The bibliography for my previous quote...
[1] Amitai Etzioni, The Spirit of Community: Rights, Responsibilities and the Communitarian Agenda 265 (1993).
[2] See id. at 1-11.
[3] See Patricia King, "Vipers" in the 'Burbs, Newsweek, July 15, 1996, at 20-23.
[4] See, e.g., Hillary Rodham Clinton, It Takes a Village and Other Lessons Children Teach Us (1996).
[5] See William J. Bennett, The Book of Virtues: A Treasury of Great Moral Stories (1993); Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (1991); Michael J. Sandel, Democracy's Discontent: America in Search of a Public Philosophy (1996). See generally Kevin Merida & Barbara Vobejda, Promoting a Return to "Civil Society," Wash. Post, Dec. 15, 1996, at A1 (discussing the ideologically diverse groups promoting Communitarian ideas).
[6] See Etzioni, supra note 1, at 255-56; Sandel, supra note 5, at 317-24.
[7] The revival of civic republicanism is due in large part to historical studies of colonial ideology done in the 1960s and 1970s. See, e.g., Bernard Bailyn, The Ideological Origins of the American Revolution (1992); Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (1985); Gordon S. Wood, The Creation of the American Republic 1776-1787 (1969).
[8] See Frank I. Michelman, Foreword: Traces of Self-Government, 100 Harv. L. Rev. 4 (1986).
[9] See Cass R. Sunstein, Beyond the Republican Revival, 97 Yale L.J. 1539, 1564 (1988) (arguing for an application of republican ideals to contemporary controversies).
[10] See Glendon, supra note 5, at x-xi.
[11] See Etzioni, supra note 1, at 11-14.
[12] Id. at 31-35.
[13] See, e.g., Morris Dees, Gathering Storm: America's Militia Threat 4-5 (1996) (describing how hatred of the federal government is driving the militia movement); David Corn, The New Minutemen, The Nation, May 6, 1996, at 4 (describing militia members as "paranoid government-haters"); King, supra note 3, at 21-23 (describing members of Team Viper, a Phoenix militia group, as having "convinced themselves that their right to bear arms was in jeopardy and that the Feds were out to get them").
[14] See Christopher John Farley, Patriot Games: Irate, Gun-Toting White Men Are Forming Militias--Are They Dangerous, or Just Citizens Defending Their Rights?, Time, Dec. 19, 1994, at 48; Richard A. Serrano, Militias: Ranks Are Swelling, L.A. Times, Apr. 18, 1996, at A1.
[15] See Robert D. McFadden, Links in Blast: Armed 'Militia' and a Key Date, N.Y. Times, Apr. 22, 1995, at A1 (detailing alleged links of Oklahoma bombing suspects James Douglas Nichols and Terry Lynn Nichols with the Michigan Militia).
The militia movement also has attracted the attention of Klanwatch and the Anti-Defamation League, which are both concerned with connections between the new militias and traditional white supremacist groups. See Anti-Defamation League Report, Armed and Dangerous: Militias Take Aim at the Federal Government (Nov. 16, 1994), available in LEXIS, News Library, Curnws File (suggesting adoption of a uniform Anti-Paramilitary Training Statute); see also Anti-Defamation League Report, Beyond the Bombing: The Militia Menace Grows (June 19, 1995), available in LEXIS, News Library, Curnws File (describing results of national survey suggesting that the militia movement is growing).
[16] See Dave Skinner, In Defense of the Militia, USA Today (Magazine), July 1, 1996, at 16 (discussing the right to bear arms and maintain a citizens' militia).
[17] See Richard Hofstadter, The Paranoid Style in American Politics, in Richard Hofstadter, The Paranoid Style in American Politics and Other Essays 3, 3-41 (Harvard Univ. Press 1996) (1965).
[18] See, e.g., John Branton, Clark County Militia, Columbian, Nov. 13, 1994, at A1, available in LEXIS, News Library, Curnws File (quoting David Darby, head of the Clark County, Washington militia, as saying, "The federal government is slowly trying to take away our Second Amendment, the right to bear arms."); Keith Stone, "Patriot Movement" Fights Licenses, Taxes, Zip Codes--Government "Tyranny" Expert Estimates that 5 Million Are Believers, Holding that Their Rights Are Being Trampled, St. Louis Post Dispatch, Dec. 27, 1994, at 5b, available in 1994 WL 8216539 (discussing how Patriot Movement "[m]embers mistrust federal government and believe it is invading their privacy and saddling them with unconstitutional laws, including those that impose income taxes"); Allan Turner, Militias Willing to Take Up Arms to "Save" the Constitution, Hous. Chron., Nov. 27, 1994, at A1, available in 1994 WL 4605127 (quoting Kyle Norman, lieutenant commander of the Victoria County Constitutional Militia, who purports to know of a 1961 State Department memo that "details the steps to replacing the military of sovereign states with a United Nations peacekeeping force" and who insists that United Nations forces are "all over the place").
