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

• Author: Charles, Patrick J.
• Position: I. The Standard Model Second Amendment Exposed A. The Historical Dilemma Presented by the Standard Model, p. 1733-1746 - Gun Control and the Second Amendment: Developments and Controversies in the Wake of District of Columbia v. Heller and McDonald v. Chicago

1. THE STANDARD MODEL SECOND AMENDMENT EXPOSED

For over thirty-five years now, aspects of the Standard Model have appeared consistently in law reviews. From the Model's early beginnings in the 1970s, its architects have pawned assumptions and opinions as historical fact. Take, for instance, a 1976 article published by this Journal. (19) Authored by David I. Caplan, a former board member of the National Rifle Association, the article contained a significant number of false claims: notably, the purpose and history of the Statute of Northampton, (20) the "have arms" provision in the 1689 English Declaration of Rights, (21) and the events of the American Revolution. (22) Yet the most damaging myth that Caplan pawned to the public was his mischaracterization of the Founders' well-regulated militia. According to Caplan, the right to "keep and bears arms" in a "well-regulated militia" ensured (1) "the people's ability to organize the militia would be guaranteed and strengthened by their prior anonymous keeping of arms," and (2) "the people's right to keep arms [would] not depend upon the actual existence of an organized militia" because Congress has the power to terminate it. (23)

In advancing this theory, Caplan did not even attempt to meet the required historical burden. Instead, he relied exclusively on two pages of constitutional debates--out of context--as a theoretical launching point to reach a number of unsupported conclusions. (24) This is not only problematic in terms of historical objectivity, but we know today that Caplan's theory is not even historically viable. (25) This issue will be unpacked in various segments of this Article, but for now the point worth making is that Standard Model scholars have propped up a political theory as historical fact without the required evidence. Worse yet, the four corners of Caplan's theory remain the foundation upon which the Model is built.

1. The Historical Dilemma Presented by the Standard Model

It is from this weak foundation that numerous myths have formed and flourished. With the Model's folklore stretching over a thirty-five year period, it has created a layered web of illusions and deceptions so thick that only a handful of historians and scholars can pinpoint the inconsistencies or problems. (26) The objective dilemma this presents can have a number of legal consequences, particularly, what role--if any--accepted historical works and methodologies are to be used for future constitutional questions. If we use Heller as the benchmark, accepted historical methodologies are insignificant and objective legal history is in peril, for the Heller majority essentially acquiesced to a Necessary and Proper Clause approach to history. (27)

For those unfamiliar with Necessary and Proper Clause jurisprudence, since 1805 the Supreme Court has stated that Congress has the "choice of means, and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the Constitution." (28) This deferential approach to congressional power was restated by Chief Justice John Marshall in 1819 (29) and remains the law of the land today. (30) If we apply this standard to historical analysis, it stipulates that constitutional text and historical evidence may be adapted to support any conclusion so long as the author, lawyer, or jurist believes it to be plausible. Universally recognized historical methodologies, however, do not accept such a deferential or "choice of means" approach. (31) It is accepted among historians that historical methodologies require something more substantial. (32) If anything, to reasonably adapt the evidentiary means to support a desired historical end is contrary to intellectual integrity and objectivity, for it fails to take into account the whole historical equation of the era and topic at issue. (33)

Therein lies a problem with the foundation upon which the Standard Model rests--it is full of historical adaptations and false conclusions that resemble the approach assumed by the Court's Necessary and Proper Clause jurisprudence. Take for instance two recent Standard Model historiographies by Don B. Kates and David T. Hardy. (34) Both authors claim that any interpretation other than...