[The following article appeared on the internet newsgroup talk.politics.guns as part of a discussion about historian Gary Wills' article.]
Some preliminary thoughts on Gary Wills' New York Review of Books article

Having read the thread about the Wills' piece that appeared on this newsgroup, it was with great anticipation that I sought out the article in question in the New York Review of Books. Going in I knew that Wills, to put it most accurately, is rabidly anti-gun. He has, in the past, referred to people who support an individual right to arms as enemies of civilization and traitors to their patria. This does not mean that he is incapable of rational or objective analysis on the subject but it does raise a red flag.

When one removes the rhetoric and intellectual arrogance from the article, what remains is an interesting exposition of the ambiguity that exists in a document that is over two centuries old. I believe that this part of the his article is perfectly fair and does have merit. How much weight it should be given is another matter. I have read much of the material that forms what Wills refers to as the "standard model". [A brief digression. "Standard model" is a term which I believe was coined by Prof. Glenn Harlan Reynolds to describe modern scholarship on the 2nd Amendment. It is a reference to the "standard model" in nuclear physics and suggests that the individual rights view is an orthodox, mainstream view.] Wills' attempts to denigrate the standard model by implying that only handful of scholars are actually "standard modelers" and that they continually reference one another in a kind of incestuous pseudo-scholarship that advances only a narrow, ahistorical viewpoint. This is a gross mischaracterization as I will later indicate. He follows this with a term-by-term exegesis of the 2nd which seeks to characterize the amendment as being purely military in nature and, in the modern context, a total nullity. (He actually suggests that it was a functional nullity in its day.)

I will leave it to others to respond to Wills' scholarly points. I know that Kates is submitting a response to the New York Review of Books, as are Joyce Malcolm, Bob Cottrol, Glenn Reynolds, and Sanford Levinson. A group of scholars that include criminologist David Bordua are also responding. How much of this will be rendered in ink remains to be seen. One item that I will comment on is Wills' airy dismissal of the idea that "right of the people" could refer to an individual right. This is really the crux of his whole argument. In striving for a narrow interpretation that has "people" having a purely military/militia context, Wills' has to pitch a substantial body of constitutional interpretation that has the word associated with individuals everywhere else that it appears in the constitution. This is a dangerous exercise that could undermine the rest of the Bill of Rights' protections.

Significantly, Wills makes no reference to scholars Akhil Amar, William Van Alstyne, and Michael Kent Curtis, among others. Wills pointedly ignores the history of the 14th Amendment and the idea of an individual right of self-defense that was one of its motiviations. The evidence from the above mentioned scholars is that the Framers of the 14th were just as concerned about that right, protected by the 2nd Amendment, as they were about freedom of the press, protected in the 1st. Amar has observed that the intellectual arguments advanced to support the assertion that the 2nd Amendment was not intended to be incorporated by the 14th are weaker than those advanced against 1st, which the Supreme Court has ruled, was incorporated. [In this regard, I will repost a copy of the presentation I made on this to the ICLU Board. I go into some detail on arguments against the orthodox interpretation of separation of church and state and show how the reasoning parallels that used against the 2nd Amendment by its opponents.]

Most interesting of all is Wills' final admission. In the last paragraph, he avers that he is not arguing that there is not a right for individuals to possess guns or defend themselves, merely that it is not in the 2nd Amendment. Van Alstyne, in his paper, dismisses this reasoning specifically, referencing Nicholas Johnson's article on the possibility of RKBA emanating from the 9th Amendment. The logical and historical place for the right is in the 2nd. Perhaps Wills is just unfamiliar with Van Alstyne.

I have said that Wills' mode of constitutional interpretation is dangerous. Let me amplify. Wills, although he does make some good points, is nonetheless asking us to do one of two things:

  • We must abstract the 2nd Amendment from the rest and analyze it differently. We must so narrowly interpret "right of the people" that it no longer means "right of the people" but rather something like a "right of a militia-member". It suggests that Wills has no idea what natural or fundamental rights mean and fits in with an earlier statement he made that implies that government "grants" rights. Rights preexist government and are not granted by it
  • We must interpret the whole Constitution narrowly. This would avoid a major logical problem for Wills. Constitutional exegesis is like formal logic in that rules of analysis are applied consistently. There may be different schools of thought, but they all apply their analytic methods uniformly. It really doesn't do for Wills to cavil and quibble over obscure meanings of terms in one Amendment and go through contortions to disallow any possibility that "right of the people" could mean what it says, and then declare such analysis out of bounds when applied to any of the other amendments. If Wills' could explain why the 1st is immune from this sort of thing, he might have a stronger case. The 1st says:
    "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
    Notice "the right of the people" to assemble and to petition government. We can play Wills' game here and come up with a right to gather ONLY for the purposes of presenting a signed petition to Congress. There is nothing here about a general right of association. I'm sure that we can find an appropriate definition of "assemble" that will be narrow and limit it to something formal. This would exactly parallel what Wills is doing. Moreover, even if one accepts that the 14th extends the protections of the Bill of Rights to the states (contrast this with the narrow views of Raoul Berger and Robert Bork) it still means nothing more than that your state may not prohibit you and your "assembly" from taking your petition to Washington, D.C. and presenting it in person.

Wills' last admission, that there may be a right to arms found elsewhere in the Constitution, leads one finally to ask, what is his point? Is this all just so much constitutional pilpul by an ivory tower type? Is he being disingenuous? Or is his admission intended as a sop to Liberals who wish to create constitutional rights such as a right to health care, saying in effect, "see, I'm a Liberal, too"?

Summing up, Wills does raise questions about the standard models' interpretation that deserve a response. Ultimately, his own conclusions are based upon a Bork-style analysis which apparently scare him enough to cause him to recoil from them in a kind of Liberal reflex. I eagerly await the responses.