Communitarians, Neorepublicans, and Guns: Assessing the Case for Firearms Prohibition (2/3)

Return to Part One
III.	Virtue and Community Militias			476
		A.	The Militia and Republicanism	477
		B.	Toward Well-Regulated Militias	487
			1. What "A Well-Regulated Militia" Is Not	487
			2. The Civilian Marksmanship Program	490
			3. Other Marksmanship and Safety Training Programs	491
			4. Using the Militia to Restore Order	494
			5. Safety Education in Schools	499
			6. Virtue Is Good	501
IV.	Guns and Public Safety			502
Advance to Part Three

III. Virtue and Community Militias

The Communitarian Network's platform argues that the Second Amendment does not protect an individual right to keep and bear arms, but rather only the existence of "community militias," which the Network equates with the National Guard. [198] For this assertion, Etzioni relies largely upon an essay by historian Lawrence Delbert Cress. [199] This reliance is appropriate, as Cress's article is one of the few historical pieces in the last twenty years written by an academic and published in a scholarly journal that concludes the Second Amendment is not an individual right. [200] Cress reasons that because the discussion surrounding the ratification of the Second Amendment focused mainly on the necessity of protecting the institution of the militia, a community rather than an individual right is guaranteed in the Second Amendment. [201]

This community-only view has serious problems. Because this view is exclusively propounded by gun control advocates who wish to remove the Second Amendment as an obstacle to gun control proposals, no community-rights theorist has explained what the Second Amendment does mean if it does not mean that people have a right to keep and bear arms. Glenn Reynolds and Don Kates actually do investigate what the Second Amendment means if it is not a guarantee of individual right. [202] They demonstrate that the nonindividual view of the Second Amendment is intellectually incoherent, [203] inconsistent with Article I of the Constitution, [204] and actually allows states (to the extent that they desire) to repeal all federal gun controls within their borders. [205]

The Communitarian Network claims to favor "community militias" rather than individual "gun slingers." [206] A problem arises when the Communitarian Network then advocates disarming private citizens and "much of the police force." [207] Whatever the community militia might be, it can hardly be a militia at all if its members are totally *477 disarmed. The Communitarian Network contends that the community militia is the National Guard. So because the Second Amendment guarantees some "right," do all Americans have a right to serve in the National Guard? If the community militia is not the National Guard, who will supply it with "arms," without which it could hardly be the "militia" referred to in the Second Amendment? If we are to be faithful to the Constitution, there must be some kind of militia; what should this militia look like?

To begin to answer these questions, which the Communitarian Network has failed to do, we turn to David C. Williams, who has devoted great attention to the militia's relevance in contemporary America. [208]

A. The Militia and Republicanism

Republicanism has gained many academic adherents in recent years, first among historians, and more recently in the law schools. The modern communitarian movement may even be viewed, at least in part, as an expression of the republican philosophy. [209]

In his Yale Law Journal article, entitled Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment, [210] Williams takes a "modern, republican" look at the Second Amendment. [211] He agrees with the communitarians that America has become a fragmented society and that a sense of the importance of civic duty, such as that manifested during the early days of the republic, needs to be restored among the American people. [212] "Republicanism appeals to many because it emphasizes community over separation and public dialogue over strict autonomy." [213] Thus, a "neorepublican" America would be one in which communitarian values would take hold among the American populace, leading away from the atomized society that the Communitarian Network and other advocates of the common good decry.

Williams acknowledges that true republics have citizen militias. Under republican theory, the militia

Furthermore, the militia "offered training in virtue, making citizens independent and self-sacrificing." [215] It also "allowed citizens to participate directly in their own self-government, not just through the process of representation, and it consigned to them ultimate control of the means of force." [216]

Thus, Williams understands that the right to arms as guaranteed by the Second Amendment is a reference to the right of the people themselves to act as a popular militia, not just to "have" a professional, select militia such as the National Guard. Nevertheless, he is not ready to say that community militias such as those that existed in the eighteenth century should be restored: "In republican theory, only a virtuous citizen militia can be entrusted with the means of force to resist state authority, but citizens will not be virtuous until they are already participating in policy making under a republican form of government." [217] This state of affairs, Williams argues, no longer exists in America. [218] American citizens are generally too preoccupied with self-interest and too far removed in their political thinking from the republicanism that reigned in eighteenth-century America. [219] They can no longer be trusted to be virtuous. [220] Furthermore, today's so- *479 called "militia" is not universal (though Williams admits that militia participation never was). Guns are owned by only a "slice" of the American populace, [221] and that segment of society cannot seriously be considered America's militia for a number of reasons, the chief of which is that "a modern militia would be a reflection of modern America--divided and driven by self-interest." [222] Because America has drifted from its republican moorings, the Second Amendment today is not only "embarrassing," it is "terrifying." [223] Thus, Williams concludes, because the militia does not exist, the Second Amendment poses no obstacle to current gun control laws. [224]

As a practical matter, gun ownership is not confined to a mere "slice" of the American population; guns are possessed in roughly half of all households. [225] As a matter of current constitutional policy, Williams's argument runs into one insurmountable obstacle: the language of the Second Amendment itself. [226] The Second Amendment does not say that "the militia" has a "right to keep and bear arms"; rather, "the people" have the right. The introductory, subordinate phrase of the Second Amendment ("A well regulated Militia, being necessary to the security of a free State") does not, grammatically, limit the scope of the right in the main clause ("the right of the people to keep and bear Arms, shall not be infringed"). Parsing the Second Amendment carefully can lead to no other result. [227]

*480 Moreover, the Second Amendment right cannot be dependent on government action for its continued existence, any more than the First Amendment right to freedom of speech can be contingent on *481 the government's teaching people to read virtuous books. Fundamentally, the Founders saw rights, including the right to arms, as being recognized by the government rather than granted by the government. [228] The (justifiable) fear that the federal government would neglect militia training, and thereby increase the relative power of the federal standing army, was an important objection of the Anti-Federalists. [229] That Anti-Federalist predictions have come true today to a great degree is hardly an argument for eviscerating the Second Amendment (or any of the other checks on the federal government that the Anti-Federalists successfully demanded be added to the Constitution).

The grammatical result is also consistent with original intent. The natural right to arms had the purpose of facilitating resistance to both criminal governments and individual criminals. Against a lone criminal, an individual gun owner might use her firearm by herself, rather than as part of a militia. The subordinate clause of the Second Amendment was certainly never intended to abrogate the common law and natural right to self-defense against criminal attack. [230]

*482 Moreover, Williams's proposals for current substitutes for the militia, designed to restore healthy republicanism, are problematic. Williams favors the creation of "militia surrogates"--universal national service, for example. [231] Yet, as Professor Akhil Amar points out, mandatory service in a federal standing army (or other enforced federal labor) is antithetical to the very notion of a local, state-based militia as a check on federal power. [232] In republican theory, one of the key "virtues" of the militiaman was his independence; he had his own means of support and was not dependent on or submissive to the government. He was wholly opposite to the federal conscript, who, under republican theory, by virtue of his submission to and dependence on the central government, was morally degraded. [233]

Williams does not dismiss the idea of a civilian militia as an ideal to someday be reinstituted. He specifically notes the role the militia historically played in the inculcation of public virtue and political participation, as well as in the preservation of liberty. [234] "Eventually," Williams concludes, "the people should reacquire direct control of the means of force, but only when the right structures offer them an opportunity for virtue." [235] In short, Williams takes the Constitution seriously. Unlike virtually every other person who reads the Second Amendment as not guaranteeing an individual right, he gives the Second Amendment a content that makes it meaningful.

Williams's article is not, however, without its weaknesses. First, it is not intuitively obvious that Americans in the 1990s are, in contrast to their 1790s forebears, unfit to possess arms. Americans of the 1990s are considerably less racist and sexist than their predecessors. [236] They have not only abolished slavery (present in twelve of the thirteen *483 states when the Constitution was ratified), but they have also extended full civil equality to persons of all races and both sexes. Such a broadly inclusive view of the community was unimaginable in the 1790s, and modern Americans deserve some credit for having had the virtue to achieve it.

The suggestion that changed circumstances allow one to ignore, rather than amend, a provision of the Constitution ought, at the very least, to be accompanied by compelling proof of dramatic changes in circumstances. Given that human nature remains relatively constant, it is far from proven that modern Americans are far less virtuous than Americans of two hundred or one hundred years ago. [237]

*484 Ratification of the right to arms was not a single act from two hundred years ago. From Kentucky to Alaska, almost every state that has entered the Union has included a right to bear arms provision in its state constitution. [238] During the 1980s four states without that type of provision added one by popular vote, [239] one added the provision by *485 legislative action, [240] while Utah strengthened the language of an existing provision. [241] At the federal level, the Freedmen's Bureau Bill, the Civil Rights Acts passed by the Reconstruction Congress, and the Fourteenth Amendment (which, of course, was ratified by most states) were all intended, in part, to protect the individual right to arms from state infringement. [242] The Property Requisition Act of 1941 and the Firearm Owners' Protection Act of 1986 were enacted by Congress to protect the gun ownership rights of American citizens. [243] A "changed circumstances" argument negating the right to arms becomes particularly implausible when Congress, the states, and the American people have repeatedly affirmed and added additional protections to that right up through the present era.

