'Half cocked': the persistence of anachronism and presentism in the academic debate over the Second Amendment.

Author:Cornell, Saul
Position:Response to James Lindgren, Journal of Criminal Law and Criminology, vol. 104, p. 705, 2015


Reading James Lindgren's recent forward to The Journal of Criminal Law and Criminology's, symposium on "The Past and Future of Guns," (1) one might be tempted to think that nothing new on the Second Amendment had been written in the aftermath of the Supreme Court's decision in District of Columbia v. Heller. (2) In fact, Heller has spawned a vast new scholarly literature. (3) Not only does Lindgren not engage with the historical scholarship written prior to Heller, he fails to consider the post-Heller literature, rendering his account of the state of the debate over the Second Amendment's historical meaning both incomplete and unsound. (4) Moving forward in the contentious debate over firearms regulation does, as Lindgren asserts in his discussion of the policy issues, (5) require more attention to evidence, but this sage counsel applies to history every bit as much as it applies to statistical analysis. (6)

It is a bit surprising to see an article on the past and future of the gun debate that makes no mention at all of important recent work by scholars such as Duke University's Joseph Blocher and Darrell Miller, Yale University's Reva Siegel, or Harvard scholar Cass Sunstein, to name just a few of the new voices and senior figures in constitutional law that have entered this ideologically charged field after Heller. (7) All of these scholars reject Lindgren's interpretation of history and his reading of Heller. (8) Some of the harshest criticism of the D.C. gun case and its abuse of history has come from conservative scholars and judges, including Richard Epstein, Charles Fried, Richard Posner, and J. Harvie Wilkinson, another fascinating aspect of the post-Heller jurisprudential landscape that Lindgren neglects. (4)

In a brief response it would be impossible to survey the full richness of the new scholarly developments Lindgren overlooks. (10) Nor does space permit a detailed expose of all of the historical errors and analytical flaws in Heller and the outdated body of scholarship Lindgren cites in his essay." In the interest of moving the debate forward, some salient points are worth stressing.

There is substantial scholarly support for the argument that the "individual rights" view articulated in Heller and defended by Lindgren was largely an invented historical tradition. (12) Gun rights advocates both within and outside of the legal academy worked assiduously to create this revisionist history of the Second Amendment (13) and deployed it effectively in Heller. As Reva Siegel and Michael Waldman have each shown, the individual rights interpretation of the Second Amendment was a modern creation. (14) For most of the last century the dominant interpretation of the Second Amendment was as a collective right, not an individual right. The eminent early twentieth century Harvard legal scholar Zechariah Chafee, Jr. captured the earlier scholarly consensus around this conception in an influential article written more than seventy years before Heller. "[u]nlike the neighboring amendments," the Second Amendment, Chafee averred, "safeguards individual rights very little and relates mainly to our federal scheme of government." (15) Chafee's article was hardly the only one to embrace such a view. Most legal scholars and courts accepted this collective rights view until a new wave of revisionist scholarship emerged in the 1990s. (16)

Lindgren's dismissive characterization of historians' efforts to formulate a new paradigm for understanding the Second Amendment prior to Heller is cast in quasi-conspiratorial terms, as if it were part of some nefarious anti-gun agenda. Lindgren's account of this historiography confuses two different groups of scholars and fails to understand the connections between Second Amendment scholarship and early American historiography. (17) He argues that historians:

[W]ith essentially no original evidence to support their view--and some evidence directly contrary to it--the states' rights academics came up with an entirely new view, which they termed the "civic rights" view. According to this view, the right to keep and bear arms was an individual right, but it could be exercised only with the permission of the state in a militia. It is hard to credit the claim that there was no new evidence to support the view that the Second Amendment was a civic right. Indeed, Lindgren's hyperbole is typical of much gun rights oriented scholarship, and it is precisely for this reason that Sanford Levinson has described such claims as antithetical "to serious intellectual debate." (19) The new historical paradigm that Lindgren mocks, variously described as a limited individual right, a militia-based right, or a civic right emerged almost simultaneously in the writings of scholars who were working independently from one another and employing different methodological tools, but who were all responding to debates and trends within early American legal historiography. (20) The one commonality among all the scholars drawn to this paradigm was not their connection to contemporary gun politics or previous support for its theory of states' rights, but their emphasis on the necessity of rooting Founding Era American law in the culture of the early modern Anglo-American Atlantic world. (21)

