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Credible Commitments and the Right to Bear Arms: Viewing the Second Amendment from a Game-Theoretic Perspective

  • JAMIE LEVIN (a1)


For most of its existence, the Second Amendment was largely ignored by Constitutional scholars. Recently, a veritable cottage industry has developed in which two distinct camps have surfaced: so-called “Standard Modelers,” who argue that individuals have a right to bear arms for self-defense, the defense of the state, and, in the most extreme examples, to overthrow the government should it become tyrannical, and those who view the Second Amendment as a collective right vested in the state militias for the purposes of law enforcement, to protect against foreign aggression, to quell domestic insurrection, and as a check against federal overreach. Despite the enormous gulf between them, both sides agree that the right to bear arms provides a counterbalance against the federal government. This paper uses insights from game theory to shed new light on the adoption of the Second Amendment. The states suffered a commitment problem. They wished to cooperate with each other by founding a new republic, but feared the consequences of doing so: losing their freedom to a powerful government. The Second Amendment militated against the need for a large federal army, acted to counterbalance federal forces, and created the offensive means with which to confront a tyrannical government.



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2 Charles, Patrick, Armed in America: A History of Gun Rights from Colonial Militias to Concealed Carry (Amherst, NY: Prometheus Books, 2018); Charles, , Historicism, Originalism and the Constitution: The Use and Abuse of the Past in American Jurisprudence (Jefferson, NC: McFarland, 2014); Charles, , The Second Amendment: The Intent and Its Interpretation by the States and the Supreme Court (Jefferson, NC: McFarland, 2009); Sprecher, R. A., “Lost Amendment, TheABAJ, 51 (1965) 554–57; Halbrook, Stephen, “To Keep and Bear Their Private Arms: The Adoption of the Second Amendment, 1787–1791,” North Kentucky Law Review, 10, 13 (1982), 1339; Kates, Shalhope; D., “Handgun Prohibition and the Original Meaning of the Second Amendment,” Michigan Law Review, 82, 2 (1983) 204–73, Halbrook, Stephen, That Every Man Be Armed (Albuquerque: University of New Mexico Press, 1984); Levinson, S., “The Embarrassing Second Amendment,” Yale Law Journal, 99, 3 (1989) 637–59; Amar, A., “The Bill of Rights as a Constitution,” Yale Law Journal, 100 (1991), 11311210; Vandercoy, D., “The History of the Second Amendment,” Valparaiso University Law Review, 28 (1993), 1007–39, 1007; Van Alstyne, Reynolds; W., “The Second Amendment and the Personal Right to Arms,” Duke Law Journal, 43, 6 (1994), 1236–55; Malcolm, J. L., To Keep and Bear Arms: The Origins of an Anglo-American Rights (Cambridge, MA: Harvard University Press, 1996); Amar, A. R., The Bill of Rights: Creation and Reconstruction (New Haven, CT: Yale University Press, 1998); Cottrol, Robert, Gun Control and the Constitution: Sources and Explorations on the Second Amendment (New York: Garland Publishing, 1994); Dunlap, Charles, “Revolt of the Masses: Armed Civilians and the Insurrectionary Theory of the Second Amendment,” Tennessee Law Review, 62 (1994), 643–78.

3 The colonies had used their militias for this purpose before confederation and they would continue to use them for these purposes after confederation, with the notable exceptions of counterfeiting, piracy, and insurrection.

4 The new republican government faced considerable domestic opposition. Not all of those suspected loyal to the British Crown had fled and the new state faced economic hardship that led to widespread grievances. The states did not hesitate to turn their militias on their own populations in order to quash such challenges. Perhaps the best-known example is the suppression of Shay's Rebellion in 1787.

