A Plague on All Our Houses: The Uses and Abuses of History in D.C. v. Heller
My first reaction upon reading Justice Thomas’s majority opinion in New York State Rifle and Pistol Association v. Bruen, last summer’s major Supreme Court decision on gun control, was to wonder how in heaven we got here. No early American historian can read the phrase “Second Amendment right to keep and bear arms for self-defense” without coming up short. Nor can one read that the Second Amendment guarantees the right to “carry weapons in case of confrontation,” in the aftermath of January 6, 2020, without wondering at the Court’s purpose.[i]
One answer to how we got here is that the court’s recent decision, which denies the states the authority to pass gun control measures inconsistent with “this nation’s historical tradition of firearms regulation,” merely builds upon the foundation of District of Columbia v. Heller. In that case the court ignored a critical distinction within the Second Amendment between an individual right to keep arms and the collective right to bear them in the performance of military service. Understanding the uses and abuses of history in the run up to Heller can shed light on our present moment
A wave of historical scholarship on the meaning of the Second Amendment and the history of gun regulation began in earnest in the late 1990s as historians sought to respond to a growing legal literature asserting that the Second Amendment incorporated an individual right to keep and bear arms. A loosely organized group of scholars sought to rebut the major conclusions of the “standard model,” as the individual-rights interpretation was dubbed, and criticized the standards of historical research and interpretation within the legal profession at large.[ii]
In the process of defending a collective-rights interpretation of the Second Amendment, these scholars offered several propositions that have not borne the weight of empirical scrutiny: that guns were scarce in early America; that colonial and state governments routinely regulated both citizens’ possession of guns and their use under their police powers; and finally that the insurrectionary interpretation of the Second Amendment, which held that the right to keep and bear arms was intended to preserve the people’s capacity to resist domestic tyranny, had no validity.[iii]
The first of these assertions, made by Michael Bellesiles, collapsed in a notorious academic scandal.[iv] Bellesiles was also the first to assert that early American gun regulation extended to possession as well as use. Since Bellesiles’s fall from grace, Saul Cornell and others have resurrected this claim, and it found its way in somewhat truncated form into the “historians’ brief” in the Heller case. In the end, the assertion of “extensive regulation,” as applied to possession, relies on a broad generalization based on extremely limited and poorly interpreted evidence. In making the assertion, these historians muddied the distinction between the extraordinary rarity of the regulation of the possession of guns in America prior to the Civil War and the ubiquitous regulation of their use.[v] Further, these scholars gave short shrift to post-ratification commentary on the Second Amendment that described an individual right to keep arms as an operative effect of the amendment and drew a clear distinction between the individual right to keep arms and the collective right to bear them in the militia.[vi]
As for the insurrectionary interpretation, there is ample evidence from both sides of the debate over the ratification of the Constitution that early Americans regarded the right to keep and bear arms as essential to preserving the people’s capacity to resist their government should that government turn tyrannical. Ironically, in dismissing this evidence, historians severed the connection between the text of the Amendment and its purpose, described some years ago by David Williams as “the constitutional organization of political violence.”[vii] Historians thus inadvertently rendered the text into a blank slate upon which the Supreme Court might compose by invoking an individual right to self-defense. And compose it did.
I do not mean to say that historians are responsible for Heller. Antonin Scalia came to the case with his own axes to grind. Nevertheless, the fact that Scalia found it easy to bat away several of the assertions made in the “historians’ brief” can only have reinforced his penchant for historical creativity.
