I have been able to provide only a pale outline of the evidence supporting what I call the hidden history of the Second Amendment. The more complete version is set forth in my law review article, The Hidden History of the Second Amendment, 31 U.C. DAVIS LAW REVIEW 309 (1998). Thank you, Mr. Chairman, for the opportunity to share my thoughts with you and the Committee today. Senator ASHCROFT, It is my pleasure now to call upon Robert Cottrol, who is professor of law and history at George Washington University, here in Washington. Thank you very much for coming. We are very pleased to have your remarks at this time. STATEMENT OF ROBERT J. COTTROL Mr. COTTROL. Thank you, sir. Speaking of the dangers of speaking over time and running over time, you have to bear with those of us from the legal academy as we share the problem of being both lawyers and academicians. Senator ASHCROFT. The next thing you know, you will be Senators and you will never be able to stop. [Laughter.] Mr. COTTROL. Mr. Chairman, I am grateful for this opportunity to speak to you on a matter of critical concern to the Nation. My concern as a student of law and American history is that a constitutional principle older than the Republic itself is being eroded, and perhaps worse, trivialized by a deadly combination of reasonable and unreasonable fears, misinformation, cultural bigotry and intellectual neglect. My concern is not only with the evisceration of this right, but also that what is now happening with one right may spread and ultimately truncate all of the rights that have been part of our unique constitutional heritage. I am speaking of the right to keep and bear arms, a right the Framers of both the 2d and the 14th amendments intended to protect. It is a right that is often little understood. Some have argued for a trivial view of the right, stating that it protects a right to have firearms for sporting purposes, target-shooting, recreational hunting and similar pursuits. But as worthy as such activities are, and despite the fact that they are enjoyed by tens of millions of decent, law-abiding citizens throughout the Nation, to assume that a fundamental right was recognized by the Constitution simply to protect a hobby is to trivialize both the Constitution and the very serious legal and political thought that went into the drafting of that document. Others have seized upon the militia clause of the amendment to argue that, despite its clear language, the amendment does not protect a right of the people at all. This is argued by all too many in public life, despite overwhelming textual and historical evidence to the contrary. This argument also runs contrary to the overwhelming weight of modern historical and legal scholarship on the subject, scholarship written by researchers representing every point of view on the contemporary political spectrum. The right to arms has something critical to say concerning the relationship between the citizen and the State. For most of human history, in most of the nations of the world, the individual has all too often been a helpless dependent of the State, dependent on its benevolence, and indeed competence, for his very physical survival. The notion of a right to arms says something very different. It says that the individual is not simply a helpless bystander in the difficult and dangerous task of ensuring his or her own physical safety. Instead, the citizen is an active participant, an equal partner with the State in ensuring not only his safety, but that of his community as well. This is an important concept. It takes the individual from servile dependency on the State for survival to the status of participating citizen capable of making intelligent choices in defense of one's life and ultimately one's freedom. It is a concept that recognizes that the ultimate civil right is the right to defend one's life, that without that right, all other rights are meaningful, and that without the means of self-defense, the right to self-defense is but an empty promise. That is why the right to arms is as important today as when the second amendment was adopted in 1791. It is also as important now as it was in 1868 when the 14th amendment extended the rights of citizenship to former slaves and whose Framers intended to make the Bill of Rights, including the second amendment, binding on the States. It is a right of enduring significance. Thank you. Senator ASHCROFT. Thank you very much, professor. [The prepared statement of Mr. Cottrol follows:] Testimony Before the United States Senate Judiciary Subcommittee on Constitution, Federalism and Property Rights, Subject: The Second Amendment and the Need for Congressional Protection. Robert J. Cottrol' Raymond T. Diamond' and Nicholas J. Johnson' Mr. Chairman, members of the committee, we are grateful for this opportunity to address subcommittee on a matter of the critical concern to the nation. Our testimony is uncompensated and we are not representing any group. We come here as students of law and American history concerned that a constitutional principle older than the republic itself is being eroded and perhaps worse yet trivialized by a deadly combination of reasonable and unreasonable fears, misinformation, cultural bigotry and intellectual neglect. We are concerned not only with the 1. Delivered by Robert J. Cottrol September 23, 1998 before the United States Senate Judiciary subcommittee on constitution, Federalism and Property Rights. 2. A.B., 1971, Ph.D. (American Studies), 1978, Yale University; J.D., 1984, Georgetown University Law Center. Professor of Law and History; Harold Paul Green Research Professor of Law, George Washington University. '. A. B., 1973, J. D., 1977, Yale University. Professor of Law, Tulane University School of Law 4 B.S.B.A., 1981 West Virginia University, J.D., 1984, Harvard University School of Law. Associate Professor of Law, Fordham University School of Law, New York, New York. 5. For a look at the right to bear arms in 17th century England, predating the adoption of the second amendment to the United States Constitution see: Joyce Lee Malcolm, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT, (Cambridge, Ma., 1994). See also, Robert J. Cottrol and Raymond T. Diamond, The Fifth Auxiliary Right, 104 YALE LAW JOURNAL 995 (1995). The Fifth Auxiliary Right is being submitted for the record. evisceration of this right but also that what is now happening with one right may spread and ultimately truncate all of the rights that have been part of the unique heritage of our nation. We speak, of course, of the right to keep and bear arms, right that the framers of both the Second and the Fourteenth Amendments intended to protect.' It is a right that is often little understood. Some have argued for a trivial view of the right, stating that it protects a right to have firearms for sporting purposes, target shooting, recreational hunting and similar pursuits. But as worthy as such activities are and despite the fact that they are enjoyed by tens of millions of decent, lawabiding citizens throughout the nation, to assume that a fundamental right was recognized by the Constitution simply to protect a hobby is to trivialize both the Constitution and the very serious legal and political thought that went into the drafting of that document. Others have seized upon the militia clause of the second amendment to argue that the amendment does not, despite its '. For some of the scholarly literature discussing the intention of the 39th Congress (the Congress that sent the Fourteenth Amendment to the states) to safeguard the right to keep and bear arms against state deprivation see: Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE LAW JOURNAL 1193, 1210-12 (1992); Robert J. Cottrol and Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 GEO. L. J. 309, 342-349; Michael Kent Curtis, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986) at 52-53, 56, 72, 140-141, Stephen P. Halbrook, The Jurisprudence of the Second and Fourteenth Amendments, 4 GEO. MASON U. L. R. 1 (1981) 43, ! |