THE  FOUNDING  FATHERS  AND  THE  ORIGIN  OF  GUN  CONTROL  IN  AMERICA

THE MODERN GUN CONTROL DEBATE

AND THE EMERGENCE OF THE

COLLECTIVE RIGHTS THEORY

On a pleasant August day in 1910, William J. Gaynor, mayor of New York, waved good-bye to friends and supporters aboard a cruise ship docked along the Hudson River. A noted reformer who had vowed to clean up city hall politics, Gaynor was looking forward to a much-deserved vacation. The calm of the moment was shattered when a disgruntled city employee wielding a pistol rushed out of the crowd of well-wishers and shot Gaynor. Although he had been seriously injured, the mayor survived the failed assassination attempt, which shocked the city and gave additional impetus for those eager to enact more stringent firearms regulations. Within a year's time another noted city politician, Timothy "Big Tim" Sullivan, had persuaded the New York State legislature to enact the most wide-ranging gun control statute in American history. The Sullivan law not only regulated the right to carry firearms, but also severely restricted the possession of firearms in one's home and business. The law also instituted a license requirement for the ownership of handguns. Gun owners protested the law. Although a few challenges invoked the authority of the Second Amendment, these were easily dismissed in light of the holding in Cruikshank. The New York Times editorialized on this theme, confidently declaring that the Second Amendment "does not restrict the right of the states, in the exercise of their police power, to regulate the manner in which arms shall be kept or borne." Although the Cruikshank precedent appeared to effectively rule out future Second Amendment claims against gun control law, supporters of gun rights clung to the hope that their alternative view of the Second Amendment might someday gain ascendancy.60

Another barrier against making the Second Amendment the foundation for opposition to gun control was the emergence of the collective rights reading of Cruikshank. This theory was developed in a short but influential article in the Harvard Law Review (1914) authored by Lucillus A. Emery, chief justice of the Maine Supreme Court. Profound changes in American society, Emery warned, necessitated the articulation of a theory to justify more robust regulation of firearms. Among the pressing reasons that prompted a new approach to gun regulation, Emery listed the following: the "greater deadliness of small arms," the "alarming frequency of homicides," and the rise of a distinctive criminal class "known as gunmen from their ready use of such weapons for criminal purpose." These developments inspired Emery to ponder "the question of the reason, scope, and limitation of the constitutional guaranty of a right to keep and bear arms,—of the extent of its restraint upon the legislative power." He concluded that the Second Amendment posed minimal restraints on the power to regulate firearms.61

Emery began his consideration of the amendment's meaning with the preamble's affirmation of the need for a well-regulated militia. Reading the text of the amendment through the lens of the preamble was hardly a novel legal strategy; most constitutional commentators since the adoption of the amendment had done so. Profound changes in the legal definition of the militia had transformed the meaning of the preamble's words. Writing after the emergence of the modern National Guard, Emery viewed the militia in fairly narrow terms. The words of the preamble no longer referred to the universal militia of the Founding era, but now described the modern National Guard. The Second Amendment's guarantee only applied to persons who "bear arms in military organizations." Perhaps the most significant aspect of Emery's argument was his explicit reformulation of the Second Amendment as a collective right. "The right guaranteed is not so much to the individual for his private quarrels or feuds as to the people collectively for the common defense against a common enemy, foreign or domestic." After Emery, the debate over the meaning of the Second Amendment was cast in terms of a simple dichotomy: collective versus individual right. By refrarning arms bearing as a collective right, not a right of the states, Emery's model implicitly absorbed the new modern understanding of the militia encoded in the Dick Act. The collectivity that exercised this right was no longer the militias of the individual states, but rather the National Guard.62

According to Emery's collective rights theory, the Second Amendment posed absolutely no barrier to gun regulation. Asserting such a claim did not mean citizens had no rights to keep and use firearms. The common law continued to provide some protections for gun owners. In the absence of any explicit legislation, citizens were, of course, free to own whatever guns they desired. For citizens living in states that had embraced the more individualistic Jacksonian model of arms bearing in their state constitutions, there was even more protection for gun rights. In the absence of such explicit state constitutional provisions, however, legislatures were free to follow New York's example and enact highly restrictive gun control legislation.63

