the following law
journal articles, and they appear here with the following permissions: David C.
Williams, Civic Republicanism and the Citizen Militia: The Terrifying Second
Amendment, 101 Yale Law Journal 551–615 (1991), by permission of the Yale Law
Journal Company and William S. Hein Company; David C. Williams, The Unitary
Second Amendment, 73 N.Y.U. L.Rev. 822–30 (1998), by permission of the New
York University Law Review; David C. Williams, The Constitutional Right to
‘‘Conservative’’ Revolution, 32 Harv. C.R.-C.L. L.Rev. 413–47 (1997), ∫ (1997) by
the President and Fellows of Harvard College and the Harvard Civil Rights-Civil
Liberties Law Review; David C. Williams, The Militia Movement and Second
Amendment Revolution: Conjuring with the People, 81 Cornell L. Rev. 879–952
(1996), by permission of the Cornell Law Review; David C. Williams, Constitutional
Tales of Violence: Populists, Outgroups, and the Multicultural Landscape of the
Second Amendment, 74 Tul. L.Rev. 387–494 (1999), by permission of the Tulane Law
Review Association, which holds the copyright.
Copyright ∫ 2003 by Yale University. All rights reserved. This book may not be
reproduced, in whole or in part, including illustrations, in any form (beyond that
copying permitted by Sections 107 and 108 of the U.S. Copyright Law and except by
reviewers for the public press), without written permission from the publishers.
Set in Sabon type by Keystone Typesetting, Inc.
Printed in the United States of America by
Library of Congress Cataloging-in-Publication Data
Williams, David C., 1960–
The mythic meanings of the Second Amendment : taming political violence in a
constitutional republic / David C. Williams.
p. cm.
Includes bibliographical references.
ISBN 0-300-09562-7 (alk. paper)
1. United States. Constitution. 2nd Amendment—History. 2. Firearms—Law and
legislation—United States—History. 3. Political violence—United States—History.
4. Government, Resistance to—United States—History. 5. United States—Militia.
I. Title.
KF4558 2nd .W55 2003
344.73%0533—dc21
2002011549
A catalogue record for this book is available from the British Library.
The paper in this book meets the guidelines for permanence and durability of the
Committee on Production Guidelines for Book Longevity of the Council on Library
Resources.
10 9 8 7 6 5 4 3 2 1
For Susan, Benjamin, and Sarah

Contents
Acknowledgments ix
Introduction 1
Part I. The Framers’ Constitution 15
1 The Background of the Framers’ Thinking 21
2 The History of the Second Amendment 39
3 The Original Legal Meaning of the Second Amendment and the
Military Provisions of the Constitution 69
Part II. The Mythic Second Amendment Today 97
4 Antirevolutionists 102
5 Libertarians and Populists 151
6 The Militia Movement’s Theory of the Second Amendment 191
7 Outgroups and the Second Amendment 220
vii
viii Contents
Part III. Reconstructing a Constitutional Organization
of Violence 259
8 The Silent Crisis 261
9 Redeeming the People 281
Notes 327
Index 381
Acknowledgments
The right to bear arms is one of the most contentious subjects in modern
America. Nonetheless, in writing on this topic for the past decade, I have been
struck most not by the level of vitriol, but by the kindness, support, and
generosity that many interlocutors have shown me, even across intellectual
divides. Whenever I get discouraged, these colleagues remind me by example
that informed, open-minded discussion is possible even on highly charged
subjects. They renew my faith in the scholarly enterprise. They are too many
to list, but I would like to mention Sanford Levinson, Akhil Amar, Frank
Michelman, Steven Shiffrin, Glenn Harlan Reynolds, and Steven Heyman.
They may not know how large a part they play in my own mythic landscape of
the intellectual world, but I am deeply grateful.
For most of the period that I have been studying this subject, it has been my
great pleasure to work at the Indiana University School of Law in Bloom-
ington. After wandering far from the Hoosier State, I feel I have returned
home to a true community of scholar-teachers. During this time, I have been
blessed with a dean and an associate dean the likes of which I did not know the
world could boast: Alfred C. Aman and Lauren Robel. Every day, Fred’s
enthusiasm, intellectualism, support, and example make me want to be a
better scholar, and Lauren’s sagacity, vision, idealism, and goodness make me
want to be a better member of my community. I depend on the care that they
have both shown me in such profligate measure.
ix