Challenging the Monopoly of Arms: Reflections on Sandy Levinson and the Embarrassing Second Amendment

Guest Blogger

This post was prepared for a roundtable on the Second Amendment, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Robert J. Cottrol

When I first received the invitation to participate in the LevinsonFest and to discuss Sandy Levinson’s critical role in the world of Second Amendment scholarship, many thoughts raced through my mind on how I might begin and focus this short discussion. Sandy Levinson’s 1989 essay, “The Embarrassing Second Amendment” played a critical role in taking the Second Amendment from what had been a state of academic neglect and judicial desuetude to the triumph of the individual rights position that we saw in June of this year with the Supreme Court’s decision in New York State Rifle and Pistol Association v. Bruen. A discussion focused on the role Sandy’s essay played in stimulating Second Amendment scholarship and how that scholarship caused the courts to re-examine the right to keep and bear arms, a re-examination that ultimately brought us Heller and now Bruen would have been entirely appropriate. Along the way I could commend Sandy for the intellectual and moral courage it took to embark on such a venture. I recall being at a dinner with Sandy at an academic conference in 1988 or 1989 when he indicated that he was working on an article on the Second Amendment and that the short of it was that the NRA was probably right at least in broad terms about the amendment having been intended to protect an individual right. A number of people suggested that he shouldn’t go through with the project saying that it would probably bring about a fair amount of ostracism and opprobrium from liberals in the legal academy. To his great credit, Sandy ignored that advice and by doing so produced that rare occurrence, a piece of scholarship that made history.

I could discuss that, and to an extent I just did. But when I was first asked to participate in this event, my memory was drawn to another more recent dinner. Five years ago, my wife and I were travelling through France. We rented a car and drove from Chateau to Chateau. We would get to experience the French countryside and have dinner with different hosts. One such host was a quite amiable chiropractor who was quite knowledgeable about the region, French history and the United States. He was quite proud of his father who had fought in the resistance during the Nazi occupation. We continued our discussions for several hours moving from one topic to the other. Finally came the inevitable topic when cosmopolitan Europeans get into a discussion with Americans: “You Americans and your guns, why do you have so many? Why are you so fascinated with them?” As I was under strict orders from my wife, who had been a French teacher and interpreter, not to get into a quarrel with Europeans on the gun issue, I just mumbled something about the frontier and cultural differences, and we moved on to the next subject.

Though I did not challenge my host and his assumptions all during our conversation I was thinking of our evening with the Chateau owner as an incredible example of the kind of willful blinders we all put on from time to time. Our host was justifiably proud of his father’s role in the resistance and indeed their role in the liberation of their homeland was formidable! Eisenhower estimated that the resistance played a role equivalent to ten to fifteen allied divisions in the liberation of France. The obvious question in my mind was wouldn’t the resistance have been an even stronger force, one that would have made the Nazi’s task even more difficult had there been a more robust tradition of arms ownership in France? One doesn’t have to engage in far-fetched Walter Mitty like fantasies of the French resistance single handedly vanquishing the Wehrmacht, the regular forces of the United States, Britain, Canada and France had a hard enough time doing that. But the French resistance played a role and a heroic one and perhaps might have done even more so had they had more robust armament. What I found amazing was that our host didn’t even make the connection.

But it isn’t only chateau owning chiropractors who look away from the broad issue of arms and resistance to tyranny, a traditional American theme revived in Sandy’s 1989 essay. It is a theme that has a deep and longstanding resonance with the American public, but curiously enough is usually held at arms and more than arm’s length by most of the people who shape public opinion, public policy and law in modern America. Most recently President Joseph Biden dismissed the whole idea suggesting that unless potential resisters had their own F15s that they would be hopelessly outmatched in any contest with the armed forces of a modern state (a memo that unfortunately the Taliban never got).

Nonetheless it should be added that even though the question of arms and resistance to tyranny is raised too infrequently in modern America, at least the issue is raised. It is certainly part of our ongoing debate on the Second Amendment. It has even made its way into modern court decisions. Judge Alex Kozinsky of the Ninth Circuit, a Jew born in Romania and the son of Holocaust survivors wrote a particularly striking dissent in the 2002 case of Silverado v. Lockyer, a pre Heller case that sought to shore up the collective rights reading of the Second Amendment: 

… [A]ll too many of the other great tragedies of history — Stalin's atrocities, the killing fields of Cambodia, the Holocaust, to name but a few — were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. …. If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.

My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed — where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

Fortunately, the Framers were wise enough to entrench the right of the people to keep and bear arms within our constitutional structure.

Sandy Levinson’s “The Embarrassing Second Amendment” played a key role in bringing the framers’ notion that an armed population plays an important part in the system of checks and balances of a republican government to modern academic and judicial respectability. It is an idea I wish I had shared with our chateau owning chiropractor. It is one that we should be less timid about advancing in other parts of the world. 

Robert J. Cottrol is the Harold Paul Green Research Professor of Law at George Washington University Law School. You can contact him at bcottrol@law.gwu.edu.