5 Rakove, Jack, “The Second Amendment: The Highest State of Originalism,” Chicago Kent Law Review, 76 (2000), 103–66, 103; Bellesiles, Michael, “The Second Amendment in Action,” Chicago–Kent Law Review, 76 (2000), 61102, 3; Finkelman, Paul, “The Living Constitution and the Second Amendment: Poor History, False Originalism, and a Very Confused Court,” Cardozo Law Review, 37, 623 (2015), 623–62; Finkelman, , Prelude to Civil War: The Nullification Controversy in South Carolina, 1816–1836 (New York: Oxford University Press, 2000); Brant, I., The Bill of Rights: Its Origin and Meaning (Indianapolis: Bobbs-Merrill Company, 1965); Hofstadter, R., America as a Gun Culture (New York: American Heritage Publishing Company, 1970); Cress, L., “An Armed Community: The Origins and Meaning of the Right to Bear Arms,” Journal of American History, 71, 1 (1984), 2242; Weatherup, R. G., “Standing Armies and Armed Citizens: An Historical Analysis of the Second Amendment,” Journal on Firearms & Public Policy, 1 (1998), 9611001; Henigan, D., “Arms, Anarchy and the Second Amendment,” Valparaiso University Law Review, 26 (1991), 107–29; Reynolds; Wills, Garry, “To Keep and Bear Arms,” New York Review of Books, 42 (1995), 6273, Cornell, Saul, “Commonplace or Anachronism: The Standard Model, the Second Amendment, and the Problem of History in Contemporary Constitutional Theory,” Constitutional Commentary, 16 (1999), 221–45, Bogus, Carl, “History and Politics of Second Amendment Scholarship: A Primer,” Chicago–Kent Law Review, 76, 3 (2000), 325, Bogus, , “The Hidden History of the Second Amendment,” University of California at Davis Law Review, 31 (1997), 309408.

6 Bruce-Briggs, B., “The Great American Gun War,” Public Interest, 45 (1976), 3762. A so-called “new paradigm” has also emerged representing a middle-ground position. The new paradigm argues that guns are a civic right; a “right of persons exercised collectively.” Churchill, Robert, “Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment,” Law and History Review, 25, 1 (2007), 139–76. On this view, individual gun ownership was meant to provide protection for the broader community. See also Cornell, Saul, “Don't Know Much about History: The Current Crisis in Second Amendment Scholarship,” Northern Kentucky University Law Review, 29 (2002), 657–81, Uviller, Richard and Merkel, William G., The Militia and the Right to Arms; or, How the Second Amendment Fell Silent (Durham, NC: Duke University Press, 2002); Konig, David Thomas, “The Second Amendment: A Missing Transatlantic Context for the Historical Meaning of ‘the Right of the People to Keep and Bear Arms’,” Law and History Review, 22 (2004), 119–59.

7 Shalhope; Kates; Weatherup; Reynolds; Cottrol, R. and Diamond, R. T., The Fifth Auxiliary Right (book review), Yale Law Journal, 104 (1995), 9951026; Cornell, Saul and DeDino, N.A Well Regulated Right: The Early American Origins of Gun Control,” Fordham Law Review, 73 (2004), 487528.

8 Cf. Morrow, James, Game Theory for Political Scientists (Princeton, NJ: Princeton University Press, 1994); Nicholson, Michael, Formal Theories in International Relations (Cambridge: Cambridge University Press, 1989).

9 Cf. Totten, Robbie, “Security, Two Diplomacies, and the Formation of the US Constitution: Review, Interpretation, and New Directions for the Study of the Early American Period,” Diplomatic History, 36, 1 (2012), 77117, 79, Hendrickson, David, Union, Nation, or Empire: The American Debate over International Relations, 1789–1941 (Lawrence: University Press of Kansas, 2009); Hendrickson, David, Peace Pact: The Lost World of the American Founding (Lawrence: University Press of Kansas, 2003); Lewis, James E. Jr., The American Union and the Problem of Neighborhood: The United States and the Collapse of the Spanish Empire, 1783–1829 (Chapel Hill: University of North Carolina Press, 2000); Parent, Joseph, Uniting States: Voluntary Union in World Politics (Oxford: Oxford University Press, 2011); Deudney, Daniel, Bounding Power: Republican Security Theory from the Polis to the Global Village (Princeton, NJ: Princeton University Press, 2007); Deudney, , “The Philadelphian System: Sovereignty, Arms Control, and Balance of Power in the American States-union, circa 1787–1861,” International Organization, 49, 2 (1995), 191228, Onuf, Peter and Onuf, Nicholas Greenwood, Federal Union, Modern World: The Law of Nations in an Age of Revolutions, 1776–1814 (Madison: Rowman & Littlefield, 1993); Onuf, Peter, “Anarchy and the Crisis of the Union,” in Belz, Herman, Hoffman, Ronald, and Albert, Peter J., eds., To Form a More Perfect Union: The Critical Ideas of the Constitution (Charlottesville: United States Capitol Historical Society, 1992), 272303.