[19] See, e.g., Adam Parfrey & Jim Redden, Patriot Games: Linda Thompson, A Gun-Toting Broad from Indianapolis Wants to Know "Are You Ready for the Next American Revolution?", Village Voice, Oct. 11, 1994, at 26 (detailing activities of Linda Thompson's American Justice Federation); Sam Walker, "Militias" Forming Across U.S. to Protest Gun Control Laws, Christian Sci. Monitor, Oct. 17, 1994, at 1 (describing militia groups' denunciation of the Waco assault and the raid on Randy Weaver's Idaho compound); Tim Weiner, F.B.I. Hunts 2d Bombing Suspect and Seeks Links to Far Right; Rain Stalls Search of Rubble, N.Y. Times, Apr. 23, 1995, at A1 (linking Oklahoma City bombing suspect Timothy McVeigh to the militia group Arizona Patriots and describing him as having voiced "extreme anger" over the assault by federal law enforcement agents on the Branch Davidian compound).
[20] Several recent books describe in lurid detail the American militia "menace"; see, e.g., Dees, supra note 13. Dees's organization, the Southern Poverty Law Center, established a "Militia Task Force" to combat the perceived militia threat. Dees is now lobbying for states to adopt and enforce anti-paramilitary statutes like those advocated by the Anti-Defamation League. See supra note 15; see also Kenneth S. Stern, A Force Upon the Plain: The American Militia Movement and the Politics of Hate 127 (1996) (exploring the American militia movement).
[21] The most notable effort at the federal level aimed at stopping militias is the Effective Death Penalty and Anti-Terrorism Act of 1995. See H.R. 2768, 104th Cong. (1995). As originally envisioned, the Act granted the United States' Attorney General wide latitude to declare certain federal crimes "federal crime(s) of terrorism" if the Attorney General believed that such crimes were committed in an attempt to "influence or affect the conduct of government by intimidation or coercion." See H.R. 2768 § 101(d), (f)(5). These provisions were deleted from the final version signed by the President, due in part to opposition from groups as diverse as the ACLU and the NRA. See Brannon P. Denning, Anti-Terrorism Bill Hits Civil Liberties, Com. Appeal (Memphis), Mar. 10, 1996, at B4, available in 1996 WL 3206999; David Kopel, Terrifying Terror Legislation?, Wash. Times, Feb. 6, 1996, at A14, available in 1996 WL 2945818; Glenn Harlan Reynolds, Unleashed Federal Power is No Cure for Terrorism, L.A. Times, Mar. 13, 1996, at B9. Not all of the bill's objectionable provisions, however, were deleted. Its unfortunate "reforms" of habeas corpus remained. See Robert Cottrol & Glenn Reynolds, Greasing the Skids at Start of Death Row, Wash. Times, Apr. 1,1996, at A15, available in 1996 WL 2950835.
[22] See infra text following note 155.
[23] See Glenn Harlan Reynolds, Up in Arms About a Revolting Movement, Chi. Trib., Jan. 30, 1995, § 1, at 11, available in 1995 WL 616195 (warning against forgetting militias' necessary connection to state authority); Skinner, supra note 16, at 17-18.
[24] The substitute most often advocated is community service. See, e.g., William F. Buckley, Jr., Gratitude: Reflections on What We Owe Our Country (1990) (advocating "voluntary" public service for all high school graduates); Amitai Etzioni, The New Rugged Communitarianism: Maybe Americans Are Just Too Free, Wash. Post, Jan. 20, 1991, at B1 (discussing importance of national service in Communitarian movement).
[25] See David C. Williams, Civic Republicanism and the Civic Militia: The Terrifying Second Amendment, 101 Yale L.J. 551, 610-12 (1991) (advocating national service as a way to fulfill the role left empty by the decline of the militia); see also Sunstein, supra note 9, at 1564-65 & n.140 ("In other forms, republican thought is militaristic and heroic .... But efforts to assimilate politics to war will often lead to undesirable directions. There is also an issue of gender here: the military metaphor traditionally operated to exclude women."). But see infra note 142 and accompanying text (noting that some states have amended their militia statutes to include women).
[26] William Galston recently served as Deputy Assistant to President Clinton on the Domestic Policy Council.
[27] See infra Part I.B.
[28] See Clinton, supra note 4, at 133-34; Glendon, supra note 5, at 43 ("The language of the second amendment ... [has] promoted the belief in many quarters that an absolute, or nearly absolute, individual right was thereby created.... [T]he starkness of some of the language in the Bill of Rights has helped to legitimate intemperate arguments made by those who have a particular attachment to one of the rights framed in such terms.").
[29] Named for English merchant and financier Sir Thomas Gresham, Gresham's law is the tendency of the inferior of two forms of currency to circulate more freely than, or to the exclusion of, the superior, because of the hoarding of the latter. Hence its popular formulation: "the bad money drives out the good."
