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
SUMMARY

The individual right to bear arms, as found in District of Columbia v. Heller, 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.

 
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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 58192.
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 individualno matter how deranged, demented, malicious, or
recklesshas 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, 122728 (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 phrasedin 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 businessor 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 timesmade 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 576626.
18 Id. at 630.

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