By Saul Cornell
Last week a case was argued in the District of Columbia that could have an enormous impact on the future of gun regulation In Parker v. District of Columbia, gun rights advocates are challenging the District’s of Columbia’s ban on hand guns on Second Amendment grounds. The issue currently before the court deals with the technical legal issue of standing. Can ordinary citizens make a Second Amendment claim or do you have to be a member of a well regulated militia to claim Second Amendment protection?
While the Second Amendment was once considered one of the most well settled areas in American constitutional law, gun rights advocates have been waging a non-stop battle to overturn the orthodox interpretation of the Amendment which treats the right to bear arms as tightly linked to participation in the militia. Gun rights advocates hope to replace this view with something closer to the NRA’s reading of the Amendment which effectively erases the militia clause. The new version of the Second Amendment would protect the right to keep and bear arms but would sever this right from its historical connection to the militia. In essence the new NRA-approved Second Amendment would make guns like words-subject to the same level of constitutional protection as freedom of speech. If gun advocates WIN, many of the nation’s gun control laws could be challenged on Second Amendment grounds.
One can certainly argue the merits of the District’s restrictive gun control law on policy grounds. There are legitimate differences of opinion on what types of gun regulations are most likely to reduce gun violence. The challenge to the DC law is not being made on policy grounds, but on constitutional grounds. In essence, gun rights advocates wish to take this issue out of the political process and place the right to own guns in the same category as freedom of religion. While the idea of challenging this type of law on legal/constitutional grounds would have seemed preposterous a decade ago, it is possible that the court might reverse more than seventy years of accepted jurisprudence and strike down the DC law in question. The fact that the issue is seriously being considered by the courts is a tribute to the political effectiveness and zeal of gun rights advocates who have pursed their goal of redefining the meaning of the Second Amendment relentlessly.
For much of American history the core meaning of the Second Amendment was pretty uncontroversial. (The scope and application of the Amendment’s protections, particularly its connection to the contentious issue of federalism was more problematic.) Indeed, in some respects the Second Amendment was among the most settled issue in American law. Courts accepted that the protections of the Second Amendment extended only to militia style weapons used in a context that had some clear connection to the preservation of a well regulated militia. This point of view has been routinely challenged by gun rights activists over the last few decades. Virtually every court in the nation has dismissed this line of argument. One rogue federal court did accept the individual rights thesis, but even they recognized that treating guns like words was ludicrous and they upheld the federal gun control law forbidding individuals under restraining orders from possessing firearms. Giving felons their guns back is a high priority for the gun rights movement. Indeed, the gun rights movement and its allies in Congress continue to oppose such common sense measures as mandatory background checks for all firearms purchases.
The oral arguments in the Parker case show how far the debate over guns has shifted to a radical gun rights position. Arguments once considered loony are now presented with pride. How did gun rights activists accomplish this astonishing feat of revisionism? With considerable funding from the gun lobby and other conservative think tanks, gun rights advocates began seeding law reviews with articles asserting this new revisionist interpretation of the Second Amendment. Once gun rights advocates created this paper trail, it was only a matter of time before respectable legal scholars began citing this material. Proclaiming their view the new Standard Model, gun rights advocates then pronounced the debate over.
Although critics of this new interpretation were slow to enter this contentious field, a number of historians and legal scholars did eventually jump into the fray. Virtually all of the historical evidence and claims of the Standard Modelers have been refuted or contested. Rather than demonstrate the existence of a standard model, Second Amendment scholarship now better resembles other areas of constitutional scholarship—it is a field marked by sharp disagreement. This is a healthy development. The dubious claims put forward by revisionists are now finally being subjected to serious scholarly scrutiny.
It is hard to predict how the court will weigh these different bodies of scholarship. Sadly, the oral arguments in the Parker case illustrate the old maxim that if you repeat a lie enough times, it will start to seem real. One can hardly blame judges for placing confidence in legal scholarship that they assumed was historically accurate and dispassionate. Of course, the bulk of academic scholarship on the Second Amendment never fit that model: it was historically flawed and entirely partisan in character. In a brief blog entry one can not hope to expose all of the historical errors that have crept into Second Amendment scholarship. Still, a few examples can effectively illustrate the dangers judges are likely to face when sifting through this material.
One of the issues raised in the Parker Case focuses on the meaning of the term well regulated. The idea that “well regulated” simply meant well trained, borders on ridiculous and is easily refuted. The Articles of Confederation affirmed that “every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of filed pieces and tents, and a proper quantity of arms, ammunition and camp equipage.” Clearly in this text the term well regulated was not a synonym for either well disciplined or well equipped. If it were, then the Continental Congress would hardly have had to mention the need to maintain a disciplined militia and listed separately what equipment would further the goals of an effective militia. Simply looking up words in the dictionary and picking any meaning that fits your ideological agenda is an inane methodology for understanding historical texts. Further evidence that well regulated meant something rather different that gun rights advocates suggest may be found by examining the case of Shays’s Rebellion. The insurgents it is worth recalling called themselves “Regulators” The governor of Massachusetts rejected their effort to co-opt the idea of regulation and he denounced Shaysites for undermining the ideal of a “well regulated society” These rebels were certainly armed and disciplined, but they were not part of a well regulated militia.
In an almost Orwellian rewriting of history, gun rights advocates have suggested that the militia-based reading of the Second Amendment was a modern invention. This claim would have also shocked St. George Tucker, the learned jurist, whose earliest writing on the subject clearly linked the Amendment with both the militia clauses of the Constitution and Tenth Amendment’s protection of federalism. There is also a large body of antebellum case law in which judges routinely held that the term bear arms only referred to guns carried within some context reasonably connected to militia service. This body of case law led John Foster Dillon, the eminent 19th jurist and legal scholar to conclude that “there would seem to remain no doubt that if the question should ever arise in that court it would be held that the second amendment of the federal constitution is restrictive upon the general government merely, and not upon the states, and that every state has power to regulate the bearing of arms in such manner as it may see fit, or to restrain it altogether.”
In one of the weirdest aspects of this debate, it has become acceptable to quote the Dred Scott case as a legitimate constitutional authority. Dred Scott had nothing to do with the Second Amendment. Justice Taney did make a brief reference to the right to travel armed, but he never actually discusses the meaning of the Second Amendment. How remarks made by a judge in the most universally reviled decision in American history could provide a solid foundation to over-turn seventy years of precedent on the meaning of the Second Amendment is truly baffling. Of course, Taney was the father of judicial activism, so it might actually make a certain amount of sense to use Dred Scott to revisit the meaning of the Second Amendment if the court were interested in making new law, not interpreting existing law.
It is difficult to predict how the court will rule on this contentious issue. If the court does turn to history for guidance, let us hope that they weigh their history carefully and distinguish between law office history crafted by the gun rights movement’s hired guns whose only goal is to advance their political agenda and and serious historical scholarship that is rigorous and and motivated by a desire to understand the past, not distort it.
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 his posts about Originalism and the 2nd amendment, part one , two and three or his email dialogue with Mark Tushnet.