[30] See infra notes 165-69 and accompanying text.
[31] See infra notes 174-75 and accompanying text.
[32] See Jean Bethke Elshtain, Democracy On Trial (1995).
[33] See Christopher Lasch, The Revolt of the Elites and the Betrayal of Democracy (1995).
[34] See Etzioni, supra note 1, at 14.
[35] Id.
[36] Id. at 16. The journal, The Responsive Community: Rights and Responsibilities, was first published in January 1991.
[37] Id. at 18.
[38] Id. at 23-53.
[39] Glendon, supra note 5, at x-xi.
[40] Etzioni, supra note 1, at 15. Conservative enthusiasts tend to use the term "civil society" instead of the term "Communitarianism"; see, e.g., James Gray Pope, Republican Moments: The Role of Direct Popular Power in the American Constitutional Order, 139 U. Pa. L. Rev. 287, 319 (1990).
[41] See Etzioni, supra note 1, at 5 ("We should, for a transition period of, say, the next decade, put a tight lid on the manufacturing of new rights."); Glendon, supra note 5, at xi ("A tendency to frame nearly every social controversy in terms of a clash of rights ... impedes compromise, mutual understanding, and the discovery of common ground. A penchant for absolute formulations ... promotes unrealistic expectations and ignores both social costs and the rights of others."); Sandel, supra note 5, at 25-28.
[42] See Etzioni, supra note 1, at 14.
[43] See Clinton, supra note 4, at 39.
[44] See Glendon, supra note 5, at 9.
[45] Id. at 20.
[46] Id. at 42-43.
[47] Id. at 40-46.
[48] Id. at 76-77; Etzioni, supra note 1, at 4-11.
[49] Etzioni, supra note 1, at 253 (quoting the Communitarian platform). Etzioni drafted the platform while Mary Ann Glendon and William Galston rewrote it. Id. at 251.
[50] Id. at 255 ("The success of democratic experiment in ordered liberty (rather than unlimited license) depends not on fiat or force, but on building shared values, habits and practices that assure respect for one another's rights and regular fulfillment of personal, civic, and collective responsibilities."). Likewise, civic republicanism enthusiasts champion the notion of "dialogue" as a means of achieving consensus. Through dialogue, in which no point of view is privileged and in which even "outsider" groups may participate equally, neorepublicans claim to minimize the dangers inherent in pluralism. See Sunstein, supra note 9, at 1548.
[51] Etzioni, supra note 1, at 256.
[52] These are termed "intermediate organizations." See Sunstein, supra note 9, at 1574; see also Etzioni, supra note 1, at 256-59 (emphasizing that rebuilding America's moral foundations begins with the basic institutions of society). Some family-strengthening tools include making workplaces family friendly, see id. at 257, and using the influence of the community "not to prevent divorce, but to signal society's concern" about divorce. Id. at 258. Etzioni suggests that schools at all levels should "recognize and take seriously the grave responsibility to provide moral education." Id. (emphasis omitted); see also Glendon, supra note 5, at 109 (describing families, neighborhoods, religious associations, and other communities as "the seedbeds of civic virtue").
[53] Etzioni, supra note 1, at 260. Communitarians recognize, however, that certain tasks demand action on a macro level. Id. (mentioning environmental matters as an example).
[54] Id.
[55] Id. at 261.
[56] Id.
[57] Id.
[58] Id.
[59] Id.
[60] Id. at 261-62.
[61] Id. at 263.
[62] Id.
[63] Id. at 265-66.
[64] Id. at 264.
[65] Id.; see also Ronald Bayer & Kathleen E. Toomey, Preventing HIV: Rights, Duties, and Partner Notification, in Rights and the Common Good: The Communitarian Perspective 75, 75-87 (Amitai Etzioni ed., 1995) (urging the adoption of contact-tracing programs as a method of notifying partners of HIV-infected individuals).
[66] The Communitarian platform states that
[t]here is little sense in gun registration. What we need to significantly enhance public safety is domestic disarmament of the kind that exists in practically all democracies. The National Rifle Association suggestion that "criminals not guns kill people" ignores the fact that thousands are killed each year, many of them children, from accidental discharge of guns, and that people--whether criminal, insane, or temporarily carried away by impulse--kill and are much more likely to do so when armed than when disarmed. The Second Amendment, behind which NRA hides, is subject to a variety of interpretations, but the Supreme Court has repeatedly ruled, for over a hundred years, that it does not prevent laws that bar guns. We join with those who read the Second Amendment the way it was written, as a Communitarian clause, calling for community militias, not individual gunslingers.
Etzioni, supra note 1, at 265.
[67] See, e.g., Steven G. Gey, The Unfortunate Revival of Civic Republicanism, 141 U. Pa. L. Rev. 801, 811 (1993) ("Civic republicanism is by nature a collectivist political theory .... [It] gives primary empirical and ethical significance to collective, rather than individual human endeavors.").
