provide it. I would rather you just said thank
you, and went on your way. Otherwise, I suggest
you pick up a weapon, and stand a post. Either way, I
don’t give a damn what you think you are entitled to. 1
John James Rambo and Dirty Harry Callahan are fun, as are
exciting action scenes and exaggerated lines like Dirty Harry’s,
“Go ahead, make my day!” 2
Colonel Jessup is not fun. In fact, when he ordered an extrajudicial (illegal) punishment, a “code red,” on a young marine, he
Kaffee: Did you order the Code Red?!
Col. Jessup: You’re Goddamned right I did!
The law prevails in A FEW GOOD MEN with Jessup’s arrest and
Kaffee gaining self-worth as both officer and lawyer. Sure Colonel
Jessup protected the wall, but only law protects us from Colonel
Law, and not guns, ultimately protects society.
These American myths are the prism through which we view guns and
the Second Amendment. They give the Second Amendment, like the
First Amendment, a personal quality, different from other parts of the
Bill of Rights. For most Americans the rights that relate to trial and criminal procedure are an abstraction, including the Fourth, most of the
Fifth, the Sixth, and the Eighth Amendments. They are not personally
relevant because police do not search most homes, and prosecutors do
not charge most people.
But guns we pick up and shoot. We see them every day on TV and in
movies. As children we aspire to them. 3 The Second Amendment itself
bleeds into popular culture. 4
But the modern popularity of guns and gun rights misses the fact that
“the People” at the time of the Second Amendment were mostly white
males who owned property. 5 What then did the Framers intend by a
“right to bear arms” in 1789, in a society with no standing armies or
And what did the “right to bear arms” mean before 1789?
1. The full exchange follows:
Kaffee: Colonel Jessup, did you order the Code Red?
Judge Randolph: You don’t have to answer
Col. Jessup: I’ll answer the question!
[to Kaffee] Col. Jessup: You want answers?
Kaffee: I think I’m entitled.
Col. Jessup: You want answers?
Kaffee: I want the truth!
Col. Jessup: You can’t handle the truth!
[pauses] Col. Jessup: Son, we live in a world that has walls, and those walls
have to be guarded by men with guns. Who’s gonna do it? You? You, Lt.
I have a greater responsibility than you could possibly fathom. You weep for
Santiago, and you curse the marines. You have that luxury. You have the luxury
of not knowing what I know. That Santiago’s death, while tragic, probably saved
lives. And my existence, while grotesque and incomprehensible to you, saves
lives. You don’t want the truth because deep down in places you don’t talk
about at parties, you want me on that wall, you need me on that wall.
We use words like honor, code, loyalty. We use these words as the backbone
of a life spent defending something. You use them as a punch line. I have neither
the time nor the inclination to explain myself to a man who rises and sleeps
under the blanket of the very freedom that I provide, and then questions the man-
ner in which I provide it. I would rather
you just said thank you, and went on
your way. Otherwise, I suggest you
pick up a weapon, and stand a post.
Either way, I don’t give a damn what
you think you are entitled to.
Kaffee: Did you order the Code Red?
Col. Jessup: I did the job I …
Kaffee: Did you order the Code Red?
Col. Jessup: You’re Goddamned right
2. Dirty Harry is great for the
“I know what you’re thinking.
‘Did he fire six shots or only
five?’ Well, to tell you
the truth, in all this excitement
I’ve kind of lost track myself.
But being this is a . 44
Magnum, the most powerful
handgun in the world and
would blow your head clean
off, you’ve got to ask yourself
one question.‘Do I feel lucky?’
