The quality of the school’s arguments can be seen in the very article that proposes the "Standard Model" as the norm of scholarship in this area. Glenn Harlan Reynolds "proves’ that the Second Amendment looked to private ownership of guns by quoting Patrick Henry, in these words (and these words only): "The great object is that every man be armed.... Everyone who is able may have a gun." 6

Our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall he doubly armed. The great object is that every man [of the militia] be armed. But can the people afford to pay for double sets of arms, &c? Every one who is able may have a gun. But we have learned, by experience, that, necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. 7

Yet both the general public, which has a disposition to believe that the Second Amendment protects gun ownership, and the NRA lobby are holstered in that view by the sheer mass of the articles now being ground out and published in journals. It is difficult to sort out all the extraneous, irrelevant, and partial material daily thrown into the debate. Even to make a beginning is difficult. One must separate what the Second Amendment says from a whole list of other matters not immediately at issue. Some argue, for instance, that there is a natural right to own guns (Blackstone is often quoted here) antecedent to the right protected by the amendment, or that such a right may be protected in other places (common law, state constitutions, statute, custom, etc.). All that could be true without affecting the original scope of the Second Amendment. One could argue for instance, that owners of property have a right to charge rental on it— but that is not the point at issue in the Third Amendment (against quartering federal troops on private property).

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person. 8

The Senate specifically rejected a proposal to add "for the common defense" after "to keep and bear arms," thereby precluding any construction that the right was restricted to militia purposes and to common defense against foreign aggression or domestic tyranny.’ 13

His proof of deliberate preclusion is this passage in the Senate records: "It was moved, to insert the words, ‘for the common defence,’ but the motion was not successful." We are not told why the motion failed. We know the Senate was mainly compressing and combining the amendments, not adding to the language. There are several possible reasons for the action, all more plausible than Halbrook’s suggestion that "for the common defense" would have imported a military sense that is lacking without it. The military sense is the obvious sense. It does not cease to become the obvious sense if something that might have been added was not added.

1. Bear Arms. To bear arms is, in itself, a military term. One does not bear arms against a rabbit. The phrase simply translates the Latin arma ferre. The infinitive ferre, to bear, comes from the verb fero. The plural noun arma explains the plural usage in English ("arms"). One does not "bear arm." Latin arma is, etymologically, war "equipment," and it has no singular forms." 16 By legal and other channels, arma ferre entered deeply into the European language of war. To bear arms is such a synonym for waging war that Shakespeare can call a just war "just-borne arms" and a civil war "self-borne arms." 17 Even outside the phrase "bear arms," much of the noun’s use alone echoes Latin phrases: to be under arms (sub armis), the call to arms (ad arma), to follow arms (arma sequi), to take arms (arma capere), to lay down arms (arma ponere). "Arms" is a profession that one brother chooses as another chooses law or the church. An issue undergoes the arbitrament of arms. In the singular, English "arm" often means a component of military force (the artillery arm, the cavalry arm).

It is impossible to follow the gun people into every thicket of their linguistic wild-hare chase, but one passage must be considered since it comes up again and again in the new writings. Even the sensible essay in the Tennessee Law Review by Colonel Charles J. Dunlap, Jr., says that "the minority of the Pennsylvania state convention that voted to adopt the Constitution" put "killing game" among the objects of a "right to bear arms." 19 That is now the customary way for the Standard Modelers to refer to the passage at issue: it is the position of "the minority" in the Pennsylvania ratifying convention. That makes it sound like the view of a considerable body of men (though not the majority). Dunlap took his information from an article written in a law journal by Robert Dowlut, the General Counsel of the National Rifle Association— an affiliation that helps explain the wide dissemination of this argument. 20

He was one of the small group which in this period fanned jealousies and suspicions of the Pennsylvania back country into an opposition which was probably the most vehement experienced by any state and nearly resulted in armed conflict... At no period of his official career did Whitehill reflect better his back-country views than as a member of the Pennsylvania convention to ratify the federal Constitution (1787). In the Assembly he sought a delay in the election of delegates ...In the convention he resorted to every device to delay and defeat ratification. He insisted that there were inadequate safeguards against a tyranny and on the day of ratification attempted, without avail, to have fifteen articles incorporated as a bill of rights.