[68] See Etzioni, supra note 1, at 39 ("Much of what Communitarians favor has little to do with laws and regulations, which ultimately draw upon the coercive powers of the state, but with being active members of a community."); see also id. at 48 ("[T]he law as a deterrent has its place in any moral order. Morality rests on intricate interactions among three factors: individual conscience, the moral voice of the community, and the state. Each one helps to sustain the others. Hence while it is best to build up individual consciences and community voices, communities must on occasion fall back on the law.").
[69] Id. at 48.
[70] See id. at 255.
[71] See id. at 265.
[72] See id. at 139-41 (describing ways of "Enhancing Public Safety the Communitarian Way," which include neighborhood patrols, sentencing nonviolent offenders to community service, and using public shaming to deter crime, but making no mention of armed citizen militias).
[73] See, e.g., New Communitarian Thinking: Persons, Virtues, Institutions, and Communities (Amitai Etzioni ed., 1995); Rights and the Common Good: The Communitarian Perspective (Amitai Etzioni ed., 1995). Neither book discusses the application of Communitarian principles to the Second Amendment.
[74] See generally John K. Mahon, History of the Militia and National Guard 35-38 (1983); Scott Bursor, Note, Toward a Functional Framework for Interpreting the Second Amendment, 74 Tex. L. Rev. 1125, 1131-39 (1996) (describing how an armed populace historically served important military, political, civil, and moral functions).
[75] Compare U.S. Const. art. I, § 8, cl. 15 (giving Congress power "[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions"), with id. § 8, cl. 16 (giving Congress power "[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, reserving to the States respectively, the Appointment of Officers, and the Authority of training the Militia according to the discipline prescribed by Congress"), and id. art. II, § 2, cl. 1 ("The President shall be Commander in Chief of ... the militia of the several States, when called into the actual service of the United States ....").
[76] See U.S. Const. amend. II ("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.").
[77] See The Federalist No. 46 (James Madison) (Isaac Kramnick ed., 1987). Madison wrote,
Let a regular army, fully equal to the resources of the country be formed; and let it be entirely at the devotion of the federal government: still it would not be going too far to say that the State governments with the people on their side would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties and united and conducted by governments possessing their affections and confidence.
Id. at 301.
[78] See 3 Joseph Story, Commentaries on the Constitution 746 (DaCapo Press 1970) (1833). Story wrote that
[t]he militia is the natural defense of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people.
Id. at 746.
[79] See 1 Thomas Cooley, Constitutional Limitations 729 (8th ed. 1927) ("The alternative to a standing army is 'a well-regulated militia'; but this cannot exist unless the people are trained to bearing arms.").
[80] United States v. Miller, 307 U.S. 174, 179 (1939) (describing militias in the context of the Second Amendment).
[81] Id.
[82] See generally Bailyn, supra note 7, at 62 (quoting the English pamphleteer Trenchard as writing that "'unhappy nations have lost the precious jewel liberty ... [because] their necessities or indiscretion have permitted a standing army to be kept amongst them'").
[83] See J.G.A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition 507 (1975).
[84] See generally Wood, supra note 7, at 46-90 (describing the intellectual foundations of republicanism); Richard H. Fallon, Jr., What is Republicanism, and Is It Worth Reviving?, 102 Harv. L. Rev. 1695, 1734 (1989) (contrasting republicanism with liberalism).
[85] See generally Wood, supra note 7, at 46-90; Gey, supra note 67, at 804-06.
[86] See Stephen Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right 60 (1984).
[87] Id. at 61-63.
[88] Id. at 63.
[89] Gun Control and the Constitution: Sources and Explorations on the Second Amendment xxxvi (Robert J. Cottrol ed., 1994). The same observation might be made about arms-bearing by individuals in general, which was felt to promote virtue and encourage responsibility. Thomas Jefferson extolled the virtues of guns in a letter to his nephew:
As to the species of exercise, I advise the gun. While this gives a moderate exercise to the body, it gives boldness, enterprise, and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body, and stamp no character on the mind. Let your gun, therefore, be the constant companion of your walks.
1 The Jefferson Cyclopedia 318 (John P. Foley ed., Russell & Russell 1967) (1900). See also McDonald, supra note 7, at 74 ("Virtue meant manliness, and manliness meant independence.... [A]nd this independence ... was 'in the last analysis measured by his ability to bear arms and use them in his own quarrels.'") (quoting J.G.A. Pocock); Akhil Reed Amar, The Central Meaning of Republican Government: Popular Sovereignty, Majority Rule, and the Denominator Problem, 65 U. Colo. L. Rev. 749, 771-72 (1994) (discussing the connection between a militia composed of the body of the people and the meaning of a "republican" government).