Well do ya, punk?” Who
needs legal structures with
Harry around?! He gets to be
cop, judge, jury, and executioner. And he gets to do it
with the biggest gun. Again,
a high percentage of Harry’s
bad guys seem to be nonwhite inner-city males despite
the fact that whites commit
3. Certainly we boys do! Just which one of us didn’t
want “an official Red Ryder carbine-action 200-shot
range model air rifle with a compass in the stock, and
this thing which tells time” like 9-year-old Ralphie
Parker in A CHRISTMAS STORY (Metro-Goldwyn-Mayer
1983). Like him, most of us
had our hopes dashed by well-meaning adults saying, “No,
5. The Second Amendment Cases: The Second Amendment
has become more pertinent because of District of Columbia v.
Heller, 128 S. Ct. 2783 (2008), where the Supreme Court for the
first time recognized the individual’s limited right to bear arms.
This caused quite a stir in academia. See e.g., Douglas G. Smith,
The Second Amendment and the Supreme Court, 6 GEO. J. L. &
PUB. POL’Y 591 (2008) (supporting the Court’s individual right
reading); Jonathan D. Marshall, Symposium Introduction:
District of Columbia v. Heller, 59 SYRACUSE L. REV. 165
(2008); Maxine Burkett, Much Ado About … Something
Else: D.C. v. Heller, the Racialized Mythology of the Second
Amendment, and Gun Policy Reform, 12 J. GENDER RACE &
JUST. 57 (2008).
Before Heller, only the Fifth Circuit had done so, in
United States v. Emerson, 270 F.3d 203, 218–20 (5th Cir.
2001). In Silveira v. Lockyer, 312 F.3d 1052, 1060 (9th
Cir. 2002), the Ninth Circuit divided Second Amendment
scholarship into the collective rights view, the individual
rights view, and the limited individual rights view. For an
argument that the legal standard of reviewing Second
Amendment cases should be strict scrutiny and that even
under this highest standard of review most gun regulations
would survive judicial review see Adam Winkler, Scrutinizing
the Second Amendment, 105 MICH. L. REV. 683 (2007).
The Supreme Court had addressed the Second
Amendment three times before, upholding the right to bear
arms only in the context of a “well-regulated militia”: United
States v. Cruikshank, 92 U.S. 542 (1876); Presser v.
Illinois, 116 U.S. 252 (1886); United States v. Miller, 307
U.S. 174 (1939). Heller, however, was the NRA’s hoped-for
change. See John Gibeaut, A Shot at the Second
Amendment, ABA JOURNAL, Nov. 2007, at 50. The academ-
ic proponents of the individual right to guns are called the
“insurrectionists.” Much of their work has been done with
healthy grants from the NRA. Bogus, Hidden History at 318
and n. 37 (noting that Stephen P. Halbrook received
$38,569.45 during 1991–92 from the NRA to support his
work writing books and articles advancing the concept that
the Second Amendment provides an individual right). These
articles and books were the NRA’s groundwork for Heller.
After Heller, Smith & Wesson produced a commemora-
tive model 442 . 38 caliber snub-nose. You can buy one
for around $600. S&W plans to use the proceeds to fund
further gun-rights litigation. See http://www.smith-
The Second Amendment
The Red Ryder BB Gun
Scalia, author of Heller and the
toast of the NRA.
4. One of America’s
gun control. In The
episode of the
Simpsons, Homer and
Lisa discuss the Second Amendment’s
individual vs. collective rights conflict:
Homer: “But I have to have a gun! It’s
in the Constitution!” Lisa: “Dad! The
Second Amendment is just a remnant
from revolutionary days. It has no meaning today!” Homer: “You couldn’t be
more wrong, Lisa. If I didn’t have this
gun, the king of England could just walk
in here anytime he wants and start shoving you around.” The Simpsons: The
Cartridge Family (Fox, Nov. 2, 1997),
quoted in Saul Cornell & Nathan DeDino,
A Well Regulated Right: The Early
American Origins of Gun Control, 73
FORDHAM L. REV. 487, 489 (2004) (also
citing Jonah Goldberg, Homer Never
Nods: The Importance of The Simpsons,
NAT’L REV., May 1, 2000, at 36, 37).