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 B. The Standard Model 'Domino Effect' and Subsequent 'Domino Defect', p.1827-1842 - Gun Control and the Second Amendment: Developments and Controversies in the Wake of District of Columbia v. Heller and McDonald v. Chicago

2. The Standard Model "Domino Effect" and Subsequent "Domino Defect"

Despite all the methodological faults and unproven conclusions, Malcolm's work on the Anglo-American origins of the right retains iconic status among Standard Model writers. Starting as early as 1980, the Standard Model adopted and endorsed her work without question9 This reliance only strengthened after the publication of Malcolm's 1983 article The Right of the People to Keep and Bear Arms. (581) By the time of her 1994 book, Malcolm and the Standard Model were already entwined to the point that one could not write about the latter without citing the former. (582) And as of today this reliance has not changed, not one iota. (583)

This phenomenon may be referred to as the "domino effect." It occurs when a historical work (or any work for that matter) is so influential that a number of writers rely on it as a foundation for their own propositions. Neither the general thesis nor its findings are questioned. Instead, the writers get behind a thesis or certain conclusions because it meshes with their own ideological predispositions or presumptions about a subject. Under such conditions the dominos easily fall one after the other in harmony.

What happens, however, when the relied-upon writing, i.e. the first domino(es) or a number of intermediate dominoes, are removed from the sequence as historically unattainable or unproven? The answer is it produces a "domino defect," meaning the domino chain falls out of the necessary sequence as to permit the other dominos to fall. This would include any subsequent domino chains built upon the initial or intermediate domino sequence, for they too cannot fall without the aid and assistance of the preceding dominoes.

The Standard Model's unshaken reliance on Malcolm's work qualifies as a "domino defect," for upon disproving the historical viability of Malcolm's work, all works reliant upon her findings suffer from the same defect. The "domino effect" and consequent "domino defect" is not limited to the Model's reliance on Malcolm's work. (584) It also appears frequently as a result of Standard Model writers relying heavily on each other's historically suspect works. Whether it is Don B. Kates's problematic 1983 Michigan Law Review article or Eugene Volokh's interpretation of preambles in the wrong century, Standard Model writers have been quick to fall into line with one another without ever questioning each other's findings. (585) It has created an unprecedented domino web of overlapping layers that refuses to fall when all the interlinking dominoes are removed. In the words of late historian Don Higginbotham, "[B]orrow[ing] heavily from each other" and "recycling the same body of information" is the Standard Model's "fundamental testament." (586) Yet, at the same time, it is the Model's downfall. Not only is the Model's "narrowly legalistic" approach frequently at odds with historical context, (587) but more importantly, it is in direct conflict with the goal of historical scholarship--to understand the past for the sake of understanding the past. (588)

This last point is crucial, for one of the historian's functions is to continuously improve one's understanding of the past. This process often requires revisiting the evidentiary foundation upon which previous historical writings rest. It also requires engaging in an intellectual discourse with other historians in search of the truth. Such was the case in the 1980s when Lawrence Delbert Cress and Robert Shalhope debated the "collective" versus "individual" right theories. (589) The debate provided historical academia with the first responsible look at both sides of the argument. Furthermore, it established a research agenda to guide future historians. (590) As a result, we know today that the Second Amendment was meant to guarantee both an individual and collective component. (591) This includes the interests of state governments to the chagrin of Standard Model writers that argue otherwise. (592)

Therein lies a problem with the Standard Model. There has been no serious disagreement among its proponents nor has there been any strengthening of the poor foundation upon which the Model rests. One methodological error is built upon another without ever fixing the initial errors. It seems the last and only serious disagreement between Standard Model writers occurred in the 1980s, (593) when Don B. Kates withdrew his original conclusion that the Second Amendment did not protect the right to carry guns outside the home, unless "in the course of militia service" or at the license of government. (594) In 1986, Kates altered this stance by agreeing with Stephen P. Halbrook, with the latter asserting it is "inconceivable" that the founding generation "would have tolerated the suggestion" that the people needed the "permission of state authority" to carry arms in the public concourse. (595) Kates replied:

[My earlier] conclusion was based upon a historical/linguistic analysis which I leave to Professor Halbrook's reply, since I must concede that his evidence invalidates my position. Nothing in Professor Halbrook's linguistic evidence, however, gainsays the fact that, from early common law, the right to carry arms abroad was not absolute--as was the right to possess ordinary arms in the home. A statute of Edward II, reenacted in the time of Richard II, seems to have forbidden both the carrying of arms abroad in general and the carrying of them into particular places, such as courtrooms and Parliament. This common law tradition would suggest the validity of the many substantially similar...