It looks like we are going to see this year a campaign to
restrict the right of Americans to keep and bear arms. It is going
to be led by politicians racing to exploit the tragedy at Newtown,
Connecticut, where 20 children and seven adults were slain by a
mentally ill young man using a semi-automatic rifle. It is too soon
to gauge whether this campaign will center on the Congress, the
courts, or the states. It is not too soon to say that it will be
quite a show at the palladium.
“Palladium” is the word that was used by St. George Tucker to
describe the Second Amendment to the Constitution. Tucker was a
lawyer from Virginia, where he taught at William and Mary and
served on the state’s supreme court before he was elevated in 1813
to the federal district court. The most quoted legal authority of
his day, Tucker brought out an American edition of Blackstone’s
Commentaries, in which he offered his famous description of
the Second Amendment.
I went back and read it in the wake of the shooting at Newtown.
This was after the headlines hit describing how Wayne LaPierre of
the National Rifle Association is the “craziest man on earth” and
how Mayor Bloomberg of New York declared himself the greatest
defender of the Second Amendment. What is the Second Amendment
really about? Is Wayne LaPierre crazy for talking in terms of
freedom? Why was St. George Tucker, in his edition of
Blackstone’s, so pointed in respect of guns?
Tucker’s famous phrasing is in a section of his commentaries on
the restraints that the Constitution lays on the Congress. His
comment starts with the Second Amendment in full. “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.” Then
he writes, “This may be considered as the true palladium* of
liberty.”
The right of self-defense is described by Tucker as “the first
law of nature.” He adds that “in most governments it has been the
study of rulers to confine this right within the narrowest limits
possible.” Then he writes: “Wherever standing armies are kept up,
and the right of the people to keep and bear arms is, under any
colour or pretext whatsoever, prohibited, liberty, if not already
annihilated, is on the brink of destruction.”
One doesn’t have to believe that America is on the brink of
destruction—I don’t—to nonetheless hold to the view, as I do, that
the principles undergirding the Second Amendment are as relevant
today as when they were first enacted. In England, Tucker notes,
“the people have been disarmed, generally, under the specious
pretext of preserving the game.” He complains that, despite the
English having a right to arms in theory, “not one man in 500 can
keep a gun in his house without being subject to a penalty.”
The business about standing armies turns out to have animated
the First United States Congress. This is plain in the records of
the debate on the drafting of the Second Amendment, which took
place in August of 1789. “This declaration of rights, I take it, is
intended to secure the people against the mal-administration of the
Government,” said Elbridge Gerry of Massachusetts. “If we could
suppose that, in all cases, the rights of the people would be
attended to, the occasion for guards of this kind would be
removed.”
Gerry referred to the militia, which at the time meant all
men.** Lest there be any misunderstanding, Gerry addressed the
point bluntly: “What, sir, is the use of a militia? It is to
prevent the establishment of a standing army, the bane of
liberty.…Whenever Governments mean to invade the rights and
liberties of the people, they always attempt to destroy the
militia, in order to raise an army upon their ruins.”
There are those who reckon that the founder who wrote the Second
Amendment, James Madison, did so to protect against slave
rebellions. This is a theory that a law professor at Roger Williams
University, Carl Bogus, expounded in the law review of the
University of California at Davis. But it could hardly account for
the views of Tucker, who issued an early call for the emancipation
of the slaves of Virginia, or later commentators, who opposed
slavery while sharing Tucker’s view of the Second Amendment as the
palladium of liberty.
One of them was Justice Joseph Story, another opponent of
slavery who issued his own commentary on the Constitution. “The
militia,” he wrote, “is the natural defence of a free country
against sudden foreign invasions, domestic insurrections, and
domestic usurpations of power by rulers… The right of the citizens
to keep and bear arms has justly been considered, as the palladium
of the liberties of a republic; since it offers a strong moral
check against the usurpation and arbitrary power of rulers.”
Story wrote of the importance of regulating the militia and
warned that “among the American people there is a growing
indifference to any system of militia discipline, and a strong
disposition, from a sense of its burthens, to be rid of all
regulations.” He reckoned that it was “difficult to see” how it
would be “practicable to keep the people duly armed without some
organization.” There is, he warned, “no small danger, that
indifference may lead to disgust, and disgust to contempt; and thus
gradually undermine all the protection intended by this clause of
our national bill of rights.”
Are we in such a moment? There is a tendency in the
bien-pensant salons today to ridicule the concerns that
animated the enactment of the Second Amendment. But there is new
research that underscores the wisdom of the Founders. It has been
done by Edwin Vieira Jr., whom I have described as the most
right-wing scholar who still credits the Constitution. He has just
brought out, in a privately published edition, a magisterial work
on the militia clauses. He has observed that the well-regulated
militia is the only institution that the Founders marked as
“necessary” to the security of a free state, which is why the
Constitution forbids infringing the right of the people to keep
arms and bear them. No wonder they call it the palladium.
*
Webster’s Second International defines the word as referring to the
statue of the goddess Pallas Athena, on the preservation of which
the safety of Troy depended, and hence as connoting anything that
affords effectual protection.
**
Today the United States code—Chapter 10, Section 311—states that
“the militia of the United States” consists of “all able-bodied
males” between the ages of 17 and 45 who are or who have declared
they intend to become citizens and of “female citizens of the
United States who are members of the National Guard.” It says there
are two classes of militia: the “organized militia, which consists
of the National Guard and the Naval Militia” and “the unorganized
militia, which consists of the members of the militia who are not
members of the National Guard or the Naval Militia.”