10 Totten, 97.

11 On arbitrating disputes see ibid.; Parent. On collective security see Hendrickson, Peace Pact; Edling, M., A Revolution in Favor of Government: Origins of the US Constitution and the Making of the American State (Oxford: Oxford University Press, 2003).

12 Totten, 79, 92.

13 Cf. Klarman, Michael, The Framers’ Coup: The Making of the United States Constitution (Oxford: Oxford University Press, 2016); Rakove, Jack, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Vintage, 1997).

14 Hendrickson, Peace Pact, similarly argues that the Second Amendment allowed the states to balance each other out. Coupled with the expanded power of the federal government to arbitrate disputes, this had the effect of mitigating the insecurity that prevailed between them.

15 Weber, Max, Politics as a Vocation (Philadelphia: Fortress Press, 1972); Deudney, “The Philadelphian System,” 208.

16 Levinson, “The Embarrassing Second Amendment.”

17 Whigs are sometimes referred to as Republicans or Libertarians.

18 Totten, 79.

19 Ibid., 80; Deudney, Bounding Power.

20 Parent.

21 Cf. ibid.

22 Cf. Klarman; Rakove.

23 Elster, John, Ulysses and the Sirens: Studies in Rationality and Irrationality (Cambridge: Cambridge University Press, 1984); Fearon, James, “Rationalist Explanations for War,” International Organization, 49, 3 (1995), 379414.

24 Elster.

25 Schweller, Randall, “Neorealism's Status Quo Bias: What Security Dilemma?”, Security Studies, 5, 3 (1997), 90121, 101.

26 Walter, Barbara, “The Critical Barrier to Civil War Settlement,” International Organization, 51, 3 (1997), 335–64; Walter, , “Explaining the Intractability of Territorial Conflict,” International Studies Review, 5, 4 (2003), 137–53; Walter, Barbara and Snyder, J., Civil Wars, Insecurity, and Intervention (New York: Columbia University Press, 1999).

27 Putnam, Robert, “The Logic of Two-Level Games,” International Organization, 42, 3 (1988), 427–60; Fearon, James, “Signaling Foreign Policy Interests: Tying Hands Versus Sinking Costs,” Journal of Conflict Resolution, 41, 1 (1997), 6890, Tomz, M., “Domestic Audience Costs in International Relations: An Experimental Approach,” International Organization, 61, 4 (2007), 821–40.

28 Kydd, Andrew, “Trust, Reassurance, and Cooperation,” International Organization, 54, 2 (2000), 325–57.

29 Ibid., 333.

30 Ibid., 326.

31 Walter, “The Critical Barrier to Civil War Settlement”; Walter, “Explaining the Intractability of Territorial Conflict.”

32 Morgenthau, Hans, Politics among Nations: The Struggle for Power and Peace (Boston: Knopf, 1948); Waltz, Kenneth, Theory of International Politics (Long Grove: McGraw-Hill, 1979); Walt, Stephen, The Origins of Alliances (Ithaca, NY: Cornell University Press, 1987).

33 On diplomacy see Brooks, S. and Wohlforth, William, “Hard Times for Soft Balancing,” International Security, 30, 1 (2005), 72108, Pape, Robert, “Soft Balancing against the United States,” International Security, 30, 1 (2005), 745. On alliance formation see Waltz; Walt, Stephen, “Alliance Formation and the Balance of World Power,” International Security, 9, 4 (1985), 343.

