Misreading the Past: The Faulty Historical Basis Behind the Supreme Court's Decision in District of Columbia v. Heller

• Author: Charles R. Mckirdy
• Position: Ph.D., Northwestern University (1969); J.D., Northwestern University School of Law (1974). Member, Illinois Bar, California Bar.
• Pages: 107-159

MISREADING THE PAST: THE FAULTY HISTORICAL

BASIS BEHIND THE SUPREME COURT’S DECISION

IN DISTRICT OF COLUMBIA V. HELLER

CHARLES R. MCKIRDY*

I.!INTRODUCTION

Although the Supreme Court’s decision in District of Columbia v. Heller

came down over eight years ago, its holding that the Second Amendment

protects an individual’s right to keep and bear arms reverberates louder than

ever as the nation struggles to cope with one tragic shooting after another.1

Prior to the Court’s decision, the meaning of the Second Amendment had

been the subject of loud and bitter contention.2 The opposing sides of the

argument had become carved in stone: is the right protected only a

“collective” right to possess and carry a weapon in connection with service

in the militia,3 or is it an “individual” right unconnected with militia

service?4 Not surprisingly, the question was presented to the Supreme Court

in these terms, and was considered and answered by the Court accordingly.5

The Heller majority looked to history to inform them of what those who

adopted the Second Amendment meant by the phrase “the right to keep and

bear arms.”6 The majority concluded that the founding generation saw the

right to arms as a right of long-standing that belonged to individuals as

individuals.7 While this conclusion may be correct, its ramifications, at least

as the majority seems to envision them, would seem to run counter to

anything the founders would have found acceptable. However much they

loved liberty, they were, above all else, practical men of reason.8 It is

difficult to accept the premise that they would have grafted onto our

fundamental law the guarantee that, unless a majority of the Supreme Court

Copyright © 2016, Charles R. McKirdy.

* Ph.D., Northwestern University (1969); J.D., Northwestern University School of Law

(1974). Member, Illinois Bar, California Bar.

1 554 U.S. 570, 635 (2008).

2 See Ian Tarr, The Second Amendment: Individual or Collective Rights?, BROWN POL.

REV. (Apr. 1, 2014), http://www.brownpoliticalreview.org/2014/04/the-second-amendment-

individual-or-collective-rights [https://perma.cc/NW5K-YXDA].

3 Heller, 554 U.S. at 577.

4 Id.

5 See id.

6 Id. at 581–92.

7 Id. at 592.

8 See id. at 651!54.

108 CAPITAL UNIVERSITY LAW REVIEW [45:107

deigned to conjure up specific exceptions from whole cloth and thin air,

every individual—no matter how deranged, demented, malicious, or

reckless—has the totally unchallengeable privilege of possessing and

carrying around any weapon regardless of how deadly, dangerous, or

insidious.

The thesis of this article is that th e foun ders did no such thin g. The

individual right versus the collective right controversy over the Second

Amendment has obscured a fundamental aspect of the right to arms: the

degree to which that right was deemed alienable. As understood by the

founding generation, could th is right, even if an individual right, be

restricted, c ontrolled, or even taken away, and if so, by w hom and under

what circumstances? Again, we must look to history for the answer, but we

must do so with an eye unclouded by the smoking remnants of that earlier

debate. It is a new quest, one that must be as searching and comprehensive

as possible. Sadly (and surprisingly given the credentials of many of those

involved), the scholarly debate over the Second Amendm ent often has been

marred by polemics, invective language, and a gen eral want of

professionalism on both sides.9 Hopefully, the following is a fair and civil

presentation of my research and conclusions. Such, at minimum, was my

intent.

II.!DISTRICT OF COLUMBIA V. HELLER (2008)

In late September 1775, about six months after the Battle of Lexington,

a correspondent to the New York Journal reported on the efforts of a rebel

detachment that had been sent to disarm suspected Tories in Fairfield,

Connecticut:

They then proceeded to Mr. Sayre’s, and sent for him out;

he waited on them, when Mrs. Sayre was immediately taken

with fits, so they suffered him to return to her, without any

molestation whatever, only assuring him, they would call

another time . . . . They intend to disarm him . . . . Poor

Mrs. Sayre, I really pity her; but the people must not be

blamed, they acted for the good of the whole.10

9 See, e.g., Don B. Kates, A Modern Historiography of the Second Amendment, 56 UCLA

L. REV. 1211, 1227–28 (2009) (“collective right” theory is “pseudointellectual gibberish” that

no “honest person” can “seriously propose”); Saul Churchill, Early American Gun Regulation

and the Second Amendment: A Closer Look at the Evidence, 25 LAW & HIST. REV. 197, 200,

203 (2007) (proponent of individual rights theory “plucks quotes out of context” and resorts

to “conjuring up” a “right” by “consistently twist[ing] [] evidence to fit his theory”).

10 N.Y. JOURNAL, Oct. 5, 1775, at 3.

2017] MISREADING THE PAST 109

“The good of the whole,” “the public good,” “the good of the community,”

“the common good”—however it was phrased—in classic eighteenth

century republican thought, the political thought of the framers of our

Constitution, this “good” was the sole acceptable restraint on the exercise of

liberty.11 It was a restraint inherent in their concept of rights, a restraint

without which, all liberty, all rights were meaningless.12

The Second Amendment to the Constitution references a right. It reads

as follows: “A well regulated Militia, being necessary to the security of a

free State, the right of the people to keep and bear Arms shall not be

infringed.”13

How the amendment reads, or, more particularly, how the amendment

was read and understood at the time of its adoption, was considered crucial

by the Supreme Court of the United States in reaching its decision in District

of Columbia v. Heller, the most significant Second Amendment case in

history.14 In Heller, by a vote of five to four, the Court struck down a District

of Columbia ordinance that, in all but a very few situations, forb id the

possession of handguns in the District.15 The law also required that a

lawfully ow ned firearm, such as a registered long gun, be kept “unloaded

and disassembled or bound by a trigger lock or similar device” unless it was

“located in a place of business” or was “being used for lawful recreational

activities.”16

Authored by Justice Antonin Scalia, the majority opinion in Heller held

that the Second Amendment protects an individual’s right to possess a

firearm u nconnected with service in a militia, and to use that weapon for

traditionally law ful purposes such as self-defense within the home.17 The

majority also held that the District’s “requirement . . . that firearms in the

home be rendered and kept inoperable at all times” made it impossible to

use them for the core lawful purpose of self-defense and, therefore, was also

unconstitutional.18 In ruling that the Second Amendme nt protects an

individual right to possess a firearm, the majority in Heller rejected the

District’s position, a position which was espoused by the dissenters, and,

which, arguably, had been taken by the Supreme Court of the United States

in United States v. Miller in 1939—that the amendment protects only the

11 See David C. Williams, Civic Republicanism and the Citizen Militia: The Terrifying

Second Amendment, 101 YALE L.J. 551, 553 (1991).

12 See id.

13 U.S. CONST. amend. II.

14 District of Columbia v. Heller, 554 U.S. 570, 598 (2008).

15 Id. at 635.

16 Id. at 575.

17 Id. at 576–626.

18 Id. at 630.