Whitehill brought his fifteen proposals into the convention, on the day scheduled for a final vote, in order to abort the process. He made them the basis of a motion to adjourn without voting. The record of the Convention describes the turmoil over this last-minute effort at obstruction:

Some confusion arose on these articles being presented to the chair, objections were made by the majority to their being officially read, and, at last, Mr. [James] Wilson desired that the intended motion might be reduced to writing in order to ascertain its nature and extent. Accordingly, Mr. Whitehill drew it up, and it was read from the chair... 22

Whitehill’s motion to adjourn was denied, the majority voted for the Constitution, and Whitehill’s fifteen destructive proposals were never even debated by the convention. Some of Whitehill’s fifteen points resembled other calls for a bill of rights, calls later answered in the first ten amendments; but others were merely frivolous, or were aimed at entirely gutting the draft Constitution. In the latter category was proposal fifteen, which began, "That the sovereignty, freedom, and independence of the several states shall be retained..." (exactly the state’s position under the existing Articles).

11. That the power of organizing, arming, and disciplining the militia (the manner of disciplining the militia to be prescribed by Congress) remains with the individual states, and that Congress shall not have authority to call or march any of the militia out of their own state, without the consent of such state and for such length of time only as such state shall agree. 23

Following his throw-in-the-kitchen-sink approach, Whitehill introduced some language going back to English gaming laws and "enclosures," 25 as if hunting were in peril from the Constitution.

8. The inhabitants of the several states shall have liberty to fowl and hunt in seasonable times, on the lands they hold, and on all other lands in the United States not enclosed...

It is in the context of these scattershot objections, hastily assembled to be purely destructive, that we should read the part of Whitehill’s list that gun advocates like to quote as the "minority position":

7. That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game...

2. To keep. Gun advocates read "to keep and bear" disjunctively, and think the verbs refer to entirely separate activities. "Keep," for them, means "possess personally at home"— a lot to load into one word. 28 To support this entirely fanciful construction, they have to neglect the vast literature on militias. It is precisely in that literature that to-keep-and-bear is a description of one connected process. To understand what "keep" means in a military context, we must recognize how the description of a local militia’s function was always read in contrast to the role of a standing army. Armies, in the ideology of the time, should not be allowed to keep their equipment in readiness.

Some arms could be kept at home, course. Some officers kept their most valuable piece of war equipment, a good cross-country horse, at home, where its upkeep was a daily matter feeding and physical regimen. But military guns were not ideally kept home. When militias were armed, it was, so far as possible, with guns standard issue, interchangeable parts, uniform in their shot, upkeep and performance— the kind of "firelocks" Trenchard wanted kept "in every parish" (not every home), The contrast with armies was not to be in performance (Trenchard and others boasted of the high degree of efficient organization in militias)." 35 The contrast was in continuity. The militia was always at the ready, its arms "kept." Armies came and went— their "continuation" was what Trenchard attacked. 36

To keep-and-bear arms was the distinguishing note of the militia’s permanent readiness, as opposed to the army’s duty of taking up and laying down ("deponing" is Trenchard’s word) their arms in specific wars. The militia was maintained on a continuing basis, its arsenal kept up, its readiness expressed in the complex process specified by "keep-and-bear." To separate one term from this context and treat it as specifying a different right (of home possession) is to impart into the language something foreign to each term in itself, to the conjunction of terms, and to the entire context of Madison’s sentence.

3. Well-regulated. One of the modern militia leaders who testified before Congress said, in answer to a question by Representative Patricia Schroeder about his insignia, that the militia movement is informal, spontaneous, and without fixed leadership. No eighteenth-century defender of the militias would have spoken that way. Sensitive to the charge that militias could be mobs, they always stressed that they were talking of a proper militia, a good militia, a correct militia, one well-trained, well-disciplined, well-regulated.