34 Mearsheimer, John J., The Tragedy of Great Power Politics (New York: W. W. Norton & Company, 2001).

35 Mack, Andrew, “Why Big Nations Lose Small Wars: The Politics of Asymmetric Conflict,” World Politics, 27, 2 (1975), 175200; Arreguin-Toft, Ivan, “How the Weak Win Wars: A Theory of Asymmetric Conflict,” International Security, 26, 1 (2001), 93128; Fearon, James and Laitin, David, “Ethnicity, Insurgency, and Civil War,” American Political Science Review, 97, 1 (2003), 7590; Sullivan, P., “War Aims and War Outcomes: Why Powerful States Lose Limited Wars,” Journal of Conflict Resolution, 51, 3 (2007), 496524; Sullivan, P. and Koch, M., “Military Intervention by Powerful States, 1945–2003,” Journal of Peace Research, 46, 5 (2009), 707–18; Lyall, J. and Wilson, I.Rage against the Machines: Explaining Outcomes in Counterinsurgency Wars,” International Organization, 63, 1 (2009), 67106; LaPierre, Wayne, Guns, Crime, and Freedom (New York: HarperCollins, 1995). American Revolutionaries made extensive use of use of these asymmetric tactics during the Revolutionary War. Indeed, the colonists prevailed over the British – securing their independence – not only through direct military engagements, but also through persistent harassment by an armed population (the militias), using what might today be termed insurgency tactics. Kates, “Handgun Prohibition”; Cress, “An Armed Community.” For a countervailing view see Dunlap, “Revolt of the Masses.”

36 Finkelman, Prelude to Civil War, 195.

37 Even after their victory, complaints about the performance of the militias – persistently voiced by none other than General Washington – raised the need for a standing army to confront future threats. Hofstadter, America as a Gun Culture; Wiener, F., “The Militia Clause of the Constitution,” Harvard Law Review, 54, 2 (1940), 181220.

38 Many states chose to free ride rather than fully contribute their share to the common government. Dougherty, Keith, “An Empirical Test of Federalist and Anti-Federalist Theories of State Contributions, 1775–1783,” Social Science History, 33, 1 (2009), 4774, Dougherty, Keith, Collective Action under the Articles of Confederation (Cambridge: Cambridge University Press, 2006).

39 Hendrickson, Peace Pact; Totten, “Security, Two Diplomacies”; Parent, Uniting States. For example, Hamilton argued that if the confederation collapsed the states would ally themselves with competing European powers, setting the stage for conflict between them.

40 Edling, A Revolution in Favor of Government; Lewis, The American Union and the Problem of Neighborhood.

41 Totten; Hendrickson.,

42 Totten.,

43 On fiscal military powers see Edling.

44 While the articles allocated the right to conduct foreign policy, declare war, and raise an army and navy to the federal government alone, each state was not only allowed, but also in fact required, to “keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage” for the defense of the state (Article VI).

45 On the imposition of arbitrary authority see Levinson, “The Embarrassing Second Amendment”; Reynolds, “A Critical Guide to the Second Amendment.” On individual and states rights see Edling; Wiener, 184.

46 Whitney, Craig, Living with Guns: A Liberal's Case for the Second Amendment (New York: Public Affairs, 2012); Finkelman, Prelude to Civil War; Dunlap, “Revolt of the Masses,” 646.

47 Edling; Finkelman, Prelude to Civil War, 224–25.

48 Finkelman, “The Living Constitution and the Second Amendment,” 632; Finkelman, Prelude to Civil War, 224–25; Dunlap, 649–50; Edling; Whitney; Kates, “Handgun Prohibition,” 212; Tribe, Lawrence, American Constitutional Law (Auflage, 1988); Levinson; Henigan, “Arms, Anarchy and the Second Amendment”; Deudney, “The Philadelphian System”; Kohn, Richard, “The Constitution and National Security: The Intent of the Framers,” in Kohn, ed., The United States Military under the Constitution of the United States, 1789–1989 (New York: New York University Press, 1991), 85.

