IT TAKES A MILITIA: A COMMUNITARIAN CASE FOR
COMPULSORY ARMS BEARING (Part 1 of 3)
Brannon P. Denning[*]
Glenn Harlan Reynolds[**]
During the last year, both Communitarianism and private militias have received a considerable amount of attention in the popular press and in law reviews; nevertheless, few observers have discussed the similarities between these two seemingly dissimilar movements. In this Essay, the authors demonstrate that Communitarians and militias actually have more in common than it might at first appear. Summarizing the Communitarian agenda, the authors note that Communitarians speak a language that would be readily understood by the Framers, who saw militias as an important vehicle through which civic virtue could be transmitted. The importance the Framers placed upon militias is evidenced by the prominence given to them in the text of the Constitution and in the Second Amendment.
As the authors point out, however, not only do Communitarians fail to acknowledge the connection between their ideology and the classical militia, their platform exhibits a hostility towards the rights guaranteed by the Second Amendment that is at odds with Communitarianism’s other tenets. The authors argue that, as traditionally constituted, militias reinforce the same civic virtues that Communitarianism wishes to restore, while at the same time offering to individuals security against tyranny. The decline of the classical militia, say the authors, has led to a renewed interest in the Second Amendment and even the “neomilitia” movement as people search for something to fill the void left by the demise of the militia of republican ideology. That this point is ignored by Communitarians perhaps says something about Communitarianism that its proponents would rather not acknowledge.(p.186)
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“We join with those who read the Second Amendment the way it was written, as a Communitarian clause, calling for community militias, not individual gunslingers.”–The Communitarian Platform
Political discourse in recent years has been dominated by two topics that seemingly have little in common. One is the growth of a “Communitarian” movement among scholars; the other is the growth of a “militia movement” among citizens who, for the most part, are not very scholarly. The two movements would appear to be incompatible, to say the least. Communitarians speak and write about the responsibility of Government to foster virtue and responsibility among its citizens; militia members speak ominously of the need to resist the encroachment of government. Yet appearances, in this case at least, are deceptive. this Essay demonstrates, there is something of a nexus between the self-styled citizensoldiers of the militia movement and the self-styled virtuous citizens of Communitarianism. Seen as an attractive alternative to the “radical individualism” of our society, Communitarianism appeals to those on the left as well as the right. Communitarianism is touted as a viable third way between a societal egocentrism and a more dangerous collectivism. Along with interest in “civic republicanism” among legal academics like Frank Michelman, Cass Sunstein, and Mary Ann Glendon, Communitarianism promises to mediate (p.187)between the desires of the individual and the good of the larger community. Communitarians believe that, properly employed, the government not only can influence moral behavior among its citizens but that it has an obligation to do so. In other words, Communitarians believe that not only can government legislate morality, but that in many settings it ought to. Contrast such a positive view of government with the often virulent anti-government rhetoric espoused by many in the so-called “militia movement.” Under scrutiny like never before –particularly in the wake of the Oklahoma City bombing case in which the prime suspects have alleged “links” to militia groups in Michigan –most people now associate militias with the “angry white male” or with what historian Richard Hofstadter once referred to as the “paranoid style in American politics.” Not surprisingly, the extravagant claims of various members of these neomilitias and (p.188) their hostility toward the federal government and its agents have caused alarm among members of the press and among lawmakers.(p.189)
What most people (including many neomilitia members) fail to appreciate is that not so very long ago service in one’s local militia was as much an expression of civic commitment as voting or serving on a jury. Further, the anti-government bent of many of these neomilitias obscures the true origins and intended role of the militia. Likewise, the role of the militia in civic life is largely overlooked both by Communitarians and by those law professors advocating a reevaluation of “civic republicanism.” Far from attempting to reintroduce the militia into state and local civic life, the Communitarian platform, drafted by movement founder Amitai Etzioni, University of Maryland professor of public affairs William Galston, and Harvard law professor Mary Ann Glendon, calls for domestic disarmament to counter the “clear and present danger” that it claims guns present to the health and safety of Americans. This Communitarian hostility toward private ownership of guns, as well as a continued unwillingness to acknowledge the possible utility of reinvigorating state and local militias, is inconsistent with the tenets of their philosophy. In fact, it seems evident that militias embody the very ideal of the Communitarian project and that (p.190)Communitarians’ reluctance to embrace the militia and to attempt to remake it as it once was–an essential civic institution–ensures the continuation of a Gresham’s law of guns and militias in which the bad inevitably drives out the good. Further, the rise of neomilitias represents a dark side of Communitarianism that its enthusiasts seem unwilling to acknowledge.
The failure of both Communitarians and militia theorists to acknowledge these issues indicates a great deal about the narrowness of their respective views regarding both community and arms-bearing. It also indicates some unfortunate things about the state of constitutional discourse today. This Essay briefly summarizes the history and viewpoints of the Communitarian movement–including its express statement that armsbearing should be understood in the context of militias–and the surprisingly Communitarian history of militias themselves. This Essay then suggests solutions to contemporary problems involving arms-bearing and militias that are unlikely to please either mainstream Communitarians or members of neomilitia groups, but that nonetheless should be considered.