The Heller case turned on an individual right of possession. To rebut the Collective Right School’s insistence that the right to keep and bear arms applied only to those enrolled in the militia, Scalia argued that the amendment’s preamble might be used to interpret the Amendment’s meaning only if the text of the Amendment’s operative clause lacked clarity. In turning to the operative clause, he found, properly, that the word “keep” referred to individual possession. Turning to the word “bear,” Scalia found that it meant the individual carrying of weapons.[viii]
Here Scalia had to grapple with a common eighteenth-century idiomatic usage of the phrase “bear arms” to mean to serve in a collective military body. To accept that meaning would undermine the expansive individual-rights interpretation that Scalia clearly favored. Indeed, even to find the meaning of “bear arms” to be ambiguous would force Scalia to fall back upon the preamble’s invocation of the militia. Some advocates of the standard model had suggested conducting a statistical analysis of usage in word-searchable databases of eighteenth-century texts to resolve such questions.[ix] Taking up the challenge, Saul Cornell and Nathan Kozuskanich had undertaken just such a study, and their preliminary findings had been incorporated into an amicus curiae brief by professors of linguistics.[x] Remarkably, in a field of historical study replete with ambiguous and contradictory texts, their results were unambiguous: The idiomatic usage of “bear arms” to mean perform military service in a collective body was by far the most common and accounted for well over 90 percent of all uses of the phrase.[xi] Interestingly, Clayton Cramer and Joseph Olson, upon whose work Scalia relied quite heavily, had begun a similar survey, but had cut their analysis off when they found results similar to Cornell and Kozuskanich, results that, as gun-rights activists, they did not care for.[xii] Confronted with abundant and powerful contrary evidence, Scalia speciously argued some of it away and ignored the rest. The result was a conclusion—that the Second Amendment recognized an individual right to possess and carry guns for the purpose of self-defense—that was based on error and accompanied by significant indications that the error was willful. Scalia’s opinion in Heller represents the most brazen example of intellectual dishonesty that I have ever encountered in a Supreme Court opinion.[xiii]
This is the foundation upon which New York State Rifle and Pistol Association v. Bruen rests. It is the source of Justice Thomas’s assertion in that case that the “definition of ‘bear’ naturally encompasses public carry” and thus that the Second Amendment guarantees the individual right to “carry weapons in case of confrontation.”[xiv] And here lies a cautionary tale. There is ample and sound historical evidence that early Americans understood the Second Amendment to recognize an individual right of possession, and that such a right was understood to further the amendment’s purpose of preserving the people’s capacity to resist a government turned tyrannical. There is, however, vanishingly little in the historical record to suggest that early Americans understood the right to keep and bear arms to protect the carrying of arms in public by individuals. Thus, we are now in that rare place where history and sane public policy are pulling in the same direction. To be sure, guns can cause grievous damage in the home. Nevertheless, it is in guns carried in public, whether in case of or for the purpose of confrontation, that the real danger lies.
[i] New York State Rifle and Pistol Assn., Inc., v. Bruen, 597 U.S. ___ (2022), at 8 and 11.
[ii] Garry Wills, “To Keep and Bear Arms,” New York Review of Books, 42 (1995), 62–73; Wills, A Necessary Evil: A History of American Distrust of Government (New York, 1999); Michael A. Bellesiles, “The Origin of Gun Culture in the United States, 1760–1865,” Journal of American History 83 (1996), 424–53; Bellesiles, “Gun Laws in Early America: The Regulation of Firearms Ownership, 1607–1794,” Law and History Review 16 (1998), 567–89; Bellesiles, “Suicide Pact: New Readings of the Second Amendment,” Constitutional Commentary 16 (1999), 247–61; Bellesiles, Arming America: The Origins of a National Gun Culture (New York, 2000); Bellesiles, “The Second Amendment in Action,”Chicago-Kent Law Review 76 (2000), 61–102; Saul Cornell, “Commonplace or Anachronism: The Standard Model, the Second Amendment, and the Problem of History in Contemporary Constitutional Theory,” Constitutional Commentary 16 (1999), 221–45; Cornell, “To Keep and Bear Arms,” in Whose Right to Bear Arms did the Second Amendment Protect, ed. Cornell (New York, 2000); Carl T. Bogus, “The Hidden History of the Second Amendment,” University of California at Davis Law Review 31 (1997). 309–408; Bogus, “The History and Politics of Second Amendment Scholarship: A Primer,” Chicago-Kent Law Review 76 (2000), 3–25; Paul Finkleman, “A Well Regulated Militia: The Second Amendment in Historical Perspective,” Chicago-Kent Law Review 76 (2000), 195–236; and Jack Rakove, “The Second Amendment: The Highest Stage of Originalism,” Chicago-Kent Law Review 76 (2000), 103–66.