To organize a militia, the most basic question is: Who should belong to it? The answer, prompted by reliance of the militia ideology on classical republicanism, was "the people." Greece and Rome were military states in which each civis was a miles. But "the people" in seventeenth-century England had a meaning as narrow in military affairs as in all others. Few could vote in that era. Few held land. Few had patents or grants for commerce. Since one of the roles of the militia was to serve as a local police power (in conjunction with the constabulary of the parish), not just any transient, or guild member, or wage laborer automatically belonged to the militia. They were the ones being policed. A landholder could use his own "retainers" (equipping them out of his store) to serve under him, at war as in peace. Or he could buy the services of another if he wished to evade service. But in general the social structure of a very deferential society was reflected in the makeup of the militias, whose officer class was the ruling class. 39 Suspect elements in society— Catholics, Jews, some members of dissenting sects— were kept at various times from access to military equipment. Traces of this attitude survived in the American colonies, where John Adams described the militia as led by "gentlemen whose estates, abilities and benevolence" made them obeyed. 40 As we shall see, the meaning of "the people" is different at differing periods, but at no time preceding the passage of the Second Amendment could any man be considered a militia member just by picking up his gun and proclaiming himself one.

Discipline was the third item of concern for eighteenth-century defenders of militias. No one was a member of the militia who had not joined an authorized "trained band" and been trained. So important is proper training that we often find "well-regulated" followed by an epexegetic phrase, spelling out the meaning of the term: "a well regulated militia, trained to arms" was the form Elbridge Gerry preferred for the Second Amendment. 42 More expansively the Virginia ratifying convention suggested "a well-regulated militia, composed of the body of the people trained to arms." 43

The Standard Model finds, squirreled away in the Second Amendment, not only a private right to own guns for any purpose but a public right to oppose with arms the government of the United States. It grounds this claim in the right of insurrection, which clearly does exist whenever tyranny exists. Yet the right to overthrow government is not given by government. It arises when government no longer has authority. One cannot say one rebels by right of that nonexistent authority. Modern militias say the government itself instructs them to overthrow government— and wacky scholars endorse this view. They think the Constitution is so deranged a document that it brands as the greatest crime a war upon itself (in Article III: "Treason against the United States shall consist only in levying war against them... ") and then instructs its citizens to take this up (in the Second Amendment). According to this doctrine, a well-regulated group is meant to overthrow its own regulator, and a soldier swearing to obey orders is disqualified for true militia virtue.

One of the Standard Modelers’ favorite quotations, meant to prove that the militia was designed to fight against, not for, the federal government, is James Madison’s argument, in Federalist No. 46, that any foreseeable national army could not conquer a militia of "half a million citizens with arms in their hands." But Madison says this while what he calls a "visionary supposition"— that the federal government has become a tyranny, overthrowing freedom.

That the people and the States should for a sufficient period of time elect an uninterrupted succession of men ready to betray both; that the traitors should throughout this period, uniformly and systematically preserve some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggeration of a counterfeit zeal, than like the sober apprehensions of genuine patriotism. 47

Madison says he will grant, per impossible, such a hypothesis in order to consider the result:

A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combination in short would result from an apprehension of the federal, as was produced by the dread of the foreign yoke...

Madison is describing the Revolution, when Committees of Correspondence, Minutemen, and other bodies of resistance to tyranny sprang into being. It is not the "well-regulated militia" under the Constitution that is being described, but the revolutionary effort of a people overthrowing any despotism that replaces the Constitution and makes it void. Tyrannicides do not take their warrant from the tyrant’s writ. In Madison’s dire hypothesis, all bets are off and the pre-government right of resistance replaces governmental regulations including the Second Amendment. He is not describing the militia as envisioned in the Second Amendment. To use his words as if they explained the amendment’s proper functioning is absurd.

It is from such material that the Standard Model makes its case that militias are supposed to oppose the government that organizes, funds, and regulates them. They have been helped along by two frivolous but influential articles supposedly written "from the left," published in The Yale Law Journal. In 1989, Sanford Levinson found the idea of a right to revolution in the Second Amendment so "interesting" that it, along with other things in the text, could be "embarrassing" to liberals like himself. 48 One sign of this article’s influence is that it dazzled the eminent constitutionalist George Will, whose praise for the article has been disseminated ever since by the National Rifle Association. 49 In 1991, David L. Williams upped Sanford Levinson’s bid, calling the Second Amendment not only "embarrassing" but "terrifying" because it imports republican resistance into a merely liberal document. 50 If no modern militia meets the standards of republican virtue, then the courts should try to enforce the Second Amendment by other "republican" steps— like universal service, broader distribution of property, and other things Professor Williams agrees with. Any document would be terrifying if it mandates whatever a professor has on his wish list.