I. THE COMMUNITARIAN MOVEMENT
A. Communitarian First Principles
While influential critiques of liberalism have come in the last few years from Jean Bethke Elshtain and the late Christopher Lasch, the driving force behind Communitarianism is Amitai Etzioni, professor of sociology at George Washington University. Etzioni envisioned Communitarianism as a transpartisan political movement bringing together those from various ideological camps to forge a national community. Etzioni brought together law professors, philosophers, and other social scientists at a conference in 1990 to formulate principles for this “ideology of the nineties.” The group founded a quarterly journal devoted to the promulgation of Communitarian (p.191)thinking  and drew up a platform of principles. Communitarianism seeks to change an entire way of thinking about the citizen’s relationship to the government. Instead of the us-versus-them “rights-talk” common to our modern society, the Communitarians seek to encourage the citizen to see her fate as inexorably linked to that of her fellow neighbors, coworkers, and citizens at the local, state, and national level. As Etzioni wrote in his book The Spirit of Community, Communitarians “adopted the name … to emphasize that the time had come to attend to our responsibilities to the conditions and elements we all share, to the community.” With rights, the Communitarians remind us, come responsibilities, and the latter, they believe, are overlooked in the rush to secure new rights for increasingly atomized groups of individuals.  Not only has such radical individualism taken its toll on the moral fabric of the country, with alarming increases in illegitimacy and divorce, but due to “excessive regard” for the institution of private property, things like the environment have suffered as well.
Contemporary law already recognizes that everyone’s exercise of rights necessarily requires limits, but this balancing takes place largely in courts and out of sight of the lay community, thus tending to keep hidden the application of limits to one’s rights. Further, despite what goes on in the courts, our political dialogue of rights tends to be absolute. “Rights-talk,” then, takes the form of a zero-sum conversation in which, according to Communitarians, every admission of limits is seen as a surrender. Communitarians seek to make plain that the exercise of rights entails the (p.192)acceptance of responsibilities and that rights themselves have limits.
The Communitarian project is an ambitious one; it seeks to change the way Americans think about their relationship to others. It seeks, in the words of the Communitarian platform, to “recognize both individual human dignity and the social dimensions of human existence.” It eschews simple majoritarianism but emphasizes its support for democratic solutions to common societal problems. Communitarianism seeks to restore America’s “moral voice” through the use of non-governmental social units through which valueshave been traditionally transmitted: neighborhoods, churches, families, and the public schools. Moreover, Communitarians advocate direct action at the smallest societal unit capable of addressing societal problems. Their platform states that
no social task should be assigned to an institution that is larger than necessary to do the job. What can be done by families should not be assigned to an intermediate group–school, etc. What can be done at the local level should not be passed on to the state or federal level, and so on.(p.193)
Further, members of the community ought not hesitate to “speak up and express our moral concerns to others when it comes to issues we care about deeply and share with one another.” In addition, obligations such as that of community service ought to be institutionalized as a way to inculcate the young with community ideals as well as offering other members of the community the opportunity to “foster mutual respect and tolerance” for those from different backgrounds. Thus, Communitarian first principles encourage (1) the use of social, as opposed to necessarily governmental, units to address social problems at the smallest level possible and (2) the involvement of the largest number of community members possible in transmitting the community’s values to younger generations.
The Communitarian platform also encourages “duties to the polity.” Those duties include staying informed about matters of concern to the community; voting, so as to ensure that the representatives retain a sufficient identity of interest with the community’s constituent members; paying taxes; and serving on juries. The platform encourages a recognition that possessing the “right to do X” does not mean that “X is the right thing … to do.” Forbearance both in speech and in actions toward one’s fellow citizens will help foster “social justice,” which requires the presence of “responsible individuals in a responsive community.” In addition to the responsibility to their local communities, Communitarian citizens also have a responsibility to the larger “community”–the polity.
B. Communitarians and Guns
Because Communitarians realize they cannot rely solely on the good will of citizens to counter the effects of radical individualism, they call for narrowed judicial interpretations of rights to take into account the “need to protect the health and safety of the public.” This includes, among other things, allowing the community to take action to prevent the spread of AIDS and “domestic disarmament” to protect the community from intentional (p.194) or accidental deaths inflicted through the use of firearms. This empowering of the community to take collective action in ways that might marginalize the dignity of individuals or abrogate certain constitutional rights (such as domestic disarmament) has given some commentators pause.
The Communitarian solution with regard to guns is puzzling, and it is inconsistent with proposed Communitarian solutions to society’s other ills. Elsewhere in his book, for example, Etzioni indicates that he would rely on social pressure and community education, what he terms “suasion,” as opposed to governmental regulation to encourage the responsible exercise of rights. Further, Etzioni emphasizes that the government’s power ought to be used only as a last resort and not merely because the exercise of certain rights is deleterious to the public. Yet the proposed Communitarian solution to gun violence shows no such restraint. Such a rush to criminalize gun ownership certainly smacks of the authoritarian approach that Etzioni disclaims. (p.195)This approach is also inconsistent with the Communitarian platform, which allegedly calls for a “Communitarian” interpretation of the Second Amendment. One will find no plan for implementing such an interpretation in Etzioni’s book, however, and there is little mention of it in other Communitarian literature. This Essay supplies such an interpretation, although it is doubtful that the call for such an approach was meant to be acted upon. Yet, taken seriously, a Communitarian approach to community militias raises some interesting questions, especially about Communitarianism itself.
To support the claim that armed militias might serve to uphold the aims of Communitarianism, one first needs to realize that arms-bearing and militias traditionally were not the purview of disaffected fringe elements. On the contrary, the militias of the eighteenth and nineteenth centuries were the community. Operating with the imprimatur of state governments, an armed citizenry was regarded not as a dangerous crowd of gunslingers but as a necessary precondition to a virtuous republic.