The Militia and the Right to Arms, or, How the Second Amendment Fell Silent (Constitutional Conflicts) [Paperback]

H. Richard Uviller (Author), William G. Merkel (Author)

Book Description

ISBN-10: 0822330172 | ISBN-13: 978-0822330172 | Publication Date: January 20, 2003

"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."
—Amendment II, United States Constitution

The Second Amendment is regularly invoked by opponents of gun control, but H. Richard Uviller and William G. Merkel argue the amendment has nothing to contribute to debates over private access to firearms. In The Militia and the Right to Arms, or, How the Second Amendment Fell Silent, Uviller and Merkel show how postratification history has sapped the Second Amendment of its meaning. Starting with a detailed examination of the political principles of the founders, the authors build the case that the amendment's second clause (declaring the right to bear arms) depends entirely on the premise set out in the amendment's first clause (stating that a well-regulated militia is necessary to the security of a free state). The authors demonstrate that the militia envisioned by the framers of the Bill of Rights in 1789 has long since disappeared from the American scene, leaving no lineal descendants. The constitutional right to bear arms, Uviller and Merkel conclude, has evaporated along with the universal militia of the eighteenth century.

Using records from the founding era, Uviller and Merkel explain that the Second Amendment was motivated by a deep fear of standing armies. To guard against the debilitating effects of militarism, and against the ultimate danger of a would-be Caesar at the head of a great professional army, the founders sought to guarantee the existence of well-trained, self-armed, locally commanded citizen militia, in which service was compulsory. By its very existence, this militia would obviate the need for a large and dangerous regular army. But as Uviller and Merkel describe the gradual rise of the United States Army and the National Guard over the last two hundred years, they highlight the nation's abandonment of the militia ideal so dear to the framers. The authors discuss issues of constitutional interpretation in light of radically changed social circumstances and contrast their position with the arguments of a diverse group of constitutional scholars including Sanford Levinson, Carl Bogus, William Van Alstyne, and Akhil Reed Amar.  

Espousing a centrist position in the polarized arena of Second Amendment interpretation, this book will appeal to those wanting to know more about the amendment's relevance to the issue of gun control, as well as to those interested in the constitutional and political context of America's military history.

Editorial Reviews

From Publishers Weekly

The Second Amendment to the Constitution states that a "well regulated Militia" is necessary to the security of a free State, and that the "right of the people to keep and bear Arms, shall not be infringed." Today, this sparse text has sharply divided anti-gun forces (who downplay the right to arms granted in the Constitution) and supporters of the NRA (who tend to ignore the "well regulated Militia" clause). Uviller (The Tilted Playing Field) and Merkel, a doctorate candidate at Oxford, offer a fresh interpretation of the Second Amendment, aiming to recover it's original intent and to examine how the passing of time has affected the amendment's meaning and vitality. The authors' thesis is that the Second Amendment granted citizens an individual right to bear arms, but only in the context of their obligation to protect the community by serving in the state militia. The militia was designed to counterbalance a national standing army, which experience had shown carried a threat of despotism by the central authority. Over the 200 years since adoption of the Second Amendment, as the authors explain in detail, the militia has disappeared from the American scene. Thus, they argue, the Amendment's right to bear arms, intelligible only in relation to the militia, has "simply fallen silent in the midst of the tumultuous debate on the issue in today's world." In its seriousness of tone, abundant citation of sources, and careful discussion of opposing schools of thought, this presents a powerful case for declaring the Second Amendment irrelevant to the issue of firearms in America.
Copyright 2002 Reed Business Information, Inc.

Review

“A major advance in Second Amendment studies and a fundamental challenge to the popular but misguided view that the amendment unequivocally recognizes and protects a strong individual right to own and use firearms, free of public regulation.”—Jack Rakove, author of the Pultizer Prize–winning Original Meanings: Politics and Ideas in the Making of the Constitution

“H. Richard Uviller and William G. Merkel have written an outstanding book. One need not agree with every one of their arguments in order to recognize this as a major contribution to the debate about the intellectual origins of the Second Amendment. Anyone interested in the topic—including the potential implications of the Amendment for contemporary gun control policy—should read this book.“—Sanford Levinson, University of Texas School of Law