Criticism that would cite the current militia movement as proof that modern Americans are, compared to their ancestors, too rebellious to be trusted with Second Amendment rights lacks historical support. The Second Amendment was proposed only three years after three counties in western Massachusetts had erupted against oppressive state taxes and heavy-handed sheriffs in "Shays' Rebellion." [244] *486 Three years after the Second Amendment was ratified, parts of Virginia (today, West Virginia) and western Pennsylvania revolted against high federal taxes on whiskey. [245] President Washington exercised his power to call forth the militia to suppress the Whiskey Rebellion, the local militia responded, and the insurrection was crushed. [246]

Despite some limitations, Williams does get to the heart of the primary question that the Second Amendment poses: what can be done to promote responsible gun ownership. As he recognizes, the militia, in its republican conception, was similar to the jury. [247] While the jury right was (and is) exercised by individuals (individual defendants claiming a right to a jury trial, or individual Americans claiming a right not to be excluded from a jury pool), the jury comes together as a collective body. This collective body is at once an instrument of state power (the criminal justice system) and at the same time a check on state power. Thus, for the same reasons that the Communitarian Network exalts service in the jury, the Communitarian Network ought to be looking for ways to encourage service in well-regulated militias. Domestic disarmament will obviously not build "a well-regulated militia" any more than getting rid of trial by jury would encourage responsible jury service.

If, on the other hand, Williams is correct that Americans have so little virtue that they cannot participate in communal institutions such as the militia, [248] then the argument can be made that modern Americans likewise lack the virtue to serve on juries, making decisions that involve life and death, millions of dollars, or decades of imprisonment. Yet who among even the most severe critics of the contemporary jury system would suggest that the constitutional right to a jury trial can simply be ignored due to changed circumstances?

The communitarians are correct that responsibilities should accompany rights, or as Williams frames the issue, the early republicans were correct in believing that public virtue is necessary if the republic is to survive with its liberties intact. [249] If, as the Founders intended, *487 the people were to remain armed, then it would also be necessary to instill in them the highest degree of virtue in order to minimize firearms misuse. How might public policy contribute to the rebirth of the kind of virtue and familiarity with firearms that the Founders believed necessary to an enduring republic? Is it possible to take the first steps toward the revitalization of the citizen militia?

B. Toward Well-Regulated Militias

Williams appears to be of two minds. On the one hand, he wants the American people to prove themselves largely virtuous before they should be trusted with arms. On the other hand, he acknowledges the truth of the Founders' belief that the historical militia "offered training in virtue, making citizens independent and self-sacrificing." [250] A good militia is not just an effect of public virtue, but a builder of virtue as well. Thus, it is appropriate to begin by considering policies that will eventually help citizens to be more virtuous and responsible with firearms.

1. What "A Well-Regulated Militia" Is Not.--Before we suggest how to progress toward a well-regulated militia, we should explain what a militia is not. Though the word "militia" likely evokes images of armed, camouflaged right-wingers who train in anticipation of fighting the troops of the "New World Order," this is not what is meant here. What is meant is a true citizen militia, as was common in the eighteenth and nineteenth centuries. The Supreme Court has stated that the militia is composed of "civilians primarily" [251] and that "all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States." [252]

As uniformed, armed bodies of government employees, sometimes subject to federal command, the modern National Guard and the modern police would both have been seen by the Founders as close cousins to the dreaded "standing army." To the Founders, "select militias" (comprising only a small fraction of "the people") and standing armies were thought to constitute the threat to liberty par excellence. [253] The same Congress that passed the Bill of Rights, including *488 the Second Amendment and its militia language, also passed the Uniform Militia Act of 1792. [254] That Act enrolled all able-bodied, white males between the ages of eighteen and forty-five in the militia and required them to furnish their own firearms, ammunition, and gunpowder. [255] The modern federal National Guard was specifically raised under Congress's power to "raise and support Armies," [256] not under its power to "[p]rovide for organizing, arming, and disciplining, the Militia." [257] The National Guard's weapons plainly cannot be the arms protected by the Second Amendment, because Guard weapons are owned by the federal government. [258] To call the National Guard the militia of the Second Amendment is an Orwellian inversion of meaning.

We should also explain what "well-regulated" is not. The Second Amendment's phrase "a well-regulated militia" is sometimes said to mean something akin to "a militia subject to large amounts of bureaucratic regulation." [259] Hence, gun controls not amounting to prohibition would be permissible restrictions on the well-regulated militia.

The colonial political usage of the phrase "well-regulated militia" also suggests that the word "regulated" was not an invitation to bureaucracy. Before independence was even declared, Josiah Quincy, Jr., had argued for the necessity of "a well regulated militia composed *489 of the freeholders, citizen and husbandman, who take up arms to preserve their property as individuals, and their rights as freemen." [260]

We should also note the particular meaning that the word "regulated" has in relation to firearms. In firearms parlance, "regulating" a gun has the same meaning today that it did centuries ago: adjusting the weapon so that successive shots hit as close as possible together. If the objective is achieved, the gun is "well-regulated." For example, an article that appeared in Gun Digest concerning double-barreled rifles notes: "The well-regulated double [rifle] shoots closely enough with both barrels to hit an animal at normal ranges." [261]

*490 Thus, a well-regulated militia would be an effective citizen militia whose members hit their targets. [262] Government efforts to make the militia well-regulated would seem permissible, whereas regulations that did not promote militia quality would be suspect. Let us now examine some particular programs that could promote a well-regulated militia.

2. The Civilian Marksmanship Program.--One easy starting point for the promotion of a well-regulated militia--because it exists already--is the Civilian Marksmanship program. The Director of Civilian Marksmanship program (DCM), created through the efforts of Theodore Roosevelt, is the federal government's attempt to educate the public about gun safety and marksmanship. [263]

DCM training takes place according to congressional directive and receives federal financial and resource support. [264] Most training is conducted at gun clubs that have been certified as DCM participants. [265] The DCM training program involves rifles only. [266]

One purpose of the program is to provide the armed forces with recruits that have firearms training upon enlistment. [267] Nevertheless, the fraction of the civilian population (including the DCM population) that joins the military is small enough that the DCM may not be cost-effective from a purely military perspective. Enhancing the standing army, however, is not the only purpose of the DCM.

The DCM serves another purpose. Because the American people constitute, as the Supreme Court states, "the reserved military force or reserve militia of the United States," [268] the DCM is one of the key ways *491 in which the federal government carries out Article I, Section 8, Clause 16 of the Constitution, which authorizes Congress "[t]o provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States." [269] Of course, other benefits are reaped from the program as well: Americans learn how to handle firearms safely and competently, and the program is an implicit affirmation of every American's responsibility to further the common good.

The real opposition to the DCM comes not from deficit hawks, but from the most determined congressional allies of the antigun lobbies. [270] From their viewpoint, the DCM does send the wrong message--civilians are not only entitled, but they are encouraged to become proficient users of rifles such as the M-1 Garand. [271] From the viewpoint of persons (including communitarians) that want a genuine well-regulated militia, however, the DCM sends the message that American gun owners should be educated in the safe and responsible use of firearms and in their duty to assist in the common defense. [272]

3. Other Marksmanship and Safety Training Programs.--There are many potential marksmanship programs that could be implemented to extend responsible marksmanship training far beyond the federal DCM program. With the exception of gun prohibitionists, most parties to the gun debate would agree that the better trained gun owners are, the better off society is. Individuals who practice shooting with their friends at target ranges are the most likely to be influenced by social models of responsible gun use. City dwellers, who may buy a gun for self-protection and never learn how to fire it safely, could particularly benefit from marksmanship and safety training programs. [273]

*492 The simplest way to promote marksmanship programs is to remove illogical legal impediments to such programs. In New York State, for example, a father may not take his eleven-year-old son to a shooting range and allow the son to shoot a rifle, even under continuous parental supervision. [274] Such laws should be repealed.

