The Militia and the Right to Arms, or, How the Second Amendment Fell Silent

The Militia and the Right to Arms, or, How the Second Amendment Fell Silent

Constitutional Conflicts

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Book Pages: 352 Illustrations: 3 illus Published: January 2003

History > U.S. History, Law > Legal History, Politics > Political Science

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
—Amendment II, United States Constitution

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

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

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


“This is the single most sound and sophisticated study yet to appear dealing with the historical origins of the Second Amendment as well as the meaning it bears for our society today. . . . Amidst the plethora of recent literature attempting to explicate the meaning of the Second Amendment, this book stands out as a voice of sanity and reason. Uviller and Merkel are to be commended for their dispassionate approach as well as for their careful scholarship. Theirs is certainly the most closely reasoned and deeply researched study of the subject. All thoughtful citizens are deeply indebted to them for their effort.” — Robert E. Shalhope , American Historical Review

"The Militia and the Right to Arms demonstrates that a rereading of familiar sources can be immensely useful, particularly in the field of constitutional history. . . . This book will certainly play an important role in the contentious debate and deserves a wide readership." — Saul Cornell , Journal of Southern History

"[W]ell-written and provocative. . . . This book should provoke lively debate not only among scholars and the general public but also among undergraduate constitutional law students, for whom the book might serve as a supplement. Readers also will appreciate the crisp writing style that takes the reader quickly and smoothly through more than two hundred years of American history." — John C. Domino , Perspectives on Political Science

"Meticulous and exhaustive in its treatment of historical and legal sources, this book makes an important contribution to studies of the 2nd Amendment and offers a model for those who would use historical research to inform contemporary constitutional debate." — Roland Marden, Journal of American Studies

"The authors of The Militia and the Right to Arms, or, How the Second Amendment Fell Silent are well qualified to defend their arguments. . . . Although the book offers a scholarly and carefully documented argument, its main points will be clearly accessible to general readers." — Rebecca S. Shoemaker , History: Reviews of New Books

"The Second Amendment's 'right of the people to keep and bear arms' is surely the most politically contentious provision of the Bill of Rights. . . . H. Richard Uviller and William G. Merkel's welcome entry to this cacophonous debate is articulate, thoughtful, carefully researched, historically sound, and above all sane." — Stephen Pitti , Journal of American History

"Uviller and Merkel offer a fresh interpretation of the Second Amendment. . . . In its seriousness of tone, abundant citation of sources, and careful discussion of opposing schools of thought, this presents a powerful case for declaring the Second Amendment irrelevant to the issue of firearms in America." — Publishers Weekly

"With The Militia and the Right to Arms, or, How the Second Amendment Fell Silent, H. Richard Urviller and William G. Merkel enter the fray with perhaps the definitive description of the militia in American history, culture and political theory. . . . This book is top-notch constitutional history and masterful in its melding of history and legal argument. . . . In short, they have produced not only a fine work on the 2nd Amendment, but a model for those who would use historical research to inform contemporary legal/constitutional debate. . . . The Militia and the Right to Arms is an excellent work of constitutional history. It is meticulously researched, clearly and persuasively argued, and highly relevant to the contemporary debate over the 2nd Amendment and gun control. Anyone serious about the history and/or contemporary value of the 2nd Amendment needs to read this book." — Daniel E. Smith , Law and Politics Book Review

“A major advance in Second Amendment studies and a fundamental challenge to the popular but misguided view that the amendment unequivocally recognizes and protects a strong individual right to own and use firearms, free of public regulation.” — Jack Rakove, author of the Pultizer Prize–winning Original Meanings: Politics and Ideas in the Making of the Constitution

“H. Richard Uviller and William G. Merkel have written an outstanding book. One need not agree with every one of their arguments in order to recognize this as a major contribution to the debate about the intellectual origins of the Second Amendment. Anyone interested in the topic—including the potential implications of the Amendment for contemporary gun control policy—should read this book.“ — Sanford Levinson, University of Texas School of Law

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


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Author/Editor Bios Back to Top

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

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

Table of Contents Back to Top


Part I. Arms, the Man, and the Militia: The History of a Concept

1. The Gun in the American Self-Portrait

2. The Militia Ideal in the American Revolutionary Era

3. Madisonian Structuralism: The Place of the Militia in the New American Science of Government

Part II. From Militia to National Guard

4. The Decay of the Old Militia, 1789-1840

5. The Era of the Volunteers, 1840-1903

6. The United States Army and the United States Army National Guard in the Twentieth Century

Part III. The Meaning of Meaning

7. Text and Context

8. Other Theories of Meaning Considered

9. The Emerson Case




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Paper ISBN: 978-0-8223-3017-2 / Cloth ISBN: 978-0-8223-3031-8
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