As many readers of this list will know, I am one of those historians who
has ostensibly been "campaigning strongly" against the individual-right
interpretation of the 2d Amendment, although I did not sign the brief in
question in the Emerson litigation. As one of the WMQ board of editors the
past few years, I also helped organize, and contributed to, the forum on
Arming America in the January 2002 issue, ably edited by Bob Gross, who has
done such a fabulous job with the book review section. There is no question
that critics of the individual right interpretation, and proponents of gun
control, welcomed Michael Bellesiles' book, and this enthusiasm has become
a liability that may well become more damaging, depending on the outcome of
the Emory inquiry. But to say that the briefs in Emerson or the more
general argument against the individual right interpretation would be
"discredited" by their use of or reliance on Arming America is both
fallacious and a distortion of the substantive basis on which that
interpretation can be questioned.


Three points are salient here. The first (as noted in my WMQ piece) is that
Arming America has very little to say about the  adoption of the 2d
Amendment or its interpretation. The second is that the questions
Bellesiles asks about the use of firearms in daily life or the
effectiveness of the militia make it easier to understand why the Second
Amendment could well be understood as an injunction to the national
government to use its Article I authority to organize, arm, and discipline
the militia as a serious duty, requiring it to assure that the militia
remain "well regulated," not least by making sure that the states and their
citizens were provided with adequate arms, and by affirming the principle
that such a militia would minimize the danger of resorting to that horror
of horrors, a standing army.


The third and, I think, most important point is that a sufficient basis for
criticizing the individual right interpretation can be easily found without
resort to what I called the "behavioral" evidence of Arming America. All
one has to do is read patiently through the literature of the so-called
Standard Model, find the howlers in its use of evidence, its numerous sins
of commission (typically involving ignoring such relevant data as the
discussion of the militia clauses of Art. I at the Federal Convention), and
its remarkable leaps of logic . I tried to do this in some detail in my
contribution to the Chicago-Kent Law Review symposium on the subject ("The
Second Amendment: The Highest Stage of Originalism," C-K L. R., 76 (2000),
103-166; offprints still available!). Indeed, one of the curious aspects of
l'affaire Bellesiles (as I argued some months ago on H-Law in a threaded
discussion with Randy Barnett of B. U. Law School) is that Bellesiles's
critics have discovered a great incentive to gang up on him, the better to
ignore the other arguments that the rest of us "collectivists" have been
making. In that piece, I cited Bellesiles, too, but the conclusions I drew
there do not depend on his arguments even if they do draw some support from
them.


Jack Rakove
on the Farm at Stanford University

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