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

• Author: Charles, Patrick J.
• Position: II. The Embarrassing Standard Model Saga Continues A. The Rise and Fall of Joyce Lee Malcolm's Thesis on the Anglo-American Right, p.1791-1826 - Gun Control and the Second Amendment: Developments and Controversies in the Wake of District of Columbia v. Heller and McDonald v. Chicago

2. THE EMBARRASSING STANDARD MODEL SAGA CONTINUES

For those who study historiography, the Second Amendment proves to be a fascinating subject. (336) As seen throughout Part I, from the 1970s to the present day, the right to arms has undergone an interpretative transformation that is virtually unrivaled. Standard Model writers see this transformation as restoring a forgotten relic to its proper podium, but historians see it as flipping the Constitution on its head and advancing a bundle of make-believe rights that would be ridiculed by the Framers in scathing dissents. Take for instance Noah Webster's sarcastic critique of the Pennsylvania Minority, which sought to propose a series of rights (337) that had nothing to do with establishing a constitutional republic:

But to complete the list of unalienable rights, you would insert a clause in your declaration, that every body shall, in good weather, hunt on his own land, and catch fish in rivers that are public property. Here, Gentlemen, you must have exerted the whole force of your genius! Not even the all-important subject of legislating for a world can restrain my laughter at this clause! As a supplement to that article of your bill of rights, I would suggest the following restriction: "That Congress shall never restrain any inhabitant of America from eating and drinking, at seasonable times, or prevent his lying on his left side, in a long winter's night, or even on his back, when he is fatigued by lying on his right." ... But to be more serious, Gentlemen, you must have had in idea the forest-laws in Europe, when you inserted that article; for no circumstances that ever took place in America, could have suggested the thought of a declaration in favor of hunting and fishing. Will you forever persist in error? ... You may just as well ask for a clause, giving license for every man to till his own land, or milk his own cows. (338) Webster's critique is important because the drafters of the Bill of Rights sought to include those rights vital for a continuance of a democratic republic. (339) They were rights that the founding generation frequently referred to as the palladiums of liberty. The description is often misunderstood or taken out of context by legal commentators to assert broad individual rights separate from government. (340) However, the terminology was not intended to describe libertarian notions of liberty. In the eighteenth century, the "palladium of liberty" distinctly described rights or governmental checks that balanced the Constitution in favor of "the people." These rights and governmental checks included political representation, (341) the writ of habeas corpus, (342) the freedom of election, (343) the right to trial by jury, (344) and the freedom of the press. (345)

Most importantly for our purposes, one of the palladiums also included the right to keep and bear arms in a well-regulated militia. (346) Not once did the founder generation conflate or confuse armed individual self-defense--in private or public--as a palladium of liberty. The phrase was distinctly used to describe the right to keep and bear arms in a state sanctioned militia, and rightfully SO. (347) The truth of the matter is that a "well-regulated militia" was seen as crucial to a republic. This cannot be overstated enough. The constitutional body not only provided cost effective physical security, but it was the means and ends by which liberty was to be understood. Furthermore, it provided an efficient counterpoise to standing armies and an oppressive government. (348)

Of course, this was all theoretical and idealistic of the Framers. (349) The militia, even after the 1792 National Militia Act, never lived up to its intended constitutional and ideological purpose. (350) By 1818 the militia was described by one anonymous commentator as a "national curse." (351) Even Revolutionary War patriot, militia instructor, pamphleteer, (352) and Federalist Timothy Pickering wrote that a "well disciplined militia, as the palladium of liberty, is an empty phrase in the mouth of every Patriot." (353) Picketing would later refer to it as a "public evil" both in terms of its expense and the national defense. (354)

Somehow Standard Model writers view the Second Amendment much differently than the record depicts. This includes seventeenth century England historian Joyce Lee Malcolm, who demoted the constitutional significance of a "well-regulated militia" to being "merely ... well-trained." (355) Malcolm's puzzling over-simplification of the American right stems from her work on the "have arms" provision of the 1689 Declaration of Rights. (356) Just as the Standard Model was coming to the fold, so too was Malcolm's research on the English right. And not surprisingly, the former fed off the latter for historical credibility. (357)