49 Quoted in Henigan, 117. See also Edling.

50 Quoted in Henigan, 117.

51 Storing, J., The Complete Anti-Federalist (Chicago: The University of Chicago Press, 2008).

52 In the main, the colonists objected to their perceived disenfranchisement, including increased taxation and duties imposed on the colonies (e.g. the Stamp Act, the Sugar Act, the Tea Act, and others), as well as British mercantilist policies, which severely restricted the colonists’ trade prospects abroad. The colonists also harbored grievances concerning British restrictions on westward expansion and settlement, the involuntary quartering of British soldiers, and the withholding of appointments to colonists under British arms. Because the American colonists did not enjoy representation within the British legislature, the increasingly onerous and burdensome legislation imposed on them without their advice or consent came to be viewed as contrary to their will and, thus, illegitimate. At first grievances were expressed through protest, petition, and the boycott of British goods. However, violence spread and the British flooded in troops (a standing army) to quell what it had declared an outright rebellion. Finkelman, Prelude to Civil War, 195.

53 Quoted in Kates, 224.

54 Vandercoy, “The History of the Second Amendment.”

55 Quoted in Higginbotham, D., “The Federalized Militia Debate: A Neglected Aspect of Second Amendment Scholarship,” William and Mary Quarterly, 55, 1 (1998), 3958.

56 Hamilton, Alexander, The Federalist Papers (Oxford: Oxford University Press, 2008), Federalist Paper 46; Dunlap, 648; Kohn, “The Constitution and National Security,” 6.

57 Finkelman, “The Living Constitution and the Second Amendment,” 639; Edling; Whitney; Kates, 221; Higginbotham.

58 For example, the First Amendment prohibits laws that infringe on the freedom of religion, of speech, of the press, of assembly, etc.; the Third Amendment prevents the quartering of soldiers on private property without consent; the Fourth Amendment prohibits unreasonable search and seizure; and the Fifth, Sixth, and Eighth Amendments protect the rights of the criminally accused – all of which are rights broadly afforded to individuals. The Tenth Amendment, on the other hand speaks to states’ rights, reserving to the states all powers not explicitly granted to the federal government in the Constitution.

59 Kates, 222. Vandercoy counts seven states.

60 These include William Blackstone, James Burgh, James Harrington, John Trenchard, Algernon Sidney, and others.

61 Whig literature was printed in America, well circulated, widely read, and liberally cited by Federalists and Anti-Federalists alike. Hofstadter, America as a Gun Culture; Ganter, H., “The Machiavellianism of George Mason,” William and Mary Quarterly, 17, 2 (1937), 239–64, Shalhope, “The Ideological Origins of the Second Amendment”; Kates; Cress, “An Armed Community”; Weatherup, “Standing Armies and Armed Citizens”; Vandercoy; Malcolm, To Keep and Bear Arms; Bogus, “History and Politics of Second Amendment Scholarship”; Pocock, J., The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton, NJ: Princeton University Press, 2009).

62 Machiavelli, Niccolo, The Art of War (Chicago: The University of Chicago Press, 2009), Machiavelli, , Discourses on Livy (Chicago: The University of Chicago Press, 2009). Kates.

63 Moreover, should an armed class arise it would likely tend towards belligerent behavior because it would stand to benefit from armed conflict. Cress.

64 Shalhope; Cress.

65 Echoing Machiavelli, the Whigs argued that successive British kings attempted to disarm the population and raise standing armies in order to gain absolute control over their subjects. The Glorious Revolution put an end to despotic rule and marked the beginning of parliamentary democracy, in part by guaranteeing the English population the right to bear arms, thus ensuring that the Crown could no longer impose its writ by force. Malcolm; Kates; Cress; Weatherup; Vandercoy. Armed citizens, they reasoned, could protect the state from foreign aggression, obviating the need for a standing army, as well as preventing despotic kings from monopolizing power, as they had done under successive British kings. Malcolm.

66 Pocock.

67 On disputes see Totten, “Security, Two Diplomacies”; Edling, A Revolution in Favor of Government. On collective security see Hendrickson, Peace Pact.

68 Totten; Edling; Hendrickson.

69 The militias were also said to provide defense without the financial expense or opportunity costs (i.e. manpower lost to the army) associated with a standing army; costs the young state could scarcely afford. Kates; Whitney, Living with Guns; Cress; Weatherup; Henigan, “Arms, Anarchy and the Second Amendment.”

