By Sanford Levinson

University of Texas at Austin School of Law

Reprinted from the Yale Law Journal, Volume 99, pp. 637-659

One of the best known pieces of American popular art in
this century is the New Yorker cover by Saul Steinberg
presenting a map of the United States as seen by a New
Yorker, As most readers can no doubt recall, Manhattan
dominates the map; everything west of the Hudson is more or
less collapsed together and minimally displayed to the
viewer. Steinberg’s great cover depends for its force on
the reality of what social psychologists call “cognitive
maps.” If one asks inhabitants ostensibly of the same cities
to draw maps of that city, one will quickly discover that
the images carried around in people’s minds will vary by
race, social class, and the like. What is true of maps of
places — that they differ according to the perspectives of
the mapmakers–is certainly true of all conceptual maps.

To continue the map analogy, consider in this context
the Bill of Rights; is there an agreed upon “projection” of
the concept? Is there even a canonical text of the Bill of
Rights? Does it include the first eight, nine, or ten Amend-
ments to the Constitution? [1] Imagine two individuals who
are asked to draw a “map” of the Bill of Rights. One is a
(stereo-) typical member of the American Civil Liberties
Union (of which I am a card-carrying member); the other is
an equally (stereo-) typical member of the “New Right.” The
first, I suggest, would feature the First Amendment [2] as
Main Street, dominating the map, though more, one suspects,
in its role as protector of speech and prohibitor of estab-
lished religion than as guardian of the rights of religious
believers. The other principal avenues would be the crimi-
nal procedures aspects of the Constitution drawn from the
Fourth, [3] Fifth, [4] Sixth, [5] and Eighth [6] Amendments.
Also depicted prominently would be the Ninth Amendment, [7]
although perhaps as in the process of construction. I am
confident that the ACLU map would exclude any display of the
just compensation clause of the Fifth Amendment [8] or of
the Tenth Amendment. [9]

The second map, drawn by the New Rightist, would high-
light the free exercise clause of the First Amendment, [10]
the just compensation clause of the Fifth Amendment, [11]
and the Tenth Amendment. [12] Perhaps the most notable
difference between the two maps, though, would be in regard
to the Second Amendment: “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.” What
would be at most a blind alley for the ACLU mapmaker would,
I am confident, be a major boulevard in the map drawn by the
New Right adherent. It is this last anomaly that I want to
explore in this essay.

I. The Politics Of Interpreting The Second Amendment

To put it mildly, the Second Amendment is not at the
forefront of constitutional discussion, at least as regis-
tered in what the academy regards as the venues for such
discussion –law reviews, [13] casebooks, [14] and other
scholarly legal publications. As Professor Larue has re-
cently written, “the second amendment is not taken seriously
by most scholars.” [15]

Both Laurence Tribe [16] and the Illinois team of
Nowak, Rotunda, and Young [17] at least acknowledge the
existence of the Second Amendment in their respective trea-
tises on constitutional law, perhaps because the treatise
genre demands more encyclopedic coverage than does the
casebook. Neither, however, pays it the compliment of ex-
tended analysis. Both marginalize the Amendment by rele-
gating it to footnotes; it becomes what a deconstructionist
might call a “supplement” to the ostensibly “real” Constitu-
tion that is privileged by discussion in the text. [18]
Professor Tribe’s footnote appears as part of a general
discussion of congressional power. He asserts that the
history of the Amendment “indicate[s] that the central
concern of [its] framers was to prevent such federal inter-
ferences with the state militia as would permit the estab-
lishment of a standing national army and the consequent
destruction of local autonomy.” [19] He does note, how ever,
that “the debates surrounding congressional approval of the
second amendment do contain references to individual self-
protection as well as to states’ rights,” but he argues that
the qualifying phrase “‘well regulated” makes any invocation
of the Amendment as a restriction on state or local gun
control measures extremely problematic.” [20] Nowak, Rotun-
da, and Young mention the Amendment in the context of the
incorporation controversy, though they discuss its meaning
at slightly greater length. [21] They state that “[t]he
Supreme Court has not determined, at least not with any
clarity, whether the amendment protects only a right of
state governments against federal interference with state
militia and police forces… or a right of individuals
against the federal and state government[s].” [22]

Clearly the Second Amendment is not the only ignored
patch of text in our constitutional conversations. One will
find extraordinarily little discussion about another one of
the initial Bill of Rights, the Third Amendment: “No Soldier
shall, in time of peace be quartered in any house, without
the consent of the Owner, nor in time of war, but in a
manner to be prescribed by law.” Nor does one hear much
about letters of marque and reprisal [23] or the granting of
titles of nobility. [24] There are, however, some differ-
ences that are worth noting.

