Guns in Law

Austin Sarat, Lawrence Douglas, Martha Merrill Umphrey, Austin Sarat, Lawrence Douglas, Martha Merrill Umphrey

• Publisher: University of Massachusetts Press
• Year: 2019
• ISBN:
  9781613766798
• Topic: Droit
• Subtopic: Théorie et pratique du droit

Weapons have been a source of political and legal debate for centuries. Aristotle considered the possession of arms a fundamental source of political power and wrote that tyrants "mistrust the people and deprive them of their arms."Today ownership of weapons—whether handguns or military-grade assault weapons—poses more acute legal problems than ever before. In this volume, the editors' introduction traces the history of gun control in the United States, arguing that until the 1980s courts upheld reasonable gun control measures. The contributors confront urgent questions, among them the usefulness of history as a guide in ongoing struggles over gun regulation, the changing meaning of the Second Amendment, the perspective of law enforcement on guns and gun control law, and individual and relational perspectives on gun rights.The contributors include the editors and Carl T. Bogus, Jennifer Carlson, Saul Cornell, Darrell A.H. Miller, Laura Beth Nielsen, and Katherine Shaw.

Chapter 1

The Changing Meaning of the Right to Keep and Bear Arms: 1688–1788

Neglected Common Law Contexts of the Second Amendment Debate

Saul Cornell

In District of Columbia v. Heller, a divided Supreme Court held that the “right of the people to keep and bear arms” was an individual right to possess a weapon for self-defense unconnected to service in a well-regulated militia.1 The Heller decision unleashed a wave of litigation as challenges to local gun laws were filed across the United States, including one from Heller’s attorneys targeting Chicago’s restrictive gun laws.2 Less than two years later, in McDonald v. City of Chicago, the Court once again affirmed 5–4 that the Second Amendment protected an individual right.3 Here, the justices extended the reach of the right beyond Washington, D.C., to states and localities, effectively incorporating the Second Amendment.4 Justice Scalia’s majority opinion in Heller surveyed a multitude of historical sources, but his approach to the past was decidedly ahistorical.5 According to Justice Scalia, the Second Amendment simply recognized a preexisting English right.6 There are many problems with Scalia’s interpretation of English legal history and its evolution in the centuries between the Glorious Revolution and the adoption of the Second Amendment. First, Scalia treats the preexisting right as static, when there is broad scholarly agreement that this was a period of revolutionary transformation.7 Therefore, it would be odd if not astonishing for ideas about the right to keep and bear arms to remain frozen like a constitutional fly in amber during this tumultuous period.8 Second, the most far-sighted American constitutional theorists did not view the right to bear arms as a treasured inheritance from Great Britain. In contrast to Justice Scalia, leading American constitutional thinkers such as St. George Tucker and William Rawle believed that the traditional English right to have arms was so anemic that it was virtually useless.9 Still, despite Heller’s radical historical revisionism, which effectively expunged the militia clause and the entire civic republican context of early American constitutionalism from the Amendment, history appears to be even more significant to the future Second Amendment jurisprudence.10

The roots of this historical paradox, rewriting history at the same time that it made history foundational to the future of Second Amendment law, can be traced to Justice Scalia’s statement that “constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”11 In another oft-quoted passage from Heller, the majority made another related assertion:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.12

