The Miseducation of Danny Glover

In a January 17  speech to students at Texas A&M University, Danny Glover, the actor from Lethal Weapon etc., attempted to disparage the constitutional right to arms with the critique that “The Second Amendment comes from the right to protect themselves from slave revolts, and from uprisings by Native Americans.”

This is abundantly wrong and I hope the students will not consider Mr. Glover a definitive source on the question.  But I will give him credit for the try.  He attempted to engage the issue by at least skimming one piece of the voluminous scholarship in this area.

His comment seems based on a cursory reading of a 1998 law review article by Professor Carl Bogus.  First, it warms the academic’s heart that a Hollywood actor would sit down and read a law review article, although I acknowledge the possibility that someone just told him about it.

Either way, his education is incomplete (as is true for all of us).  Mr. Glover’s mistake is to have taken one dubious thing and run with it.  That is almost always a mistake and especially so in the gun debate.  But Danny Glover’s mistake is also a teaching tool that illuminates the broader conversation.

The article by Prof. Bogus is a useful illustration of the long and ongoing enterprise to render the Second Amendment substantively meaningless.  There are many flaws in his approach, primarily that it simply ignores the straight forward individual rights assessment that in the literature is dubbed the “standard model”. Rather than repeat the standard model assessment, which is stated well by the majority in D.C. v. Heller, I thought it would advance the debate to put Prof. Bogus’ article in the broader context of the various other efforts to hollow out the Second Amendment.

For people who pine for a gun-free society, the “right of the people to keep and bear arms” is a substantial impediment.  Since most Americans support the idea of a private right to guns the chance of amending the constitution to repeal the Second Amendment is nil.   So the alternative tactic has been to argue that the Second Amendment, despite providing a far stronger textual and historical foundation for a constitutional right to arms than we have for other controversial rights (e.g., the abortion right), really is no barrier to stringent supply side gun controls.

That enterprise is instructive because it has generated so many different and sometimes conflicting efforts.  The article that fuels Mr. Glover’s attempt at constitutional wisdom is one of those. One of the most damming indictments of these projects is that there are so many different ones.

Most people appreciate that when someone continually changes their story, it diminishes their credibility and this is doubly true for legal claims.  This is the burden on the various and conflicting hollow Second Amendment arguments. There are at least eight of them, including the one that Mr. Glover has championed.  I summarize them here.

The right of the people really means the right of the states – In a lower court decision from the 1940’s U.S. v. Tot, the Federal District Court concluded that the Second Amendment, “was not adopted with individual rights in mind, but as a protection for the states in the maintenance of their militia organizations against possible encroachments by the federal power[emphasis added] .” Other courts repeated this. The problem here was sustaining the linguistic absurdity that right of the “people” really means right of the “states”, even though the clear distinction between those two things is evident throughout the Constitution.  Smart people still say this is what the amendment means even though not even the dissenters in Heller tried to keep this view afloat.

Justice Stevens’ incoherent “individual militia right” -  The now dominant version of the hollow Second Amendment (though some have not gotten the memo and continue to tout the states’ rights view above) is advanced by Justice Stevens’ dissent in Heller. At the outset, Stevens dispenses with the idea that the Second Amendment does not protect an individual right.  Then he glibly advances a view of the Second Amendment that purportedly protects some very narrow individual militia right.  “The question presented by this case is not whether the Second Amendment protects a ‘collective right’ or an ‘individual right’.  Surely it protects a right that can be enforced by individuals.”

Stevens’ individual militia right is simply incoherent.  It is nearly impossible to imagine a realistic scenario that triggers it.  The majority captures the problem this way:  “If petitioners are correct, the Second Amendment protects citizens’ right to use a gun in an organization from which Congress has plenary authority to exclude them.” In another permutation, Justice Scalia chides that Stevens’ formulation is “worthy of the Mad Hatter”.

Stevens’ supposed individual militia right really is just a carbon copy of militia duty. His historical examples of the “right” in operation are all just duties.   Militiamen could be required to possess certain arms and accoutrements, to enroll, to muster, to military discipline, to risk and even sacrifice their lives in service of the state.  By eliding the fundamental distinction between militia as duty and arms as right, Stevens renders an empty and incoherent version of the Second Amendment

Steven’s aim of course is not to give the Second Amendment any real content.  Just the opposite, his aim is to say it’s an individual right, without having that translate into anything practical for citizens or any real limit on state power to regulate or ban guns.