Target shooting can promote character development in a city or school. It emphasizes mental discipline, is nonsexist, and is a lifetime sport. [275] Moreover, it is safe. Target shooting has a lower injury rate than almost any other sport; fights between competitors are nonexistent, [276] and there is no known incident of one competitor harming another in a sanctioned match. [277]

Regulations that serve solely to harass adult target shooters have no place in a rational gun control policy. The less target shooting gun owners are allowed, the less trained and more dangerous they will be. Zoning regulations outlawing indoor target ranges within a particular distance of a school or a church are irrational; they simply make the statement that guns are bad and should not exist near good institutions.

Likewise, there is no social benefit from laws like that in New York City, where a licensed target shooter cannot bring a guest to a shooting range to fire even a single bullet from the licensed shooter's gun unless the prospective guest obtains her own expensive gun permit. [278] Such a law is not a rational policy of gun control. It is bureaucratic gun prohibition, enacted simply to make a statement that the *493 government heartily disapproves of anyone other than itself having guns.

Another simple step to encourage responsible gun use is to better allocate funds the government already spends on civilian gun use. In 1937, Congress enacted the Federal Aid in Wildlife Restoration Act, more commonly known as the Pittman-Robertson Act. [279] The Act, initiated by sportsmen, levies a federal excise tax on the manufacturers, producers, or importers of firearms, ammunition, and archery gear. [280] States receive part of the revenue based upon the ratio their populations bear to the entire United States population. [281] Hunting and associated activities may receive the lion's share. [282] Putting more funds into public shooting ranges and less into hunting would make responsible gun training available and convenient for large numbers of urban gun owners.

Encouraging active sports (as opposed to mere spectating) in which participants are not encouraged to knock down or harm each other, and in which mental self-control is emphasized, would seem to be an ideal communitarian program.

Beyond merely allowing sports programs, counties and states can play a more affirmative role in promoting civic virtue relating to firearms. After all, because the militia is largely a local, rather than federal, force, counties and states bear a direct responsibility for militia oversight. Some county governments have declared by resolution the existence of civilian militias within their jurisdictions, albeit under the present unhappy conditions in which such resolutions are passed in response to federal gun control legislation. [283] There is no reason, therefore, that these local governments, or other local governments, *494 could not create firearms training programs similar to that of the DCM. Local government oversight would also help to ensure that militias do not contain any unsavory elements.

Another way for both the state and the federal governments to further civilian participation in the reserve militia might be to give tax or tuition credits to those who take firearms training courses from an accredited gun club, and subsequently provide evidence that they have, at periodic intervals, qualified on the gun range, much as security guards and the police do. Perhaps state governments could also provide financial incentives to colleges and universities that offer gun training courses as physical education electives.

4. Using the Militia to Restore Order.--It is time for a serious debate on whether police forces should be supplemented (but not supplanted) by the civilian militia. The police should maintain their role as protectors of the public, but obviously they cannot be everywhere at once.

In addition to historical precedent, modern experience suggests that the militia can make an important contribution to public safety. In conditions of civil disaster or disorder, armed citizens have played an important role in protecting innocent lives and preserving property. Such was the case in the aftermath of disasters such as Hurricane Andrew [284] and the Los Angeles riots, [285] when the police or National Guard were either unavailable or could not respond effectively. A civilian militia trained in firearms and disaster-readiness skills could *495 serve even better. [286] Indeed, riot suppression was frequently performed by the militia in the eighteenth and nineteenth centuries, [287] and is one of the constitutional purposes for which the federal government is authorized to use the militia. [288]

Although Etzioni would be horrified, Glenn Harlan Reynolds uses communitarian (albeit not Communitarian Network) reasoning to suggest that the crime-reductive effect of using the militia could be dramatic:

Were it not for Etzioni and the Communitarian Network's antipathy toward firearms, Reynolds's militia proposal might be considered mainstream communitarianism. For example, in a book of communitarian essays edited by Etzioni, each of the first three essays provides (unintended) support for Reynolds's idea. [290] Discussing jury service, Etzioni warns that citizens cannot expect the right to a jury trial if they are not themselves willing to undertake the responsibility of service on a jury. [291] It is impracticable, and morally indefensible, Etzioni argues, for persons to claim benefits from communal services but not to contribute *497 to them. [292] This point is certainly correct, and it applies just as much to public safety as to civil dispute resolution. As communitarian author Thomas Spragens put it: "[D]emocratic citizens should not perceive themselves or behave as mere passive recipients of government protection . . . ." [293] The more that public safety is seen as a free good, provided exclusively by uniformed government employees, the less public safety will exist in the long run. In the same vein, Michael Walzer details how "liberalism is plagued by free-rider problems, by people who continue to enjoy the benefits of membership and identity while no longer participating in the activities that produce these benefits." [294] Communitarians are great fans of community policing, [295] but simply redeploying professional safety officers misses the larger point of getting the general public involved in public safety in some more significant way than having a good relationship with "Officer Friendly."

There has already been some movement in the direction suggested by Reynolds. "Sheriff Joe" Arpaio of Maricopa County, Arizona, for example, has supplemented his professional officers with deputized citizen patrols. [296] The 2500 members of his posse have each received 130 hours of firearms training; about a third have bought their own guns. [297] The posse members serve warrants, patrol malls and streets, and track down deadbeat parents. [298] Former Sheriff Richard Mack of Graham County, Arizona, unsurprisingly, organized a local militia. [299] In Lucas County (Toledo), Ohio (not usually considered a hotbed of Second Amendment ideology), several hundred unpaid citizens have been designated "special deputies." [300] These *498 special deputies carry guns and badges. [301] In Washington, D.C., Maurice Turner, while chief of the police department, enrolled volunteers in a training program identical to training for new police officers. [302] At the end of the training program, these unpaid volunteers would be issued badges and guns. [303] On graduation day for the first set of volunteers, however, the program was terminated by the Washington, D.C., City Council. [304]

Communitarian scholar Rogers M. Smith, considering the possibilities for national service, notes the history of the militia in the eighteenth and nineteenth centuries as a forum for community service. [305] He also notes that militia units of that period often fostered racial and sexual hierarchies, such as by excluding freed slaves from militia service. [306] Certainly one cornerstone of twenty-first century state and local supervision of militias should be to ensure that they are nondiscriminatory.

This Article does not suggest details for how such a militia might be trained and what its precise duties would be. That task is better left to other scholars who have considered the topic. Robert Cottrol and Ray Diamond, for example, have presented a detailed proposal for reviving the militia in inner-city America--the area where crime is highest and where uniformed police forces have failed most dismally to provide adequate public safety. [307]

Similarly, this Article does not address the pragmatic objection of persons who object in principle to allowing citizens a role in law enforcement under the theory that any militia will be necessarily so inept, hot-tempered, or otherwise unfit that it will endanger, rather than enhance, public safety. The empirical issue will be answered in time, as individual jurisdictions implement variations of the policies of "Sheriff Joe" and former Chief Turner.

*499 For now, it is simply suggested that considering how to revive the militia is the most appropriate policy, both for those who consider themselves faithful adherents to the Constitution and for those who genuinely embrace communitarian values. Not only would a revived militia once again play a role in the defense of local and national communities, but its natural political dimension, as David C. Williams has noted, would engender in its members a sense of social and political responsibility. [308] State and society could once again meld into a symbiotic, "neorepublican" political order that avoids the current polarization between the largely inaccessible "rulers" and the largely disaffected "ruled."

5. Safety Education in Schools.--Assume, arguendo, that the above scenario is too far-fetched: that the United States will never again need the services of a civilian militia because there will never be any more riots, hurricanes, or other disasters on American soil; that professional forces are fully adequate for the security of the country against domestic crime and foreign invasion; that no government--even hundreds of years from now--could possibly tyrannize the citizenry; and that a return to the republicanism of the eighteenth century will never be realistic because twentieth- (or twenty- first-) century Americans are hopelessly morally inferior to their revolutionary ancestors. Even assuming this absurd scenario, training as many Americans as possible in the safe use of firearms is still in the interest of the American community.

The absence of a gun education policy in a country with over 200 million guns [309] is foolish. Many minors now have and will continue to have easy access to both handguns and long guns. Neither new laws nor wishful thinking will change the situation.