The Third Amendment, to take the easiest case, is
ignored because it is in fact of no current importance what
whatsoever (although it did, for obvious reasons, have
importance at the time of the founding). It has never, for
a single instant, been viewed by any body of modern lawyers
or groups of laity as highly relevant to their legal or
political concerns. For this reason, there is almost no
case law on the Amendment. [25] I suspect that few among
even the highly sophisticated readers of the Journal can
summon up the Amendment without the aid of the text.

The Second Amendment, though, is radically different
from these other pieces of constitutional text just men-
tioned, which all share the attribute of being basically
irrelevant to any ongoing political struggles. To grasp the
difference, one might simply begin by noting that it is not
at all unusual for the Second Amendment to show up in let-
ters to the editors of newspapers and magazines. [26] That
judges and academic lawyers, including the ones that write

casebooks, ignore it is most certainly not evidence for the
proposition that no one else cares about it. The National
Rifle Association, to name the most obvious example, cares
deeply about the Amendment, and an apparently serious Sena-
tor of the United States averred that the right to keep and
bear arms is the “right most valued by free men.” [27]
Campaigns for Congress in both political parties, and even
presidential campaigns, may turn on the apparent commitment
of the candidates to a particular view of the Second Amend-
ment. This reality of the political process reflects the
fact that millions of Americans, even if (or perhaps espe-
cially if) they are not academics, can quote the Amendment
and would disdain any presentation of the Bill of Rights
that did not give it a place of pride.

I cannot help but suspect that the best explanation for
the absence of the Second Amendment from the legal con-
sciousness of the elite bar, including that component found
in the legal academy, [28] is derived from a mixture of
sheer opposition to the idea of private ownership of guns
and the perhaps subconscious fear that altogether plausible,
perhaps even “winning,” interpretations of the Second Amend-
ment would present real hurdles to those of us supporting
prohibitory regulation. Thus the title of this essay –The
Embarrassing Second Amendment — for I want to suggest that
the Amendment may be profoundly embarrassing to many who
both support such regulation and view themselves as commit-
ted to zealous adherence to the Bill of Rights (such as most
members of the ACLU). Indeed, one sometimes discovers mem-
bers of the NRA who are equally committed members of the
ACLU, differing with the latter only on the issue of the
Second Amendment but otherwise genuinely sharing the liber-
tarian viewpoint of the ACLU.

It is not my style to offer “correct” or “incorrect”
interpretations of the Constitution. [29] My major interest
is in delineating the rhetorical structures of American
constitutional argument and elaborating what is sometimes
called the “politics of interpretation,” that is, the fac-
tors that explain why one or another approach will appeal to
certain analysts at certain times, while other analysts, or
times, will favor quite different approaches. Thus my
general tendency to regard as wholly untenable any approach
to the Constitution that describes itself as obviously
correct and condemns its opposition as simply wrong holds
for the Second Amendment as well. In some contexts, this
would lead me to label as tendentious the certainty of NRA
advocates that the Amendment means precisely what they
assert it does. In this particular context–i.e., the
pages of a journal whose audience is much more likely to be
drawn from an elite, liberal portion of the public–I will
instead be suggesting that the skepticism should run in the
other direction, That is, we might consider the possibility
that “our” views of the Amendment, perhaps best reflected in
Professor Tribe’s offhand treatment of it, might themselves
be equally deserving of the “tendentious” label.

