Originalism Right or Originalism Lite: The Curious Case of the Second Amendment
By Saul Cornell
No figure in the bitter and divisive debate over the Second Amendment has been more mangled by individual rights theorists than St. George Tucker. Rather than take the time to work through all of Tucker’s writings and see how the Second Amendment fit into the larger structure of his constitutional theory, originalists have cherry picked quotes and ripped them out of context. Rather than see Tucker as a product of his own age, they insist on reading his words as though he were some kind of modern gun rights ideologue trolling the internet looking for conspiracies wherever they may lurk.
Tucker was a professor, jurist and a leading Jeffersonian polemicist. The first mistake originalists make is treating Tucker’s ideas as if his views represented some type of consensus from his day. No such consensus existed. His writings give us a clear view of how one influential Jeffersonian viewed early American constitutional law. Understanding the Jeffersonian context is vital to reading Tucker accurately.
Gun rights supporters routinely claim that the state’s rights interpretation (the modern collective rights view) is a recent invention by gun grabbers, and that it leads to absurd results such as states taking up arms against the federal government. The fact is that leading Jeffersonians did view the 2nd Amendment and the militia in such terms and came close to exercising such a right in 1800 when Jefferson was almost denied the presidency. Indeed, in his earliest commentary on the 2nd Amendment, delivered as part of his law lectures at William and Mary (a period almost contemporaneous with the framing of the 2nd Amendment) Tucker interpreted the 2nd Amendment in precisely these terms. Moreover, Tucker linked the 2nd Amendment with the Tenth, the part of the Bill of Rights most closely associated with federalism. Although originalists’ claim to be interested in contemporary understandings of the Second Amendment, it is curious that they have chosen to ignore what Tucker said immediately after the Amendments were framed and concentrate on what he said after a decade of constitutional tumult and debate.
As one might expect from originalists, they have garbled the meaning of Tucker’s later writings as well. Much had happened in the intervening years between when Tucker first lectured his students on the Second Amendment at William and Mary and the publication of his magisterial edition of Blackstone. Tucker adapted his earlier commentary and added much new material inspired by the bitter conflicts of the 1790s.
In contrast to originalists, Tucker linked the Second Amendment with Article I, Section 8′s discussion of control of the militia. He reminded his readers that this provision of the Constitution prompted considerable alarm among Virginians at the time it was proposed. He then discussed the proposed amendments suggested by the Virginia ratification convention, including the provision that Madison used as the basis for framing the Second Amendment. (Contrary to the claims of orginalists, Madison did not even consult the Dissent of the Pennsylvania Minority when drafting the Second Amendment.) This passage from his edition of Blackstone has been, ignored by originalists. It clearly links the Second Amendment to the Anti-Federalist concerns over federal control of the militia. While the Second Amendment did not represent a complete victory for Anti-Federalists, Tucker clearly believed that it had been included to partially redress this concern.
After discussing the connection between the 2nd Amendment and Article I, Section 8 Tucker goes on to discuss the dangers of Federalist policy in the 1790s, particularly their efforts to corrupt the militia and turn it into an engine of Federalist policy. One of the key developments in Tucker’s constitutional thought in the 1790s was his commitment to judicial review. Indeed, Tucker discusses the potential use of federal judicial review to protect the 2nd Amendment rights of citizens. Tucker would never have conceded a right of the federal government to exercise a general police power to regulate firearms nor an expansive modern conception of judicial review. The scenario he conjured up did not involve regulation of guns, but an assault on the right to bear arms. Tucker worried that Federalists might try to disarm the state militias and prevent citizens from bearing arms. If this happened Tucker believed that citizens might bring suit in federal court to protect this right. His discussion has nothing to do with civilian use of firearms.
Tucker’s mature ideas about the Second Amendment crystallized in a world shaped by the debates between Federalists and Jeffersonians, not the modern world of gun control. He was worried about the danger of Federalists disarming the state militias, not encroachments on an individual right of private self defense. Originalists invariably confuse the right of private self defense with the public right of self defense discussed by documents such as the Pennsylvania Declaration of Rights and the Second Amendment. Although the two might have derived from a common source, legally and constitutionally they were distinct, a fact reflected by the radically different treatment the two received in Tucker’s annotated commentaries on Blackstone. Under common law the right of individual self defense required citizens to retreat to the wall before responding with deadly force. The public right of self defense, embodied in the right to bear arms in the militia, compelled one to stand one’s ground until ordered to retreat. Contrary to the claims of originalists, these two rights were distinct and radically different in the Founding era.
Taking the full context of Tucker’s writings into account, and acknowledging the larger political and constitutional context of the debates of the Federalist era, a radically different understanding of Tucker’ most often quoted passage on the Second Amendment emerges in which he described the Second Amendment as the palladium of liberty.
Tucker begins his discussion by noting that the right of self defense is “the first law of nature.” Modern gun rights advocates usually misinterpret this claim by failing to understand the connection between natural rights and rights protected under common law. Tucker shared the Blackstonian view that individuals ceded their natural rights when they entered civil society. The natural right of self defense had been modified and adapted by the English common law. If Tucker had meant this discussion to focus on the common law right of self defense, he would not have then gone on to discuss the dangers of a standing army. The fear of a standing army, a central Whig political concern, is at the core of his discussion. Tucker then discusses how the English game laws had been used to disarm the population. Tucker would have certainly opposed any policy that smacked of domestic disarmament. At the same time there is little in the passage to suggest that Tucker is concerned with guns outside of the context of public defense. The grand palladium of liberty clearly referred to the Whig notion of an armed citizenary organized as a well regulated militia.
Tucker accepted the common view that most citizens would own their own muskets, or other militia weapons. In the case of Calvary officers, one might own a horsemen’s pistol, but the constitutional protection accorded these weapons was clearly connected to their function as standard militia weapons. Guns without any connection to the militia were subject to the full scope of the individual states’ police powers. Rather than fit the modern individual rights model of originalists, Tucker’s often quoted passage better fits the new civic model of arms bearing that a number of scholars have recently advanced.
Tucker was an eighteenth century figure, not a modern gun rights advocate or gun control proponent. His thinking about the Second Amendment was shaped by the concerns of his own day not ours. If originalism is to be taken seriously as a method of constitutional interpretation it will need to attain a much higher level of historical sophistication. The distortions of Second Amendment originalism should serve as a warning that this methodology more often masks contemporary agendas then it illuminates the thought of the Founders and their world. Moving from originalism lite, to originalism right will require a lot more attention to history.
Saul Cornell is Associate Professor of History at Ohio State University and Director of the Second Amendment Research Center at the John Glenn Institute. His most recent book is A Well Regulated Militia: The Founding Fathers and the Origins of Gun Control in America. Read part one for part two. Or check out Cornell’s email dialogue with Mark Tushnet.