A Leading Historian and the ABA Say the Second Amendment Means Nothing at All – For a time, skeptics would argue with a straight face that the Second Amendment to the United States Constitution really means nothing at all.  It is a startling claim to make about any provision of our vaunted Bill of Rights.  But in 1975, the American Bar Association put it this way:  “It is doubtful that the founding fathers had any intent in mind with regard to the meaning of this amendment.”  A similar view was advanced in 1995 by historian Gary Wills who, claimed that it really was just a clever ruse by Madison that actually had no real meaning.

[The Second Amendment] was a remnant of old royal attempts to create a standing army by requisition of civilian facilities.  It had no real meaning … but it was part of the anti-royal rhetoric of freedom that had shown up, …in state requests for amendments to the Constitution.  … Madison knew that the best way to win acceptance of the new government was to accommodate its critics on the matter of a bill of rights. … Madison confided to a friend: “It will kill the opposition everywhere.”  Sweet-talking the militia was a small price to pay for such a coup… [emphasis added]

 

Wills’ argument never caught on with courts, who have strong traditions and actual hard rules against dismissing statutory and constitutional provisions as meaningless. Its main appeal was to allow otherwise serious people to glibly dismiss individual rights claims for another decade or so.

Professor Bogus’ “Real” But “Secret” Meaning of The Second Amendment - In a 1998 article entitled The Hidden History of the Second Amendment, Professor Karl Bogus claimed that the Second Amendment actually “was written to assure the Southern states that Congress would not undermine the slave system by using its newly acquired constitutional authority over the militia to disarm the state militia and thereby destroy the South’s principal instrument of slave control.”  On this account, not only is the Second Amendment irrelevant in our modern world, it also deserves the same disdain as other constitutional accommodations of slavery, which I think was Mr. Glover’s argument.

The unhidden history of the Second Amendment is that it affirmed the pre-existing right of Englishmen that the Supreme Court tracks at least to the English Bill of Rights. There is also the small matter of our Constitution establishing a federal government of limited enumerated powers, under which, the people retained the rights and powers not explicitly granted to the national government.  It is that basic division that grounds all individual rights.  Madison simply undertook to list some of the plain uncontroversial ones. We don’t need big conspiracy theories about slave power to understand why the existing right to arms would be affirmed in that list.

As far as the base political point, no doubt guns were used by slave patrols and slavers. But the other story is that fugitives and freedmen in the north under threat of kidnapping authorized by Federal Fugitive Slave laws, used guns in countless cases to fight off slave catchers.  Moreover, as I will show in depth in my forthcoming book, (final title: Negroes and the Gun: The Black Tradition of Arms) fugitive slaves, abolitionists, Jim Crow objectors, and modern civil rights protesters all recognized guns as a crucial private resource.

A Narrow Definition of Militia Exposes the “Individual Militia Right”-  In an article from 2000, Professor Bogus unintentionally acknowledges the core flaw of the supposed “individual militia right” advanced by Justice Stevens.  “Militia”, says Bogus,

“is defined in the Constitution itself.  The founders disagreed about how the militia ought to be organized.  … However, they agreed as a constitutional matter to leave this up to Congress… Thus, the militia is what Congress decides it is, regardless of whether it differs from an eighteenth century model.   Currently the militia is indisputably the National Guard because Congress has so decided.”

Here Bogus candidly affirms the point that fueled Scalia’s Mad Hatter assessment of Justice Stevens (that a right to participate in an organization over which Congress has plenary authority is an absurdity). The militia, acknowledges Bogus, is whatever Congress says it is – today the National Guard, tomorrow nothing at all.  Which means that the supposed “individual militia right” has zero constitutionally protected content.

Collective Rights: A Gloss on States’ Rights – Within the case law, some courts attempted to answer the criticisms of the “states’ rights” version of the hollow Second Amendment, by saying it is “collective right”.  This attempted to finesse the fact that the right is to the “people”, by saying that its “a collective right of the people”. In practical application, this collective right extended not to the people as individuals, but as an organized political group – i.e., the state.  So the collective right was just the states’ rights Second Amendment gussied up in a new frock.

The Second Amendment Hollowed Out by Neorepublicanism.  In 1991, David Williams published an article in the Yale Law Journal offering a version of the hollow Second Amendment grounded in republicanism:

Creating or maintaining a republic against the constant risk of corruption by particularistic interests is therefore the most difficult of tasks.  Republican theory, however offers some structures to aid in this task, prominent among them the universal militia…

… the error of those who today seek to guarantee a private right to arms is that they would thereby consign the means of force to those who happen to possess firearms – a partial slice of society – rather than to the whole people assembled in militia…. At a minimum therefore any modern version of this militia must be so inclusive that its composition offers some meaningful promise that it will not become the tool of a slice of society, …

As we today have not such universal militia and no assurance that contemporary arms-bearers will be virtuous, the Second Amendment itself is – for now – outdated.