The power to set curricula lies with local, largely autonomous, school boards. Unfortunately, school boards in the nation's urban areas--where an unfortunate mix of gun crime and political correctness abounds--are the least likely to mandate gun education in the schools, while those in rural areas are the most likely to do so, and often do. Consistency demands that if it is wise to educate kids about the potential threat to life that unsafe sex poses, then we should, at the very least, work to maintain the decades-long trend of decline in the rate of gun accidents involving children. [310]

*500 Gun education need not even involve the handling or firing of guns. The basic rules of gun safety can be communicated effectively by the written or spoken word. (This might be more advisable in some urban settings.) Because about eighty-four percent of accidental shootings involve the violation of basic safety rules, safety education addresses the vast majority of gun accidents. [311] Owners of guns involved in accidental deaths of children are unlikely to have received safety training. [312]

Groups such as the Boy Scouts of America, 4-H, the American Camping Association, and the NRA have long instructed children in the safe use of sporting arms. One successful effort to promote safety training for all children is the NRA's "Eddie Eagle" Elementary School Gun Safety Education Program. [313] The Eddie Eagle program offers curricula for children in grades K-1, 2-3, and 4-6, and uses teacher-tested materials, including an animated video, cartoon workbooks, and fun safety activities. [314] The hero, Eddie Eagle, teaches a simple safety lesson: "If you see a gun: Stop! Don't Touch. Leave the Area. Tell an Adult." [315]

Eddie Eagle includes no political content, no statements about the Second Amendment, and nothing promoting the sporting use of guns. [316] The program and its creator, Marion Hammer, won the 1993 Outstanding Community Service Award from the National Safety Council. [317] As of January 1996, Eddie Eagle had reached more than 7 million children. [318] Unfortunately, however, some persons in positions of authority over school safety programs have refused to allow *501 Eddie Eagle to be used in their schools, because they disagree with the NRA's position on policy questions. [319]

6. Virtue Is Good.--While we have listed various virtue-promoting programs that relate directly to community-minded, responsible firearms use, it should be acknowledged that responsible attitudes toward firearms depend ultimately upon a citizenry that is responsible about much more than firearms. This Article is not the place for a discussion of the many programs that have been suggested to promote family, community, and individual responsibility. It should be noted, however, that in addition to the other benefits flowing from these programs, a reduction in firearms injuries might be one important result.

It should also be kept in mind that disarming the populace could promote civic disorder. The revolutionary generation had read Sir Thomas More's The Utopia, [320] which stated that when people relied on uniformed forces for their protection, rather than defending themselves and their nation, the people's character was corrupted. [321] Sir Thomas More thought that the introduction of a standing army had caused moral decline in France, Rome, Carthage, and Syria. [322] The Continental Congress compared Americans, "trained to arms from their infancy and animated by love of liberty," with the "debauched," dissipated, and disarmed British. [323]

In the cities with severe gun control--New York, Washington, Chicago, or London--citizens have retreated into a personal security shell; they rarely come to the aid of their fellow citizens who are being attacked by criminals. [324] The predictions of More seem vindicated--*502 when a people cannot protect themselves, civic virtue declines. Psychologists have noted the phenomenon of "diffusion of responsibility" [325] --if several bystanders witness an emergency, they are less likely to respond than if only one person witnesses the accident. [326] If the police are official monopolists of public safety and if citizens are told that they are too clumsy and unstable to be trusted with guns, then citizens will naturally develop a "don't get involved" attitude toward public safety.

The Communitarian Agenda rightly emphasizes the responsibility of people to take care of their communities, rather than relying on anonymous third parties to do so. [327] Americans are already much more likely to join and to contribute unpaid labor to voluntary organizations than are the people of other democratic nations where the government is expected to provide most of the necessities of life. [328] Community self-help is important not just because a given task can usually be accomplished more efficiently with local volunteers than with a federal program, but, more fundamentally, because exclusive reliance on external assistance weakens the cohesion and the virtue of the community.

IV. Guns and Public Safety

The presumption of Domestic Disarmament is that if there were fewer weapons there would be less violence. [329] As opposed to some advocates of gun control, who merely want to disarm particularly dangerous types of persons, the Communitarian Network apparently believes that a reduction (or better yet, a complete elimination) in the number of firearms among the population as a whole would necessarily lead to a major reduction in violence. [330] Less guns, less gun violence. *503 This theory is known as the "weapons-violence hypothesis"--where there are more weapons, there will be more violence. [331]

The problem with the weapons-violence hypothesis is that it is readily disproven. If the only or main variable were guns, then Switzerland should be one of the most violent nations on earth, because its militia system requires nearly every household to keep a fully automatic firearm and a store of ammunition. [332] Furthermore, Switzerland has, by European standards, very permissive handgun laws, laws that are less restrictive than those of many American states. [333] Swiss citizens can buy anything from small handguns to antiaircraft rockets and antitank weapons with less trouble than a New Yorker can get a permit to install a new sink. [334] Awash in guns, Switzerland is one of the least violent countries in the world, far less violent than the United Kingdom, Germany, or other European nations with severe gun controls or prohibitions. [335]

If the weapons-violence hypothesis were true, there would be a higher level of violence in America's rural areas, where a disproportionate number of America's guns are owned. [336] In fact, the level of gun-related violence in those regions is considerably lower than in urban areas, where there are fewer guns and more gun control. [337] The per capita rate of firearms deaths is far lower in rural areas, even though urban areas have the advantage of trauma centers within a few miles (at most) of the site of any firearms injury, a high density of hospitals and ambulances, as well as much higher police density to prevent shootings in the first place. [338]

The facts suggest that cultural or socioeconomic variables figure much more heavily into the violence phenomenon than does access to firearms. The relatively low incidence of violence that marks both *504 armed Switzerland and the several largely disarmed nations touted by gun control advocates is due mainly to internal social controls that restrain citizens from committing violent acts against their neighbors. [339] Japan, for example, has one of the most homogeneous and law-abiding populations in the world, unlike America. [340] Also unlike America, Japan is one of the most anti-individualist nations on earth, a fact that results in a political system most Americans would consider oppressive. [341] The low level of violence in Japan is not primarily due to austere gun control laws, but to internalized moral restraints that have marked that society for centuries. [342] Indeed, in most of the countries touted by American gun prohibitionists as models, armed-violence rates were far lower at the turn of the century, when the countries had almost no gun laws, than at the end of this century, when increased gun controls have proven a poor substitute for self-control and social control. [343]

The Communitarian Network's hypothesis is that individuals (gun owners) must sacrifice their (supposed) rights for the greater good of public safety. [344] A significant body of evidence suggests, however, that the Communitarian Network may have the facts backwards: gun ownership may make a positive impact on public safety and may benefit all persons, not just gun owners. In other words, one of the communitarian objectives--enhancement of public safety through responsible actions that benefit the entire community, not just an individual--is already in place through the mechanism of individual gun ownership.

There is copious evidence that a significant number of crimes are deterred every year by gun-wielding Americans. One of the first measurable pieces of evidence that criminals are deterred by the mere perception that potential victims may be armed dates back to the late 1960s, when the Orlando Police Department sponsored firearms safety training for women. [345] The police instituted this program when it became evident that many women were arming themselves in response to a dramatic increase in sexual assaults in the Orlando area in *505 1966. [346] The year following the well-publicized safety training program witnessed an 88% drop in the number of rapes in Orlando. [347] As Gary Kleck and David Bordua note: "It cannot be claimed that this was merely part of a general downward trend in rape, since the national rate was increasing at the time. No other U.S. city with a population over 100,000 experienced so large a percentage decrease in the number of rapes from 1966 to 1967 . . . ." [348] Furthermore, that same year, rape increased by 5% in Florida and by 7% on the national level. [349]

According to Kleck and Bordua, the gun training program "affected the behavior of potential rapists primarily because it served to inform or remind them of widespread gun ownership among women, and thereby increased the perceived riskiness of sexual assaults." [350] The rape rate, after plummeting, did increase during the next five years, but this may be because the safety training courses no longer received the same degree of media attention as when first initiated. [351] Nonetheless, at the end of that five year period, the Orlando rape rate was still 13% below the 1966 level, when the classes were first publicized. [352] The rate of sexual assault increased 96.1% in Florida and 64% nationwide during that same five-year period. [353] It is also interesting that rape in the area immediately surrounding Orlando increased by 308% during the same period. [354]

Having heard about the Orlando experience, Detroit Chief of Police Bill Stephens began a similar program in 1967, in the face of an epidemic of armed robberies. [355] Within months of the Detroit program's initiation, which like the Orlando program was widely publicized, the rate of armed robberies had dropped by 90%. [356]

In 1982, the Atlanta exurb of Kennesaw passed an ordinance--in symbolic response to the handgun ban of Morton Grove, Illinois--requiring all residents (with certain exceptions, including conscientious *506 objectors) to keep firearms in their homes. [357] In the seven months following enactment of the ordinance there were only five burglaries, compared to forty-five in the same period the preceding year, constituting an 89% decrease in residential burglary. [358] Kleck and Bordua maintain that "the publicized passage of the ordinance may have served to remind potential burglars in the area of the fact of widespread gun ownership, thereby heightening their perception of the risks of burglary." [359]

Studies of prison inmates confirm that criminals are deterred when they believe their potential victims are armed. Criminologists James Wright and Peter Rossi, who at one time had been proponents of severe gun control, concluded that an armed citizenry functions as an important deterrent to crime. [360] Of the prison inmates interviewed, nearly 37% had encountered an armed victim during their criminal careers. [361] Approximately the same percentage (40%) reported that they had not committed a particular crime because they feared their potential victims were armed. [362]

One form of deterrence is termed "confrontation deterrence," whereby a criminal actually confronts a potential victim and is thwarted by that victim. Gary Kleck has conducted the most thorough criminological studies regarding confrontation deterrence. Dr. Kleck's initial research, based upon a 1981 Peter Hart survey conducted for a gun control group, suggested that there are roughly 645,000 instances of confrontation deterrence involving handgun-wielding citizens every year. [363] That figure climbs to about 740,000 when all types of firearms are considered. [364] The figures are broadly consistent with data from several other state and national surveys. [365] As Kleck stated:

"The failure to fully acknowledge this reality," Kleck concluded, "can lead to grave errors in devising public policy to minimize violence through gun control." [367] If Kleck is correct, and if attempts to implement drastic gun control policies, such as domestic disarmament, are ever successful, the result will likely only harm America's communities.