[90] See, e.g., Colonel Charles J. Dunlap, Jr., Revolt of the Masses: Armed Civilians and the Insurrectionary Theory of the Second Amendment, 62 Tenn. L. Rev. 643, 659 (1995) (arguing that "[r]eliance upon civilian militias during the Revolution ... proved to be 'militarily disastrous.'") (quoting Bruce D. Porter, War and the Rise of the State 249 (1994)). But see Brannon P. Denning, Palladium of Liberty?: Causes and Consequences of the Federalization of State Militias in the Twentieth Century, 21 Okla. City U. L. Rev. ___ (forthcoming 1997) (noting that although criticized by professional soldiers, the militias proved adept at inflicting considerable losses on the British and, due to their close ties with their communities, preventing significant counterrevolutionary activity).
[91] See supra notes 75-79 and accompanying text.
[92] See 2 The Records of the Federal Convention of 1787, at 384-89 (Max Farrand ed., 1966) (1937).
[93] See id. at 387-88.
[94] See id. at 388 (describing the militia clauses of the Constitution).
[95] Id.
[96] See David P. Currie, The Constitution in Congress: The Second Congress 1791-1793, 90 Nw. U. L. Rev. 606, 640-44 (1996) (describing the debates over a uniform militia bill).
[97] The Militia Act provided:
That every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutered and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.
Militia Act, ch. 33, 1 Stat. 271 (1792) (repealed 1903). This represented the major Congressional action regarding the militia until the twentieth century.
[98] The Federalist No. 29, at 209-10 (Alexander Hamilton) (Issac Kramnick ed., 1987) (arguing that any attempt to "disciplin[e] all of the militia of the United States" through national musters and compulsory exercises would be regarded as "a real grievance to the people and a serious public inconvenience and loss").
[99] In his influential treatise on the Constitution, Joseph Story editorialized about the decline of the militias and the attendant dangers accompanying such attitudes:
[T]hough ... the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.
3 Story, supra note 78, at 677.
[100] Of course, one also might argue that there was a noticeable decline in "civic virtue," with more and more citizens seeking to escape their militia duties as the threat of invasions and insurrections began to subside. See id. at 746.
[101] For example, despite the inexcusable neglect that militias often suffered at the hands of niggardly state legislatures, many units still performed admirably during the War of 1812, most notably during the Battle of New Orleans. See Denning, supra note 90 (describing militia successes in the War of 1812).
[102] See John K. Mahon, The War of 1812, at 51 (1972); see also infra Part II.B.
[103] Act of Jan. 21, 1903, ch. 196, 32 Stat. 775 (repealed 1956).
[104] Patrick Todd Mullins, Note, The Militia Clauses, The National Guard, and Federalism: A Constitutional Tug of War, 57 Geo. Wash. L. Rev. 328, 333 (1988) (detailing the history of the federalization of the militia system and the concomitant erosion of state control over an ostensibly state institution).
[105] Act of May 27, 1908, ch. 204, 35 Stat. 399 (amending Act of Jan. 21, 1903, ch. 196, 32 Stat. 775).
[106] Id. at 400. This focus on the military as a means to project the United States' power worldwide is just the sort of vice that results from the maintenance of a standing army. Because the militia clauses of the Constitution seem to limit the militia's role to one of defense, this portion of the act was deemed unconstitutional in a United States Attorney General's opinion which stated that militias could not be sent to a foreign country. See Authority of President to Send Militia Into a Foreign Country, 29 Op. Att'y Gen. 322 (1912).
[107] National Defense Act of 1916, ch. 134, 39 Stat. 166 (current version in scattered sections of 10 U.S.C. and 32 U.S.C.).
[108] See Mullins, supra note 104, at 334. The Supreme Court upheld this constitutional end-run in Selective Draft Law Cases, 245 U.S. 366 (1918) (holding that the power to draft members of the National Guard into the U.S. Army and the power to compel civilians to render military service was granted to the President by the Constitution).
[109] Mullins, supra note 104, at 335. The right of the states to appoint their own officers was an important concession to Antifederalists during the debates. It was thought that state militia units would be less susceptible to corruption if under federal control than if units remained under the command of "sons of the state." In modern parlance, the states' retention of the power to appoint officers ensured that militias would stay rooted in their community.
[110] Id. at 334 n.66.
[111] National Defense Act of 1933, ch. 87, 48 Stat. 153, 160.
[112] Id. at 161.
[113] Id.
[114] Armed Forces Reserve Act of 1952, ch. 608, 66 Stat. 481, 489.
[115] The "Montgomery Amendment" to the National Defense Authorization Act of 1987 provides that "[t]he consent of a Governor ... may not be withheld (in whole or in part) with regard to active duty outside the United States, its territories, and its possessions, because of any objection to the location, purpose, type, or schedule of such active duty." National Defense Authorization Act of 1987, Pub. L. 99-661, sec. 522, § 12301, 100 Stat. 3871 (codified at 10 U.S.C. § 12301(f) (1984)). The Supreme Court found this amendment to be constitutional in Perpich v. Department of Defense, 496 U.S. 334, 337 (1990).
