Brown, Wendy

English

Yale Law School Legal Scholarship Repository

Guns, Cowboys, Philadelphia Mayors,
and Civic Republicanism: On Sanford
Levinson's The Embarrassing Second
Amendment
Wendy Brown t
Sanford Levinson's reading of the Second Amendment deftly parlays a
strategy of historical interpretation into an opening move in a much
needed contemporary political conversation about guns, individual rights,
popular sovereignty, and state power.' This reading suggests an intriguing
recovery of the Amendment's origins in republican anti-statism and, in the
same gesture, potentially retrieves the political value of the Amendment
for those who ordinarily have little in common with its stickiest adherents.
Historically situated in the republican concern with popular power, the
Second Amendment might be less the individualistic cudgel of National
Rifle Association sloganeering than a token and vehicle of collective civic
resistance against the domestic imperialism of centralized state power.
However compelling and disturbing several aspects of Levinson's pro-
vocative argument may be, I think it is ultimately less republican than it
wants to be; I think the republicanism it does harbor is of questionable
value; and I think the republican subject, if he exists, is definitely a "he."
In what follows, I will suggest that both the republican subject and polity
invoked in Levinson's interpretation are, at best, appealing historical
figures, of little relevance to our socially fragmented and politically dis-
integrated mass culture, to our bureaucratized, centralized, and nuclear-
armed state, or to the relationship between them.
I. REPUBLICAN POLITY OR LIBERAL STATE?
The republican argument for arming the citizenry is most powerfully
elaborated not by the English thinkers Levinson cites, but in that passion-
ate republican work, Machiavelli's Discourses on the First Decade of
Titus Livius.2 In Machiavelli's account, terrible ills arise from disarming
t Associate Professor, Women's Studies, University of California, Santa Cruz.
1. Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637 (1989).
2. N. MACHIAVELLI, Discourses on the First Decade of Titus Livius, in 1 THE CHIEF WORKS
AND OTHERS 175, 410-11 (A. Gilbert trans. 1965).
The Yale Law Journal
the people to escape an imagined rather than real, danger instead of doing
things that would give them security.' His beseeching tone and romantic
prose almost make one forget that he is talking about deadly weapons:
The heart and the vital parts of a body should be kept armored, and
not the extremities. For without the latter it lives, but when the for-
mer is injured, it dies; and these states keep their hearts unarmored
and their hands and feet armored. What this error has done to Flo-
rence has been seen and is seen every day; and when an army passes
her boundaries and comes within them close to her heart, she has no
further resource.4
What is so compelling in this account is the way Machiavelli links a
state's security with the strength and independence of its citizenry. His
bodily metaphor suggests a literal weakening of state power when armed
citizens do not comprise the heart of the state; when state force is rooted in
something other than an empowered citizenry; when state power is with-
out "foundations" in the people; and when the polity is without civic
virtit. In fact, Machiavelli is not talking simply about arms, but about the
aggregate health of the republican polity. He recognizes that a vigorous,
independent citizenry is not at odds with state power but, to the contrary,
represents an indispensable source of political flexibility, defense, and re-
newal. Drawing the connection between freedom and power, both individ-
ual and collective, in a manner rivalled only by Marx, Machiavelli is a
marvelous antidote to our neo-Hobbesian beliefs that those practices are
antinomic.
The problem with Levinson's employment of this feature of republican
thought to interpret the Second Amendment is that it is not clear how
much it has to do with either our Constitution or our present condition.
Consider the confusion Levinson identifies in the text of the Amend-
ment-a confusion symptomatic of the recessive position of republicanism
in the constitutional formulation of the United States as a liberal polity.5
The preambled Second Amendment is ambiguous about whether it grants
citizens the right to bear arms for protection of the state,6 against the
state,7 or against one another.8 Levinson calls "republican" an argument
that our right to bear arms is protection against the state's potentially
excessive use of its prerogative, but this argument does not really express
a republican sensibility. Rather, it signifies a liberal overtaking of such
sensibilities. Machiavelli's republican citizenry is not armed against the
3. Id. at 410.
4. Id. at 411.
5. See Levinson, supra note 1, at 643-44.
6. See, e.g., id. at 644-45 (Levinson's discussion of state militias).
7. See, e.g., id. at 648-51, 656-57 (Levinson's discussion of resistance to governmental tyranny).
8. See, e.g., id. at 655-56 (Levinson's discussion of NRA and vigilantism; emphasis that citizens
should participate in law enforcement).
[Vol. 99: 661
Guns and Cowboys
state but as the state-an armed citizenry is the state's heart, not its oppo-
sition or counterweight. Levinson's view of the Second Amendment as citi-
zen protection against the state assumes a cleavage if not a hostile antago-
nism between state and society: "Consider the possibility . . . that the
ultimate 'checking value' in a republican polity is the ability of an armed
populace, presumptively motivated by a shared commitment to the com-
mon good, to resist governmental tyranny."9 In contrast to Machiavellian
republicanism, Levinson's formulation is really a militarized version of
Locke's "appeal to heaven"'1 and a far cry from armoring the heart of a
polity. This is not republicanism but a kind of bastardized liberalism, in
