“[B]eing Necessary to the Security of a Free State …”: Understanding a Possible Relationship Between the Second Amendment and the Rule of Law

[This is a guest post based on a paper that was presented at the 2023 Firearms Law Works-In-Progress Workshop.  The Workshop is held each year on a home-and-away basis with the University of Wyoming Firearms Research Center.  This post does not necessarily represent the views of the Duke Center for Firearms Law.] 

The relationship between the Second Amendment and the jurisprudential concept of the Rule of Law is not obvious on its face. Most modern academic descriptions of the Rule of Law tend to focus on a few abstract ideals for a society that purports to be governed by law, rather than any individual’s or group’s will or ambition. Similarly, outside of academia, the Rule of Law tends to be described in terms of a series of (more or less) objectively measurable social statistics such as whether a particular country has relatively low levels of police and judicial corruption, judicial independence from the executive or legislative arms of the state, freedom of the press, and even various protections for human rights. None of these attempts to describe the Rule of Law fit well with the Right to Keep and Bear Arms protected in the Second Amendment to the U.S. Constitution.

The relationship becomes more apparent, however, when examined through the lens of the often-ignored supporting clause, “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.” (emphasis added). The “being necessary” clause, as a matter of historical record and measured by the actual success of Colonial militias in the period from establishment of the colonies through the founding, is mixed. Aside from some significant successes, such as the Battles of Lexington & Concord and the Battle of Kings Mountain, the colonial militia at best contributed to regular army victories and at worst were described as unorganized, undisciplined, and likely to retreat after (and sometimes even before) only a small number of volleys. The case for militia securing a “free state” is moderate in terms of military effectiveness.

However, when the “being necessary” clause is examined on a cultural level, the argument becomes more defensible. Arms constitute both an actual capacity for defense of self and community as well as an empowerment to do so. Viewed in this light, the “being necessary” clause embodies a cultural commitment to maintaining the means and responsibility of individuals to engage in defense of self and community. It is an aspiration that individuals who possess arms will internalize a willingness and obligation to use those arms in maintaining their liberty and the liberty of their community.

This cultural aspiration is similarly critical for understanding why some polities conform better to the ideal of the Rule of Law than others. Where it exists, the Rule of Law is a public good. The benefits of a cultural commitment to the Rule of Law are widely-shared but indeterminate, while the costs associated with maintaining the Rule of Law are generally internalized by the individual. In other words, without a commitment to the ideal that public official corruption is wrong, a judge or police officer may merely engage in a cost-benefit analysis in determining whether to accept a bribe weighed against the likelihood of detection and punishment.

English philosopher Michael Oakeshott best captures the idea that the Rule of Law requires a cultural component that cannot be measured nor expressed in abstract, objective metrics. Oakeshott describes the Rule of Law as a type of “moral association” – a concept about how abstract personae (e.g., judge, plaintiff, defendant, legislator, executive official) relate to each other “in terms of the recognition of certain conditions of association in terms of the recognition of certain conditions of association, namely ‘laws’: human beings joined in an exclusive, specifiable mode of relationship.”[1] The morality that informs how the moral association of the Rule of Law ought to work is, for Oakeshott, a form of cultural literacy that is developed through repeated practices that are explained through the process of describing history.

If the “being necessary” clause is not seen solely as a description by the founders of the military importance of Colonial militias, but is also understood as potentially expressing a moral statement about an armed citizenry and the relation of citizens, communities, states, and the new national government, it becomes much more than a mere throwaway phrase. It a moral statement that the right of individuals to keep and bear arms was part of the new national identity the founders were attempting to craft – a society in which states (and to be confirmed later, individuals) possess both the capacity and the justification to protect their communities. Intended or not, the “being necessary” clause is an attempt to create a culture in which individuals and states can and ought to protect themselves and their communities against external threats.

In that sense, the Second Amendment may operate as a kind of bellwether for the Rule of Law. Judges are human beings, not saints nor machines. The rights guaranteed by the Second Amendment, particularly following the U.S. Supreme Court’s decisions in Heller, McDonald, and Bruen, may make it impossible for some individual judges to separate their roles as ideological and political actors from their roles in the moral association that comprises the Rule of Law. As Professor George Mocsary suggests in analyzing judicial underenforcement of the Heller decision, while judges hostile to the Second Amendment may couch “their subjective attitudes in ostensibly objective, or, at least, legal, analyses,” it may still be reasonable for other users of the legal system to perceive this as subterfuge to hide that Second Amendment hostility. For many such abstract personae purporting to operate within the Rule of Law, whether from irrational hoplophobia, ignorance, political affiliation, or other anti-Rule of Law factors, the temptation to ignore the law and apply their own personal biases in cases implicating the Second Amendment is strong. But, by doing so, those judges are breaching the norms comprising the Rule of Law and contributing to the erosion of that concept in favor of a new moral association based upon political power and arbitrary political bias.

[1] Michael Oakeshott, The Rule of Law, in Michael Oakeshott, On History And Other Essays 129-178 (Liberty Fund 1999), at 129.