The collective rights paradigm developed by Emery effectively recast the late nineteenth-century debate about the meaning of the right to bear arms that had arisen during Reconstruction in terms that better suited the demands of the twentieth century's equally acrimonious debate over gun control. In its original Anti-Federalist form, the states' rights theory of the Second Amendment was intended to give the states the potential to challenge federal authority. The post-Civil War version of the states' rights theory jettisoned these revolutionary aspirations. Democrats used the Second Amendment as a convenient constitutional hook upon which to hang their challenge to the Republican theory of incorporation. By recasting the states' rights theory as a collective right, Emery further diluted the amendment's connection to federalism. In a sense, Emery's argument was more concerned with demonstrating that the Second Amendment was not an individual right than with probing its positive contribution to American constitutionalism. Henceforth, the debate over the Second Amendment would be framed around the requirements of the modern debate over gun control.

Demand for more effective gun control was closely tied to public perception of crime. The growth of organized crime during the Prohibition era made gangster weapons such as the machine gun powerful symbols of the danger posed by firearms. The most notorious episode of machine gun violence occurred on St. Valentine's Day in 1929 when a group of gunmen from Al Capone's gang executed members of a rival gang. Outrage over the St. Valentine's Day Massacre helped focus public attention on the need for more effective gun regulation. The demands for some type of federal involvement finally bore fruit in 1934 when Congress enacted the first comprehensive federal firearms law. The National Firearms Act regulated firearms. dealers and imposed a series of taxes on particular classes of weapons, including machine guns. The law took advantage of congressional authority to levy taxes and used this power to target the types of weapons associated with gangsters and bootleggers. The National Firearms Act of 1934 taxed the manufacture, sale, and transfer of sawed-off shotguns, machine guns, and silencers. The act sought to limit access to this class of weapons, which was closely identified with criminal behavior.64

The constitutionality of this law was challenged on Second Amendment grounds in U.S. v. Miller. The defendants in the case, Jack Miller and Frank Layton, had allegedly transported an unregistered, sawed-off shotgun across state lines. The district court in Arkansas quashed the indictment on Second Amendment grounds, and the government appealed directly to the Supreme Court, which agreed to hear the case. Miller and Layton took flight rather then stick around to defend their Second Amendment rights. The only brief filed in the case was the one prepared by Franklin Roosevelt's solicitor general, Robert Jackson, who eventually went on to become a prosecutor at the J Nuremberg trials and a Supreme Court justice.65

The government's brief advanced a set of familiar arguments. Solicitor General Jackson drew on Emery's collective rights formulation. The government described the scope of the Second Amendment's protection as "generally restricted to the keeping and bearing of arms by the people collectively for their common defense and security." Furthermore, the brief asserted that "the Second discloses that this right has reference only to the keeping and bearing of arms by the people as members of the state militia or other similar military organizations provided by law." The government also quoted extensively from State v. Buzzard, the case that enunciated what Bishop had called the "Arkansas doctrine." In addition to a long list of state cases, the brief cited many of the major nineteenth-century commentators, including Bishop, Joseph Story, and Francis Wharton, to support its collective rights reading. According to the government's theory, the right to bear arms had been intended to preserve a citizen's right to defend public liberty as part of a well-regulated militia and did not extend to weapons owned for individual self-defense. Thus, while the brief employed the newer language of Emery's collective rights argument, the substance of its claims drew on the "Arkansas doctrine," a well-established body of antebellum jurisprudence that Bishop and others had identified as the orthodox view of bearing arms in American law. Indeed, apart from Emery's novel collective rights terminology there was nothing in the government's brief that would not have been available in Bishop's important treatise.66

The Supreme Court did not expressly adopt Emery's collective rights language. Instead, the court seemed to reach back further in history quoting colonial militia practices and antebellum case law. The theory the Court embraced was clearly militia based, fusing elements of the traditional civic conception and the states' rights view that had emerged at the end of the nineteenth century The emphasis in Miller was on bearing arms in the militia, not on the right of the states to maintain their militias. One thing was clear, the Court rejected the lower court's anomalous individual rights reading of the amendment. To dispel any possible doubt on this issue, Justice James C. McReynolds offered his own gloss on the case in the introductory remarks he made before the decision was announced in court. The New York Times reporter covering the case wrote, "Justice McReynolds drawled from the bench: 'We construe the amendment as having relation to the military service and we are unable to say that a sawed-off shotgun has relation to the militia.' "67

Although the Court cited the antebellum case of Aymette, it tightened the principle articulated in that case by requiring that the weapon not only be of a type associated with militia duty, but that it also be used in conjunction with some type of militia-related activity The only weapons entitled to Second Amendment protection were those that met both criteria. As for the first point, the Court concluded that 

in the absence of any evidence tending to show that the possession or use of "a shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. 