which a diffident and depoliticized populace squares off against the state,
in which there is no political heart at all but only hands and head and feet
all armed against one other.
II. REPUBLICAN CITIZENS OR LIBERAL INDIVIDUALS?
We may pose two sets of questions about the place held by the republi-
can subject in Levinson's argument. First, upon what kind of political
subject is republicanism premised, and what kind do we have today?
What does it mean to make appeals to a republican political order when
we do not have one, when our citizenry is not republican in character,
values, or practices? The republican link between arms, freedom, and
civic virtue (and virtt) depends upon the existence of responsible, active,
public-minded citizens bound together in at least a modicum of civic soli-
darity. Machiavelli's passionate plea is not on behalf of the liberal indi-
vidual-acquisitive, privatistic, concerned with hunting quail, protecting
his property, or defending rights to his woman-but the republican citizen
oriented toward civic, public life. And arming our citizenry, or defending
our individual right to bear arms, will hardly transform us into such citi-
zens. While Levinson's armed populace is "presumptively motivated by a
shared commitment to the common good,""1 I cannot imagine a less ap-
propriate appellation for the contemporary American citizenry, which
bears a shared commitment to almost nothing, least of all a common good.
Ensuring the individual right to bear arms surely will not infuse the citi-
zenry with such commitment.
The second set of questions Levinson's argument raises about the re-
publican subject pertains to freedom. What kind of freedom does this sub-
ject claim: What kind of freedom is republican freedom? At the very least
we might investigate, although Levinson does not, the classical republican
links between force and freedom, arms and freedom, violence and free-
dom. Might there be something a bit "gendered" about a formulation of
9. Id. at 648.
10. J. LOCKE, Two TREATISES OF GOVERNMENT 300 (P. Laslett 2d ed. 1967) (3d ed. 1698).
11. Levinson, supra note 1, at 648.
19891
The Yale Law Journal
freedom that depicts man, collectively or individually, securing his auton-
omy, his woman, and his territory with a gun-a formulation signified in
our epoch by Eugene Hasenfus flying over the forests of Central America,
presidential review of the men in uniform charged with defending our
freedom, or Ollie North's good intentions? Might there be something in
this construction that seeks to banish the fragile, perishable feature of po-
litical freedom, something that reveals this construction's socially male as
well as colonial character-subduing with force what it cannot discur-
sively persuade, tame, or cohabit the universe with, and possessing with
force what it cannot seduce? Might the republican formulation of free-
dom, for all its appeal next to liberalism, contain some ills in its gender-
biased, imperial, and propertied moments, and might the express link be-
tween guns and freedom betoken such moments?
III. STORMING THE PENTAGON
Let us consider the other side of the political relationship upon which
Levinson's republican interpretation of the Second Amendment depends,
the problem of the state. Levinson writes:
I do not want to argue that the state is necessarily tyrannical; I am
not an anarchist. But it seems foolhardy to assume that the armed
state will necessarily be benevolent. The American political tradition
is, for good or ill, based in large measure on a healthy mistrust of the
state. 1
2
I agree that tyranny is not our problem today. But tyranny is not the only,
nor most significant, mode of the contemporary state's aggression against
its people or abuse of the people's trust. Indeed, bureaucratic rationaliza-
tion and discipline, deregulated toxic production and dumping, arbitrary
changes in welfare policy, and the Iran-Contra or HUD scandals are
more significant instances of anti-democratic state arrogations of power. It
is quite difficult to see how the Second Amendment empowers the citi-
zenry to prevent these things. Even when we narrow our focus to state
abuses of what Weber termed its legitimate monopoly of violence, 3 it is
far from clear that an armed citizenry is a viable mode of resistance to
these abuses. Think about Kent State, or more routine police brutality in
breaking up militant demonstrations or arresting and interrogating
America's nonprivileged and nonwhite. Or, think about the MOVE crisis
in Philadelphia several years ago, in which the state literally bombed ci-
vilian households. What exactly does a republican version of our right to
bear arms offer us here? The MOVE household had a cache of weapons.
12. Id. at 656.
13. M. WEBER, Politics as a Vocation, in FROM MAX WEBER: ESSAYS IN SOCIOLOGY 78 (H.
Gerth & C. Mills trans. 1958).
[Vol. 99: 661
Guns and Cowboys
The mayor of Philadelphia had a bomb. Wherein lies the freedom or the
republican virtue in this relationship? Of what serious value are hand-
guns or even machine guns against the arsenal of the modern state? For
that matter, of what serious assistance are handguns and machine guns for
the defense of the state in a nuclear age? If the state militia component of
the Amendment remains anything more than history, we would be wise to
consign it to history through a domestic nuclear non-proliferation treaty.
If we are then left with participation in law enforcement as the sole
republican rationale for arming the people, it surely requires little reflec-
tion to discern why the Guardian Angels, those most remarkable self-
appointed protectors of the peace, do not carry deadly weapons, nor why
the British have for so long held out against equipping their bobbies with
firearms.
IV. WHOSE RIGHT, WHOSE VIOLATION?
Finally, what does it mean to speak about the Second Amendment in
the language of either republicanism or liberalism when the most routine
