The Persistence of a Mythic Second Amendment in Contemporary Constitutional Culture

History plays a prominent role in many modes of constitutional interpretation: from the decidedly ahistorical claims made by constitutional originalists, who believe historical meaning was fixed at some point in the eighteenth century, to proponents of a theory of a living Constitution who often make arguments about an evolving legal tradition, one rooted in the past but not frozen like a constitutional fly-in-amber. No area of contemporary constitutional law seems more burdened by the past than Second Amendment jurisprudence. Although there is no jurisprudential reason why the past should play such a preponderant role in the interpretation of this provision of the Bill of Rights, claims about the past have come to occupy an outsized role in debates about gun regulation. (By contrast legal arguments about the Fourteenth Amendment do not obsess about the past in quite the same way. Similarly, jurisprudence on the First Amendment and the Fourth Amendment have rarely turned on originalist arguments, even in the writings of Justice Scalia and Thomas, the two most prominent originalists to sit on the Supreme Court.) Given Second Amendment law’s historical obsession it is particularly important to separate historical myths about the Second Amendment and gun regulation from historical reality. Unfortunately, judges and legal scholars continue to construe the American past through a lens that is itself clouded by the accumulated dust deposited by layers of historical mythology.

The most prominent myth obscuring historical understanding of the Second Amendment relates to America’s frontier past. Although historical scholarship has effectively refuted this mythology, purging it from virtually all of the major college-level textbooks and the Advanced Placement U.S. history curriculum, constitutional culture, both inside and outside of the legal academy, has not. Prominent judges continue to take their cues about the American past from classic Hollywood westerns, Walt Disney’s The Adventures of David Crockett, and The Little House on the Prairie novels of Laura Engels Wilder. The result is a wildly distorted account of the Second Amendment’s origins and early American efforts at gun regulation.

The myth of the frontier is one of the most enduring in American history; it has been commodified and used to market everything from cigarettes to cars, and has been central to firearms sales for more than a century. It is a little shocking that the same myths used to sell cigarettes played a pivotal role in two federal appeals court decisions: Moore v. Madigan and Peruta v. San Diego. Both cases evoked “the familiar image” of an armed “eighteenth-century frontiersman . . . ‘obtain[ing] supplies from the nearest trading post.” Contrary to this mythic view of the American past, the bulk of the nation’s population in the eighteenth century was clustered along the coast, not the frontier. Nor is there any evidence that members of the Founding era such as George Mason or James Madison were thinking about the plight of the tiny percentage of the American people who lived on the frontier when they discussed the right to keep and bear arms in the Virginia Ratification Convention. The debates in the First Congress certainly do not afford much evidence that this was a major concern. Given the realities of American society at this point in the nation’s history, such concerns would have been odd. In 1790, the mean population center of the United States, a standard measure of population distribution, was situated somewhere between Baltimore and Philadelphia, not western Kentucky, northern Maine, or the Ohio valley.

Frontier mythology has shaped another aspect of the current debate over firearms policy and the law. In response to the horrorific shooting at Sandy Hook Elementary School, the NRA’s Wayne LaPierre warned that the “the only thing that stops a bad guy with a gun is a good guy with a gun.”Setting aside the policy debates and statistics about the utility of armed self-defense, particularly in active-shooter scenarios such as schools, the suggestion that giving a guy a gun turns him into an effective agent of law enforcment, it itself part of a set of myths about regenerative violence dating back to colonial America. The leading historian of this mythology, Richard Slotkin, has charted how this motif has been constantly re-invented in American popular culture over the long arc of American history. David Crockett has morphed into Jason Bourne, and most recently the iconic image of a gun-toting hero is more likely to fight off alien invaders or the hordes of the zombie apocolypse than the marginalized others of earlier mythic tales of violence and redemption. ...