Williams rendered the Second Amendment not permanently hollow, leaving the right to arms contingent on the revival of a kind of virtuous citizenry that presumably he will alert us to, if and when it emerges.

A Prize Winning Historian Says American Gun Culture (and Thus the Right to Arms) is Myth.  In 2000,  historian Michael Bellesiles attempted to render the Second Amendment empty with the claim that historically Americans never really owned many guns, and by implication had no real expectation of a robust right to arms;  claims of a robust  individual right to arms were really just modern constructions of the gun lobby. He won a bunch of awards from people who liked his conclusions, but then it was uncovered that Bellesiles had fabricated much of his data and his book was withdrawn and pulped.  Gary Wills, who had given the book a rave review in the New York Times, later said that he and others were “taken” by Bellesiles.  Individual rights skeptics seemed to have abandoned the Bellesiles version of the hollow Second Amendment.

Upshot:  The primary aim of the hollow Second Amendment enterprise is to knock down the individual right to arms.  Proponents seem not to really care about the substance and implications of these various placeholders.  That is why so many versions are so cavalierly advanced and then discarded when they fail to catch on.  Mr. Glover has picked up one of these and taken it as gospel.  Perhaps he will read further and appreciate his mistake. More crucially, let us hope that the students he spoke to will be skeptical and diligent enough to seek their own answers.

Nicholas J. Johnson is Professor of Law, Fordham University School of Law is the author of Negroes and the Gun: The Black Tradition of Arms. He is the lead editor of Firearms Law and the Second Amendment: Cases and Materials (Aspen Press, 2012).

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Comments

  1. TX_Teacher says

    Why did you not directly address Dr. Bogus and his article? Point out the weaknesses in the original argument, not all of this other material not directly related.

    Thanks.

  2. JohnAdams says

    Given the history of gun control, it would seem that minorities whether based on class or race, would be the most strident advocates for the Second Amendment as defined by bitter clingers. Who else has felt, first hand, the heavy boot of government? Sadly, that is not the case and those minorities will probably regret that one day.

    IV. The Enduring Legacy?

    The model of gun control that emerged from the redeemed South is a model of distrust for the South’s untrustworthy and unredeemed class, a class deemed both different and inferior, the class of Americans of African descent. There are indications that this model was followed elsewhere in the nation. These indications may be found in the treatment of southern and eastern European immigrants to America in the early twentieth century in the state and city that had been both a point of entry and the point of settlement for many of them, New York.

    If the white South saw blacks as a threat, the country as a whole saw southern and eastern Europeans in similar terms. For this reason, in part, the numbers of such immigrants were subject to significant limits.[168] Beyond this, these immigrants were associated with mental deficiency, with crime, and most dangerously, with the sort of anarchist inspired crime that was feared in Europe, such as political assassination and politically motivated robberies.[169](p.1334)

    In New York, these fears found expression in the passage of the Sullivan Law in 1911.[170] Of statewide dimension, the Sullivan Law was aimed at New York City, where the large foreign born population was deemed susceptible to peculiarly susceptible and perhaps inclined to vice and crime. The statute went beyond the practice of many gun control statutes by not only prohibiting the carrying of concealed weapons, but also requiring a permit for ownership or purchase of weapons.[171] It is not without significance that the first person convicted under the statute was a member of one of the suspect classes, an Italian immigrant.[172]

    If the story of New York’s Sullivan Law suggests that a fear of and a desire to control suspect classes of undesirables bears likeness to the story of the white South’s ventures into gun control in the Reconstruction and post-Reconstruction periods, it is true as well that the Sullivan Law, like the Southern statutory and constitutional provisions inaugurated in those periods, spoke to what on its surface was a legitimate societal goal in advancing the cause of public safety. Such goals would be argued in later years with the passage of the National Firearms Act of 1934[173] and in the 1960s and beyond, when concerns with “Saturday Night Specials”[174] and with “assault weapons”[175] would (p.1335)take center stage. If safety concerns must be conceded, it should be recognized as well that local governments have sought to ban firearms from what is frequently considered one of today’s untrustworthy and suspect classes, the urban poor.[176]

    The extent of these correspondences is a subject that should engender more research both of historical and legal scholars. The question for such scholars is whether the freedom to pursue individual rights should ever be regulated in accordance with whether the citizens are deemed worthy of exercising them.

  3. elkh1 says

    Why are you so riled up with what Prof. Bogus wrote? On April 1, probably?

