The Second Amendment in historiographical crisis: why the Supreme Court must reevaluate the embarrassing 'standard model' moving forward.

• Author: Charles, Patrick J.
• Position: Introduction, p. 1727-1733 - Gun Control and the Second Amendment: Developments and Controversies in the Wake of District of Columbia v. Heller and McDonald v. Chicago

Introduction I. The Standard Model Second Amendment Exposed A. The Historical Dilemma Presented by the Standard Model B. Excavating the Standard Model's Poor Foundation 1. History Lesson 101: Interpreting Text Without Historical Context Is Just a Con 2. History Lesson 102: Answering Any Historical Query First Requires Substantiated Evidence to Support It 3. History Lesson 103: Lawyering Historical Sources Is Not an Objective History 4. History Lesson 104: Be True to What the Historical Record Provides II. The Embarrassing Standard Model Saga Continues A. The Rise and Fall of Joyce Lee Malcolm's Thesis on the Anglo-American Right 1. England's Ahistorical Armed Public Against Private and Public Violence 2. Correcting False Notions of Article VII 3. The 1662 Militia Act and 1671 Game Act Evidentiary Debacle 4. William Blackstone Said What?--Misconceptions of the "Fifth Auxiliary Right" Continue 5. The Anglo-American Intellectual Deficiency B. The Standard Model "Domino Effect" and Subsequent "Domino Defect" III. What's the Supreme Court to do With the Embarrassing Standard Model?--Assessing Three Historical Options A. Option 1--Standard Model Dictum Wins, History Loses, But Should It? B. Options 2 and 3--the Judiciary, Historical Consciousness, and Preserving the Historical Record. Conclusion INTRODUCTION

In the coming years the Second Amendment will face a historical crossroads. Following the Supreme Court's decisions in McDonald v. City of Chicago (1) and District of Columbia v. Heller, (2) it is settled, as a matter of constitutional jurisprudence, that the Second Amendment protects armed self-defense in the home with a handgun, and applies equally to the federal and state governments. In both opinions, the majority was guided by a historical theory dubbed the Standard Model (3) right to arms. (4) Under this Model, the Second Amendment provides an individual right to possess and use arms, divorced from government sanctioned militias, as a means to (1) check government tyranny through an armed citizenry, (5) (2) provide the means to repel force with force should one be assailed in private or public, (6) and (3) provide for the common defense. (7) Indeed, the history supporting an "individual right" to arms is vast and undeniable. (8) However, the historical evidence supporting the Standard Model theory is circumstantial at best, (9) leaving the future of Second Amendment history at a critical juncture. Which end of the historical spectrum is...