Second Amendment scholars, there’s new work to be done

This guest post does not necessarily reflect the views of the Duke Center for Firearms Law.

This blog’s existence is testament to the growth of Second Amendment research over the last 30 years. An amendment, which for most of its history received little attention, has become one of the most contested topics in the courts. Legal scholars have responded by exploring the amendment’s origins, the history of its interpretation, and the implications of recent rulings. 

Historians, too, have upped their research into the Second Amendment’s history, and especially into its original meaning and intent. Much of this research stems from the dominant role of originalism in the Supreme Court and pro-gun-rights justices’ insistence that recent changes have been a return to the amendment’s original meaning. But historians have also examined the amendment’s history for the simple reason that studying the past is what we do. 

As a result, we now know significantly more about the beliefs and practices that influenced the First United States Congress’s decision to include the Second Amendment in the Bill of Rights.  Those influences included England’s 1689 Bill of Rights, the colonial militias, the southern militias’ roles in enforcing slavery, the New Englanders’ anger at the British Army’s presence in Boston in the 1770s, and eighteenth-century gun ownership patterns. Until quite recently, though, historians’ research into the amendment’s origins has not fit smoothly into legal debates about how to interpret the amendment today. 

Politically and juridically, debates about the Second Amendment have been a subsection of larger debates about gun rights and gun control. 

Jurists have had to decide whether or not banning magazines of a certain size, or limiting locations where people can carry weapons, is consistent with the Second Amendment. Because SCOTUS has insisted that jurists justify their decisions about gun rights and gun control in historical terms, there has been a growing need for historical research into the Second Amendment, along with eighteenth-century gun laws. 

The historical evidence, however, rarely provides a clear answer in these matters. The qualitative differences between muskets and machine guns are only part of the problem here. Questions like the founders’ views on an individual right to bear arms are difficult to answer, because those were not the terms in which the founding generation thought. 

Part of the disconnect here comes from the different kinds of questions that historians ask, compared to legal scholars (legal historians included). To speak in the roughest terms, legal scholars tend to take the questions that people are asking today and look for how people in the past answered those questions. Historians, on the other hand, do what they can to find out what questions people were asking at that time. 

Taking that approach does not provide clear answers to today’s questions about gun policy. It does, however, give a clear answer to the question of why the Second Amendment was included in the Bill of Rights: the amendment grew out of traditional British fears of standing armies. Its primary purpose was to ensure that the federal government would not be able to unleash a large army of professional, full-time soldiers on the states; its secondary purpose was to make sure that, should such a scenario come to pass, the states would be able to mobilize their militias, thereby allowing them to defend their lives and their freedoms.

It is easy enough to provide textual evidence for this interpretation. There was Jefferson’s insistence that the new Constitution contain a Bill of Rights that included “protections against standing armies”; the lengthy debates about the militia in Virginia’s ratification convention, which pointed to the risk of a standing army should the militia falter; the discussions of the militia and of standing armies in The Federalist – examples which are just some of the most notable. In the Anglophone world, the criticisms of standing armies and concomitant valorization of the militia went back at least a century, and had left many, many traces in the historical record. Showing the links between that tradition and the Second Amendment’s inclusion in the Bill of Rights has been easy. 

Getting people in the twenty-first century to care about that link is another matter. 

First off, while this vision of the Second Amendment did provide a useful counterpoint to the originalists’ anachronistic reading of the Amendment, it was of limited use in debates about gun policy. Judges still had to decide if the District of Columbia could ban handguns, or if California could ban assault rifles. Knowing that the amendment was intended to maintain the militia, rather than to flood society with guns, permitted more gun control – but did not necessitate it. 

Second, from the perspective of today’s world, it is hard to understand why people used to fear standing armies, let alone why we today should share that fear. The ideas animating some of the other amendments – the First and Fourth especially – have been remained relevant ever since, and for broadly the same reasons that the amendments were written in the first place. Criticisms of standing armies and the valorization of citizens’ militias, however, barely survived into the nineteenth century. As a result, as long as the Second Amendment was understood as a guarantee against standing armies, it seemed to regulate a world that no longer exists. This was, in fact, one of the central points about historians’ views of the amendment’s origins: times have changed, and as we no longer have the same priorities, we should not feel bound by an amendment that had been built on a foundation that no longer exists. 

To this should be added: the founders’ fears of a standing army only ever made sense in a society where the distinction between an external army (that is, one that conducts missions abroad) and an internal police force was minimal or non-existent. Over the course of the nineteenth and twentieth centuries, the distinction between internal police forces and external armies became so well established that when we think of the US Army we picture it in Vietnam, Iraq, or storming the beaches of Normandy, not patrolling the streets of Manhattan or Phoenix. We take it for granted that during peacetime, our army will be made up of paid soldiers who volunteered to serve. And the last 150 years has let us take it for granted that, whatever opinions we might have of US military intervention abroad, our own army will not be a threat to the United States itself.  