    You don’t judge a book by its cover, but in this case you can say a lot of an academic paper’s authenticity by it’s author’s name.

  4. West says

    Now, I know it is not nice to make fun of other’s names, but you gotta be kidding me – Prof. Bogus? Truth in labeling, right there.

  5. Brett Bellmore says

    Indeed, his record is such that I always refer to him as the eponymous Carl T. Bogus. Because it’s only an accident of chronology that he isn’t… Never have I seen a ‘scholar’ more determined to live down to his name.

  6. says

    So Bogus(is that a Freudian slip of a name?) doesn’t know the statutory definition congress has given “The Militia” and we’re to believe that he knows about the second amendment. Indeed the National Guard is only the “organized militia” the “unorganized militia” is much larger and includes most who he would see disarmed.
    See 10 USC § 311.

    What, however, is our relation to revolution? Civil war is the most severe of all forms of war. It is unthinkable not only without violence against tertiary figures but, under contemporary technique, without murdering old men, old women and children… There is no impervious demarcation between ‘peaceful’ class struggle and revolution. Every strike embodies in an unexpanded form all the elements of civil war. Thus the need to disarm the bourgeoisie.

  7. Koblog says

    Glover has it exactly backward: the original Gun Control was invented to stop freed slaves from getting guns. That pesky 2nd Amendment Glover wants to eliminate defines a civil right to all of us citizens, blacks included.

    Gun control has always been about keeping guns “out of the hands” of undesirable elements, while letting the elites keep (or be protected by) their guns.

    Why else does Dianne Feinstein get a permit to carry (plus armed guards when she wants them) while denying the same to all the “little” people?

  8. says

    As with most complicated subjects, the opposing view is frequently flattened into one dimension via a jerking knee, or is a straw man conveniently situated next the opponent’s box of matches.

    But what I really want to know is ‘when will Danny Glover return all those hollywood millions of dollars he earned glorifying guns and violence?’

  9. says

    The erroneous nature of Bogus’ and Glover’s view is easy to demonstrate if one is familiar with Bill of Rights related history. There were seven state ratifying conventions in which protection for the right to keep arms (right to keep/protection against disarming) were proposed. They were, in chronological order, Pennsylvania, Massachusetts, New Hampshire, Virginia, New York, North Carolina, and Rhode Island – five non-slave, two slave states. Five is a lot more than two. It’s simple math. The push for Second Amendment related protection was nationwide, not just in the south. Delegates in northern states were clearly not proposing Bill of Rights protections to help out slaveholders in the south. The extensive period discussions about the need for the Bill of Rights and the necessity of an armed populace to prevent tyranny further back up this simple fact. I have documented all of these period arguments placing demands for the Second Amendment in proper period context in an extensive published document collection entitled The Origin of the Second Amendment.
    Those who support gun control exhibit the secular equivalent of religious zealotry about the subject. Their bigoted belief system is based on errors of historical fact. Pro-rights supporters could easily contradict these errors and undermine the foundation of that belief system IF they understood relevant American history much better. For an example: go to On Second Opinion Blog and look at the series entitled Root Causes of Never-Ending Second Amendment Dispute Parts 1-24. It examines/documents errors and omissions of historical fact in the professional historians’ brief supporting DC in the Heller case (start with Part 1). The historians’ Heller brief contained numerous intellectual embarrassments of the first order. And, I might add, since it was presenting the very best arguments from the very brightest control advocating historians, the fact that it is so error filled and off-base proves there is no factual historical foundation for the control advocate belief system about the Second Amendment.

  10. says

    I found this intriguing this morninghttp://www.nytimes.com/2013/01/29/opinion/when-jim-crow-drank-coke.html?ref=opinion
    It all seems to boil down to “them”.

    “Across the nation, support for prohibition was often tied to the desire by native whites to control European Catholics, American Indians, Asian-Americans and, especially in the South, African-Americans. It gave police officers an excuse to arrest African-Americans on the pretext of intoxication.”

  11. William Sulzbach says

    I noticed that the professor’s first name is spelled two ways in this article: Carl and Karl. While it has been said that names and dates are the bane of writers, I’ve got to think this supports that the idea that the professor is indeed bogus–and not just in name.

    Attacking a straw man is not the way to make a credible argument because opponents will draw attention to the fictitious character and not the argument.

    I don’t doubt there are professors that put forth similar arguments as “professor Bogus” and I can understand using a composite character to put those claims together to make the writing easier; however, you should expect lots of attack on you for the slight-of-hand. (Of course, those people will be attacking the use of a composite so they won’t have to argue the facts of the issue.)

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