70 Federalist Paper 29.

71 Reynolds, “A Critical Guide to the Second Amendment,” 510.

72 Charles, Armed in America, refers to this as a “parliamentary right of resistance.”

73 Waldman, Michael, The Second Amendment: A Biography (New York: Simon and Schuster, 2015); Finkelman, “The Living Constitution and the Second Amendment,” 636, Reynolds, 512; W. Kaminer, “Second Thoughts on the Second Amendment,” Atlantic Monthly, March 1996, 42; Halbrook, That Every Man Be Armed; Kates, 212, Malcolm; Amar, “The Bill of Rights as a Constitution,” 1165; Levinson, “The Embarrassing Second Amendment,” 650–51; Van Alstyne, “The Second Amendment.”

74 Jefferson wrote in the Declaration of Independence, “Governments are instituted among men, deriving their just powers from the consent of the governed … whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it.”

75 Federalist Paper 28 refers to the right of militias to resist or even overthrow a tyrannical government as the “original right to self-defense.”

76 Quoted in Henigan, 120–21.

77 Charles, Armed in America; Finkelman, “The Living Constitution and the Second Amendment”; Finkelman, Prelude to Civil War, 236; Bogus, “History and Politics of Second Amendment Scholarship,” 16; Henigan; Shalhope, R., “To Keep and Bear Arms in the Early Republic,” Constitutional Commentary, 16 (1999), 269–80. Wills, “To Keep and Bear Arms,” Dunlap, “Revolt of the Masses,” 654.

78 Deudney, “The Philadelphian System,” 204.

79 Finkelman, “The Living Constitution and the Second Amendment,” 659; Finkelman, Prelude to Civil War, 235. Dunlap, 649–50, Kohn, “The Constitution and National Security,” 85.

80 Dunlap, 652.

81 See note 58 above.

82 This reading gained currency in 2008 with the Supreme Court ruling, District of Columbia v. Heller. Cf. Spitzer, R., Guns across America: Reconciling Gun Rules and Rights (Oxford: Oxford University Press, 2015); Cornell, Saul and Kozuskanich, Nathan, The Second Amendment on Trial: Critical Essays on District of Columbia v. Heller (Boston: University of Massachusetts Press, 2013), Cornell, Saul, A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America (Oxford: Oxford University Press, 2008); Winkler, Adam, Gunfight: The Battle over the Right to Bear Arms in America (New York: W. W. Norton & Company, 2011). Kevin Sweeney, “Firearms, Militias, and the Second Amendment,” in Cornell and Kozuskanich, The Second Amendment on Trial, 310–82; Waldman. Despite Heller, however, numerous scholars emphatically reject the accuracy of reading on historical grounds. Cf. Finkelman, “The Living Constitution and the Second Amendment.”

83 It is also the only amendment to contain its own preamble: “A well regulated Militia, being necessary to the security of a free State.” See Finkelman, “The Living Constitution and the Second Amendment,” 631.

84 Hendrickson, Peace Pact; Deudney, “The Philadelphian System,” 201–2, 204.

85 Lund, Nelson, “The Second Amendment, Political Liberty, and the Right to Self-Preservation,” Alabama Law Review, 39 (1987), 103–30, 115, 122, Levinson, “The Embarrassing Second Amendment,” 657; Kates, “Handgun Prohibition,” 270–71.

86 Following a similar logic, Silverstone argues that divided powers acted as a check on American military action abroad. Silverstone, Scott, Divided Union: The Politics of War in the Early American Republic (Ithaca, NY: Cornell University Press, 2004), Silverstone, , “Federal Democratic Peace: Domestic Institutions and International Conflict in the Early American Republic,” Security Studies, 13, 3 (2004), 48102. See also Kates, 270.

87 An armed citizenry was essential for the provision of internal security in the early days of American statehood. In many areas the government simply lacked the necessary resources to provide law enforcement or equip the militias, so the burden was passed to individual citizens through the Second Amendment.

