Heller's Manufactured Gun Rights Can Be Traced to a Flawed Law Review Article

The momentous Supreme Court decision, D.C. v. Heller, has for the first time interpreted the Second Amendment's right to bear arms as protecting an individual right for citizens to have guns for personal uses, "such as self-defense within the home," pushing aside the "well regulated militia" basis for this right stipulated in the first half of the amendment's sentence. In sweeping aside four past high court decisions and over forty lower court cases, the five-member majority concluded that the amendment doesn't really mean what it says. But lost in Heller's tumult is the origin of this newfound individual right.

Of all the admittedly incomplete direct evidence pertaining to the meaning of the Second Amendment, including the Bill of Rights debates during the First Congress and many federal court decisions, none of it supports an individualist reading of the right to bear arms. In a cartoonish depiction of the pivotal 1939 Miller Supreme Court case, Justice Antonin Scalia's majority opinion dispatches it by saying that it only protects ownership of militia weapons, and nothing more. "Beyond that," Scalia writes, Miller "provided no explanation" of the Second Amendment, an assertion contradicted by Justice John Paul Stevens' extended quotations from the case in his dissent.

As if to validate the suspicions of many historians that good lawyers make bad historians, Scalia's opinion relies heavily on history-by-assertion, saying for example that "we find no evidence" that the phrase in the Second Amendment "keep and bear arms" "bore a military meaning." No evidence? None? Pulitzer Prize winning historian Garry Wills (1), among others, found the phrase "refers to military service"; "arms," Wills said, "means military service in general." "History, philology, and logic," Wills found, "furnish no solid basis for thinking the Second Amendment has anything to do with the private ownership of guns."

While this leaves open the door to reinterpreting the Second Amendment on other bases, it all but slams shut the idea that it has the originalist pedigree that is the fountainhead of the Heller decision. Where, then, did this interpretation come from?

The answer is a law journal article published in 1960 in the William and Mary Law Review (2), written by a student member of the review's editorial board (and life NRA member) where, for the first time, an article in a serious publication offered two new arguments: that the Second Amendment protected an individual right to bear arms for personal self-defense (ignoring, as did Scalia's decision, the common-law tradition enshrining self-defense rights), and that the amendment created a citizen "right of revolution," a right which, according to the author (but not, thankfully, in Heller), was lawfully exercised by the South during the Civil War. Most importantly, this article ignored the primary evidence explaining the amendment's meaning - the debates of the First Congress - and also past academic writing.

For a new theory in any field to have integrity, especially in a subject as well-trodden as the Constitution, it must be subjected to the intense scrutiny, before publication, found in any discipline. But this article, like nearly all others in the field of law, was never submitted to peer review by subject matter experts, the gold standard for evaluating the worthiness of new research and ideas in every other field of study. The reason is alarmingly simple: these critical decisions are made by the law students who control law reviews, and who, for all their hard work and diligence, possess no expertise about that which they publish. No other discipline would dream of yielding such control to its students.

This article was not the first academic analysis of the Second Amendment. It had been subject to serious scrutiny in over a dozen articles published in law reviews from the late nineteenth century through the 1950s; all of them endorsed the amendment's militia basis. The 1960 article committed the egregious error of not citing any of this past writing (much less confronting its arguments), yet it was the seed from which sprouted dozens of subsequent law journal articles which eventually became Heller's individualist theory.

Within ten years of its publication, two more law journal articles appeared in support of this position; in the 1970s, six more were published; in the 1980s, 21 were published in law journals; in the 1990s, 58, with many more since. During these four decades, a similar number of articles was published on the opposing side, but by now this blizzard of writing on the Second Amendment had transformed agreed-upon meaning into a debate where both sides seemed equally legitimate--as if supporters of "scientific creationism" had succeeded in flooding science journals with articles about evolution to produce an apparent academic stalemate between seemingly equivalent dueling scientific interpretations.

If law journal writing didn't matter, then student control wouldn't either. But law reviews do matter. They shape national policy debates, legislatures, presidents, and, in this case, judges. It is of no small importance that many of President Bush's unprecedentedly expansive claims to presidential power trace back to a 1996 law review article written by law professor and administration lawyer John Yoo. And Scalia's majority opinion in Heller is laced with, and built upon, this law journal writing, replete as it is with "law office history."

In the world of law journals, publication decisions by student editors are too often based on factors like author reputation, affiliation with the institution publishing the journal, sheer length, and whether the submission seems unusual or unorthodox. No one with control over publication is in a position to know whether the author knows what has already been written on the subject, whether the argument is legitimate, the history sound. Yes, additional articles can be published pointing out such flaws, but this negates the very idea of scholarly writing, where vetting must occur before publication, for the very reason that publication is itself the most important act legitimating an idea.

Gun rights enthusiasts, eager to establish an "originalist" constitutional pedigree for their developing political movement, used student-run law reviews to craft and burnish an idea that, until now, found no traction in the courts. Constitutional doctrine is properly ever-evolving, but that evolution ought not to be shaped by manufactured provenance masquerading as scholarship.

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(1) Garry Wills, A Necessary Evil (New York: Simon & Schuster, 1999), 257-59.

(2) Stuart R. Hays, "The Right to Bear Arms, A Study in Judicial Misinterpretation," William and Mary Law Review 2(1960): 381-406.