Legal Commentary

Roscoe Pound on the Second Amendment

By David Kopel

?In the urban industrial society of today a general right to bear efficient arms so as to be enabled to resist oppression by the government would mean that gangs could exercise an extra-legal rule which would defeat the whole Bill of Rights.? Roscoe Pound, The Development of Constitutional Guarantees of Liberty 91 (1957).

Although Pound prided himself on being in touch with current realities, he was already being be proven wrong by the facts on the ground. The possession of efficient arms by civil rights workers (including Condoleezza Rice?s father, a Methodist minister) and of groups like the Deacons for Defense was essential to the success of the Second Reconstruction. A key reason why the Second Reconstruction succeeded and the First Reconstruction failed was that the second time, the defenders of the Constitution had sufficient arms to resist attacks by the Ku Klux Klan and other state-supported terrorist organizations.

Arms possession by the civil rights advocates in the late 1950s and 1960s did not lead to lawless gang rule. It led to the restoration of the rule of law in the South, to the long-delayed enforcement of the Fourteenth and Fifteenth Amendments.

Although Pound was sometimes cited by opponents of the Standard Model of the Second Amendment, Pound?s point was not really that the Standard Model is wrong as a matter of original intent/meaning, but simply that the Second Amendment is no longer a good idea as a matter of public policy. Pound?s view that the Second Amendment could be ignored if modern persons thought it was no longer a good idea is consistent with his general view that legislation which once would have been clearly unconstitutional could be considered constitutional in modern times, based on perceptions of changed social needs. See generally Roscoe Pound, ?Mechanical Jurisprudence,? 8 Colum. L. Rev. 605 (1908). 

As David Bernstein has explained, Pound argued on a broad front that judges should ignore the text and original meaning of the Constitution, so as not to impede (supposedly) beneficial expansions of government power to restrict personal freedom. Pound was no friend of the Constitution.

Full post as published by The Volokh Conspiracy on February 02, 2010 (boomark / email).