Mr. Kopel, research director of the Independence Institute, & author of The Second Amendment in the Nineteenth Century
National Review Online, March 16, 2001 9:35 a.m. More by Kopel on the original meaning of the Second Amendment.
Of all the intellectuals who endorse gun prohibition, none is more eminent that Garry Wills. It is therefore especially interesting to note what kinds of contortions Wills must perform in order to support his wish that the federal government may confiscate handguns from law-abiding citizens.
Wills made a big splash with a 1995 article in the New York Review of Books, titled "Why We Have No Right to Bear Arms." (Sept. 21, 1995). Acknowledging that the "Standard Model" of contemporary legal scholarship recognized the Second Amendment as guaranteeing an individual right, Will countered that the Second Amendment "had no real meaning." Thus, according to Wills, only "wacky scholars" and their dupes believe that the Second Amendment affirms a right of individuals to own firearms for protection against tyranny. The Wills article has been cited by Federal District Judge Jack Weinstein, and is perhaps the most-cited professorial article used in arguments against the Second Amendment as protecting a meaningful right of the people.
One of Wills's main points is that the language of the Second Amendment itself is contrary to an individual right. This is a particularly tough point for Wills to make, since — as the Supreme Court has written — the phrase "right of the people" appears several times in the Constitution, and appears to be a "term of art" having a consistent meaning. [United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990).]
Could it really be that Madison meant to guarantee a meaningful individual right in the First Amendment (which protects "the right of the people" peaceably to assemble), but in the very next Amendment, Madison used "the right of the people" to create an Amendment that had no real meaning? Then, in the Fourth Amendment, Madison reverted to his former draftsmanship, and guaranteed "the right of the people" to be free from unreasonable searches — and he meant this right to be a meaningful right of individuals. Then, in the Ninth Amendment, rights were reserved to "the People" — again referring to ordinary Americans.
Wills does not attempt to prove that Madison kept changing his mind about whether "the people" mean "people" or "nobody at all." Nor does Wills attempt to refute the Supreme Court's recognition of the common meaning of "right of the people" throughout the Bill of Rights.
Nor does Wills carefully examine all of what Noah Webster — the foremost authority on early American usage — has to teach about the Second Amendment. If you look up every word from the Second Amendment in Webster's American Dictionary of the English Language, then you get a rather plain statement of the Standard Model of the Second Amendment. Using Webster's definitions, the Second Amendment would read: "The good order of able-bodied men required to attend military exercises on certain days being indispensably requisite to the protection of a not-enslaved body politic, the just claim of the body of persons who compose the United States to retain and wear weapons and armor shall not be violated."
While hardly as elegant as the Second Amendment, Webster's dictionary does point us in the same direction as did the many 19-century legal commentators who explained that the militia (an essential institution of a free society) will only be effective as long as the people are guaranteed the ownership of arms. In fact, Noah Webster himself, during the ratification debates, provided a concise summary of why the entire population should be armed:
"Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States." [Noah Webster, "An Examination into the leading principles of the Federal Constitution."]
Since Garry Wills argues that resistance of a tyrannical government would be treason, it is not surprising that Wills prefers not to engage Noah Webster in much detail.
Wills takes a rather different approach to language. He translates various terms from the Second Amendment into Latin, announces that all the terms — in Latin — have a military connotation, and therefore the Second Amendment is a meaningless platitude about the military and not an affirmation of the people's legal right to have weapons. The most obvious objection to this approach is that the Constitution was written in English, and intended to be comprehensible to the entire American population, much of which did not speak Latin. Nor is there any historical evidence that Madison hinted about a secret non-meaning of the Second Amendment which could be uncovered by translating the Amendment into Latin.
Of course many of the Founders, Madison included, were college-educated, and could read Latin fluently. But many of them could also read Greek, which was an essential part of the college curriculum of the time. Madison also knew French, Spanish, and Hebrew, as did many other educated men of the period. So why not translate the Constitution into Greek, French, Spanish, or Hebrew, and find what meaning could thus be invented against the plain meaning of the text in English?
Translating a document from its original language into a second language inevitably creates distortions based on the cultural differences between the two languages. There is no word for "privacy" in Russian, so trying to understand the U.S. Supreme Court's landmark privacy case Griswold v. Connecticut by first translating the case into Russian is likely to impede, rather than enhance, understanding. That is why scholars trying to analyze the intended meaning of Bible passages read those passages in the language in which they were written.
The Roman Empire where Latin existed as a living language was, for its last five centuries, ruled by a standing army increasingly dominated by conscripts and mercenaries; the Empire was a military dictatorship which had fallen away from republican virtue. The Founders were familiar with Edward Gibbon's The Decline and Fall of the Roman Empire, and thus with Gibbon's observation, early in the first volume, that "A martial nobility and stubborn commons, possessed of arms, tenacious of property, and collected into constitutional assemblies, form the only balance capable of preserving a free constitution against the enterprises of an aspiring prince."
By looking through the lens of a language from a society that embodied what the Second Amendment was intended to prevent, Wills obscures his vision.
Consider, for example, the totally different meanings of "liberty" and "freeman" in Rome and in the United States, as explained by Francis Lieber, one of the most important political scientists of early America:
"The Roman lawyers say that liberty is the power (authority) of doing that which is not forbidden by law...The same lawyers say: Whatever may please the ruler has the force of law. They might say with equal correctness: Freeman is he who is directly subject to the emperor; slave, he who is subject to the emperor through an intermediate and individual master. It settles nothing as to what we call liberty, as little as the other dictum of the civil law, which divides all men into freemen and slaves. The meaning of freeman, in this case, is nothing more than non-slave; while our word freeman, when we use it in connection with civil liberty, means not merely a negation of slavery, but the enjoyment of positive and high civil privileges and rights."
Winston Churchill once suggested that the most significant fact of the twentieth century was that Great Britain and the United States spoke the same language. Churchill's point was that a common language creates a host of common assumptions about society. If we want to understand the Second Amendment and the rest of the Constitution, then we must start by using the language in which those documents are written: English.
One might ask why Wills bases his theory of the Second Amendment on a methodology only slightly more useful than translating the Constitution into computer programming languages like C++ or BASIC. The answer may be that building a case for a meaningless Second Amendment is impossible if one relies primarily on normal sources, such as the text of the Constitution as written in English.
All of the legislative history of the Second Amendment indicates that the Americans who put it into the Constitution thought that it meant something. Congress debated the particular language of the Amendment; several states which ratified the Constitution simultaneously adopted resolutions demanding a Bill of Rights, and containing language which was eventually incorporated in the Second Amendment. Yet Wills would have us ignore the obvious intentions of all the people from the Founding Era who thought that the Second Amendment had meaning; instead, we are supposed to rely on the alleged secret intentions of James Madison, having first discerned those intentions by translating his words into Latin.
That someone as smart as Wills can make such preposterous arguments shows how desperate are the emotional needs, in some quarters, to make the Second Amendment disappear by sheer will-power. Garry Wills despises "the sordid race of gunsels" and "gun fetishists" whose mere ownership of defensive firearms makes them "traitors, enemies of their own patriae." [Garry Wills, "Gun Rules...or Worldwide Gun Control?" Phil. Inq., May 17, 1981, page 8E; Garry Wills, "John Lennon's War," Chi. Sun-Times, Dec. 12, 1980.]
Wills' problem is he believes, as he wrote in 1981, "Every civilized society must disarm its citizens against each other" Unfortunately for Wills, he lives in a nation whose Supreme Court has declared that the right to keep and bear arms "is found wherever civilization exists." [United Cruikshank, 92 U.S. 542, 551 (1876).]