4. The people. Gun advocates claim that the "right of the people" to keep and bear arms is distributive, the right of every individual taken singly. It has that sense in, for instance, the Fourth Amendment ("the right of the people to be secure in their persons"):But the militia as "the people" was always the populus armatus, in the corporate sense (one cannot be a one-person militia; one must be formed into groups). Thus Trenchard calls the militia "the people" even though as we have seen, the groups he thought of were far from universal. 51 The militia literature often refers to "the great body of the people" as forming the militia, and body (corpus) is a necessarily corporate term. The great body means "the larger portion or sector of" (OED, "great," 8:c). This usage came from concepts like "sovereignty is in the people." This does not mean that every individual is his or her own sovereign. When the American people revolted against England, there were loyalists, hold-outs, pacifists who did not join the revolution. Yet Americans claimed that the "whole people" rose, as Madison wrote in the Federalist, since the connection with body makes "whole" retain its original, its etymological sense— wholesome, hale, sound (sanus). The whole people is the corpus sanum, what Madison calls "the people at large." 52 Thus "the people" form militias though not every individual is included in them. The people as a popular body (corpus) was often contrasted with the rulers (senatus populusque), which is not a distributive sense (that would exclude senators from individual rights).

Adam Smith predicted in the eighteenth century, and Max Weber confirmed in this century, that modern principles of the division of labor, specialization of scientific warfare, and bureaucratization of responsibility would shift the functions of the eighteenth-century militia to professional armies and to local police forces, giving the state a "monopoly on force" as a matter of efficiency. George Washington, who had bitterly criticized the militias during the Revolution, tried to adhere to the Second Amendment by proposing what was known as the Knox Plan, for a small but well-trained militia. Congress, instead, gave him the Militia Act of 1792, which made of the militia a velleity.

thought that the amendments would "tend to injure rather than serve the cause of liberty" by lulling the suspicions of those who had demanded amendments in the first place. . . The Antifederalist strategy, it seems, was to reject the most popular of the amendments, thus making it necessary for Congress to take up the whole matter again. 58

Henry feared that Madison was doing in the Antifederalists with sweet talk, and he was right. Madison confided to a friend: "It will kill the opposition everywhere." 59 Sweet-talking the militia was a small price to pay for such a coup— and it had as much impact on real life as the anti-quartering provisions that arose from the same motive. Thus he crafted an amendment that did not prevent the standing army (and was not meant to) but drew on popular terms that were used for that purpose in the past. His sentence structure set as totally military a context for this amendment as for the Third. Every term in the Second Amendment, taken singly, has as its first and most obvious meaning a military meaning. Taken together, each strengthens the significance of all the others as part of a military rhetoric.

As said at the beginning, my argument does not deny any private right to own and use firearms. Perhaps that can be defended on other grounds— natural law, common law, tradition, statute. It is certainly true that most people assumed such a right in the 1780s— so naturally, in fact, that the question was not "up" and calling for specific guarantees. All I maintain is that Madison did not address that question when drafting his amendment. When he excepted those with religious scruple, he made clear that "bear arms" meant wage war— no Quaker was to be deprived of his hunting gun.

NOTES

1. Joyce Lee Malcolm, "Gun Control and the Constitution: Sources and Explorations on the Second Amendment," Tennessee Law Review (Spring 1995), p. 815. text@note1

2. Don B. Kates, Henry E. Schaffer, John K. Lattimer, George B. Murray, and Edwin H. Cassem, "Guns and Public Health: Epidemic of Violence or Pandemic of Propaganda?" Tennessee Law Review (Spring 1995), p. 519. text@note2

3. Randy E. Barnett, "Guns, Militias, and Oklahoma City," Tennessee Law Review (Spring 1995), p. 452. text@note3

4. Glenn Harlan Reynolds, "A Critical Guide to the Second Amendment," Tennessee Law Review (Spring 1995), p. 512. text@note4