[116] See Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 148 (1994) ("Because of their long-standing prejudice against a select militia as constituting a form of standing army liable to be skewed politically and dangerous to liberty, every state had created a general militia.").
[117] Colonel Charles J. Dunlap, Jr., Welcome to the Junta: The Erosion of Civilian Control of the U.S. Military, 29 Wake Forest L. Rev. 341, 384 (1994) (footnotes omitted).
[118] See generally John Garry Clifford, The Citizen Soldiers: The Plattsburg Training Camp Movement, 1913-1920 (1972) (describing early twentieth century efforts to institute universal military training in the United States).
[119] See, e.g., Larry Rohter, County Creates Militia To Defend Gun Rights, N.Y. Times, May 29, 1994, at A14 (describing a unanimous vote of the Santa Rosa County, Florida County Commission establishing a militia and making every man, woman, and child in the county eligible for service).
[120] At most, civic republicans advocate a host of governmental reforms that are supposed to capture the militia spirit. See, e.g., Williams, supra note 25, at 603-04 (listing alternative "virtue functions" that could be performed by "militia surrogates").
[121] See Etzioni, supra note 1, at 253-54 (noting that the Communitarian platform preamble states that "[n]either human existence nor individual liberty can be sustained for long outside the interdependent and overlapping communities to which we all belong").
[122] U.S. Const. amend. II.
[123] See Dunlap, supra note 117, at 384-85.
[124] See supra notes 82-85 and accompanying text.
[125] Act of May 8, 1792, ch. 33, 1 Stat. 271 (repealed 1903).
[126] U.S. Const. art. IV, § 4.
[127] Article IV, Section 4 of the Constitution provides that the "United States shall guarantee to every State in the Union a Republican Form of Government." This provision is regarded as essentially meaningless by most lawyers today, but there is no doubt that the Framers intended it to grant the national government power to act in the event that a state government became tyrannical. It is generally poor lawyering to argue that any part of the Constitution lacks meaning, and there is no basis for such an assertion in the context of the Guaranty Clause. The case generally cited for the proposition that the Guaranty Clause is a nullity is Luther v. Borden, 48 U.S. 1 (1849). That case, however, merely stated that the clause is not susceptible to direct judicial enforcement, something made clear later in Pacific States Tel. & Tel. Co. v. Oregon, 223 U.S. 118 (1912). Such a holding is not at all inconsistent with the notion that the federal government lacks power under the Guaranty Clause. It merely indicates that such power is held in the first instance by Congress or the Executive branch, not by the judiciary.
[128] See generally Sandel, supra note 5, at 25-54 (noting that the Supreme Court views protecting individual rights as a priority).
[129] See Cooley, supra note 79, at 729.
[130] See William Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke L.J. 1236, 1243-44 (1994). Van Alstyne writes that
the Second Amendment adheres to the guarantee of the right of the people to keep and bear arms as the predicate for the other provision to which it speaks, i.e., the provision respecting a militia, as distinct from a standing army separately subject to congressional regulation and control. Specifically, it looks to an ultimate reliance on the common citizen who has a right to keep and bear arms rather than only to some standing army, or only to some other politically separated, defined, and detached armed cadre, as an essential source of security of a free state.... [The Second Amendment] expressly embraces that right and indeed it erects the very scaffolding of a free state upon that guarantee. It derives its definition of a well-regulated militia in just this way for a "free State": The militia to be well-regulated is a militia to be drawn from just such people (i.e., people with a right to keep and bear arms) rather than from some other source (i.e., from people without rights to keep and bear arms).
Id. (emphasis omitted).
[131] Id. at 1255.
[132] For arguments in support of this position, see Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461, 488-96 (1995) (describing the "States' Right Model" of the Second Amendment).
[133] See, e.g., Keith A. Ehrman & Dennis A. Henigan, The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?, 15 U. Dayton L. Rev. 5, 36-38 (1989) (discussing the creation of the National Guard as an organized form of the militia).
[134] See, e.g., Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1166 (1991):
Nowadays, it is quite common to speak loosely of the National Guard as "the state militia," but 200 years ago, any band of paid, semiprofessional, part-time volunteers, like today's Guard, would have been called "a select corps" or "select militia"--and viewed in many quarters as little better than a standing army. In 1789, when used without any qualifying adjective, "the militia" referred to all Citizens capable of bearing arms.... [Thus,] the "militia" is identical to "the people ...."
Id. (emphasis and footnotes omitted).
[135] Or as David Williams opined,
Those who support a states' rights view of the militia seek to identify the Amendment's militia with the National Guard. The Guard, however, is a select body, only a fraction of the population.... The universal militia, by contrast, was the people under another name; it could not turn against the people because it was the people. As the National Guard is not universal, it cannot serve as a substitute.
