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Why Heller Is Such Bad History

By on October 7, 2020 Categories: , ,

When I began the research for my recent book, Armed Citizens: The Road from Ancient Rome to the Second Amendment, my goal was to understand the origins of American gun laws. I was hardly alone in this, of course; there is an enormous amount of contemporary research on the original goals of the Second Amendment, including Scalia’s 2008 decision in DC vs Heller, which still sets the framework for gun regulations today. But one thing that became clear, when reading that decision and reading the debates leading up to and surrounding the writing of the Constitution and the Bill of Rights, was just how different the concerns of the eighteenth-century were from the gun politics of today.

When the Supreme Court took up DC vs Heller, it had to answer the question of whether or not the Second Amendment protected an “individual” right to bear arms. By a 5-4 ruling, the court declared that it did. Such a ruling is, of course, within the purview of the Supreme Court. Given the nature of the question, it was also appropriate for it to come down to a 5-4 ruling for one side or the other. As the goal of this post is to show that Heller is “bad history,” I should say from the outset that my point is not that ruling in favor of DC’s gun laws would have been good history. Rather, it is to show that Justice Scalia’s justification of that decision, while rooted in an analysis of the amendment’s eighteenth-century context, was based on a fundamental misconception of the way that gun rights and militia service were understood and debated during the eighteenth century. It is not inherently bad history to say that the Second Amendment protects an individual right to bear arms; it is, however, bad history to declare that such a ruling was a return to the “original understanding” of the amendment.  And it is especially bad history to claim that the protection of an individual right was the primary reason for the Second Amendment’s inclusion in the Bill of Rights.

Scalia’s decision combined two key elements: his originalist philosophy of constitutional interpretation, on the one hand; and an expansive view of gun rights, on the other. These elements are neither inherently consistent nor inconsistent with each other. They did not, however, link together in the way that Scalia claimed, because the eighteenth-century America he described was not one that most historians of the militia would recognize. Justice Scalia mischaracterized eighteenth-century society in two key ways. His claim that “The ‘militia’ comprised all males physically capable of acting in concert for the common defense” whitewashed a history of not only excluding people of color from the militia – able-bodied or not – but of using that militia to police the actions of non-whites and especially of the enslaved population. His opinion also reads at portions as if unaware that the militia was an official government institution under state authority (and colonial authority before that), and under the command of those governments. Before, during, and after the Revolution, there was not one militia, but rather different militias for the different states. And while those militias were broken down into geographical subunits, they were all part of specific militias under government authority. Colonial and state laws about “all able-bodied men” being part of the militia were followed by noting that those men were required to register with their local officers, and the officers were required to maintain the lists of eligible men. Those men would be required to participate in the militia, including both training and musters during peacetime, and active duty when needed – under government command. By ignoring these aspects of the eighteenth-century militia, the Heller decision helped feed a common misperception that membership in the militia was a status that one might independently declare, as do the men in the modern militia movement.

To be sure, there were armed groups of men in the eighteenth century who declared themselves a militia, yet acted outside of – and in explicit opposition to – their colonial and state governments. That was the approach of the men who participated in Shays’s Rebellion and the Whiskey Rebellion, most of whom had also been members of their state militias. But the governments at the time, both at the state and national level, explicitly rejected those claims. George Washington, then retired, thought that the actions of those “insurgents” would lead to “anarchy and confusion,” the antithesis of the “Bulwark of our Liberties and independence” that a “respectable and well established” militia would provide. Because the militia as it existed in the early republic was a state institution, in both senses of the word. To be legal – let alone “well-regulated” – its actions had to be done under the leadership of the colonial governments, until 1775; under the state governments, until the ratification of the Constitution; then, following that, under the command of either the state or national government, as specified by the Constitution’s Militia Clause and the Militia Acts of 1792. And while the militia’s participation in the American Revolution was an illegal activity according to British rule, those militias still acted under the command of newly constituted civil authorities, not as independent actions of the militia leaders and militiamen themselves. In his decision in Heller, Scalia missed the key role that civilian powers played in commanding the militia. Yet civilian control of military power was an enormously important issue for the founding generation, as shown by the language of the state-level predecessors to the Second Amendment.