victims of this "right" are outside both discourses: urban Black men be-
tween the ages of sixteen and thirty-four, for whom homicide is the lead-
ing cause of death, and women, one of whom is raped every six minutes,
one out of three times at gunpoint or knifepoint. When our privately held
deadly weapons are aimed neither at the state nor the lawless, but at the
most marginal or violable strata of our population, is there anything more
than quaintness to a republican justification of our right to bear arms?
In short, Levinson's vision of an armed citizenry, collectively resisting
the excesses of state power on behalf of itself as a community, is at best
nostalgic, and at worst dangerously naive and no little bit sexist in its
predication upon "a world we have lost." Levinson may be partly right in
the historical argument, but the history is now largely irrelevant, not
merely to our present condition, but to the prospects for reviving citizen-
ship, public life, meaningful freedom, or political community in the
United States. We cannot become republican citizens nor create a republi-
can polity by arming ourselves or defending our right to do so, and it is
irresponsible to make arguments about the relationship between arms and
liberty as if we did not live in a nuclear era, an era of thoroughly dis-
integrated public life and disintegrating social order, and an era of ram-
pant violence within and against the urban poor and against women of all
socio-economic classes. I want to be very clear here: Like Levinson, I
would prefer a republican order to a liberal-capitalist one. But we do not
have a republican political order; we are not a republican citizenry; we do
not have republican institutions, values, virtues, or arrangements of
power. And we cannot generate a republican order merely by interpreting
our Constitution through a republican hermeneutic scheme. Moreover,
1989]
The Yale Law Journal
even within republicanism, we do not have to swallow it whole. The re-
publican intellectual tradition includes a militarism, elitism, and mach-
ismo that is past due for thoughtful critique and reworking.
Levinson began his article by mapping different stories about the Con-
stitution and the Second Amendment. I also want to conclude with a
story, yet another way of mapping our differences as citizens in relation-
ship to this Amendment. Last summer I came out of a week-long trek in
the Sierra Nevada to discover that the car my friends and I had parked at
the trailhead would not start. Still deep in the wilderness, thirty miles
from a paved road or gas station, I was thrilled to see signs of human life
in a nearby Winnebago. These life signs turned out to be a California
sportsman making his way through a case of beer, flipping through the
pages of a porn magazine, and preparing to survey the area for his hunt-
ing club in anticipation of the opening of deer season. Not feeling particu-
larly discriminating, I enlisted his aid (and fully charged battery). While
his buddy and my three looked on, together we began working on getting
the car started, a project that consumed our attention and combined sets of
tools for the next two hours.
In the course of our work, there was time to reflect upon much in our
happenstance partnership. My rescuer was wearing a cap with the words
"NRA freedom" inscribed on it. This was, I thought at the time, perfectly
counterpoised to the injunction "Resist Illegitimate Authority" springing
from my tee shirt (a token of my involvement with a progressive political
foundation called RESIST). The slogans our bodies bore appeared to
mark with elegant economy our attachment to opposite ends of the politi-
cal and cultural universe-he preparing to shoot the wildlife I came to
revere, he living out of his satellite-dished Winnebago and me out of my
dusty backpack, he sustained by his guns and beer, me by my Nietzsche
and trail mix.
Levinson's The Embarrassing Second Amendment made me rethink
this assessment and consider whether for all our differences, we may have
shared a commitment to resisting illegitimate authority and perhaps even
occupied a shared historical tradition in this respect-one that prefers an
empowered people to a state monopoly on power. However, upon still
futher reflection, I remember something that gives me pause about moving
to a conclusion that I shared much of anything with this man or that I
needed to defend his guns as part of a politics of resisting illegitimate
authority. It occurred to me then, and now, that if I had run into him in
those woods without my friends or a common project for us to work on, I
would have been seized with one great and appropriate fear: rape. During
the hours I spent with him, I had no reason to conclude that his respect
for women's personhood ran any deeper than his respect for the lives of
Sierra deer, and his gun could well have made the difference between an
assault that my hard-won skills in self-defense could have fended off and
[Vol. 99: 661
1989] Guns and Cowboys 667
one against which they were useless. And when I consider that scene, I
wonder again about the gendered constitutional subject, about shifting
Levinson's cognitive mapping from a focus on the differences between an
ACLU member and a New Right devotee to the differences between the
social positioning and experiences of men and women in our culture. Who
is the gun-carrying citizen-warrior whose power is tempered by a limit on
the right to bear arms? Is he most importantly a republican citizen, or
more significantly, a socially male one? Is his right my violation, and
might his be precisely the illegitimate authority I am out to resist?



Guns, Cowboys, Philadelphia Mayors, and Civic Republicanism: On Sanford Levinson\u27s The Embarrassing Second Amendment

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Guns, Cowboys, Philadelphia Mayors, and Civic Republicanism: On Sanford Levinson\u27s The Embarrassing Second Amendment

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