Constitutional Opinions

Next at the Palladium

By From the February 2013 issue

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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.”

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About the Author

Seth Lipsky, founding editor of the New York Sun, is the author of The Citizen's Constitution: An Annotated Guide (Basic Books).