5. Stephen P. Halbrook, A Right to Bear Arms (Greenwood Press, 1989), p. 101. The author had published this argument five years earlier in his book That Every Man Be Armed: The Evolution of a Constitutional Right (University of New Mexico Press, 1984), p. 219, and no scholar of the movement had the heart (or perhaps the head) to correct him in the interval. text@note5

6. Glenn Harlan Reynolds, "A Critical Guide to the Second Amendment," Tennessee Law Review (Spring 1995), p. 469. text@note6

7. Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Washington, 1836), Vol. 3, p. 386. text@note7

8. Bernard Schwartz, The Bill of Rights: A Documentary History (Chelsea House, 1971), Vol. 2, p. 1026. text@note8

9. It was a commonplace that a proper militia was "the best security" to a state— meaning best physical guarantor of "national security." Adam Smith uses just those words in his Lectures on Jurisprudence (Oxford University Press, 1978), p. 543. But Madison broadened the issue by distinguishing a free country's protection. text@note9

10. Bernard Schwartz, The Bill of Rights, Vol. 2, p. 1107; "They can declare who are religiously scrupulous, and prevent them from bearing arms." text@note10

11. "See Johnson’s texts analyzed J. C. D. Clark, in Samuel Johnson: Literature, Religion and English Cultural Politics From the Restoration to Romanticism (Cambridge Univerity Press, 1994), pp. 120-126. text@note11

12. Joyce Lee Malcolm, To Keep a Bear Arms: The Origins of an Anglo-American Right (Harvard Univerity Press, 1994), pp. 160-161: "The language had also been tightened by reversing the reference to the military and the right of the people to bear arms, perhaps intentionally putting more emphasis on the militia." text@note12

13. Stephen P. Halbrook, That Every Man Be Armed. For the motion that failed, see Schwartz, The Bill of Rights, Vol. 2, pp. 1143-1154. text@note13

14. See Articles of Confederation, draft Articles X, XI, and XII, all of which used "common defence" for confederated action, and Articles VII and VIII as passed. See The Documentary History of the Ratification of the Constitution, edited by Merrill Jensen (State Historical Society of Wisconsin, 1976), Vol. 1, pp. 81, 89. Article VIII stated:

All charges of war, and all other expenses that shall be incurred for the common defence or general welfare, are allowed by the united states in congress assembled, shall be defrayed out of a common treasury.. . according to such mode as the united states in congress assembled shall from time to time direct and appoint. [italics added]

Alexander Hamilton used "common defence" in the same way, in Federalist No. 25 (Jacob E. Cooke, editor, Wesleyan University Press, 1961, p. 158). text@note14

15. Malcolm, To Keep and Bear Arms, p. 160: "In keeping with state proposals, the word 'state' had been substituted for Madison's 'country.' 'State' was a more precise term and, since a state was a polity, it could refer either to one state or to the United States." text@note15

16. Though the Greek equivalent of arma has a singular (hoplon), meaning shield, the plural (hopla) refers to all kinds of military (including naval) equipment. text@note16

17. Shakespeare, King John 2.1.345, Richard II 2.3.80. In the last line, the emphasis on native ("And fright our native peace with self-borne arms") shows that Berkeley is describing citizens who bear arms against themselves. text@note17

18. Halbrook, A Right To Bear Arms, p. 56. text@note18

19. Colonel Charles J. Dunlap, Jr.. "Revolt of the Masses: Armed Civilians and the Insurrectionary Theory of the Second Amendment," Tennessee Law Review (Spring 1995), p. 650, fn. 35. text@note19

20. Robert Dowlut, "Federal and State Constitutional Guarantees to Arms," University of Dayton Law Review (Fall 1989), pp. 62-63. text@note20

21. See "The Dissent of the Minority of Convention" (September 18, 1787), in Jenson, editor, The Documentary History of the Ratification of the Constitution Vol. 2, pp. 617-649. text@note21

22. "Debates of the Convention" (September 12, 1787), in Jensen, editor, The Documentary History of the Ratification of the Constitution, Vol. 2, p. 599. text@note22

