RADICAL POPULIST CONSTITUTIONAL INTERPRETATION

Although the Supreme Court claims to have the final word in constitutional interpretation, populist groups have often claimed to have rival interpretive authority. Sometimes these groups have offered interpretations in sharp disagreement with the Court's views. In contrast to the Court's fairly middle-of-the-road approach, many of these groups interpret the Constitution to reach radical conclusions.

Perhaps the clearest example of this phenomenon is the disjunction between judicial and radical populist interpretations of the second amendment. On the one hand, the Court has given the amendment little attention. In Presser v. Illinois (1886), the Court held that the Second Amendment limits only the federal government, as the fourteenth amendment does not incorporate it against the states. In the twentieth century, the Court has squarely addressed the meaning of the amendment only once, in the profoundly ambiguous Miller v. United States (1939). Some believe that Miller interprets the Second Amendment as a protection for individuals to own private arms. Others believe that it interprets the amendment as a protection only for state militias to own arms. In the years since Miller, federal appeals courts have generally interpreted the amendment in a narrow way, holding that the Fourteenth Amendment does not incorporate it against the states or that it protects arms-holding only within a state militia.

In sharp contrast, radical populist groups have generally interpreted the Second Amendment as a protection for the right of all individuals to own guns, for the purposes of hunting, self-defense, and, especially, resistance to government. These groups include some gun-rights groups, anti-environmentalist groups, income tax resisters, anti-abortion protesters, neo-Nazi and other hate groups, and most of the modern militia movement. Some of these groups believe that much current government activity is unconstitutional, such as the income tax, land use regulation, and federal police activity. The Second Amendment, however, seems to be a common thread uniting otherwise different groups, for good reason. At the heart of American radical populism is distrust of government, and the Second Amendment, construed as a protection for the right of resistance to government, is the central constitutional provision supporting the idea that government may never be trusted with a monopoly of violence. For the same reason, the interpretation of the Second Amendment cannot belong exclusively to the Court: If the point in the amendment is to ensure the possibility of resistance to government, then it would be folly to entrust its interpretation to a government body.

In some ways, the methods of radical populist constitutional interpretation are similar to judicial constitutional interpretation, but in other ways they are quite different. Like many judges, radical populist groups rely heavily on the text of the Constitution and the writings of the Framers; indeed, radical populist constitutionalists may well be much more familiar with the works of the Framers than most Americans. Like some judges but unlike others, they maintain that the text and the Framers' original intent is clear and unambiguous; in particular, they hold that the Second Amendment will bear only one meaning, a protection for an individual right to bear arms. Unlike almost all judges, radical populist constitutionalists form a very closed community of interpretation. Counterarguments from outside their community—from scholars, politicians, or judges—rarely or never appear in their writings. In other words, radical populist constitutionalists typically talk only or overwhelmingly to one another. They are engaged, not in an interpretive dialogue, but in a process more akin to responsive chanting or preaching to the converted. This dimension of their method of interpretation emphatically distinguishes it from judicial and scholarly methods; radical populist constitutionalists exhibit nothing comparable to the adversary method, the writing of dissenting opinions, the process of appellate review, or the vigorous disagreement in the law journals.

As these groups are sectarian in their interpretive method, many also give a sectarian substantive meaning to the Second Amendment. Many radical populist constitutionalists view the amendment as a path of empowerment for their particular identity group(s). They find in the amendment an alternative to, even a transcendence of, politics, with all of its messy give-and-take. When the government (meaning the political process) becomes too perfidious (meaning unsupportive of their identity group), then radical populists believe that they have the right of revolution, including the right to take up arms to end oppression. In the process, some radical populists actually claim the right to oppress other groups; they argue that the right to bear arms is held only by the American people, which includes (in the radicals' view) only whites, or Christians, or those who agree with the radical populists. As a result, when the revolution comes, radical populists will enjoy supremacy, and other groups—who currently enjoy political power—will be forced into subordination. Other groups make an unoppressive but still sectarian claim: Jews for the Preservation of Firearms Ownership and the Women and Guns movement, for example, maintain that the Second Amendment should be read to protect an individual right to bear arms, because Jews and women will then be able to protect themselves against violent anti-Semitism and misogyny.

In other words, these constitutional interpreters are radical in two ways: first, they distrust politics as a means of resolving difference; and second, they are deeply sectarian advocates for their particular identity groups, not proponents of society as a whole. Those two features, however, are shared—to a reduced degree—by much of the American population. If these groups are radical, then, it is only because they are different in degree, not kind, from the rest of America. As a result, they squarely raise the question whether the American citizenry could plausibly develop a populist constitutional interpretation that is not radical; that is, that affirms political compromise and seeks the good of the whole. If such a thing is not possible, the Court may have good reason to claim to be the final arbiter of the meaning of the Constitution.

David C. Williams
(2000)

(see also: Gun Control; Incorporation Doctrine; Nonjudicial Interpretation of the Constitution.)

Bibliography

Aho, James A. 1990 The Politics of Righteousness: Idaho Christian Patriotism. Seattle: University of Washington Press.

Brown, Richard Maxwell 1975 Strain of Violence: Historical Studies of American Violence and Vigilantism. New York: Oxford University Press.

Ehrman, Keith A. and Hennigan, Dennis A. 1989 The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately? University of Dayton Law Review 15:5–58.

Kates, Don B. 1983 Handgun Prohibition and the Original Meaning of the Second Amendment. Michigan Law Review 82:204–273.

Quigley, Paxton 1989 Armed & Female. New York: E. P. Dutton.

Simkin, Jay; Zelman, Aaron; and Rice, Alan M. 1994 Lethal Laws. Milwaukee, Wisc.: Jews for the Preservation of Firearms Ownership.

Stock, Catherine Mc Nicol 1996 Rural Radicals: Righteous Rage in the American Grain. Ithaca, N.Y.: Cornell University Press.

Williams, David C. 1996 The Militia Movement and Second Amendment Revolution: Conjuring with the People. Cornell Law Review 81:879–952.