Although Kleck's research was consistent with nine other studies of the same topic, [368] he was subjected to intense attack by gun control proponents. [369] Kleck responded by conducting a much more thorough survey that took into account every criticism directed at his finding of 645,000 instances of confrontation deterrence involving armed citizens per year. For example, respondents who indicated that they had used a gun for self-defense were queried in detail about the actual use in order to sort out persons who might label as self-defense merely grabbing a gun when something went bump in the night, even if there were no confrontation with a criminal.

The new survey did show that Kleck had been wrong. The most thorough study of defensive gun use found that firearms are used for protection approximately 2.5 million times a year. [370] Shots were usually *508 not fired; merely drawing the gun apparently drove off many would-be assailants. [371]

Notably, Marvin E. Wolfgang, one of the most eminent criminologists of the twentieth century, and a strong supporter of gun control, reviewed Kleck's findings. Announcing that he found Kleck's implications disturbing, Wolfgang wrote that he could find no methodological flaw, nor any other reason to doubt the correctness of Kleck's figure. [372]

One public policy aimed at crime control that an increasing number of states are exploring and adopting is the liberalization of concealed carry laws. [373] Data suggest that concealed carry laws may reduce homicide and aggravated assault rates. [374] The data are clear that liberalized concealed carry does not lead to gunfights on the streets between licensees. [375] This is because those who go through the rigorous background check usually required under the liberalized law are precisely those most apt to use guns responsibly in the first place. The predictions of those who oppose concealed carry have been proven false in every state where the law has been liberalized: concealed carry does not a John Rambo make. [376]

Because many criminals avoid victimizing people they think may be armed, what might happen to the violent crime rate if more people were armed and possibly carrying a firearm under their coat or in their purse as they walked down the street? Domestic violence would not likely be affected by concealed carry reform (except for stalking cases), but the incidence of "outdoor" crime would likely diminish. In *509 situations in which a high fraction of the population is armed (in contrast to the one to four percent typical today in states that issue concealed handgun permits), predatory crime is virtually nonexistent. [377]

Gun ownership provides a crime-inhibiting force of some magnitude, although the exact size is subject to legitimate dispute. If domestic disarmament is adopted and is largely obeyed, it will destroy that socially beneficial force. Criminals will generally not disarm, and the perception will be created among them that there is less of a chance of encountering an armed victim. This will embolden many criminals to commit crimes they would have been deterred from committing when gun ownership was legal.

Accompanying the plainly false presumption of Domestic Disarmament that guns in the right hands make absolutely no positive contribution to public safety is the assumption that "all people"--not just people with felony records, or alcoholics, or other troubled individuals--"kill and are much more likely to do so when armed than when disarmed." [378] There exists thorough criminological refutation of this assumption that the average citizen is a walking time-bomb, a potential murderer kept in check only by the absence of a firearm. [379] In *510 truth, the vast majority of gun owners handle their firearms responsibly. [380]

If, on the other hand, Etzioni is right, and a huge fraction of the American population would commit murder at some point--given the combination of an upsetting event and a murder instrument--it is hard to imagine how such a population could be considered fit for self-government. The argument that Americans (or people in general) are too hot-tempered, clumsy, and potentially murderous to be trusted with dangerous objects such as firearms might be a good argument for an elitist (of the left-wing or right-wing variety) who believes that "the masses" need to be controlled by the firm hand of a powerful government of their betters. Whatever else might be said about that type of argument, it is thoroughly out-of-place coming from a communitarian, whose philosophy presumes that the American people are fully capable of virtue, responsibility, and self-government.

[199] Id. at 10; see Lawrence Delbert Cress, An Armed Community: The Origin and Meaning of the Right to Bear Arms, 71 J. Am. Hist. 22 (1984).

[214] Id. at 554. Even the promilitia Resister is concerned about the composition of the civilian militia and the potential for "demagogic rebellion" when it devolves into rag-tag bands of armed people:

[218] Id. at 607-08. "Conditions have so changed, however, that the new militia could not generate all of the benefits of the old--although it might produce some." Id.

[222] Id. at 608. Williams's article was published before, and therefore makes no reference to, the rise of the civilian militias described above. See supra notes 134-138 and accompanying text. Williams would doubtless point to these militias as proof that there really is no true militia in America today and that Americans are "divided and driven by self-interest"--the divisions being those of the left, the right, and everything in between, and the self-interest consisting of the interest on the part of the gun culture to remain armed on one hand and, on the other, the desire of those who eschew the idea of gun ownership to be "safe" from guns. See infra note 237.

If Americans are divided and driven by self-interest on the gun issue, it is partly because the government has departed so far from the republicanism of the Founders and have opted, instead, for the idea of the state as the chief guarantor of "security." The right-wing militias, as wild-eyed and wrong-headed as they often are, at least stand closer to the communal republican tradition Williams wants to see revived than do those who would cede the means of force to those government forces they believe will remain beneficent.

[227] In a passage cited by the Supreme Court as one of the many "important opinions and comments" on the militia, nineteenth-century commentator Thomas Cooley wrote: "The alternative to a standing army is 'a well-regulated militia'; but this cannot exist unless the people are trained to bearing arms." Thomas Cooley, Constitutional Limitations 729 (Walter Carrington ed., 8th ed. 1927), cited in United States v. Miller, 307 U.S. 174, 182 n.3 (1939). Cooley also wrote:

Thomas Cooley, The General Principles of Constitutional Law in the United States of America 282 (2d ed. 1891).

Stephen Halbrook observes that the Second Amendment may be stated in the form of a hypothetical syllogism: "If a well-regulated militia is necessary to the security of a free state ... then the right to the people to keep and bear arms shall not be infringed." Halbrook, supra note 148, at 85. If, for argument's sake, a civilian "well-regulated militia" is no longer "necessary to the preservation of a free State," it does not logically follow that "the right of the people to keep and bear arms" may be now infringed. To so conclude would be to commit the fallacy of denying the antecedent. In illustrating the fallacious logic entailed in denying the antecedent, an analogous but simpler syllogism may be used: "If it is raining, there are clouds. It is not raining. Therefore, there are no clouds." The conclusion is obviously fallacious, for there may in fact be clouds even though it is not raining.

Sheldon Richman, What the Second Amendment Means, Freedom Daily, Oct. 1995, at 28, 29-31. Richman also explains that nullifying the opening clause does not nullify the entire sentence: "Imagine a long-lost Constitution that stated: 'The earth being flat, the right of the people to abstain from ocean travel shall not be infringed.' Would anyone seriously argue that discovery of the earth's spherical shape would justify compelling people to sail?" Id. at 30.

Neil Schulman, an award-winning science fiction writer from southern California, and also a writer on gun control issues, asked professional grammarians what the Second Amendment meant and obtained the same result. See J. Neil Schulman, Stopping Power: Why 70 Million Americans Own Guns 151-59 (1994).

[228] See generally Don B. Kates, Jr., The Second Amendment and the Ideology of Self-Protection, 9 Const. Commentary 87 (1992) (discussing the natural law philosophers who influenced the Founders in the belief that it is man's right and duty to engage in self-defense).

For example, in United States v. Cruikshank, 92 U.S. 542 (1875), the United States Supreme Court noted that the right to peaceably assemble derives "'from those laws whose authority is acknowledged by civilized man throughout the world.' It is found wherever civilization exists." Id. at 551-53 (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 211 (1824)). For a more detailed discussion of Cruikshank, see infra notes 476-489 and accompanying text.

[229] This objection was articulated by George Mason, who, at the Virginia Convention to ratify the Constitution, stated:

George Mason, Speech in Virginia Convention (June 14, 1788), in Martin, supra note 153, at 401-02.

