The Militia and the Right to Arms, or, How the Second Amendment Fell Silent (Constitutional Conflicts) - Softcover

Uviller, H. Richard; Merkel, William G.

Softcover

ISBN 10: 0822330172 ISBN 13: 9780822330172

Publisher: Duke University Press, 2003

Synopsis

"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."
—Amendment II, United States Constitution

The Second Amendment is regularly invoked by opponents of gun control, but H. Richard Uviller and William G. Merkel argue the amendment has nothing to contribute to debates over private access to firearms. In The Militia and the Right to Arms, or, How the Second Amendment Fell Silent, Uviller and Merkel show how postratification history has sapped the Second Amendment of its meaning. Starting with a detailed examination of the political principles of the founders, the authors build the case that the amendment's second clause (declaring the right to bear arms) depends entirely on the premise set out in the amendment's first clause (stating that a well-regulated militia is necessary to the security of a free state). The authors demonstrate that the militia envisioned by the framers of the Bill of Rights in 1789 has long since disappeared from the American scene, leaving no lineal descendants. The constitutional right to bear arms, Uviller and Merkel conclude, has evaporated along with the universal militia of the eighteenth century.

Using records from the founding era, Uviller and Merkel explain that the Second Amendment was motivated by a deep fear of standing armies. To guard against the debilitating effects of militarism, and against the ultimate danger of a would-be Caesar at the head of a great professional army, the founders sought to guarantee the existence of well-trained, self-armed, locally commanded citizen militia, in which service was compulsory. By its very existence, this militia would obviate the need for a large and dangerous regular army. But as Uviller and Merkel describe the gradual rise of the United States Army and the National Guard over the last two hundred years, they highlight the nation's abandonment of the militia ideal so dear to the framers. The authors discuss issues of constitutional interpretation in light of radically changed social circumstances and contrast their position with the arguments of a diverse group of constitutional scholars including Sanford Levinson, Carl Bogus, William Van Alstyne, and Akhil Reed Amar.  

Espousing a centrist position in the polarized arena of Second Amendment interpretation, this book will appeal to those wanting to know more about the amendment's relevance to the issue of gun control, as well as to those interested in the constitutional and political context of America's military history.

About this title

About the Author

H. Richard Uviller is Arthur Levitt Professor of Law at Columbia University. He is the author of The Tilted Playing Field: Is Criminal Justice Unfair? and Virtual Justice: The Flawed Prosecution of Crime in America.

William G. Merkel has a J.D. from Columbia University and is completing his doctorate in History at Oxford University.

From the Back Cover

"Uviller and Merkel offer a very valuable legal history of the militia and its relationship to the standing army. That history is the heart of this book, as their reading of the Second Amendment grows directly out of it. I have read accounts of these events dozens of times, but this one may be the best of all. It covers an enormous amount of ground in an astonishingly short space, in glorious prose, with a narrative flow that pulls the whole story together and sweeps the reader along."--David C. Williams, Indiana University School of Law

Reviews

The Second Amendment to the Constitution states that a "well regulated Militia" is necessary to the security of a free State, and that the "right of the people to keep and bear Arms, shall not be infringed." Today, this sparse text has sharply divided anti-gun forces (who downplay the right to arms granted in the Constitution) and supporters of the NRA (who tend to ignore the "well regulated Militia" clause). Uviller (The Tilted Playing Field) and Merkel, a doctorate candidate at Oxford, offer a fresh interpretation of the Second Amendment, aiming to recover it's original intent and to examine how the passing of time has affected the amendment's meaning and vitality. The authors' thesis is that the Second Amendment granted citizens an individual right to bear arms, but only in the context of their obligation to protect the community by serving in the state militia. The militia was designed to counterbalance a national standing army, which experience had shown carried a threat of despotism by the central authority. Over the 200 years since adoption of the Second Amendment, as the authors explain in detail, the militia has disappeared from the American scene. Thus, they argue, the Amendment's right to bear arms, intelligible only in relation to the militia, has "simply fallen silent in the midst of the tumultuous debate on the issue in today's world." In its seriousness of tone, abundant citation of sources, and careful discussion of opposing schools of thought, this presents a powerful case for declaring the Second Amendment irrelevant to the issue of firearms in America.
Copyright 2002 Reed Business Information, Inc.

Edition details

• Publisher: Duke University Press
• Publication date: 2003
• Language: English
• ISBN 10: 0822330172
• ISBN 13: 9780822330172
• Binding: Paperback
• Number of pages: 352