II. The Rhetorical Structures of the Right to Bear
Arms

My colleague Philip Bobbitt has, in his book Constitu-
tional Fate, [30] spelled out six approaches — or “modali-
ties,” as he terms them — of constitutional argument.
These approaches, he argues, comprise what might be termed
our legal grammar. They are the rhetorical structures
within which “law-talk” as a recognizable form of conversa-

tion is carried on. The six are as follows:

1. textual argument — appeals to the unadorned language
of the text; [31]

2. historical argument — appeals to the historical back-
ground of the vision being considered, whether the
history considered be general, such as background but
clearly crucial events (such as the American Revolu-
tion). or specific appeals to the so-called intentions
of framers; [32]

3. structural argument — analyses inferred from the par-
ticular structures established by the Constitution,
including the tripartite division of the national
government; the separate existence of both state and
nation as political entities; and the structured role
of citizens within the political order; [33]

4. doctrinal argument — emphasis on the implications of
prior cases decided by the Supreme Court; [34]

5. prudential argument — emphasis on the consequences of
adopting a proferred decision in any given case; [35]

6. ethical argument — reliance on the overall “ethos” of
limited government as centrally constituting American
political culture. [36]

I want to frame my consideration of the Second Amend-
ment within the first five of Bobbitt’s categories; they are
all richly present in consideration of the Amendment might
mean. The sixth, which emphasizes the ethos of limited
government, does not play a significant role in the debate
of the Second Amendment. [37]

A. Text

I begin with the appeal to text. Recall the Second
Amendment: “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.” No one has ever
described the Constitution as a marvel of clarity, and the
Second Amendment is perhaps one of the worst drafted of all
its provisions. What is special about the Amendment is the
inclusion of an opening clause — a preamble, if you will —
that seems to set out its purpose. No similar clause is
part of any other Amendment, [38] though that does not, of
course, mean that we do not ascribe purposes to them. It
would be impossible to make sense of the Constitution if we
did not engage in the ascription of purpose. Indeed, the
major debates about The First Amendment arise precisely when
one tries to discern a purpose, given that “literalism” is a
hopelessly failing approach to interpreting it. We usually
do not even recognize punishment of fraud — a classic
speech act — as a free speech problem because we so sensi-
bly assume that the purpose of the First Amendment could not
have been, for example, to protect the circulation of pat-
ently deceptive information to potential investors in com-
mercial enterprises. The sharp differences that distinguish
those who would limit the reach of the First Amendment to
“political” speech from those who would extend it much
further, encompassing non-deceptive commercial speech, are
all derived from different readings of the purpose that
underlies the raw text. [39]

A standard move of those legal analysts who wish to
limit the Second Amendment’s force is to focus on its
“preamble” as setting out a restrictive purpose. Recall
Laurence Tribe’s assertion that the purpose was to allow the
states to keep their militias and to protect them against
the possibility that the new national government will use
its power to establish a powerful standing army and elim-
inate the state militias. This purposive reading quickly
disposes of any notion that there is an “individual” right
to keep and bear arms. The right, if such it be, is only a
states’s right. The consequence of this reading is obvious:
the national government has the power to regulate–to the
point of prohibition–private ownership of guns, since that
has, by stipulation, nothing to do with preserving state
militias. This is, indeed, the position of the ACLU, which
reads the Amendment as protection only the right of “main-
taining an effective state militia…[T]he individual’s
right to keep a nd bear arms applies only to the preserva-
tion or efficiency of a well-regulated [state] militia.
Except for lawful police and military purposes, the posses-
sion of weapons by individuals is not constitutionally
protected.” [40]

This is not a wholly implausible reading, but one might
ask why the Framers did not simply say something like
“Congress shall have no power to prohibit state-organized
and directed militias.” Perhaps they in fact meant to do
something else. Moreover, we might ask if ordinary readers
of the late 18th Century legal prose would have interpreted
it as meaning something else. The text at best provides
only a starting point for a conversation. In this specific
instance, it does not come close to resolving the questions
posed by federal regulation of arms. Even if we accept the
preamble as significant, we must still try to figure out
what might be suggested by guaranteeing to “the people the
right to keep and bear arms;” moreover, as we shall see
presently, even the preamble presents unexpected difficul-
ties in interpretation.

B. History

One might argue (and some have) that the substantive
right is one pertaining to a collective body — “the
people”– rather than to individuals. Professor Cress, for
example, argues that state constitutions regularly use the
words “man” or “person” in regard to “individual rights such
as freedom of conscience,” whereas the use in those constitutions of the term “the people” in regard to a right to
bear arms is intended to refer to the “sovereign citizenry”
collectively organized. [41] Such an argument founders,
however, upon examination of the text of the federal Bill of
Rights itself and the usage there of terms “the people” in
the First, Fourth, Ninth, and Tenth Amendments.