Miller's weapon was not "part of the ordinary military equipment" of the militia, nor did the occasion of its use "contribute to the common defense." The Court had decisively rejected the notion that one had an individual right under the Second Amendment to own firearms for reasons unconnected with militia activity.68

Miller and Layton, the defendants in the case, had no connection to the militia and thus were technically without standing to bring a Second Amendment claim. Rather than address this issue, the Court wisely recognized that the definition of the militia could change. If Congress decided to recreate the universal militia of the Founding era, a plausible scenario in an era when Europe was at war, the defendants might well have been able to raise such a claim. It was therefore important for the Court to reach a determination on the scope of congressional power over firearms quite apart from the issue of who might claim to be a member of the militia. Had the Court dismissed the case on the standing issue it never would have reached a decision on the type of weapon at the root of the case. The Court took the opportunity to settle this issue, which was a pressing public policy concern, the right to ban certain types of weapons closely associated with criminal behavior. The Court prudently developed a two-prong test to evaluate a Second Amendment claim: weapons had to be of a type related to militia activity and had to be used in conjunction with participation in a well-regulated militia. This test avoided the potentially absurd result of giving criminals the opportunity to claim that if their guns were used by the National Guard and part of the ordinary equipment of the soldier they were entitled to Second Amendment protection. If the court had focused exclusively on the type of weapon and ignored the context in which the weapon was used, it would have given Second Amendment protection to criminals bearing bazookas and flamethrowers.69

While the language of the decision appeared to be closer in spirit to the antebellum civic rights view than Emery's collective rights theory, these legal subtleties were lost on most contemporary commentators, who read the decision as a straightforward endorsement of the collective rights view. Emery's interpretation had achieved something like a hegemonic dominance among legal commentators and scholars, and this view was reflected in contemporary reports of the case. Reactions among legal scholars were uniformly supportive of some variant of the collective rights reading of the decision. In its "Case Notes," the California Law Review noted that the Court "held that the right refers to the people as a collective body."70

The case attracted relatively little attention in the mainstream press. Reports of the case did not treat it as a momentous ruling in the history of the Second Amendment. As one might expect for a case decided during the New Deal, the issue that sparked the greatest interest was the Court's vindication of the federal government's broad powers to regulate economic conduct, in this case the sale and transfer of firearms. In particular, the press seized on the government's ability to deal with weapons closely associated with criminal behavior, in this case a sawed-off shotgun. This issue seemed more resonant than any Second Amendment claims that had arisen in the lower court decision. A brief notice about the case in the Chicago Tribune bore the headline "U.S. High Court Bars Sawed Off Shotgun Sales."71

Subsequent federal court decisions interpreted Miller through the same lens as contemporary law reviews used to understand the case. The Second Amendment protected a collective right tied to participation in the militia. Four years later in U.S. v. Tot, the Third Circuit Court of Appeals held that 

it is abundantly clear both from the discussions of this amendment contemporaneous with its proposal and adoption and those of learned writers since that this amendment, unlike those providing for protection of free speech and freedom of religion, was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power. 

Employing the language used by Emery, the Court concluded that the Second Amendment protected a collective right. Tot's collective reading of Miller soon became the orthodox interpretation of the meaning of the Second Amendment by the federal courts.

While federal courts and mainstream legal academics continued to accept the orthodox reading of Miller as affirming a collective right, proponents of gun rights steadfastly adhered to their own individual rights reading of the Second Amendment. The most important organization lobbying for this individual rights view was the National Rifle Association (NRA), which began as an organization devoted to improving marksmanship after the Civil War era. The rise of modern gun control, beginning with the enactment of the Sullivan law at the dawn of the twentieth century, pushed the NRA toward greater political activism. The final evolution of the NRA into its current form, a militant gun rights organization built around an aggressive Second Amendment ideology, occurred largely in response to the passage of the Gun Control Act of 1968. This law was enacted after the assassinations of Robert F. Kennedy and Martin Luther King, Jr. The most comprehensive federal gun regulation in American history, it added new prohibitions on interstate sale of weapons, prohibited sales to certain classes of dangerous persons, and tightened regulation of firearms dealers. Much as the first gun control laws passed in Jacksonian America only intensified the ideology of gun rights, so, too, the passage of more restrictive federal gun control laws during the turbulent era of the 1960s led to a more aggressive commitment to gun rights.72