The men of the founding generation were far more wary of the potential damage that an army of professional career soldiers could have domestically. They worried about having large numbers of soldiers stationed in Philadelphia or in Boston, especially if those soldiers were not from those places, and that citizens would feel their towns and cities were again occupied by a hostile, foreign power. They worried that men who relied on their military service for their livelihood would be loyal to their commanders to a fault—including by following their commanders’ orders even when those orders were contrary to the best interests of the citizens whom they had been hired to protect. They also feared the general chaos and lawlessness that could occur when large numbers of well-armed men were stationed among populations not used to their presence. 

Those fears had a certain limited relevancy in recent decades, as shown in debates about the militarization of the police or in the growing attention to police violence following the murder of George Floyd. Still, those were local police units. The founding generation’s greatest fears were of the federal government wielding large numbers of armed troops against the American people. 

And when this latest wave of research into the Second Amendment began, or when Scalia wrote D.C. v. Heller, the prospect of the federal government using a professional military force – or, in the terminology of the founding generation, a standing army – to attack its own people seemed unthinkable. Hence Scalia’s comment that “our standing army is the pride of our Nation,” and that “well-trained police forces provide personal security.” Hence, too, the seeming irrelevance of historians’ claims that the Second Amendment grew out of the fear of standing armies, as that fear had been relegated to a distant past. 

What seemed unthinkable in 2008 is now our new reality. As I write this, there are 1,500 active-duty troops on standby, should the administration decide to send them, not to Iran or the Ukraine, but to Minneapolis. The administration has activated National Guards in California, Oregon, Washington, DC, and Illinois, withdrawing them only when the courts intervened. 

Most notably, this administration has transformed Immigration and Customs Enforcement into an enormous militarized force that is responsible only to the national government, and which seems to not be subject to state law or the Fourth Amendment. Through its actions, ICE has shown that its allegiance is to the current administration, and not to the Constitution. 

In other words, this administration is doing exactly what the Second Amendment was meant to prevent. 

Even if the US Army is never mobilized domestically, this administration’s use of professional militarized forces are what the authors of the Bill of Rights hoped to avoid when they placed the hopes for a free and secure state in the hands of a well-regulated militia. Second Amendment scholars should respond accordingly.  

The courts have treated the administration’s actions as Tenth Amendment issues, and, at times, as violations of the 1878 Posse Comitatus Act. Second Amendment scholars, though, should also weigh in on the matter. 

If we are to take into account the original goals of the Constitution and the Bill of Rights, the administration’s policies on domestic policing are far more egregious violations of the Second Amendment than any of New York’s gun laws ever were. And Second Amendment scholars should make that clear – to the judges ruling on these cases, to the politicians authorizing the funding for these militarized forces, and for the local governments who need to decide how to respond to ICE’s arrival. 

Whether or not this makes a difference in court cases over the next few years is unclear; the days of trying to out-origin the originalists are probably gone. Fourteen years of disproving Scalia’s histories in Heller did not prevent Bruen.  That does not mean there is no value to bringing the Second Amendment into debates about domestic deployment of federal troops. 

To speak from personal experience: I began studying the Second Amendment because I hoped that I could play my part in ending gun violence, not because I was seeking hidden wisdom from the founding generation – and certainly not out of a preexisting belief in citizens’ militias. But the more I read, the more I saw that the issues which went into the Second Amendment were worth thinking about. As city governments struggled to maintain control over their own police forces, it echoed eighteenth-century concerns about civil authorities’ ability to maintain control over the military. The Black Lives Matters protests were centrally complaints about how police forces had no ties to the communities they served – a situation which the founding generation had been all too eager to impose on enslaved populations, but whose dangers they were well aware of for white communities. 

Meanwhile, the world watched as an unpopular regime stayed in place in Belarus when the government there kept the support of the military. The people of Thailand voted for a democratic government only to have the military decide not to honor the results. Those were scenarios that the founding generation had hoped to avoid when they wrote the Second Amendment. 

In placing their hopes in a citizens’ militia, the founding era bet on the wrong horse; it was not a lasting solution to the nation’s police or military needs. But the scenarios which the Second Amendment was meant to prevent were – and still are – worth avoiding. This administration’s militarization of domestic life is the Second Amendment’s worst-case scenario, and Second Amendment scholars should let everyone know.