“Uviller and Merkel offer a very valuable legal history of the militia and its relationship to the standing army. That history is the heart of this book, as their reading of the Second Amendment grows directly out of it. I have read accounts of these events dozens of times, but this one may be the best of all. It covers an enormous amount of ground in an astonishingly short space, in glorious prose, with a narrative flow that pulls the whole story together and sweeps the reader along.”—David C. Williams, Indiana University School of Law

See all Editorial Reviews

Product Details

• Paperback: 352 pages
• Publisher: Duke University Press Books (January 20, 2003)
• Language: English
• ISBN-10: 0822330172
• ISBN-13: 978-0822330172
• Product Dimensions: 9.3 x 6.1 x 0.9 inches
• Shipping Weight: 1.2 pounds (View shipping rates and policies)
• Average Customer Review: 2.4 out of 5 stars  See all reviews (5 customer reviews)
• Amazon Best Sellers Rank: #1,456,240 in Books (See Top 100 in Books)

Customer Reviews

Most Helpful Customer Reviews

14 of 18 people found the following review helpful:

1.0 out of 5 stars Authors misrepresent what militia is, February 10, 2004

By 

S. Corp (Austin, Texas) - See all my reviews
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This review is from: The Militia and the Right to Arms, or, How the Second Amendment Fell Silent (Constitutional Conflicts) (Paperback)

This treatise has one fundamental flaw, a misrepresentation of what the
term "militia" means. The authors equate it with an organized body
initiated and commanded by state government officials, but if that is
what the word means to them, it is not what the word meant to the
Founders. The term is from Latin, and it translates as "defense
activity". In the idiom of the era, a word for an activity could also be
used to refer to those engaged in that activity, and that usage is the
source of the confusion here.

There is also a misrepresentation of the meaning of the word "state",
which, when used in the context of the Constitution, does not mean the
government of the state, but the people of the state, whether they acted
through a government or not. When the Founders referred to a state
government, they used the term "state legislature".

The authors are correct in their thesis that the right to arms is tied
closely to the duty of militia. However, they commit a logical error in
concluding that if the duty is being neglected, the right disappears.
The duty is indeed being neglected, but the duty continues, a duty that
arises out of the social contract that created the society and the
natural rights and duties of mutual defense of rights that are the terms
of the social contract.

The duty, and the right to perform that duty, continues, regardless of
whether it is being actively performed or not. In fact, it is being
performed by millions of civilians every day, in thousands of ways.
Every time anyone reports a crime, conducts his own criminal
investigation, or makes a civilian arrest, that is militia. Any time
anyone defends himself or another from injury, that is militia. Any time
anyone asks others to join him in defending the community from any
threat, that is a militia call-up. We are all militia, when we engage in
militia, even when we act alone. There is no need for initiation or

leadership by some official. Of course, sheriffs are supposed to be the
militia commanders of their counties, and constables militia commanders
of their wards or precincts, but if they neglect to perform that duty,
the duty falls upon anyone present who is aware of a threat requiring
defensive action, or preparation for such defense.

For more on this topic see http://www.constitution.org/cs_defen.htm .

10 of 14 people found the following review helpful:

1.0 out of 5 stars Misrepresentation of the Facts, April 8, 2004

By A Customer

This review is from: The Militia and the Right to Arms, or, How the Second Amendment Fell Silent (Constitutional Conflicts) (Paperback)

The language in this book is verbose, hard to read, one almost has to be a college professor to understand it. Once you do get through it, you find that the authors, while putting forth facts about the concerns between maintaining a militia and not having a large standing army, totally ignore facts that show that the intent all along, of both federalists and anti-federalists, was to protect a pre-existing, God given right of individuals to keep and bear arms, for any reason, including hunting and self-defense, but most importantly to resist a potentially tyrannical government. They also repeat standard gun control arguments, e.g. the word "bear" only had a military context when it came to firearms, even though the minority report from Pennsylvania expressly requested an amendment that would protect the individual's right to "bear" arms for hunting. Such is the nature of books with an agenda, spinning facts and propagating half-truths and lies.

