In a June 1838 edition of the monthly periodical Common School Assistant there appeared a question-and-answer article entitled The Judiciary. (669) The questions asked and answered covered a number of constitutional issues such as state privileges and immunities, trial by jury, excessive bail, warrantless searches, and so on. The second to last question and answer was in regard to the Second Amendment, and read as follows:
Q.--Have the people of the United States a right to keep and bear arms?
A.--Yes; inasmuch as a well-regulated militia is necessary to the security of a free country. (670)
For nearly four decades, legal academics, historians, and laymen have written thousands of pages over the meaning of the Second Amendment, yet within the span of only twenty-nine words a teaching assistant's book succinctly asked and answered a constitutional question as the Founding Fathers envisioned. A well-regulated militia was not merely an armed citizenry. (671) It was so much more. In the words of Secretary of War James Barbour, a well-regulated militia was an unquestionable "political maxim ... universally subscribed to ... [as] the natural defence of a free people." (672) It was of such importance to the success of the Early Republic that Barbour requested the states amend and improve the 1792 National Militia Act accordingly. He hoped "in an object of such vital importance as a well regulated militia, minor objections will be sacrificed to the attainment of so great a good." (673)
Today there is little, if any, dispute that the necessity of a well-regulated militia in our everyday life is minimal. In the late eighteenth century and early nineteenth century, however, a well-regulated militia served a larger societal purpose. Its "advantages" were not "confined to its military and civil uses exclusively." (674) A well-regulated militia also provided a "moral influence on society and individual character" that was so "deserving" of American admiration. (675) As stated in an (1833) article published in The Military and Naval Magazine of the United States:
It regulates the eccentricities of youth, inculcates subordination to authority, teaches obedience to the laws, and respect for those who are entrusted with their administration. Its associations promote civility, good manners, and friendly intercourse in society. Its exhibitions are public, encouraging cleanliness of person, and eliciting that pride of character which leads to the fear of reproach, and enlivens the desire of distinction. Its employments are active, requiring judgment and decision. Its exercises are manly, giving grace to the person, vigor to the muscle, and energy to the mind. Its duties are scientific, inciting to study, and inducing inquiry. Its objects are patriotic, animating the best feelings of the heart. Its offices, open to all, are the incentives of honorable ambition, affording to those in humble stations, whose merits might otherwise remain unnoticed, opportunities for disclosing those virtues and talents which recommend them for civil preferment, as well as military promotion; and thus it is, this truly republican institution, in conne[ct]ion with our systems of public education and establishments of religious instruction, contributes to produce that just subordination in society which influences all its conduct, and constitutes an orderly community. (676) After reading this powerful narrative it is dumbfounding how anyone can equate a well-regulated militia with a mere armed society. Yet this poor definition is what so many Standard Model writers have prescribed. (677) What is worse is that Heller's dicta seems to have endorsed it with but one sentence: "[T]he adjective 'well-regulated' implies nothing more than the imposition of proper discipline and training." (678) Then in an attempt to sync the Second Amendment's prefatory language with its operative clause, the Court wrote:
We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew.... It is therefore entirely sensible that the Second Amendment's prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens' militia by taking away their arms was the reason that right--unlike some other English rights--was codified in a written Constitution. (679) Here, the Court's reference to a "citizens' militia" is perplexing. One may read such dicta to protect unorganized militias independent of government. Given that the Court upheld Presser as good law, however, this interpretation is unlikely? (680) Only one interpretative option remains--that the Court consents to a tyranny model of the Second Amendment. (681) This means that the "citizens' militia" cannot be negated to prevent "the people" from exercising lawful rebellion. (682) But this interpretation is also perplexing because the historical record reveals that the right of self-preservation and resistance rested with the legislative branches of government, not the people in their individual capacities. (683) This fact is evidenced by the history of the Glorious Revolution, (684) documents like the Declaration of the Causes and Necessity of Taking Up Arms (685) and the Declaration of Independence, (686) and the historical fact that the militias of the American Revolution were arrayed, armed, trained, and mustered at the direction of legislative bodies. (687) Furthermore, there is the overwhelming amount of historical evidence that the Second Amendment was drafted to quell state fears of federal tyranny. (688)
These are just some of the historical facts that are missing from the Court's hypothetical "tyranny" interpretation of the Second Amendment. There are indeed more, but the point worth making is that Heller's dicta consists of countless reefs and shoals that have yet to be navigated and squared with proper historical methodologies. The worst thing the Court can do is move forward under the assumption that Heller's dicta advances a comprehensive and objective "history" of the Second Amendment.
Thus, the Second Amendment is in historical crisis. As this Article has demonstrated, the Model's general approach to "history" is not history, even in a basic form. Instead the Model picks and chooses evidence at its leisure and casts it in a manner that supports a desired end. Acclaimed historian J.G.A. Pocock would describe the Model's approach as being "designed to produce, or elicit, formal relationships or empirically testable propositions, not with what eigentlich happened or--the special form which this take in the history of thought--what eigentlich was meant." (689) In other words, the Model "is not concerned with what the author of the statement made in a remote past meant by it so much as with what he in his present can make it mean: what he can do with it for purposes of his own, which may or may not--and therefore do not have to--coincide with those of the author." (690)
The question moving forward is whether the Supreme Court will make the effort to square its dictum with the historical record. Certainly the Court is within its right to continue down the Standard Model path laid by Heller. That path remains one of the three options available as future challenges come before the Court. There are two other options, however, that allow the holdings in Heller and McDonald to stand, yet guide Second Amendment jurisprudence down a more historically conscious path. All three options will be explored below, including the benefits and consequences of each.
Option 1: Standard Model Dictum Wins, History Loses--But Should It?
One of the first lessons that law students learn is that court precedent is more persuasive than secondary sources. Whether the secondary source is a legislative record, legal dictionary, legal treatise or law review article, precedent is the foremost guidepost by which the judiciary decides cases and controversies. When the case is Supreme Court precedent, there is no higher source. The reason why lawyers rely more on precedent than secondary sources lies in its predictability and reliability. It is important for legislative bodies and the people to be informed of the means and bounds by which the law operates, especially the powers of the legislature and the rights of the people.
If one applies this simple "lesson" to Second Amendment jurisprudence, it is fair for advocates to argue that Heller and McDonalds texts comprise the central guidepost from which all future Supreme Court decisions must be decided. This guidepost includes the dictum that facially endorses the Standard Model view. (691) If this is the case, scholarship endorsing that bottom line should receive persuasive primacy as well, thus making Heller and McDonalds dicta a jurisprudential springboard from which other Second Amendment rights will be acknowledged. Meanwhile, any scholarship that criticizes or is inconsistent with the Standard Model should be discarded as inconsistent with Supreme Court precedent. (692)
The following jurisprudential construct is exactly what advocacy groups like the Second Amendment Foundation (693) advance. Their briefings draw heavily from sections of Heller and McDonalds dicta, and are then supplemented with Standard Model historiography. In these instances, they discard historical objectivity and accuracy. (694) This is understandable, seeing that it is neither the goal nor duty of the advocate to be a historian, nor has it ever been. (695) If anything, the advocate is the anti-historian, for the advocate's entire purpose is to pick and...