Patrick Henry echoed this sentiment: "If Congress neglect[s] or refuse[s] to discipline or arm our militia, they will be useless ...." Patrick Henry, Speech in Virginia Convention (June 5, 1788), in id. at 374.

[230] See Kates, supra note 228, at 87. Kates supplies quotations from or references to William Blackstone, the Baron de Montesquieu, John Locke, Algernon Sidney, John Trenchard and Walter Moyle (authors of Cato's Letters), Thomas Paine, Timothy Dwight, John Barlow, Thomas Jefferson, and James Madison, among others. See id. at 89-101. As Kates demonstrates, the right to defense against a criminal government was simply seen as an instance of the natural right to resistance against individual criminals. See id. at 89-90.

[231] Williams, supra note 6, at 610-12. Williams describes this concept as service rendered by youths from different backgrounds brought together for a common, not necessarily military, experience. Id. at 610. He notes the most significant problem as totalitarianism if service is mandatory. Id. at 611.

[236] Slavery impaired civic virtue not just because it excluded slaves from the polity, but because of the degrading effect that slavery had on whites. As Thomas Jefferson wrote:

Thomas Jefferson, Manners, in Notes on the State of Virginia 162 (William Peden ed., University of North Carolina Press 1982) (1782).

[237] In The Militia Movement and Second Amendment Revolution: Conjuring with the People, 81 Cornell L. Rev. 879 (1996), David C. Williams elaborates his thesis that "the People" on which the Second Amendment is contingent have ceased to exist. "The People" were, in Williams's idealized republican conception, ethnically homogeneous, unified, and civically virtuous, able to act decisively to overthrow a tyrant. Id. at 904-09. In contrast, modern, pluralistic, diverse Americans are a mere collection of individuals. Ironically, the political divisiveness that is allegedly fomented by the "individual rights" analysis of the Second Amendment is itself a barrier to the unified polity on which the Second Amendment must be predicated. Id. at 951-52.

Williams deserves credit for engaging the individual rights/insurrectionary (that is, the historical) basis of the Second Amendment in a serious manner, a dialogic responsibility none of the other critics of the Second Amendment even attempts to fulfill. Nevertheless, Williams's Cornell Law Review piece, like his Yale Law Journal piece, see supra note 6, still falls short of successfully explaining the Second Amendment into nothing.

The most important reason is that his description of the idealized, united "the People" on which the Second Amendment is said to depend is ahistorical. "The People"--in the sense of militia-eligible people--may have all been free white males, but this hardly means that they were homogenous, or that they felt they had much in common with each other. In contrast, modern Americans share a national media, a national economy, and easy interstate travel. As John Adams wrote:

X The Works of John Adams, Second President of the United States: With a Life of the Author 283 (Charles Francis Adams ed., 1850-56), quoted in Anne Husted Burleigh, John Adams 54-55 (1969).

The American Revolution was not the work of a united polity that rose as one against a tyrant. John Adams estimated that only a third of the population supported the Revolution, with another third opposed, and one-third neutral. See Howard Zinn, A People's History of the United States 76 (1980).

Williams insists that a revolution conducted pursuant to the precepts of the Second Amendment must be "made by an orderly and unified people according to commonly shared norms and understandings." Williams, supra, at 951. The American Revolution was no such revolution, so why should a Second Amendment revolution have to be? What brought together one-third of the American population from 1776 to 1781 was not a common religion or common ethnic heritage or a similar worldview. What the revolutionary minority of the population had in common was a belief that King George was taking away their ancient rights--what they called "the rights of Englishmen." If there is ever a Second Amendment revolution in this country, it will be because a very large fraction of the American population becomes so convinced that the federal government is taking away the traditional rights of Americans--as expressed in the Constitution--and because tens of millions of Americans are willing to take up arms, and like the revolutionary minority of 1776, submit themselves to the immense perils of rebellion against the most powerful military in the history of the world. It is doubtful that America will ever come to such an unhappy state, but if the federal government one day became so oppressive that a third of the population would risk their lives and fortunes to fight against it, the rebellion would be precisely the act for which the Second Amendment was written.

Williams admits, briefly, that what he defines as "the People" may never have existed in 1776, let alone in the early republic. Williams, supra, at 922, 949. Williams accuses the Framers of making the same error as modern individual rights theorists: "conjuring with the People." Id. at 949. Williams then suggests that modern Americans should not be permitted to interpret the Second Amendment in precisely the same (allegedly mistaken) way that their Framers did. Id. Why assume that the Framers were mistaken? Perhaps, much better than late twentieth-century law professors, the Framers understood the profound disunity of America in the late eighteenth century. (Domestic discord and bitter rivalries between various states were one reason, after all, that the Framers felt a need to replace the Articles of Confederation with the Constitution, and a stronger central government.) Why presume that the Framers thought that a homogenized, unified people were the condition precedent of the Second Amendment, when the Framers' historical experience showed that such unity did not exist, and had never existed?

Even if one accepts Williams's argument that "the People" imagined by the authors of the Second Amendment are wholly different from the people of the United States today, he has not made his case. The Constitution also refers to "the House of Representatives," and that collective body today is radically different from the House of Representatives that the Framers envisioned. Like the American people, from which the House is drawn, the modern House is far more diverse racially, ethnically, and religiously than its 1792 ancestor. The civic virtue that the Framers intended to be represented in the House has been replaced by party factions and by career office holders, both of which were anathema to the Framers.

What if one could prove beyond any doubt that today's House resembles in name only the House of virtue that the Framers envisioned as the foundation of Article I? Would such proof be the slightest reason for a court or a scholar to assert that the modern House no longer has constitutional authority to exercise the powers granted it by the Constitution? Under a written Constitution, "the People," like "the House of Representatives," cannot be divested of their constitutional rights by pointing out how they have changed, arguably for the worse, over the last two centuries.

[238] See infra note 390 (setting forth a sampling of the constitutional provisions of those states guaranteeing the right to bear arms).

[239] See Neb. Const. art. I, � 1 (affirming the right to bear arms for defense of self and family, for the common defense, and for hunting and recreation; adopted Nov. 8, 1988 by general election); Nev. Const. art. 1, � 11 (affirming the right to keep and bear arms for security, defense, lawful hunting, and recreation; adopted Nov. 2, 1982 by general election); N.H. Const. pt. 1, art. 2-a ("All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state."); W. Va. Const. art. III, � 22 (affirming the right of citizens to bear arms for defense of family, self, and state and for recreation, and hunting; ratified Nov. 4, 1986).

[240] See Del. Const. art. I, � 20 (affirming the right to keep and bear arms for "defense of self, family, home and state, and for hunting and recreational use"; adopted Apr. 16, 1987).

[241] Compare Utah Const. art. I, � 6 ("The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed ...."), with Utah Const. art. I, � 6 (amended 1984), quoted in Robert Dowlut & Janet A. Knoop, State Constitutions and the Right to Keep and Bear Arms, 7 Okla. City U. L. Rev. 177, app. at 240 (1982) ("The people have the right to bear arms for their security and defense ...."). See generally M. Truman Hunt, Comment, The Individual Right to Bear Arms: An Illusory Public Pacifier?, 1986 Utah L. Rev. 751 (discussing the 1984 amendment to Article I, Section 6 of the Utah Constitution and concluding that the state retains broad discretion to regulate arms).

[244] See Morison, supra note 101, at 301-04; Alden T. Vaughan, The "Horrid and Unnatural Rebellion" of Daniel Shays, Am. Heritage, June 1966, at 50, 50-53, 77-81. Shays's list of grievances for which the people, "now at arms," demanded reforms dealt mostly with taxes and other financial issues. See Letter from Thomas Grover to the "Printer of the Hampshire Herald" (Dec. 7, 1786), reprinted in The Tree of Liberty: A Documentary History of Rebellion and Political Crime in America 71-72 (Nichols N. Kittrie & Eldon D. Wedlock, Jr. eds., 1986). There were also complaints about the suspension of habeas corpus and the "unlimited power" granted to law enforcement officers by the Riot Act. See id. The last of eight reforms demanded by the Shaysites was that "Deputy Sheriffs [be] totally set aside, as a useless set of officers in the community." Id. at 72.

[246] See id. at 341. Western farmers needed to distill their corn into whiskey in order to shrink it for transportation for sale. See Gerald Carson, Watermelon Armies and Whiskey Boys, in Riot, Rout, and Tumult: Readings in American Social and Political Violence 70, 72 (Roger Lane & John J. Turner, Jr. eds., 1978) [hereinafter Riot, Rout, and Tumult]. Virginians and Pennsylvanians were angry that the whiskey tax bore so one-sidedly on them, and that it was enforced so rigorously by the federal government. See id. at 71. One year after the insurrection, George Washington pardoned two captured rebel leaders. See Morison, supra note 101, at 341.

