Robert Cottrol and Ray Diamond have posted on SSRN a new piece on Public Safety and the Right to Bear Arms. In the piece, Cottrol and Diamond provide a detailed and thorough examination of the debates and historical understanding that influenced codification of the Second Amendment and its interpretation in the ensuing years, decades, and centuries.
They first note the English lineage of our right and observe that “[a]t English law the idea of an armed citizenry responsible for the security of the community had long coexisted, perhaps somewhat uneasily, with regulation of the ownership of arms, particularly along class lines.” The early American settlers brought over with them a conception of arms-bearing that considered it both a duty and a right, but with expanded reach on this side of the Atlantic. As Cottrol and Diamond note, race played a key role here. With enslaved African-Americans and hostile indigenous people to control and fend off, white Americans could set aside the class and religious differences that had tempered the English right to arms.
Cottrol and Diamond argue that these views of the armed citizen strengthened after a Revolution that, if not always in practice, at least in popular imagination, was won through the courage and bravery of volunteer, irregular militiamen. And they explain how the Civil War and reconstruction-era debates forged a new and broader understanding of the right to arms and the importance of its use, particularly where citizens could not rely on the state for protection. Then, “[t]he early twentieth century would bring about new efforts at firearms regulation and with it new attitudes concerning arms and the Second Amendment.” Efforts in the South to disarm African-Americans took on the new guise of discriminatory enforcement of often facially neutral laws and Northern states began using similar efforts against perceived “threat[s] arising from large-scale Southern and Eastern European immigration.”
Cottrol and Diamond then chronicle the changes over the rest of the 19th century that brought us to Heller. Prohibition and the rise of the machine gun played a key role in the push for greater gun regulation in the 1920s and 1930s. The unrest of the civil rights era, with devastating political assassinations, led to new restrictions in the 1960s. Since the Gun Control Act of 1968, Cottrol and Diamond underscore that “a national debate over gun control and a subsidiary debate over the meaning of the Second Amendment have become perennial features in American politics.” That debate intensified and widened during a crime wave swelling in the 1970s, 80s, and 90s. And it took place in law reviews, popular press, and political debates. They note how, at the level of policy, even without an authoritative Supreme Court decision, the individual rights view had a strong hold. “The political movement to vindicate the right to keep and bear arms had had considerable political success, limiting national gun control legislation, passing state-wide preemption legislation that prevented municipalities from enacting bans on various kinds of firearms, enacting and re-enacting state constitutional right to keep and bear arms provisions.”
Cottrol and Diamond observe that Heller settled one big debate about the Second Amendment, but left many others open. Heller and McDonald “gave few guidelines as to how far that right extended or how rigorously the courts were supposed to examine restrictions on firearms ownership or use.” But, Cottrol and Diamond argue, the debate should now begin about how best to protect that fundamental right while still allowing government to regulate in the interests of public safety. Only by recognizing the Second Amendment as a real, actual check, they argue, can we “begin a meaningful dialogue on how” to strike the right balance.