Saul Cornell: The Second Amendment Goes to Court





Few issues in America public life are more emotionally charged than guns and no subject within this political maelstrom is more bitterly contested than the Second Amendment. Although it is hard to imagine this issue heating up any further, it is about to get red-hot.

Earlier this year, the Court of Appeals for the District of Columbia struck down the District of Columbia’s local gun-control law on Second Amendment grounds. The D.C. Court is only the second Appeals Court to affirm that the Second Amendment protects an individual (as opposed to collective) right to bear arms, and the first one to actually strike down an existing gun control law on this basis. The case is now heading to the Supreme Court, which has not taken a Second Amendment case in almost seventy years. District of Columbia v Heller will likely shape the contours of future discussions of gun control for decades to come.

It might even have an impact on the dynamics of the 2008 presidential election. For better or worse, history—the history of the 2nd amendment and the history of how Americans have interpreted it—is also likely to be at the heart of the case.

The Second Amendment reads: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” What do these words mean? Well, the answer to this question depends on who you ask. Supporters of the so-called collective rights interpretation believe that the Second Amendment only protects the right to bear arms within the context of well regulated militias. Supporters of the so-called “individual right” interpretation view the right to bear arms as a right vested in individuals, much like the 1st Amendment right to freedom of speech.

The fact that there are two such divergent interpretations is the result of significant changes in how Americans view the 2nd Amendment that occurred during the latter part of the twentieth century. For most of the last century, the meaning of the Second Amendment was not particularly controversial: the courts, legal scholars, politicians, and historians endorsed some version of the collective rights interpretation. As late as 1991, Chief Justice Warren Burger described the individual rights view as an intellectual fraud. Yet, the growth of a revisionist individual rights theory of the Second Amendment in the years since Burger made his comment has been nothing short of astonishing....

No First Amendment scholar would argue that we ought to interpret freedom of the press exactly as the Founders understood it. Yet, claims like this are common in Second Amendment scholarship where the original meaning of the Amendment seems to figure more centrally than in other areas of constitutional law. In part the propensity toward originalism—the theory that we ought to interpret the Constitution according to its original meaning—mirrors the ideology of modern conservative thought. Originalism fits with conservatism because it provides a strong critique of the modern regulatory state created after the New Deal. Second Amendment originalism also draws on a potent set of myths associated with America’s past, particularly the idea of the Minuteman. Thus, gun rights sites on the internet invariably carry images of the Minuteman. (Although these images are generally drawn from the individualistic and romantic 19th century memorials to the Minuteman and have little to do with the real Minutemen who were part of the Founding era’s well regulated militia.) http://www.gunowners.org/

Ironically, the originalist arguments in favor of an individual rights view of the Second Amendment are probably the intellectually weakest arguments to support this position. One could make a much stronger and intellectually more interesting argument in support of an individual rights view if one adopted a living constitution argument. Supporters of a living constitution believe we ought to interpret the Constitution according to modern concerns and beliefs, recognizing that America has changed radically since the 18th century. Polling data over the last few decades have consistently shown that most Americans believe the Second Amendment protects an individual right. http://www.pollingreport.com/guns.htm

It would be easy to imagine a theory of the 2nd Amendment that defended this right as part of a living Constitution that has evolved toward a more individualistic conception of rights. Yet, most gun rights advocates eschew this line of argument in favor of originalist historical claims about the Second Amendment. In part this decision reflects the underlying political ideologies behind gun rights. Libertarians and social conservatives, the two groups most closely identified with the individual rights view, are generally uncomfortable with living constitutional arguments because the idea of an evolving constitution has been closely associated with modern liberalism over the past century.

There are problems, however, with this reliance on an originalist interpretation: it rests on a distorted view of the past. Consider some of the claims made by gun rights supporters. No figure has been more abused by Second Amendment originalists than Thomas Jefferson. As one gun rights advocate noted: “It is clear Jefferson was strongly in favor of personal arms. In June of 1796, Thomas Jefferson wrote to George Washington, 'one loves to possess arms.’” This quote has been cited by four different pro-individual rights scholars in law reviews. The quote is accurate, but it is clearly taken out of context. In a forthcoming article in the Albany Government Law Journal, historian David Konig points out that this quote had nothing to do with firearms. Jefferson was actually talking metaphorically, about having all of the facts one needed in an argument—going into an argument with all the right “ammunition.”...

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    David E. Young - 2/22/2008

    For a critical analysis of the historically based amicus brief filed in the U.S. Supreme Court by Prof. Cornell (and fourteen other academic historians) in support of Washington D.C.'s handgun ban, read this article published at the History News Network:

    http://hnn.us/articles/47238.html

    History News Network