88 Cf. Levinson; Reynolds, “A Critical Guide to the Second Amendment.”

89 For example, Article I, Section 8, limits the government's ability to raise funds for raising an army without legislative approval. Weatherup, “Standing Armies and Armed Citizens,” 963. “The people,” according to Vandercoy, “The History of the Second Amendment,” 1007, “control the purse.” Furthermore, the appointment of officers and the responsibility for training the militia is reserved to the states under Article I, Section 8. In other words, while the federal government would have the power to enlist the militia, the allegiances of the militia would remain with local authorities who trained and appointed them.

90 For example, most states refused to send their militias to suppress Shay's Rebellion, which itself comprised numerous militiamen; many states tolerated draft resistance during the Whiskey Rebellion; and state militias failed to enforce the unpopular Embargo Act of 1807. See Higginbotham, “The Federalized Militia Debate.” Those states that opposed the War of 1812, including Massachusetts and New York, refused to send their militias to support federal troops. Wiener, “The Militia Clause of the Constitution.” The Civil War is probably the best example of states challenging the power of the federal government by force. When the southern states no longer found the bargain struck at confederation desirable, they had the ability to challenge it. While the states lost their capacity to refuse to send their militias to assist the federal government in carrying out its constitutionally mandated duties after the passage of the 1903 Dick Act, various states continued to resist the impositions of federal government. Arizona and Oklahoma, for example, called out their National Guards to stop the construction of dams by the federal government, the governor of Iowa mobilized his National Guard to prevent a hearing of the National Labor Relations Board, and several southern states attempted to use their National Guards to block federally mandated civil rights initiatives. Wiener. While some of these examples might qualify as provocative or even illegal (Wiener describes several as outright “treason”), they would not have been possible without the passage of the Second Amendment. Without an armed populace and organized militias the South wouldn't have been able to raise an army to challenge the federal government and the federal government likely wouldn't have faced such a challenge if it had maintained a sizeable peacetime army. Deudney, “The Philadelphian System.”

91 See Freeman, Joanne, “Corruption and Compromise in the Election of 1800: The Process of Politics on the National Stage,” in Onuf, Peter, Lewis, Jan, and Horn, James, eds, The Revolution of 1800: Democracy, Race, and the New Republic (Charlottesville: University of Virginia Press, 2002), 87120. In 1801, several Republican state governors threatened to call out their militias if Congress failed to elect Thomas Jefferson President (it did). See Michael Bellesiles, “The Soil Will Be Soaked in Blood,” in ibid., 60–86; Levinson.

92 The Nullification Crisis began when South Carolina declared that protectionist tariffs imposed nationwide by the federal government would not be enforced within the state and prepared to resist the federal government. In response, Congress passed the Force Bill, which authorized military intervention in South Carolina. War was averted only when a lower tariff amenable to South Carolina was adopted.

93 Wiener, 183.

94 Whitney, Living with Guns; Wiener, 200.

95 By the time the new country faced its second major armed insurrection in 1794 – the so-called Whiskey Rebellion – Washington was able to order the Virginia, Maryland, Pennsylvania, and New Jersey militias to suppress the uprising. The powers provided for in the 1792 Militia Act were made permanent in 1795. Later, the 1903 Dick Act turned the state militias into a reserve service for the federal army. Now known as the National Guard, the militias were, for the first time in American history, properly trained and accoutered with the help of federal funds. See Whitney. Since then, safeguards against federal overreach have gradually diminished. While the Insurrection Act of 1807 required the permission of the states for the use of the militias by the federal government, the Supreme Court ruled in Perpich v. Department of Defense (1990) that the federal government can federalize the National Guard without the consent of the state. See Higginbotham. Nevertheless, the National Guard continues to swear allegiance to the state (as well as to the President) and can only be federalized on constitutional grounds (i.e. to suppress insurrection and repel invasion). See Hofstadter, America as a Gun Culture; Higginbotham.

96 Deudney, “The Philadelphian System,” 221.

97 DiMaggio, P. and Powell, W., “The Iron Cage Revisited: Collective Rationality and Institutional Isomorphism in Organizational Fields,” American Sociological Review, 48, 2 (1983), 147–60.

Credible Commitments and the Right to Bear Arms: Viewing the Second Amendment from a Game-Theoretic Perspective

  • JAMIE LEVIN (a1)


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