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 B. Excavating the Standard Model's Poor Foundation, p. 1746-1791 - Gun Control and the Second Amendment: Developments and Controversies in the Wake of District of Columbia v. Heller and McDonald v. Chicago

2. Excavating the Standard Model's Poor Foundation

Perhaps the largest dilemma facing the Supreme Court as it moves forward with Second Amendment jurisprudence is separating fact from fiction. Again, for over thirty-five years Standard Model writers have succeeded in building a mythical construct that proves difficult to separate and deconstruct. What makes this task particularly complicated is the number of layers the Model is built on. One article is built upon another, and so on, even in cases where previous articles have been rebutted or shown to be historically unacceptable.

What proves even more problematic is that many of the Model's historical claims are unsupported. Often, Standard Model works seek to deduce historical meaning through hypothetical word scenarios that they claim prove "public understanding," or, if conducted properly, what historians would refer to as a combination of social and intellectual history. (92) Certainly, the way in which the public understood the Constitution is important for any historical inquiry. (93) But conducting an objective social and intellectual history requires more than parsing text and finding a favorable interpretation. (94) All historical inquiries, including that of social and intellectual history, require historical context. This means the writer must take into account "beliefs, attitudes, philosophies, prejudices, and loyalties that are not those of our day." (95) A proper social and intellectual history also requires the conducting of the most basic methodologies, such as comprehensive research, reading and incorporating the seminal accepted works on the subject (or at least distinguishing one's conclusions from said works), separating historical realities from political propaganda, pinpointing what may have intellectually or ideologically influenced the writer, and weighing the credibility of the writer's opinion with others of the same period. (96) Most Standard Model works do not meet these standardized burdens, and it remains the reason why professional historians generally do not accept these works. (97)

The repercussions that poor methodologies can have on historical objectivity and preserving our past are of particular concern to historians. (98) A lack of professional and objective norms leads to myths. As a result, history runs astray, and generations are socialized to believe historical fictions are realities. (99) Some Founding Era myths that have matriculated as a result of poor methodologies include the likes of limited immigration powers. (100) a natural rights interpretation of the Declaration of Independence, (101) and a presumption of liberty when interpreting the Constitution and Bill of Rights. (102) Each of these myths, if ever taken seriously by the Supreme Court, will not only give false perceptions of history to future generations, but will affect jurisprudence drastically as to amend the Constitution itself.

This historical burden is something that the Court bears on a day-to-day basis when weighing arguments and writing opinions, whether each Justice knows it or not. (103) Just one historical mistake by a majority can lead to countless others, especially given that the lower courts often are bound to restate the Supreme Court's historical mistakes as historical facts. (104) Thus, the Court's duty to maintain a sense of historical consciousness is not something the Justices should take lightly. (105) They must remain cognizant that any cherry-picking of historical events will have dire consequences on society at large, especially when it adopts unproven and mythical writings as historical authority. (106)

A fitting example as to how far a myth can supersede historical reality is the story of George Washington's teeth. One will never find the subject litigated in a court of law, and its history will likely never impact the outcome of a case. Still the subject as to whether Washington's teeth were made of wood has latched itself onto the first President. It is uncertain how the myth polluted American discourse, but numerous studies by historians and other scholars have all dismissed it as unsupported.

The earliest study was a 1948 work entitled An Introduction to the History of Dentistry. Written by Bernhard Wolf Weinberger, the two-volume work provided the first exhaustive examination of dental history and found no support for the Washington myth. (107) Later histories reinforced this point, including John Woodforde's The Strange Story of False Teeth and Robert Darnton's George Washington's False Teeth. (108) Yet the wooden teeth myth lives on. As Edward G. Lengel astutely points out, this is because individuals make cognitive choices that "reveal more about us" than they do about what the historical record provides. (109) It is natural for individuals to "define themselves" through their own knowledge and beliefs of history rather than seek truth or clarity. This does not mean that historians will ever concede to accepting myth as historical fact.

One of the historian's primary roles is to educate the public about the past for the sake of understanding the past, whether the people choose to accept it or not. This includes subjects that have no political or legal significance (such as Washington's teeth). The Mount Vernon Ladies Association has gone so far as to dedicate a portion of its museum to debunk the wooden teeth myth, which includes an informational video from the History Channel. (110) The Association also lists the myth on the Association's website as the first "falsehood" worth correcting. (111) There is even a children's book dedicated to the cause, its purpose being to educate children (and hopefully parents too) that "contrary to popular belief, [Washington] never had a set of wooden teeth." (112)

In one important aspect, the Standard Model account of the Second Amendment is akin to Washington's wooden teeth. Both will persist no matter how much historical evidence is unearthed or literature is published. Despite historians' best efforts, individuals, groups, political parties, and advocacy groups will hold onto the Standard Model or variations of the Model because it is what they heard or read somewhere, a personal belief they hold dear and agree with, or a political agenda from which to benefit. Few, if any, will disagree that it is every person's right to believe as they wish.

However, a person's freedom to believe "X" as historical fact, does not make it a fact unless it is supported by the employment of proper historical methodologies and the gathering of substantiating historical evidence in context.

At the same time, the Standard Model and Washington's teeth differ in terms of public education through advocacy. There are, of course, no public or private interest groups dedicated to Washington's wooden teeth. The opposite holds true of the Standard Model. Groups like the National Rifle Association and the Second Amendment Foundation emphasize that the Founders viewed guns as the centerpiece of republican liberty, and they endorse and finance works that only advance this baseline conclusion. (113) There is even a children's book that advances this controversial notion of history, which at no point emphasizes the significance that the founding generation placed on a "well-regulated militia," its relationship to a republican government, or that the right of self-preservation and resistance is very narrowly tailored as the Declaration of Independence spells out. Instead, the book simplifies the Second Amendment as a "privilege, responsibility, and right to own our own guns, and be ready to fight" against enemies foreign and domestic, i.e. an urban militia or armed rabble. (114) It is by having "rifles by [our] sides" that we protect American liberty and honor our fallen. This laissez-faire depiction of the right to arms is troubling to historians, and the book's indexed quotations, which seek to teach "parents and grandparents" about the ideological importance of owning guns, is borderline historical propaganda.

There is an important yet simple lesson from this comparison--historical myths are difficult to remove from society at large, including the ridiculous and unfinanced myth of Washington's wooden teeth. Just pause to think--the Washington myth has been academically disproven for over sixty years, yet people still connect the first President with having wooden teeth, and it is a myth that retains no political, philosophical, or ideological affiliation. This last point is important because often an individual or group's historical perception is influenced by these factors. In other words, one's historical view of a given constitutional provision is often not based upon the search for the truth, but by latching onto a textual interpretation for an ideal already maintained.

This scenario particularly presents itself to most Standard Model analyses on the Second Amendment, and it is one of the reasons why it has been able to thrive by pandering myth and assumption as historical fact. For the most part, historians have identified the Model's fundamental problems and see it for what it truly is--a house of cards. By removing any of the building blocks upon which the Model rests, the historian sees that it easily falls. Even though historians have witnessed the Model collapse on numerous occasions, (115) its supporters have managed to get around this by citing disproven or abandoned historical works as academic authority. (116) Other tactics include interpreting text out of context, ad hoc wordplay, claiming that circumstantial evidence is the best historical evidence, and filling in historical gaps with personal opinion because they fail to do the research.

These are just some of the ways that Standard Model writers have rewritten the history of the Second Amendment to the point that it is virtually unrecognizable to the founding generation. There are indeed others, but the remainder of Part I will...