Heller clearly points to history for guidance in evaluating the constitutionality of gun regulation, but it offers little substantive insight or methodological guidance on how to ferret out that information. According to Heller, the legality of a particular gun law would seem to depend on whether it can be shown to be deeply rooted in some American legal or regulatory tradition.13 An understanding of the evolving nature of the right to keep and carry arms is not only essential to correcting the historical record and implementing Heller’s historical framework, but it may also aid in resolving some of the contradictions and jurisprudential problems created by the opinion.14 In his dissent, Justice Breyer suggested a balancing model that Justice Scalia dismissed as incompatible with the original understanding of the right to keep and bear arms. Balancing was central to the way members of the founding generation approached issues related to firearms. In fact, balancing was indispensable to the Anglo-American law of firearms.15 The liberty interest associated with the right to arms was always balanced against the concept of the king’s peace.16 If an individual’s exercise of the right to bear arms threatened the peace and order of the realm, that individual could be disarmed, imprisoned, and forced to provide a surety, a type of peace bond.17 Simply arming oneself was contrary to law and was by its nature a violation of the king’s peace under English law. A complex framework had developed under English common law that determined if subjects could lawfully arm themselves in public. The American Revolution republicanized the concept of the king’s peace by transmuting it into the people’s peace, but this did not repudiate the centrality of the balancing process used to determine if armed travel violated the peace.18 The Revolution did lead to an expansion in the number of circumstances in which traveling armed might be lawful, but it did not create a broad freestanding right to travel armed in public.19

“As Allowed by Law”: The English Language of Rights in the Eighteenth Century

The English Declaration of Rights asserted “that the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law.”20 The plain meaning of the text would suggest that the right was not universal but limited by religion and class. Nor did this formulation do anything to restrain the Parliamentary power over arms. In Heller, Justice Scalia relies almost entirely on the work of gun rights scholar Joyce Lee Malcolm. In her view, the English enjoyed a broad right to keep and bear arms under the 1688 English Declaration of Rights. As Scalia notes, “By the time of the founding, the right to have arms had become fundamental for English subjects.”21 Although Blackstone described this as the fifth auxiliary right, a structural protection of English liberty, his discussion underscores the limited nature of this claim, which he described as “a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.”22 Blackstone’s elaboration of the right makes it clear that its inclusion in the Declaration of Rights did not limit Parliament’s authority over arms in any way.23 It is vital to recall the scope of Parliament’s authority in this period. Commenting on the implausibility of Locke’s political theory, Blackstone made it clear that there was no appeal beyond Parliamentary authority, which was final under British Law:

It must be owned that Mr Locke, and other theoretical writers, have held, that “there remains still inherent in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them: for when such trust is abused, it is thereby forfeited, and devolves to those who gave it.” But however just this conclusion may be in theory, we cannot adopt it, nor argue from it, under any dispensation of government at present actually existing. For this devolution of power, to the people at large, includes in it a dissolution of the whole form of government established by that people, reduces all the members to their original state of equality, and by annihilating the sovereign power repeals all positive laws whatsoever before enacted. No human laws will therefore suppose a case, which at once must destroy all law, and compel men to build afresh upon a new foundation; nor will they make provision for so desperate an event, as must render all legal provisions ineffectual. So long therefore as the English constitution lasts, we may venture to affirm, that the power of parliament is absolute and without control.24

Scalia concedes the limits of English rights claims: “To be sure, it was an individual right not available to the whole population, given that it was restricted to Protestants, and like all written English rights it was held only against the Crown, not Parliament.” Having made this concession that the right was virtually meaningless against Parliamentary power, he then notes: “But it was secured to them as individuals, according to ‘libertarian political principles,’ not as members of a fighting force.” What is not clear is what it means to be an individual right when there is no legal remedy or legal claim against Parliamentary power over arms. Despite these facts, Scalia “cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen.” It is worth contrasting this account with Federalist William Rawle, who offered this account of the English right to have arms:

In most of the countries of Europe, this right does not seem to be denied, although it is allowed more or less sparingly, according to circumstances. In England, a country which boasts so much of its freedom, the right was secured to protestant subjects only, on the revolution of 1688; and it is cautiously described to be that of bearing arms for their defence, “suitable to their conditions, and as allowed by law.” An arbitrary code for the preservation of game in that country has long...

Table of contents

• Cover
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• An Introduction
• Chapter 1
• Chapter 2
• Chapter 3
• Chapter 4
• Chapter 5
• Chapter 6
• Contributors
• Index