[iii] On gun scarcity, see Bellesiles, “The Origin of Gun Culture in the United States, 1760–1865”; and Bellesiles, Arming America. On the regulation of possession, see Bellesiles, “Gun Laws in Early America: The Regulation of Firearms Ownership, 1607–1794,” Law and History Review 16 (1998), 585; Saul Cornell and Nathan DeDino, “A Well Regulated Right: The Early American Origins of Gun Control,” Symposium: The Second Amendment and the Future of Gun Control, Fordham Law Review 73 (2004), 487–528; Cornell, A Well Regulated Militia: The Founding Fathers and the Origins of Gun Control in America (New York, 2006), 142; and “Brief of Amicus Curiae Jack Rakove, Saul Cornell, David T. Konig, William J. Novak, Lois G. Schwoerer, et al,” District of Columbia v. Dick Anthony Heller (also known as the “Historians’ Brief”), 4. On the rejection of the insurrectionary interpretation, see Bellesiles, “The Second Amendment in Action,” 67; Rakove, “The Second Amendment: The Highest Stage of Originalism,” 152; Cornell, “Commonplace or Anachronism,” 245; and H. Richard Uviller and William G. Merkel, The Militia and the Right to Arms, or, How the Second Amendment Fell Silent (Durham, NC, 2002), 170. On this last question, Cornell has since taken a more nuanced position. See Cornell, A Well Regulated Militia: The Founding Fathers and the Origins of Gun Control in America(New York, 2006), 83.
[iv] On L’Affaire Bellesiles, see Peter Charles Hoffer, Past Imperfect (New York, 2004), 141–71.
[v] Robert H. Churchill, “Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment,” Law and History Review 25 (Spring 2007), 139–75; “Once More Unto the Breach, Dear Friends,” Law and History Review25 (Spring 2007), 205–15. This right of possession was recognized as a basic right of citizenship.
[vi] Boston Independent Chronicle, Aug. 6, 1789; St. George Tucker, Blackstone’s Commentaries (5 vols., Philadelphia, 1803), I: 300; William Rawle, A View of the Constitution of the United States of America (Philadelphia, 1829), 125–26; and Aymette v. the State, 21 Tenn. 154, at 158–60.
[vii] David C. Williams, The Mythic Meanings of the Second Amendment: Taming Political Violence in a Constitutional Republic (New Haven, CT, 2003), 1–14.
[viii] District of Columbia, et al, v. Heller, 554 U.S. 570, 584–92.
[ix] Randy E. Barnett, “Was the Right to Keep and Bear Arms conditioned on Service in an Organized Militia?,” Texas Law Review 83 (2004), 260 and Footnote 126.
[x] “Brief for Professors of Linguistics and English Dennis E. Barron, Ph.D., Richard W. Bailey, Ph.D, and Jeffrey P. Kaplan, Ph.D. in Support of Petitioners,” District of Columbia, et al v. Heller.
[xi] Saul Cornell, “The Original Meaning of Original Understanding: A Neo-Blackstonian Critique,” Maryland Law Review 67 (2007), 150–65; Nathan Kozuskanich, “Originalism, History, and the Second Amendment: What Did Bearing Arms Really Mean to the Founders,” University of Pennsylvania Journal of Constitutional Law 10 (2008), 413–46; and Kozuskanich, “Originalism in a Digital Age: An Inquiry into the Right to Bear Arms,” Journal of the Early Republic 29 (Winter 2009), 585–606.
[xii] Clayton E. Cramer and Joseph E. Olson, “What Did ‘Bear Arms’ Mean in the Second Amendment?,” Georgetown Journal of Law and Public Policy 6 (2008), 512 and Footnote 9.
[xiii] One might defend Scalia by noting that Cornell’s work was not yet published and hence was not fully before the court. Nonetheless, the content of the “Brief for Professors of Linguistics,” its thorough discussion in Justice Stevens’s dissenting opinion, and Scalia’s response, together offer ample evidence of bad faith on Scalia’s part. See District of Columbia, et al, v. Heller, 554 U.S. 570, 584-592 and Stevens, J., dissenting, 646–51 and footnotes 8–10.
[xiv] New York State Rifle and Pistol Assn., Inc., v. Bruen, 597 U.S. ___? (2022), 23–24.
30 October 2023
About the Author
Robert Churchill is professor of history at the University of Hartford.