23. "Debates" in Jensen, editor, The Documentary History of the Ratification of the Constitution, Vol.2, p. 598. text@note23

24. That other members of the minority did not agree with Whitehill’s desire to rescind the Articles is seen in the completely different treatment of the militia also contained in Bryan’s hodgepodge "dissent." The treatment, on pp. 637-639 of the "Dissent," says nothing of service beyond state borders, or other powers granted in the Articles. text@note24

25. "Debates," in Jensen, editor, The Documentary History of the Ratification of the Constitution, p. 598. text@note25

26. The signers of the dissent were agreeing with the things they had contributed to the whole, not with the parts on discord with their own contributions. (See footnote 24.) text@note26

27. Malcolm, To Keep and Bear Arms, Chapters 7 and 8. It should be observed that the British "complaint" is a gun-control measure, setting three restrictions on having arms— Protestantism, social condition, and the allowance of unspecified gun laws. Furthermore it is a grant ("may have") not a statement of antecedent right. text@note27

28. For the assumption that "keep" means "keep in the house" see Dowlut, "Federal and State Constitutional Guarantees to Arms," p. 69: "The bearing of arms in a public place is different from the keeping of arms in the home on account of the home’s special zone of privacy." Private gun ownership is guaranteed, he claims, by the keeping of guns in the privacy zone. For keep as individual possession, see Robert E. Shalhope on "two distinct, yet related rights— the individual possession of arms and the need for a militia made up of ordinary citizens." "The Ideological Origins of the Second Amendment," Journal of American History (December 1982), pp. 599-614. Glenn R. Reynolds, one proponent of the Standard Model, quotes with approval the disjuction formulated by Donald B. Kates that "the term ‘keep’ refers to owning arms that kept in one’s household; the term ‘bear’ refers to the bearing of arms while actually taking part in militia duties" ("A Critical Guide to the Second Amendment," p. 482). text@note28

29. Anonymous pamphlet cited in Richard Ashcraft, Revolutionary Politics and Locke’s ‘Two Treatises of Government' (Princeton University Press, 1986), p. 118. Italics added. text@note29

30. John Trenchard, An Argument, Shewing that a Standing Army Is inconsistent with a Free Government and absolutely destructive to the Constitution of the English Monarchy (London, 1697), p. 6. Italics added. A good brief description of the militia ideology is in Adam Smith, Lectures on Jurisprudence, pp. 268-269, 420-421. See Also J.G.A. Pocock. The Machiavellian Moment (Princeton University Press, 1975), Chapter 12, pp. 401-422, and Lois G. Schwoerer, ‘No Standing Armies!’: The Antiarmay Ideology in Seventeenth-Century England (Johns Hopkins University Press, 1974), pp. 174-187 (on Trenchard as "the great tutor" on militias) Hamilton says the objection to standing armies was to "keep them up in a season of tranquility" (Federalist Paper No. 25, p. 160). Italics in original. text@note30

31. Trenchard, An Argument, p.21. text@note31

32. Trenchard, An Argument, p. 21. Italics added. text@note32

33. Trenchard, An Argument, p. 21. text@note33

34. "Articles of Confederation," Jensen, editor, The Documentary History of the Ratification of the Constitution, Article VI, p. 88. Italics added. As an English noun, "keep" meant permanently holdable part of a cu (the equivalent of the Italian milift term tenazza). text@note34

35. Trenchard defends the "well-trained militia" against the arming of "an undisciplined mob" (An Argument, p. 20). text@note35

36. A "continuation" of the army would make it an "establishment" (An Argument, p. 15). text@note36

37. Trenchard, An Argument, pp. 7, 10. text@note37

38. Adam Smith, An Inquiry Into the Nature and Causes of the Wealth of Nations, edited by W.B.Todd (Oxford University Press/Clarendon Press, 1976), Vol. 2, p. 698. text@note38

