Article
The Second Amendment in Context: The Case of the Vanishing Predicate
Chicago-Kent Law Review
(2000)
Abstract
Uviller and Merkel argue that the Second Amendment right to keep and bear arms was intended by the framers (and, perhaps more importantly, understood by the ratifiers) to be intimately bound up in the ideal of service in the lawfully established militia-for many eighteenth-century Americans, the preferred alternative to that "bane of liberty," the standing army. But as Uviller and Merkel set out to show, the historic common militia celebrated in the republican ideology of eighteenth-century Whigs was already on the road to obsolescence when the Second Amendment became law. By the middle of the nineteenth century, few citizens mustered on militia days, those who did arrived unarmed, and state after state simply chose to let the founders' militia wither away. As a result, Congress established the National Guard in 1903 to replace the long defunct militia-of-the-whole. This statutory "militia" of today is federally armed and manned by trained volunteers who in large measure are paid and drilled by the U.S. Army. Not even a shadow of the eighteenth century's self-armed, universal militia remains. Uviller and Merkel conclude that in this critically changed context, the Second Amendment right cannot be meaningfully applied.
Keywords
- Second Amendment,
- militia,
- National Guard
Disciplines
Publication Date
October, 2000
Citation Information
H. R. Uviller & William G. Merkel, The Second Amendment in Context: The Case of the Vanishing
Predicate, 76 Chi.-Kent L. Rev. 403 (2000).