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7 February 2013

The Americans' right
to bear arms
is based on a myth

Andrew Hook

James Madison

The second amendment to the American constitution (1791) is universally assumed to be about the right of individual Americans to bear arms. Journalists and commentators endlessly tell us that, for most Americans, the right to own a gun is built into what they see as the very fabric of their nation. Outsiders like us have to understand this before we can begin to criticise the gun culture of contemporary America.

Is this true? Not exactly. The second amendment is very brief. But not quite so brief as to say simply that Americans have the right to bear arms. Here is the amendment in full:

A well-regulated militia being necessary for the security of a free State, the right of the People to keep and bear arms shall not be infringed.

So the second amendment has two constituent parts. One is yes, about the right of the people to keep and bear arms. But the second is about something else: a well-regulated militia is necessary to secure the freedom of the United States. The key question then is this: how far does this second consideration relate to or qualify the first?

In the 19th century there was little discussion of this question, but as the 20th century went on it came increasingly to be regarded as the crucial one. Two opposing schools of thought emerged. One was that the second amendment was only about securing 'collective' rights – the right of the people to bear arms within a militia. The alternative view was that the amendment was about 'individual rights' – the right of individual Americans to keep and bear arms. This is currently the prevailing view, but it is worth remembering that the American Supreme Court has only endorsed the 'individual rights' interpretation very recently indeed. It was only in 2008 that the court arrived at that verdict – by five votes in favour to four against.

Agreeing with the four dissenting judges, I cannot see how the militia issue can be set aside in interpreting the second amendment. If James Madison and the other founding fathers were simply confirming the right of individual Americans to keep and bear arms, why did they confuse the issue by referring to the militia question at all?

Actually what is in question here is much more than just the second amendment. The argument over the meaning of this amendment can be seen as a metonymy for a much wider debate over the fundamental purpose of the American constitution as a whole. In the 19th century, and through most of the 20th, the established, orthodox interpretation of the constitution was that, based above all on the philosophy of John Locke, it was wholly concerned with protecting the rights of the individual: the right of the individual to life, liberty, and the pursuit of happiness. Today, however, that orthodoxy no longer goes unchallenged.

Recent scholarship has shown that Locke was far from being a uniquely important influence on the thinking of the founding fathers. Major figures among those drawing up and amending the constitution were equally familiar with the thinking of the philosophers of the Scottish Enlightenment – Francis Hutcheson, David Hume, Lord Kames, Thomas Reid. What difference does it make? A hugely important one.

The Scottish Enlightenment aimed to develop a new science of man – but of man above all within society. It is the thinkers of the Scottish Enlightenment who pioneered what became known as the social sciences – economics, sociology, anthropology, political science, etc. Their focus was on man in relation to other men, the individual in relation to society. So influenced as much by the Scottish thinkers as by John Locke, America's founding fathers were concerned to create a constitution protective of collective rights as much as individual rights: the right to maintain militias, as much as the right to keep and bear arms.

How relevant is this analysis to what is happening in contemporary American politics? President Obama's speech at his second inauguration ceremony provides the answer. The key moment in that speech is reached when the president says 'preserving our individual freedoms ultimately requires collective action'. Here President Obama is challenging what he rightly sees as the core belief of today's neo-conservatives: that the individual freedoms of Americans are threatened by the state and its government. No, he is saying, individual rights and collective rights, as inscribed in the constitution, need to work together, not against each other. Properly understood, this is the view that the second amendment finally endorses.

In the great body of scholarship debating the second amendment, the point is frequently made that its origin lies in the English Bill of Rights of 1689 which stated that 'the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and allowed by Law'. (At the same time it is pointed out that the American version removes the various limitations on the right to bear arms in the English original.)

The second amendment's reference to the role of militias in protecting the state, on the other hand, has never, I believe, been seen as having a specifically Scottish historical context. But it is entirely possible that key figures in the constitutional debates – above all James Madison educated at the College of New Jersey by John Witherspoon, but including others familiar with the traditions of the Scottish Enlightenment such as Jefferson and James Wilson – would have been familiar with the argument over militias in 18th-century Scottish history.

In 1708 the post-union parliament passed a Scottish Militia Bill. But on the advice of her ministers Queen Anne exceptionally vetoed the bill on the grounds that a Scottish militia might prove disloyal. Much more significantly, in 1757 the British government's Militia Act did not apply to Scotland – implying once again that post-1745 Scotland might be disloyal. This decision by the government was deeply resented in Scotland. It led to the creation of the Poker Club in Edinburgh, designed to promote the cause of a Scottish militia. Significantly the membership of the Poker Club (like that of the older Select Society which it effectively replaced) included nearly all the leading members of the Scottish Enlightenment.

What I'm suggesting is that in framing the second amendment James Madison's reference to the importance of militias in securing his country’s freedom was in no way accidental. Scotland had been denied a militia. That would not be the case in America and to ensure it, the right of citizens to keep and bear arms would not be infringed. Perhaps then it is not impossible that the American debate over the second amendment has been wrongly skewed towards the general issue of the individual's right to keep and bear arms. What Madison and the other founding fathers were actually concerned about was the security of their new state – not the permanent right of individual Americans to bear arms.

Andrew Hook is a former professor of English literature at Glasgow University