The claim that this new historical paradigm lacked any evidence from the Founding Era neglects the centrality of the militia and the related fear of standing armies to Anglo-American republican discourse in the period between the Glorious Revolution and the adoption of the amended Constitution. (22) The pervasiveness of republican ideas in the legal and political discourses of the Atlantic world in the eighteenth century has been documented time and again by historians of early modern political thought. (23) More than forty years of historiography on republicanism contradicts Lindgren's suggestion that the new civic paradigm was somehow conjured out of thin air. (24) Lindgren's misunderstanding of the relevant historiography goes beyond his lack of appreciation for the centrality of republicanism to Anglo-American legal culture in this period--his analysis demonstrates a failure to grasp some of the most elementary principles of historical inquiry. Thus, he confidently asserts that:

The problem with [the civic rights model] was that, again, there was no contemporary evidence from the Framers' era to support it, and, indeed, no one had ever heard of the civic rights view for the first two centuries of the Second Amendment's existence. The first use of the term "civic right" to describe the Second Amendment in American law reviews appeared in a 2002 article by the historian Saul Cornell. It would be strange if most of the Framers held the civic rights view of the Second Amendment, but kept it a secret from everyone, including the other Framers. (25) It is hardly surprising that the Founding Generation did not use a term invented by modern scholars to describe the Second Amendment-how could they? (26) Lindgren has fallen into an elementary historical fallacy. By conflating what modern historians have said about the past with what historical actors actually said in the past, Lindgren has confused a "semantical question about the name by which the object is called," with the historical object itself. In essence, he blurs the differences between primary and secondary sources by conflating modern historical labels with the historical beliefs they describe. (27)

From a strictly textualist interpretive modality, the assertion that there is no evidence for a militia-based reading of the Amendment is easily rebutted by reference to the Second Amendment's text, especially its preamble. (28) Lindgren attempts to get around this particular textual embarrassment by invoking the authority of libertarian legal scholar Eugene Volokh's controversial, and now largely discredited, claim about the role of preambles in Founding Era constitutional texts. (29) Unfortunately, Lindgren ignores the scholarly critiques of Volokh's work, some voiced before Heller and others elaborated since the decision. (30) Moreover, anyone familiar with Founding Era sources would have little trouble finding evidence to challenge Volokh's anachronistic interpretation. A good place to start might be the 1750 legal dictionary authored by Giles Jacob, a popular Founding Era text among lawyers. (31) Thomas Jefferson and John Adams each owned a copy of Jacob's law dictionary. (32) Jacob defined the role of a preamble in a way that flatly contradicts Volokh's claims: "[t]he Preamble of a Statute ... which is the Beginning thereof, going before, is as it were a Key to the Knowledge of it, and to open the Intent of the Makers of the Act; it shall be deemed true, and therefore good Arguments may be drawn from the same." (33) This particular gloss on preambles, derived from Lord Coke, was echoed in New Jersey Justice of the Peace James Parker's popular Founding Era legal guide. (34) A 1788 advertisement for Parker's guide described the book as essential reading for Americans interested in the law. "This book is highly esteemed and very necessary" not only for gentleman in their public capacity as Justices of the Peace, but for "every other person who would wish to be acquainted with the laws of the land we live in." (35) Volokh's analysis of preambles ignores these types of sources and other relevant texts essential to recovering the Founding Era's interpretive assumptions and rules of construction. Instead of reconstructing Founding Era practices, Volokh erroneously employs approaches to statutory construction drawn from treatises written a half century later. In short, Volokh reads history backwards, applying nineteenth century rules to understand eighteenth century texts. If one corrects his anachronistic...

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