In the interest of fairness, some passages in Heller showed a genuine understanding of the issues involved – where it indeed reads like good history. The decision recognized that England’s growing army during the 1680s helped spur the 1689 Bill of Rights. The decision also recognized that the militia was meant to render standing armies unnecessary. And at the end, Scalia acknowledged that it is “debatable” whether the Second Amendment as a whole is “outmoded” in a nation “where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem.” And while Stevens’ dissent was notably better history than the majority opinion, it is not perfect; nor is it entirely clear that, as Stevens claimed, the “’right to keep and bear arms’ protects only a right to possess and use firearms in connection with service in a state-organized militia” [emphasis added].

From an historian’s perspective, the problem is that the question the court had to address, “does the Second Amendment guarantee an individual right to bear arms?” was not an important question during the founding generation. If one starts by asking, not whether or not the amendment protected an individual right, but why the amendment was included in the first place, a very different set of concerns become paramount. Those concerns revolved around the militia. The men of the founding generation spent an inordinate amount of time debating the respective roles of citizens’ militias and professional armies – a discussion which had been a major topic of political debate in the Anglophone world since the 1690s, when John Trenchard and Walter Moyle published An Argument, Shewing that a Standing Army in Inconsistent with a Free Government. Those ideas, though never dominant in England itself, found a welcoming audience in British North America. They were key to complaints about British soldiers’ presence in the aftermath of the French and Indian War, then ramped up after the 1770 Boston Massacre and the fighting at Lexington and Concord, and were the source of Jefferson’s complaint in the Declaration of Independence that England “has kept among us, in times of peace, standing armies, without the consent of our legislatures.”

That fear of standing armies – and therefore, the belief in the necessity of a citizens’ militia – remained strong in the Revolution’s aftermath. Everyone involved in the writing of the Constitution and the Bill of Rights considered a large standing army to be an inherent threat to liberty. The debate between the Federalists and the Anti-Federalists at the time played out not as whether there should be a standing army, but as a discussion of how best to avoid a large standing army; and while men like Washington and Hamilton were not against having any professional army, they were a) against having a large one, and b) by 1789, no longer attempting to argue for even a small one. The Constitution’s Militia Clause and the Second Amendment were the government’s way of providing the framework for an answer to those questions, while avoiding the problems caused by events like Shays’s Rebellion. Their answer was that for the United States to be both free and secure, the states’ citizens’ militias – and not standing armies – must be able to provide that security. Should an individual state’s militia’s fail to provide that security, the national government would be able to bring in the militias of other states. Those were the questions they asked and the answers they gave. Whether the amendment protected an individual right to bear arms is our question; it was not theirs.

Historians are not required to limit themselves to those questions that people in the past explicitly posed, but we do have to acknowledge the risks involved when we impose our own. In this case, the question of an individual right to bear arms did not make sense in a society where everyone eligible for militia duty was required to participate. Short of the kind of Rousseau-style abstract analysis of the individual which divides human males into both a private man and a public citizen, in a society with universal male militia participation it is impossible to separate the definitely-arms-bearing militia member from the possibly-but-not-definitely-arms-bearing private citizen.

And yet, the ruling in Heller required a decision on just this matter. This difficulty is why the ruling deserved to be answered 5-4 one way or the other. Heller is not bad history because it rules that individuals had the right to bear arms outside of participation in the militia. It is bad history because it viewed the individual right to bear arms as why the amendment was written in the first place; it is bad history in its claim that the Second Amendment protected “only individuals’ liberty to keep and carry arms.” [emphasis added]. With this approach, Scalia shifted the decision from a questionable but defensible answer to the question the court had been asked, to a mischaracterization of the nature of the amendment itself. That mischaracterization, rather than the decision itself, is what makes Heller such bad history.