39. See Trenchard, An Argument, p. 22: "There can be no danger from an army where the nobility and the gentry of England are the commanders, and the body of it made up of the freeholders, their sons and servants..." Because the militia was an extension of the landed class’s authority, it was a Tory enthusiasm, denounced as such by the Whig author, Sir John Hawkins, when he condemned his friend Samuel Johnson for "his invectives against a standing army." "The Life of Samuel Johnson, LL.D., by Sir John Hawkins, Knt., edited by Bertram H. Davis (Macmillan, 1961), p. 45. Adam Smith said a laborer should not join the military since his "constant labour hurt the shape and rendered him less fit for military exercises... (We can know a tailor by his gait.)" See Lectures on Jurisprudence, p. 231. text@note39

40. Robert J. Taylor et al., editors, Papers of John Adams (Harvard University Press/Belknap), vol. 2 (1977), p. 253 ("Novanglus" No. 2, February 6, 1775). text@note40

41. See Schwoerer, 'No Standing Armies!' pp. 20-22. text@note41

42. Schwartz, The Bill of Rights, Vol. 2, p. 1109. text@note42

43. Elliot, Debates in the Several State Conventions Vol. 3., p. 659. text@note43

44. William Blackstone, Commentaries on the Laws of England, facsimile of the first edition of 1765-1769, edited by Stanley N. Katz (University of Chicago Press, 1979), Vol. 1, p. 398. text@note44

45. Glenn Harlan Reynolds, "A Critical Guide to the Second Amendment," pp. 476-467: "The National Guard was never designed to resist a tyrannical government.... And they are required to swear an oath of loyalty to the United States government, as well as to their states." text@note45

46. Of course, the original point of British resistance to standing armies was lost in America. The militias were parliament’s tool to keep the king from having a regular revenue for standing forces. in America, the parliament (Congress) had established itself as the organizer and founder of the military forces, a point made both by Hamilton in The Federalist (Nos. 24, 26, 28) and Madison (Elliot, Debates in the Several States Conventions, Vol. 3, p. 383). text@note46

47. James Madison, The Federalist No. 46, pp. 320-321. text@note47

48. Sanford Levinson, "The Embarrassing Second Amendment," Yale Law Journal (December 1989), pp. 637-659. text@note48

49. See Wayne LaPierre, Guns, Crime, and Freedom (Regnery Publishing, 1994), pp. 12, 175. For the constitutionalism of George Will, see Garry Wills, "Undemocratic Vistas," New York Review of Books, November 19, 1992, pp. 28-34. text@note49

50. David C. Williams, "Civic Republicanism and the Second Amendment: The Terrifying Second Amendment," Yale Law Journal (December 1991), pp. 551-615. text@note50

51. Trenchard, An Argument, p. 15. text@note51

52. Madison, The Federalist No. 46, p. 316. text@note52

53. See for instance, S. D. Lambert, The Phratries of Attica (University of Michigan Press, 1993), pp. 25-58, 205-236. text@note53

54. Ironically, the private militias of our day like to compare themselves with the Minutemen of the Revolutionary era— yet those were volunteer forces joined only by the ideologically compatible, something far closer to the "select militia" of the eighteenth century than is the contemporary National Guard. For the lack of universal service in colonial militias, see John Shy, A People Numerous and Armed (Oxford University Press, 1976), pp. 21-33. text@note54

55. The best summary of this matter is by Frederick Bernays Wiener, "The Militia Clause of the Constitution," Harvard Law Review (December 1940), pp. 181-219. text@note55

56. Wiener, "The Militia Clause," pp. 188-193. text@note56

57. Malcolm, To Keep and Bear Arms, p. 164. text@note57

58. Richard Beeman, Patrick Henry (McGraw-Hill, 1974), pp. 170-172. There is a good contemporary description of Henry’s attempt to kill the Bill of Rights he had earlier demanded in The Papers of James Madison (University Press of Virginia, 1979), Vol. 12, pp. 463-465. text@note58

59. Madison, Papers, Vol. 12, p. 347. Madison called the Bill of Rights "the nauseous project of amendments," which he considered unnecessary in a republic, but "not improper in itself," and useful for preempting a position it could be inconvenient to surrender to the Antifederalists (pp. 346-347). This is hardly the stubborn call to a last bastion of freedom that gun advocates find in the Second Amendment. text@note59

60. Levinson, "The Embarrassing Second Amendment," pp. 657-659. text@note60