1 of 2 people found the following review helpful:

1.0 out of 5 stars Fails to Understand "Militia", August 12, 2009

By 

R. Turner "Schoolteacher" (Charlottesville, VA United States) - See all my reviews
(REAL NAME)   

This review is from: The Militia and the Right to Arms, or, How the Second Amendment Fell Silent (Constitutional Conflicts) (Paperback)

The authors go astray in failing to understand the term "militia" as it was used by the Founding Fathers. In his NOTES ON THE STATE OF VIRGINIA, for example, Thomas Jefferson wrote of "our militia, that is, of the males between 16 and 50 . . . ." A well-armed militia could be called into state or federal service to repel an invasion, and could also be used to protect the rights of the people against oppression by their own government.

The Second Amendment provides: "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." The first 13 words provide an explanation of (one reason) why the remaining 14 words were written -- but the unambiguous guarantee of the Amendment is that ". . . the right of the people to keep and bear Arms, shall not be infringed." "The people" refers to "We the People of the United States . . . ," as opposed to the use of "person" (e.g., in the Fifth Amendment) to encompass not only "the people" but also aliens within our territory. The Framers could easily have written "the right of members of the organized Militia to keep and bear arms shall not be infringed." They did not say that. They said "the right of the people to keep and bear Arms, shall not be infringed."

One might well wish to argue that the existence of a well regulated U.S. Army, Navy, Air Force, and Marine Corps in the 21st Century undermines the logic that "A well regulated Militia" is "necessary to the security of a free State" -- and use that premise as a foundation for arguing that the Second Amendment ought to be repealed. But it is dangerous for people to accept the argument that "well, things have changed since 1789," and thus we should ignore the clear language of the Bill of Rights. The Constitution guarantees that ". . . the right of the people to keep and bear Arms, shall not be infringed." If we conclude that the foundation for that right is no longer applicable -- the American people will never face a threat in which individuals will need to rise up and defend themselves or their families from foreign aggression or domestic repression -- and thus undermine one of the most fundamental guarantees of the Bill of Rights, we may set a precedent for undermining other provisions of that instrument.

For example, the Founding Fathers knew nothing about airplanes or weapons of mass destruction. So today we are engaged in a struggle against Islamic terrorism, during which in a single day 3000 innocent people were slaughtered when airplanes crashed into the twin towers. Had they been alive today, it might be argued, there is no reason to assume that the Founding Fathers would not agree that the teaching of Islam should be prohibited within the United States, so we should not allow the antiquated language of the First Amendment to keep us from doing what we "know" is right. And certainly the Founding Fathers would not have condoned "hate speech," and it was just an oversight that they did not mention it as an exception to the guarantees of freedom of speech and of the press. Once we start giving up our rights on the premise that "things have changed" and perhaps the Founding Fathers would have felt differently were they alive today, we have started down a dangerous slippery slope.

Were the Founding Fathers "gun nuts?" In the eyes of some 21st century Liberals, perhaps so. In a 1785 letter to his nephew Peter Carr, Thomas Jefferson wrote: "Let your gun, therefore, be the constant companion of your walks." In his June 1776 DRAFT Constitution for Virginia, Jefferson included (prior to a clause providing "Printing presses shall be free" language declaring "No freeman shall be debarred the use of arms."

The right of "self-defence" was important to the Founding Fathers. In a July 1811 letter to Republican editor William Duane, Jefferson wrote: "Spain, under all her disadvantages, physical and mental, is an encouraging example of the impossibility of subduing a people acting with an undivided will. She proves, too, another truth not less valuable, that a people having no king to sell them for a mess of pottage for himself, no shackles to restrain their powers of self-defence, find resources within themselves equal to every trial. This we did during the Revolutionary war, and this we can do again, let who will attack us, if we act heartily with one another. This is my creed. To the principles of union I sacrifice all minor differences of opinion. These, like differences of face, are a law of our nature, and should be viewed with the same tolerance . . . ."

This book is part of a large body of scholarship designed to dismiss the right of the American people to keep and bear arms on the assumption that the "Militia" was merely the organized National Guard of each State, and the very clear language "the right of the people to keep and bear Arms, shall not be infringed" REALLY is but a "collective" right of each state to have a National Guard -- whose members may carry arms while in training or when called to active duty. Whatever one might think about guns and gun owners, such a free-wheeling approach to constitutional interpretation ought to worry anyone who cherishes our Bill of Rights. Repeal the Second Amendment if you like (and can get the votes); but don't pretend the Framers did not mean what they clearly said.