Chris Mooney's Showdown in an interesting review of the controversy between Standard Model legal scholars who are finding evidence of an individual right to arms and the upstart anti-individual-rights historians who claim such rights went away after the revolution. Mooney's piece contains a number of obvious and unresolved self-contradictions, however:
At the heart of both Bellesiles's argument about the surprisingly low eighteenth-century gun-ownership rate and Cornell's argument about the Pennsylvania Test Acts is the notion that postrevolutionary Americans did not widely possess guns or assume a right to possess them. Early American gun ownership was not for everyone. Indeed, the first Supreme Court mention of the Second Amendment was in the notorious 1857 Dred Scott v. Sanford decision, in which Chief Justice Roger Taney objected that if free blacks were considered citizens, they would possess the right "to keep and carry arms wherever they went."This paragraph is self-contradictory. Bellesiles argues that the right was not widely held. Dred Scott says exactly the opposite: that the Supreme Court recognized citizenship includes the right to arms, which it held should be denied blacks along with their citizenship. Surely Mooney is not siding with the Court that blacks are non-citizens who should be denied their rights? Similarly Mooney extolls:
Even more boldly, some critics claim that the Second Amendment was adopted only as a favor to slave ownersThis is diametrically opposed to reality. Gun control's origins are in the black codes designed to prevent newly freed slaves from owning arms, thus denying them their Constitutional Second Amendment rights as the Scott decision did. Any historian who somehow overlooks the extremely clear and racist history of gun control isn't much of a historian.
The Bill of Rights and Declaration of Independence formalize a contradiction with the Constitution with respect to slavery. How can all men created equally and with God-given rights be counted as less than men and denied those rights? Unfortunately it took a horrifying war to resolve this issue, among others.
Mooney's implication that the National Guard now takes the place of the state militia is severely and obviously flawed:
Other scholars and judges, however, have argued for a "collective rights" view that emphasizes the amendment's opening clause. According to this reasoning, gun ownership would be protected only in the context of a state militia, such as the National Guard.As Perpich v. Department of Defense showed, the National Guard is not the State Militia. Rudy Perpich, then Governor of Minnesota, sought to block his state's National Guard units from attending military exercises in Central America. However the U.S. Supreme Court found that the National Guard is part of the enlisted Reserve Corps of the standing army, and "lose their status as members of the state militia during their period of active duty" since they come under Federal control. So the National Guard cannot meet James Madison's requirement in Federalist No. 46 for a state militia to counterbalance a standing national army.
Regarding a lack of recognition for the right of revolution or even resistance to governmental tyranny in official government documents, the anti-individual-rights historians certainly have a point. The Constitution, exclusive of the Bill of Rights, is an operational document for establishing and running a country in a peaceful and hopefully consistent manner. It would be highly unusual for such a document to acknowledge the right of the people to use force to demolish itself even under the most dire circumstances. (That was Thomas Jefferson's separate task in the Declaration of Independence.)
In contrast, the Bill of Rights is a counter to the strong central government the Constitution creates. The history of the Bill of Rights in the Federalist and Anti-Federalist Papers clearly does contain a theme of individuals potentially using force to resist unjust laws, arbitrary government and especially a powerful standing army, and it sought to ensure they had the tools to do so. That potential was meant as a check to discourage said injustice from arising in the first place. Removing that check would tamper dangerously with the balance of power between people and government and make abuses of centralized power more likely. The founders' great fear of a standing army seizing control of government, however likely or not, would then have little practical impediment.
It's worth noting that we now have a variety of "standing armies," most with arms similar to those of the military but with far less discipline and control, in the form of armed bureaucrats and agents from the BATF, FBI, DEA, and other national and local public and secret police operations. All these varied and present troops are far more of a potential threat to freedom than the people themselves ever could be. A state monopoly on force may be acceptable in countries that derive from monarchies or central planners, but it is inherently incompatible with a system derived from individual freedom. Yes this is an ideological argument, but our country was formed precisely to foster and promote those ideas. The concept of individual freedom may have fallen out of fashion in the modern welfare state, but it is no less valid or relevant.
I sincerely hope the Supreme Court hears the Emerson case or others like it. If this contradiction within the Bill of Rights and Constitution can be resolved peacefully and consistently with our principles of individual freedom, then it would be a sign that our system can still function properly.
Jeff Chan