The collaboration began as early as 1981 when the National Rifle Association reprinted and distributed Malcolm's first research on the subject. (358) Instantly, Standard Model writers fell into line as they imported Malcolm's research and conclusions into their own writings. (359) This would not be a problem if Malcolm's thesis were historically viable. But as will be discussed in detail below, Malcolm's research and conclusions turned out to be completely "unacceptable," thus further discrediting the Standard Model as viable moving forward. (360)

1. The Rise and Fall of Joyce Lee Malcolm's Thesis on the Anglo-American Right

For purposes of historiography, when Malcolm published her first article on the English right to arms, historians had just begun debating the Second Amendment. (361) Other than a scholarly exchange between historians Lawrence Delbert Cress and Robert E. Shalhope, and J.G.A. Pocock's classic work The Machiavellian Moment, very few historians had dabbled in the subject, let alone examined the historical record extensively. (362) What made Malcolm's inquiry unique was it set out to be the first attempt of an historian to connect Article VII of the 1689 Declaration of Rights with the Second Amendment. Like Standard Model writers before her, (363) Malcolm read the text of the Second Amendment and spotted an interpretative conundrum:

Was [the prefatory language] a qualifying or an amplifying clause? That is, was the right to arms guaranteed only to members of "a well-regulated militia" or was the militia merely the most pressing reason for maintenance of an armed community? The meaning of "militia" itself is by no means clear. (364) To Malcolm, the "key" in settling the debate rested with "the English tradition the colonists inherited, and the English Bill of Rights from which much of the American Bill of Rights was drawn." (365) Malcolm's connection between the English and American) right to arms has proved to be both astute and proper. James Madison referenced Article VII in his notes and a number of early nineteenth century constitutional commentators viewed the Second Amendment as its lineal descendant. (366) The only significant difference between the two was that Article VII was linked to socioeconomic status, (367) with the Second Amendment containing no such restriction. (368) Another notable difference between the two rights was the structure of government. England consisted of one national government, with concurrent power over the militia divided between the crown and Parliament. (369) However, in the United States it was a bit more complicated. Not only was there a division of power between Congress and the President, but there was also a complex division of federal-state powers, with some of them overlapping. (370) But other than linking the Anglo origins of the right to the Second Amendment, Malcolm's thesis fails to meet its burden.

For those unfamiliar with Malcolm's work, the thrust of her argument is that in the late seventeenth century arms-bearing transformed from a societal duty into a common law right of armed self-defense--in both private and public--and Article VII of the 1689 Declaration of Rights acknowledged this transformation. (371)

To date, only those unfamiliar with late seventeenth century English history have applauded this interpretation. David B. Kopel wrote, "[Malcolm] sweeps away over two centuries of American--and British--misunderstanding of the British right to arms, providing the first clear picture of what the right to arms meant to the British of 1689, as well as what it meant to the Americans of 1791...." (372) Jeremy Rabkin described it as a "careful history, as much a work of social and political as of legal history." (373) Robert J. Cottrol and Raymond T. Diamond heralded it as a "meticulously researched work in political and legal history." (374) And before eighteenth century American historian Robert E. Shalhope abandoned the Standard Model as a false prophecy, (375) he too believed that Malcolm proved the right to arms protected "both the individual's right to keep arms and the community's right to protect itself by means of an armed militia." (376)

In contrast to these appraisals, Lois G. Scfiwoerer knew something was amiss. (377) In 1981, Schwoerer wrote what has become an essential guide to understanding the 1689 Declaration of Rights. Regarding Article VII, she concluded the "have arms" provision was connected to "neo-Harringtonianism" and gave "men the right to possess arms according to their social and economic standing" as a means to check government corruption. (378) It was a thesis that Malcolm "apparently rejected," but never squared. (379) Still, there were other problems with Malcolm's book, the most important being that Malcolm failed to prove her interpretation was "universally intended" or "advocated" by those who adopted the English Bill of Rights. (380) As a result, Schwoerer concluded Malcolm's bottom line thesis "suffer[ed] accordingly," and may not convince other historians specializing in this area. (381)

Schwoerer's view only became stronger upon reexamining the...