Williams, supra note 25, at 589 (footnotes omitted); see also William S. Fields & David T. Hardy, The Militia and the Constitution: A Legal History, 136 Mil. L. Rev. 1, 2 (1992) (suggesting that the National Guard should be considered "troops" raised with the consent of Congress under Article I, Section 10, rather than a "militia").
[136] See Denning, supra note 90.
[137] See Williams, supra note 25, at 553-54 (describing civilian militias and their relationship to the Second Amendment as "terrifying").
[138] This argument was made in the 1940s. See Frederick Bernays Wiener, The Militia Clause of the Constitution, 54 Harv. L. Rev. 181, 189-93 (1940).
[139] See Malcolm, supra note 116, at 2-3 (describing the duties of medieval English citizens to patrol their towns and villages and to pursue criminals).
[140] See, e.g., Jeremy Pearce, Drugs and Big Money Tempt Cops Across the Country, Det. News, May 3, 1996, at A7, available in 1996 WL 2917542; Graham Rayman, More Allegations of Bad Cops, Newsday (New York), Aug. 15, 1996, at A24, available in 1996 WL 2533174.
[141] See, e.g., Alaska Const. art. I, § 19; Iowa Const. art. VI, § 1; Miss. Const. art. IX, § 214; N.M. Const. art. XVIII, § 1; N.D. Const. art. XI, § 16; Ohio Const. art. IX, § 1; S.C. Const. art. XIII, § 1; S.D. Const. art. XV, § 1; Utah Const. art. XV, § 1; Wyo. Const. art. XVII, § 1; Ala. Code § 31-2-2 (1994); Ark. Code Ann. § 12-61-10 1(b) (Michie 1994); Cal. Mil. & Vet. Code § 122 (West 1994); Conn. Gen. Stat. § 27-1 (1992); Ga. Code Ann. § 38-2-3(d) (1994); Idaho Code § 46-102 (1994); Ind. Code Ann. § 10-2-3-1 (Michie 1994); Kan. Stat. Ann. § 48-904(e) (1993); Ky. Const. § 219 (1993); Minn. Stat. § 190.06 (1993); N.M. Stat. Ann. § 20-2-2(B) (Michie 1994); N.Y. Mil. Law § 2(2) (McKinney 1993); S.D. Codified Laws § 33-2-2 (Michie 1994); Tenn. Code Ann. § 58-1-104(d) (Michie 1994); Wyo. Stat. § 19-2-102(a) (1994).
[142] See, e.g., Idaho Code § 46-105 (1995); Kan. Stat. Ann. § 48-904(e) (1994); R.I. Gen. Laws § 30-1-3 (1994).
[143] This is particularly true in light of the rather appalling string of pronouncements from state courts which conclude that because local police departments have a duty to protect everyone generally, they are responsible for protecting no one in particular. See, e.g., Warren v. District of Columbia, 444 A.2d 1, 3 (D.C. 1981) ("[A] fundamental principle [of American law is] that a government and its agents are under no general duty to provide public services, such as police protection, to any particular individual citizen."). Any attempted restoration of "collective responsibility" or a community's "moral voice" is likely doomed to failure if the community members will not come to one another's aid even when there is little risk of harm to the rescuer.
[144] See Williams, supra note 25, at 577-79.
[145] Id.
[146] See id. at 580. Williams writes,
[Militia m]embership was service to the state that always disrupted one's chosen round of activities and often involved hunger, cold, disease, and danger. The militia member was expected to bear these burdens with the knowledge that he was keeping the republic safe. The experience of working together with fellow citizens could cement this perspective of self-sacrifice to the common good. Militia service required cooperation among citizens and subordination to orders, [and] stimulated a commitment to comrades that would become a devotion to the public that they represented ....
Id. (footnotes omitted). Similarly, the late novelist Andrew Lytle described a typical militia muster in his novel, The Long Night. Lytle emphasized that such an assembly brought together those from all socio-economic classes. Andrew Lytle, The Long Night 23 (1936); see infra note 159 and accompanying text. Cf. Etzioni, supra note 1, at 114. Etzioni describes a mandatory year of national service for high school graduates as
an important community builder because it would act as a grand sociological mixer.... A year of national service, especially if it was designed to enable people from different geographical and sociological backgrounds to work and live together, could be an effective way for boys and girls, whites and nonwhites, people from parochial and public schools, north and south, the city and the country, to come together constructively while working together at a common task.
Id.
[147] See supra notes 49-63 and accompanying text.
[148] See supra note 143 and accompanying text; see also Malcolm, supra note 116, at 2-3 (noting that from the early Middle Ages in England, "the law made residents of a parish liable for compensating a victim of a robbery or riot committed in their parish for half of his loss").
[149] See supra notes 52-53 and accompanying text.