[247] Williams, supra note 6, at 579 n.161 (citing Amar, supra note 232, at 1191-95).

[252] Presser v. Illinois, 116 U.S. 252, 265 (1886) (holding that the Military Code of Illinois, fairly construed, does not conflict with the laws of Congress regarding militias).

[253] Richard Henry Lee, writing under the pseudonym "The Federal Farmer," articulated this fear of select militias and standing armies:

Richard Henry Lee, An Additional Number of Letters from the Federal Farmer to the Republican, Letter No. 18 (1788), in The Origin of the Second Amendment, supra note 148, at 354-55 (footnote omitted). The first sentence in the above quotation, slightly shortened, was included in a proposed Declaration of Rights at the New York Convention in July 1788. See The Origin of the Second Amendment, supra note 148, at 474.

[257] U.S. Const. art. I, � 8, cl. 16; see Jeffrey A. Jacobs, Note, Reform of the National Guard: A Proposal to Strengthen the National Defense, 78 Geo. L.J. 625, 626-32 (1990) (tracing the historical, constitutional, and statutory evolution of the National Guard).

[259] See Greg Cantrell, "Well-Regulated" Key Term in Second Amendment, Austin Am.-Statesman, May 1, 1995, at A11, available in 1995 WL 6091052.

[260] Clinton Rossiter, The Political Thought of the American Revolution 127 (1963) (quoting Josiah Quincy, Jr., at the time of the Coercive Acts).

[261] Howard E. French, Double Rifles Had Glamour, in Gun Digest 70, 73 (Ken Warner ed., 43d ed. 1989). The article continues:

The Rifle Guide notes: "All of these [older, larger, black-powder, British] double rifles are regulated for a given bullet weight and a specific powder charge. Regulating, in this instance, means that both barrels will shoot very close together." R.A. Steindler, Rifle Guide 96 (1978).

The following illustrate some additional uses of the term "regulated": "Guns like the now obsolete Paradox, 'Jungle Gun,' 'Explora,' 'Fauneta' and other similar 'ball and shot guns' were regulated for heavy bullets." Jack Lott, Double Gun Actions, in Basic Gun Repair 56, 57 (Hans Tanner ed., 1973).

The Firearms Dictionary does not define the term "regulated," but does define "regulating barrels" as "a tedious job needed to make both barrels of a side-by-side or O/U [over and under] gun shoot to the same point." R.A. Steindler, The Firearms Dictionary 193 (1970).

The definition of "regulate" as "[a]lter or control with reference to some standard or purpose; adjust (a clock or other machine) so that the working may be accurate" dates back to the middle of the seventeenth century. II The New Shorter Oxford English Dictionary 2530 (3d ed. 1993) [hereinafter New Shorter Oxford English Dictionary].

[262] "Regulated" can be used in a similar manner regarding the "accurizing" of other items. For example, one could speak of "regulating" a grandfather clock so that it keeps proper time. See New Shorter Oxford English Dictionary, supra note 261, at 2530.

[263] See Civilian Marksmanship: Promotion of Practice with Rifled Arms, Army Reg. 920-20 (Mar. 19, 1990) [hereinafter Civilian Marksmanship].

[264] Cf. Vaughn R. Croft, Editorial, Marksmanship Program Was and Is Needed, Helpful, Pantagraph (Bloomington, Ill.), May 14, 1995, at A13, available in 1995 WL 5242973 ("The Civilian Marksmanship Program trains youth in body, soul and mind in the ideals of responsible citizenship. Teddy Roosevelt wanted youth to learn the ideals of telling the truth and shooting straight.").

[267] See id. "The purpose of the [DCM] is to promote practice in the use of rifled arms by citizens ... subject to induction into the U.S. Armed Forces." Id. A federal study found that, to the extent DCM participants do enlist in the armed forces, they were much better marksmen. See Arthur D. Little, Inc., A Study of the Activities and Missions of the NBPRP [National Board for the Promotion of Rifle Practice], Report to the Department of the Army, No. C-67431 (Jan. 1966).

[270] See John Mintz, M-1 Rifle Giveaway Riles Gun Control Proponents, Plain Dealer (Cleveland), May 9, 1996, at 14A, available in 1996 WL 3550238.

[272] As a result of recently enacted legislation, the DCM program will no longer require a federal subsidy. The program will be turned over to a private, nonprofit institution that will fund the DCM through donations, and from the sale of obsolete army rifles to participants. See National Defense Authorization Act for Fiscal Year 1996, Pub. L. No. 104-106, 110 Stat. 186 (codified as amended in scattered sections of 36 U.S.C. and 10 U.S.C.). If the rifles were not sold, the federal government would have to bear the expense of storing them or destroying them.

[273] Roy Innis, National Chairman of the Congress on Racial Equality, noted: "Another irony of oppressive gun control laws is that as decent citizens are forced to arm themselves illegally, they are less likely to practice and gain proficiency with the weapon." Roy Innis, "Bearing Arms for Self-Defense--A Human and Civil Right," Speech (May 15, 1990) (transcript on file with author).

[274] See N.Y. Penal Law � 265.20(a)(7) (McKinney 1989 & Supp. 1997) (prohibiting children under age 12 from loading or firing a rifle or shotgun even under supervision).

Letter from Thomas Jefferson to Peter Carr, in The Jefferson Cyclopedia 318 (John P. Foley ed., 1967).

[276] See Letter from M.S. Gilchrist, Director, NRA, to David B. Kopel, Research Director, Independence Institute, Golden, Colorado 1 (Apr. 17, 1997) (on file with author). Mr. Gilchrist states that NRA statistics "verify the contention that organized shooting is perhaps the safest sport available to the American population. Ten years of records show that there has not been a death or significant gun related injury having taken place during a sanctioned match." Id.

[278] See New York, N.Y., Charter and Administrative Code � 10-303 (1996) (making it illegal "to dispose of any rifle or shotgun to any person unless said person" holds a permit to possess rifles and shotguns).

[280] See id. � 669b(a) (referencing �� 4161(b) and 4181 of Title 26, which impose an 11% tax on producers, manufacturers, or importers of bows and arrows and an 11% tax on the producers, manufacturers, or importers of firearms (other than pistols and revolvers), shells, and cartridges, respectively).

[282] See id. � 669g(b) (allowing states to use the funds they receive pursuant to � 669c(b) to finance up to 75% of the costs of "hunter safety program[s] and the construction, operation, and maintenance of public target ranges, as a part of such program[s]" provided that the states fund the remaining 25% of a specified manner).

[283] One of the first county commissions to pass a militia resolution was Santa Rosa County in Florida. See Santa Rosa County, Fla., Resolution No. 94-09 (Apr. 14, 1994). The resolution merely restates the definition of the militia contained in Florida state law (all able-bodied adult citizens), but invites citizens of Santa Rosa County to formally declare themselves members of the militia, pursuant to that statutory definition. See id. Federal gun control legislation prompted the resolution. State Commission Chairman H. Byrd Mapoles stated: "Most folks in this county are not willing to give up their guns." Rohter, supra note 151. The militia resolution is therefore "simply a way for us to say that Santa Rosa County is united and stands its ground." Id. Santa Rosa County's resolution has been adopted by two neighboring counties. See id.

The Catron County Commission in New Mexico made explicit in its militia resolution what the Santa Rosa County Commission did not: both the New Mexico and United States Constitutions guarantee the right of New Mexico citizens to keep and bear arms, and "there are forces in our country that are striving to take away our right to bear arms ..., therefore ... every head of household residing in Catron County is required to maintain a firearm of their choice, together with ammunition." Catron County, N.M., Resolution No. 007-95 (Aug. 2, 1994).

[284] See Agencies Unprepared to Cope with Andrew, Storm Panel Finds, Houston Chron., Apr. 15, 1993, at 22, available in 1993 WL 9547534; Michael Fleeman, Volunteers Aid Victims of Andrew, San Diego Union-Trib., Sept. 6, 1992, at A11, available in 1992 WL 4749291; From Hurricane's Fury Comes Heartbreak, Help: Volunteers Working Hard at Good Works, Houston Chron., Aug. 30, 1992, at 1, available in 1992 WL 11443165.

[285] See Lynda Gorov & Tom Mashberg, Volunteers, Donations Help Residents of Riot Area, San Fran. Chron., May 9, 1992, at A8, available in 1992 WL 6260008; Penelope McMillian, After the Riots: The Search for Answers, L.A. Times, May 9, 1992, at 1, available in 1992 WL 2916608; Volunteers Aid L.A. Cleanup, Calgary Herald, May 10, 1992, at A12, available in 1992 WL 6392206.