Gun rights ideology has continued to flourish in America, particularly in many parts of America where firearms remain deeply embedded in popular culture. Efforts to challenge federal gun control laws on Second Amendment grounds, however, gained little ground in the courts. The legal campaign of gun rights advocates has proven far less effective than grassroots organizing and lobbying by the NRA and other pro-gun organizations. Although the NRA has mounted many legal challenges to federal and local gun laws on Second Amendment grounds, these cases invariably ran up against the orthodox collective rights reading of Miller. Undaunted by this fact, a small but industrious group of legal academics committed to gun rights, aided by gun rights activists outside of the academy, began churning out at an astonishing rate law review articles that supported the individual rights view of the Second Amendment. This revisionist body of scholarship was eventually dubbed the new Standard Model" of the Second Amendment by its supporters. This view prompted others within the legal academy, particularly those with a contrarian bent, to embrace this new individual rights theory. While legal scholarship had been firmly supportive of the collective rights reading for most of the twentieth century, the pendulum began to shift toward the individual rights reading in the last decade of the century.73

While the so-called "Standard Model" was dismissed by most federal courts, proponents of gun rights finally scored a modest, victory in U.S. v. Emerson (2001). Building on this revisionist body of academic scholarship associated with the Standard Model, the Fifth Circuit held that the Second Amendment did protect an individual right that had no connection with participation in an organized militia. The victory in Emerson proved somewhat hollow. While the court declared that the Second Amendment was an individual right, it upheld the federal gun control law at issue in the case. The court did not apply strict scrutiny, the most rigorous form of judicial review of federal laws. Rather, the court deferred to Congress, giving it the broadest possible latitude in crafting gun regulations. The gun regulation in question in Emerson involved a prohibition on firearms ownership by persons under a domestic violence restraining order. The court concluded that the law clearly had a rational basis, the most lax standard of judicial review, and so it easily passed constitutional muster. If the right to bear arms was an individual right, the court seemed to say, it was not like other fundamental liberties such as freedom of speech. Apparently guns were not like words. Perhaps even more disappointing to supporters of gun rights was the fact that no other federal courts rushed to follow the example of the Emerson ruling. Rather than mark a departure from orthodox readings of Miller, Emerson appears to have been an anomalous ruling that has exerted little influence on firearms law.74

Ultimately legal challenges to gun control on Second Amendment grounds have proven to be less significant than the impressive political strength and organization of grassroots gun rights activists, who have not only blocked the passage of any new federal gun control laws, but also have won an impressive string of victories in Congress furthering their cause. Gun rights advocates successfully blocked the renewal of a ban on assault weapons and crafted legislation preventing lawsuits against the gun industry. At the state level, gun rights supporters have been equally effective securing laws favorable to gun rights, including the passage of scores of laws allowing citizens to carry concealed weapons. The only arena in which gun rights supporters have failed to win is in the courts.

While the orthodox reading of Miller remains the law of the land, it is impossible to predict the future of Second Amendment jurisprudence. Given the inevitable changes in the composition of the Supreme Court, it is likely that a new test might well come before the high court and revisit Miller. Indeed, the future of Second Amendment jurisprudence remains very much up for grabs.75

Although the Second Amendment can hardly be blamed for creating the impasse that has prevented Americans from developing a rational and effective policy for dealing with firearms, the simplistic individual/collective rights dichotomy that continues to structure public discourse over this issue certainly has not helped matters much. At the dawn of the twenty-first century it is worth pausing to consider whether or not the individual/collective rights dichotomy model bequeathed to us by Emery and elaborated by subsequent commentators may have outlived its usefulness. This simplistic framework not only distorts the complex history of the struggle to define the meaning of the right to bear arms, but it also has made it difficult to frame a calm and rational public debate over this issue. The time may be ripe for a new paradigm for the Second Amendment, one that is more faithful to its rich history and better suited to the task of helping Americans move forward on this divisive issue.

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