Book Review

Politics Or History?:
The Second Amendment in Law and History
edited by Carl T. Bogus
(The New Press, 2001)

reviewed by Richard A. Forsten, Esquire

The Second Amendment is short and deceptively simple: “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.” Historically, and until relatively recent times, there was little debate about the meaning of these 27 words. In each of the three cases in which the Supreme Court considered the amendment (in 1876, 1886 and 1939), the Court held that it granted the people a right to bear arms only within the militia. Yet today there is significant debate among leading constitutional scholars as to the meaning and scope of the Second Amendment. On the one side are those who argue, in accordance with the earlier Supreme Court decisions, that the amendment protects only a collective right to bear arms as part of the militia. On the other side are those arguing that the amendment protects an individual right to bear arms, including such constitutional luminaries as Sanford Levinson, Akhol Reed Amar, Leonard Levy and Laurence Tribe.

As if to underscore this divergence, two circuit courts have ruled on the scope of the Second Amendment, each going a different way. In Silveira v. Lockyear, 312 F.3d 1052 (9th Cir. 2002), the Ninth Circuit held that the Second Amendment does not confer an individual right to bear arms. In United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), the Fifth Circuit held that the amendment does protect the right of individuals to privately possess and bear their own firearms. With the Supreme Court having denied cert in both cases, the battle over the Second Amendment isn’t going to end anytime soon.

In The Second Amendment in Law and History, Professor Carl Bogus has brought together nine essays on the scope and meaning of the Second Amendment. He introduces these essays with a short essay of his own on Second Amendment scholarship. As already observed above, the Second Amendment was fairly uncontroversial for at least its first 160 years or so. Beginning in the 1960’s, though, articles first began appearing arguing for an individual right to bear arms. In 1989, Professor Sanford Levinson published “The Embarrassing Second Amendment” in the Yale Law Journal, in which he cited (and seemed to support) earlier authors who had argued the individual model.

Moreover, Levinson suggested that constitutional scholars had not taken the Second Amendment seriously simply because they didn’t like it. Five years later, Harvard University Press published To Keep and Bear Arms: The Origins of an Anglo-American Right by Professor Joyce Lee Malcolm. She argued that the Second Amendment had its roots in the English Declaration of Rights of 1689 and English history, and that the framers, familiar with this legacy, adopted this right to bear arms from England. Finally, in 1999, in his third edition of his treatise, American Constitutional Law, Professor Laurence Tribe concluded that the Second Amendment guaranteed an individual right (although he was hesitant about how much protection was afforded).

Having set the stage, Bogus’s introduction is followed by nine essays, all of which attack the notion of an individual right for one reason or another. For the most part, these essays are interesting and well-written. At times, though, one has the feeling that one is reading an answering brief without having read the opening brief and without the chance to read a reply. This can make some of the essays less than satisfying. Moreover, even as some of the authors attack various proponents of the individual right school for faulty scholarship, they rely on work by one scholar whose work has since been seriously attacked and questioned to the point where he resigned his position in the face of suggestions that he made up sources and committed academic fraud. In addition, a few essayists use the difficulties associated with interpreting the Second Amendment to make a broader attack on originalism as a method of constitutional interpretation in general. Overall, though, all of the essays make interesting points and provide interesting perspectives.

It is hard to imagine what the framers would have thought about the arguments being made about the Second Amendment today. Together with the Circuit Court decisions in Silveira and Emerson, this collection of essays demonstrates the difficulties in making sense of the 27 words comprising the Second Amendment.

Return to Januaray 2004 Table of Contents.