[286] See David D. Haddock & Daniel D. Polsby, Understanding Riots, 14 Cato J. 147, 156-57 (1994).

[287] See, e.g., Pauline Majer, Popular Uprisings and Civil Authority in Eighteenth-Century America, reprinted in Riot, Rout, and Tumult, supra note 246, at 38-43.

[288] The Constitution empowers Congress "[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." U.S. Const. art. I, � 8, cl. 15. At the Virginia Convention, James Madison cited "a riot" as one of the situations in which the militia could be called forth. James Madison, Speech in Virginia Convention (June 14, 1788), reprinted in The Origin of the Second Amendment, supra note 148, at 416. Two days later, Madison reiterated: "If riots should happen, the militia are proper to quell it, to prevent a resort to another mode [the standing army]." James Madison, Speech in Virginia Convention (June 16, 1788), reprinted in id. at 420.

[294] Walzer, supra note 290, at 63. Walzer praises the Wagner Act as actively fostering unionism. See id. at 65. Thus, active government involvement in creating communal organizations--such as well-regulated militias--ought to be well within the communitarian paradigm.

[295] See, e.g., William M. Sullivan, Institutions As the Infrastructure of Democracy, in New Communitarian Thinking: Persons, Virtues, Institutions, and Communities 179 (Amitai Etzioni ed., 1995) (arguing that successful community policing leads to greater social cohesion and mutual accountability between police and the community's citizens).

[296] See Sandy Banisky, Hard-Line Sheriff Seeks Ballot Lock, Balt. Sun, Feb. 17, 1996, at 1A, available in LEXIS, News Library, Balt. Sun File.

[299] See James Ridgeway, Road to Ruin: The Buchanan Presidential Run Could Destroy Both Political Parties, Village Voice, Mar. 5, 1996, at 22, available in 1996 WL 12535299.

[300] See Lucas County Sheriff Kicks out Hundreds of Special Deputies, Columbus Dispatch, Feb. 11, 1996, at 5C, available in 1996 WL 6187085.

[302] See Victoria Churchville, D.C. to Add Police Reserves: Latest Tactic Calls for Training Volunteer Officers, Wash. Post, Feb. 25, 1988, at D3, available in 1988 WL 2070387.

[304] See Linda Wheeler, Signing up for Active Duty in Drug War: More Professionals Joining D.C. Police Reserve Corps, Wash. Post, Sept. 24, 1989, at D1, available in 1989 WL 2025056.

[305] See Rogers M. Smith, American Conceptions of Citizenship and National Service, in New Communitarian Thinking: Persons, Virtues, Institutions, and Communities 233, 240-41 (Amitai Etzioni ed., 1995).

[307] See Robert J. Cottrol & Raymond T. Diamond, In the Civic Republic: Crime, the Inner City and the Democracy of Arms. Being a Disquisition on the Revival of the Militia at Large, 1994 Annual James Thomas Lecture at Yale Law School (1994) (transcript on file with author).

[310] See David B. Kopel, Children and Guns, in Guns: Who Should Have Them? 309, 311 (David B. Kopel ed., 1995) (citing National Safety Council data showing fatal gun accidents involving children aged 0-14 declining from 530 in 1970 to 227 in 1991); Joe Waldron, "Child" Shooting Stats an Attempt to Mislead, Seattle Post-Intelligencer, May 11, 1996, at A5, available in 1996 WL 6443419.

[312] See Marilyn Heins et al., Gunshot Wounds in Children, 64 Am. J. Pub. Health 326, 327 (1974).

[313] See National Rifle Association, "Promote Gun Safety with Me": The Eddie Eagle Gun Safety Program (1995) [hereinafter Eddie Eagle].

[317] See Laurie Cassady, Shorstein, NRA Aim to Save Kids, Fla. Times-Union, Nov. 2, 1994, at B2.

Eddie Eagle has been adopted in most Florida counties and has been endorsed by the Police Athletic League. See Eddie Eagle, supra note 313. Even the Washington Post calls Eddie Eagle: My Gun Safety Book a "must for any parent who keeps a gun in the home." William Barnhill, Safe Aims, Wash. Post, Jan. 7, 1992, at B5, available in 1992 WL 2968139.

[318] See Pat Schneider, NRA Material in Schools Here, Capital Times, Jan. 13, 1996, at 3A, available in 1996 WL 7068469.

[319] See Mark Spencer, Board Selects New Gun Safety Videos, Hartford Courant, Oct. 16, 1996, at B6, available in 1996 WL 12661602.

[323] See Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 237 n.144. (1983) (internal quotations omitted).

[324] See, e.g., Editorial, The Genovese Syndrome, Phoenix Gazette, May 27, 1995, at B10, available in 1995 WL 2797236 (discussing cases in which individuals observed crimes being committed without intervening, including the highly publicized case of Catherine "Kitty" Genovese who was murdered in front of her apartment building in front of at least 37 witnesses); Douglas Martin, About New York; Kitty Genovese: Would New York Still Turn Away?, N.Y. Times, Mar. 11, 1989, available in LEXIS, News Library, NYT File (discussing a similar incident in which a crowd watched a murderer stalk and attack a woman--on three separate occasions--until she was dead); Sam Roberts, Routine Murders in a Hurried City Numb to Pain, N.Y. Times, Feb. 11, 1991, at B1, available in LEXIS News Library, NYT File (discussing a similar incident in which witnesses to a murder failed to come forward or call the police); Myron Stokes, The Shame of the City, Newsweek, Sept. 4, 1995, at 26, available in 1995 WL 14497306 (discussing another incident in which a woman was beaten on a bridge in Detroit and jumped to her death while a crowd witnessed the entire scene). But see Phillip Burton, What's a Cop's Off-Duty Duty? The Chilling Message of a Rockville Case: Don't Get Involved, Wash. Post, Dec. 11, 1988, at C5, available in 1988 WL 2013058 (discussing a case in which a police officer is charged with assault for intervening, while off duty, in what he mistakenly, although reasonably, thought was a rape).

[325] See Jack Wenik, Forcing the Bystander to Get Involved: A Case for a Statute Requiring Witnesses to Report Crime, 94 Yale L.J. 1787, 1787 (1985).

[328] See Lipset, supra note 38, at 278-79 (comparing the United States with Canada, France, West Germany, Great Britain, Italy, and Japan).

[331] Id. ("[T]he unavailability of guns makes violent crime simply--yes it is simple--much less likely ....").

[336] See Witkin, supra note 77, at 31. Persons residing in the Northeast are the "[l]east likely to own gun[s]," whereas Southerners are the "[m]ost willing to shoot to kill," and Westerners are the "[m]ost sure guns deter crime." Id.

[337] See Kleck, supra note 40, at 430 ("Levels of general gun ownership appear to have no significant net effect on rates on homicide, rape, robbery, or aggravated assault, even though they do apparently affect the fraction of robberies and assaults committed with guns.").

[338] See Lois A. Fingerhut et al., Firearm and Nonfirearm Homicide Among Persons 15 Through 19 Years of Age: Differences by Level of Urbanization, United States, 1979 Through 1989, 267 JAMA 3048 (1992); cf. Kleck, supra note 40, at 23 (stating that gun ownership is higher and the violent crime rate is lower in rural areas).

[343] See generally id. (examining the history of Japan, Great Britain, Canada, Australia, New Zealand, Jamaica, Switzerland, and the United States with respect to crime and gun control laws).

[345] See Gary Kleck & David J. Bordua, The Factual Foundation for Certain Key Assumptions of Gun Control, 5 L. & Pol'y Q. 271, 284 (1983).

[355] See id. (citing Neal Knox, Should You Have a Home Defense Gun?, in Guns and Ammo Guide to Guns for Home Defense 108 (G. James ed., 1975)).

[360] See Wright & Rossi, supra note 61, at 237 ("More generally, the presence of firearms among a felon's associates and potential victims is probably a much greater threat to his well-being than the prospects of an extra 1 or 2 years in prison.").

[370] The revised figure comes from the National Self-Defense Survey, conducted in the spring of 1993 by Kleck and Dr. Marc Gertz. See Gary Kleck & Marc Gertz, Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun, 86 J. Crim. L. & Criminology 150, 164 (1995).

[372] See Marvin E. Wolfgang, A Tribute to a View I Have Opposed, 86 J. Crim. L. & Criminology 188 (1995).

[376] For a state-by-state comparison of results of concealed carry laws, see id. at 687-709.

[379] See Don B. Kates, Jr. et al., Bad Medicine: Doctors and Guns, in Guns: Who Should Have Them? (David B. Kopel ed., 1995).

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III. Virtue and Community Militias

A. The Militia and Republicanism

B. Toward Well-Regulated Militias

IV. Guns and Public Safety

Copyright� 1998