Alexander Gouzoules has posted on SSRN an interesting new piece, “The Diverging Right(s) to Bear Arms: Private Armament and the Second and Fourteenth Amendments in Historical Context,” which was just published in the Alabama Civil Rights & Civil Liberties Law Review. It is well worth a read for anyone interested in historical understandings of the right to keep and bear arms.
The main thrust of the article is to emphasize and explore the nature and scale of change in how private armament was understood between 1791, when the Second Amendment was ratified, and 1868, when the Fourteenth Amendment (which makes the Second Amendment applicable to the states) was ratified. To over-simplify a bit: While private arms-bearing to deter the tyranny of the standing federal army might have made sense in the 1790s, the situation was entirely different by the late 1860s. In showing as much, Gouzoules deepens (and credits) an argument that Akhil Amar made more than a decade before Heller. Gouzoules’ target is not simply the Second Amendment, however, but originalism itself: “These radically different understandings can only be reconciled by defining the right to bear arms at such a high level of generality as to overlook the actual intentions of both amendments’ framers, thus undermining the project of originalism to which these contemporary decisions were ostensibly committed.”
Even if one does not go quite so far with regard to the interpretive critique, Gouzoules fundamentally challenges the oft-assumed continuity between the 1791 and 1868 understandings of the right to keep and bear arms. There is sometimes a tendency to blend these understandings by saying, in effect, that both are about “self-defense”—against the government in the 1791 frame, and against private violence in the 1860s, but combining to expand the boundaries of the right to keep and bear arms. This, after all, was the move that Justice Scalia made in Heller taking a page from writers such as David Kopel.
Gouzoules rightly notes that this level-of-generality move makes it hard to give any concrete consideration to the Amendments’ distinct original understandings. In fact, the 1791 and 1868 frameworks that Gouzoules describes are not simply different, but contradictory: Not only was the federal standing army no longer regarded as a constitutional concern by the drafters and ratifiers of the Fourteenth Amendment, it was celebrated as a guarantor of liberty. In fact, private armament was expected to support the army’s actions in protecting freedmen in the post-war South and, for that matter, in expanding the American empire in the face of native opposition. (I’m not in a position to judge the history; this is just the impression I get from Gouzoules’ telling of it—which I have no reason to doubt.)
One way out of this discontinuity would be to treat the frameworks differently, for example by applying a different (and perhaps more forgiving) standard of scrutiny to state gun laws than to federal gun laws. Michael O’Shea, among others, has argued for special treatment of states in this context, which can draw strength not only from the Second Amendment but from the standard federalism/“laboratories of democracy” arguments. As Justice Gorsuch put it in a dissent earlier this week (joined by Justice Thomas, and citing the laboratories of experimentation language): “Ours is a vast and diverse Nation, and those who adopted the [21st] Amendment believed that what works for one State may not work for another.”
As Gouzoules notes, this kind of tailoring runs into difficulties, since the Court has—explicitly, anyway—rejected the notion that state and federal laws should be subject to different levels of scrutiny. In McDonald itself, the Court emphasized that incorporated Bill of Rights protections “are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.”
The truth is a little more complicated, at least inasmuch as a single federal standard can itself permit some degree state-specific variation. That’s true for the law of Due Process, Takings, and Free Speech, among other constitutional domains. In practice, federal constitutional rights are not always uniform nationwide, and—I’ve argued—there are good reasons for this.
Whether the Justices will preserve room for such diversity and flexibility in the context of the Second Amendment is one of the many interesting and important questions floating around NYSRPA.
In any event, those are my musings, not Gouzoules’. Check out his piece for the full story.