[150] See generally Matthew V. Hess, Comment, Good Cop-Bad Cop: Reassessing the Legal Remedies for Police Misconduct, 1993 Utah L. Rev. 149, 158 (discussing the qualified immunity defense).
[151] See Military Police, Tulsa World, Nov. 3, 1995, at N12, available in 1995 WL 10049369; Jim Nesbitt, Under Fire: If Police Departments View Themselves as an Army, Who Is the Enemy?, Sunday Patriot-News (Harrisburg, Pa.), May 28, 1995, at G1, available in 1995 WL 5064837.
[152] See Crossing the Line: Patriots and the Militias, Arizona Republic, July 4, 1996, at B6, available in 1996 WL 7719447.
[153] See Pearce, supra note 140, at A7; Rayman, supra note 140, at A24.
[154] See Glendon, supra note 5, at 1-17.
[155] See Williams, supra note 25, at 563.
[156] See Etzioni, supra note 1, at 265.
[157] See supra notes 71-73 and accompanying text.
[158] 307 U.S. 174, 179 (1939); see supra note 80 (discussing Miller).
[159] Lytle, supra note 146, at 23. Lytle's narrative continues with descriptions of speech making, wrestling, and other games of strength, followed by a fight, though as Lytle's narrator puts it: "One or two men were cut up right smart, but nobody got involved in a killing. Men settled their disputes in those days with their fists." Id. at 24.
[160] See Williams, supra note 25, at 577-80.
[161] See Etzioni, supra note 1, at 170-73.
[162] See, e.g., Skinner, supra note 16, at 18.
[163] See Lasch, supra note 33, at 25-49.
[164] See Etzioni, supra note 1, at 134-47 (discussing Communitarian principles of strengthening institutions, personal responsibility, self-help, and social justice).
[165] See Corn, supra note 13, at 5 (noting that "many militiamen have turned their energies toward setting up so-called common law courts ... over whom the federal government has no authority").
[166] See Williams, supra note 25, at 582.
[167] See Joelle E. Polesky, The Rise of Private Militia: A First and Second Amendment Analysis of the Right to Organize and the Right to Train, 144 U. Pa. L. Rev. 1593, 1604 (1996).
[168] See Sunstein, supra note 9, at 1574. Sunstein writes that
intermediate organizations serve a variety of important functions, but recognition of that point does not eliminate the need to describe the appropriate role of the state and national governments.
....
An approach that sees the locus of republican virtues exclusively in private institutions undervalues the distinctive capacities of the state. In view of those capacities, political deliberation and citizenship must occur within public institutions as well.
Id.
[169] Id.
[170] According to a poll taken in the spring of 1995, most Americans believe citizens possess such a right. In that poll, respondents were asked, "Do you agree that the Constitution guarantees you the right to own a gun?" Seventy-five percent of those polled agreed; only 18% disagreed. See The Fight to Bear Arms, U.S. News & World Report, May 22, 1995, at 29.
[171] The backlash to Communitarianism and neorepublicanism is building. See James A. Gardner, Shut Up and Vote: A Critique of Deliberative Democracy and the Life of Talk, 63 Tenn. L. Rev. 421 (1996); Linda C. McClain, Rights and Irresponsibility, 43 Duke L.J. 989 (1994).
[172] Robert J. Cottrol & Raymond T. Diamond, The Fifth Auxiliary Right, 104 Yale L.J. 995, 1025-26 n.141 (1995) (quoting Shattuck).
[173] Hannah Arendt, Between Past and Future 150 (Penguin Books 1993) (1961).
[174] See, e.g., Glenn H. Reynolds, Penumbral Reasoning on the Right, 140 U. Pa. L. Rev. 1333 (1992) (criticizing right-wing attacks on Griswold v. Connecticut as inconsistent with original understanding); Glenn Harlan Reynolds, Sex, Lies and Jurisprudence: Robert Bork, Griswold, and the Philosophy of Original Understanding, 24 Ga. L. Rev. 1045 (1990) (same).
[175] See Brannon P. Denning, Can the Simple Cite Be Trusted?: Lower Court Interpretations of United States v. Miller and the Second Amendment, 26 Cumb. L. Rev. 961 (1996) (criticizing lower courts for misinterpreting Miller because of the disapproval of the Second Amendment in general); Glenn Harlan Reynolds & Don B. Kates, The Second Amendment and States' Rights: A Thought Experiment, 36 Wm. & Mary L. Rev. 1737 (1995) (discussing how a states' rights interpretation of the Second Amendment leads to a result that supporters of such an interpretation dislike).
http://www.guncite.com/journals/dr-commc.htmlJTCoyoté
"What, sir, is the use of a militia? It is to prevent the
establishment of a standing army, the bane of liberty...
Whenever Governments mean to invade the rights and
liberties of the people, they always attempt to destroy
the militia, in order to raise an army upon their ruins."
~ Rep Elbridge Gerry of Massachusetts,
1-Annals of Congress, at 750,
8/17/1789
