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Citizen Or Soldier? an Originalist Response to District of Columbia V

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Citizen Or Soldier? an Originalist Response to District of Columbia V HARPER CITIZEN OR SOLDIER? AN ORIGINALIST RESPONSE TO DISTRICT OF COLUMBIA V. HELLER AND THE INTELLECTUAL ORIGINS OF THE SECOND AMENDMENT* CHESTER HARPER** In District of Columbia v. Heller, Justice Antonin Scalia rewrote Second Amendment jurisprudence. In a classic example of originalist methodology, Justice Scalia looked to historical sources to find the Framers’ intent and concluded that the Second Amendment preserves an individual right to self- defense unrelated to militia service. Regrettably however, the historical analysis which underpins this opinion is deeply flawed. This article offers an originalist response to the Heller opinion by subjecting the majority’s claims to critical historical analysis. By reexamining many of the period sources cited by the majority, this article demonstrates that the Second Amendment’s reference to “a well regulated Militia” cannot be so easily dismissed. And, by introducing a variety of new sources into the conversation, this article shows that the right to bear arms has nothing to do with personal protection. Instead, the Framers viewed it as a critical safeguard to ensure that minority interests cannot suborn the use of military force in a democratic state. Far from protecting an individual right, this article concludes that the Framers’ intent for the Second Amendment was to ensure that the persons bearing arms in defense of the nation were citizens first, and soldiers second. I. INTRODUCTION 7 II. DISTRICT OF COLUMBIA V. HELLER 8 A. The Majority Opinion 9 B. Holding 11 III. ANALYSIS 12 A. The Militia System of the Early Republic 12 1. The Militia Acts 12 2. The Form of the Militia 15 3. Applying the Militia Acts to the Heller Opinion 17 B. James II, Blackstone, and the Origins of the Right to Bear Arms 18 1. Blackstone’s Rights 20 2. Blackstone’s Rights as Understood by the Framers 21 * In memoriam: Daniel Robert Harper - 1924 ** J.D. Candidate of Vermont Law School, 2020. 6 SPRING 2019 THE DARTMOUTH LAW JOURNAL 7 C. Applying the History to the Heller Opinion 22 IV. THE INTELLECTUAL HISTORY OF THE MILITIA 23 A. Soldiers in the Eighteenth Century 25 B. The Politics of Soldiers 28 C. Applying the Intellectual History to the Heller Opinion 31 V.CONCLUSION 32 I. INTRODUCTION The District of Columbia v. Heller opinion is a watershed in American jurisprudence. For over 200 years before the Heller opinion, legal scholars and federal courts struggled to define the scope and bounds of the constitutional rights implied by the Second Amendment. One line of argument interprets the right to keep and bear arms as intrinsically connected to the idea of military service and “A well regulated Militia.” This school of thought asserts that the primary intent of the Second Amendment was to prevent the federal government from disbanding the state-run militias and thereby coercing states through military force.1 Another school of thought argues that the right to keep and bear arms is an independent pressure valve to allow individuals to oppose tyranny in case democratic institutions fail.2 A third school maintains that the right to protect oneself from external threats is inherent, founded in natural law, long recognized as a right in the English common law, and permanently enshrined as such in the United States Constitution. In the Heller opinion, Justice Antonin Scalia finally brought the weight of the Supreme Court in support of this final interpretation.3 Unfortunately, the historical argument which underpins this opinion lacks context. Justice Scalia seems to readily embrace the romantic but entirely ahistorical legend of the free militiaman, a man who leaps to defend his hearth and home motivated only by his desire to remain free. Exacerbated by the modern-day Militia Movement, this interpretation stands in direct 1 See District of Columbia v. Heller, 554 U.S. 570, 652 (2008) (Stevens, J. dissenting) (“The proper allocation of military power in the new Nation was an issue of central concern for the Framers. The compromises they ultimately reached, reflected in Article I's Militia Clauses and the Second Amendment, represent quintessential examples of the Framers' splitting the atom of sovereignty.”) (internal quotations omitted). 2 See Orders We Will Not Obey, OATHKEEPERS (Dec. 9, 2018), https://oathkeepers.org/declaration- of-orders-we-will-not-obey/ (“[W]e affirm that the purpose of the Second Amendment is to preserve the military power of the people so that they will, in the last resort, have effective final recourse to arms and to the God of Hosts in the face of tyranny.”). 3 See District of Columbia, 554 U.S. at 635 (“[W]e hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”) 8 THE DARTMOUTH LAW JOURNAL VOL. XVII:1 contrast to the heavily-regulated and state-centered militia of the early Republic. The dreamy imagery of the rugged and independent frontiersman, musket in hand to fight the tyranny of empire, is a myth that does not survive even a casual examination of the historical record. Basing our understanding of the Constitution on such a flippant historical analysis is deeply problematic. This article looks at some of the specific claims about the history of the militia and the right to bear arms made by Justice Scalia and subjects them to critical historical analysis. Section I will provide an overview of the majority’s historical arguments and how they relate to the key holding of Heller. Section II will show that the militia was a robust civic institution which represented a philosophical alternative to standing armies. Examining the 1792 Militia Acts will show that the militia was a highly-regulated organization that mandated near-universal membership. Furthermore, this section will look at the same history invoked by Justice Scalia to show that the right to bear arms is discussed chiefly as a right to resist tyranny and that the right to resist was reserved to the democratic majority. As such, the Second Amendment does not address an individual right at all, but the right of an entire population to maintain representative democracy through civic institutions. Beyond the direct analysis of the Heller opinion, Section III will take an in-depth look at the intellectual history of liberal democracy to offer a nuanced look at how the Framers comprehended the idea of the militia and national defense. In the broadest possible terms, the intent of the Second Amendment was to acknowledge that the military, although necessary for national defense, also posed an existential threat to democracy. A fundamental concern of contemporary political theorists was democratizing military power so that it could not be used to compel acceptance of undemocratic acts. In practical terms, this meant replacing professional armies with a citizen military; the loyalty of a professional military could be subverted, but an armed citizenry could be trusted to protect the institutions safeguarding their own rights and freedoms. The militia is the American implementation of this democratic ideal, and by extension, the intent of the Second Amendment. II. DISTRICT OF COLUMBIA V. HELLER The District of Columbia passed the Firearms Control Regulation Act in 1975.4 Inter alia, the Act prohibited carrying an unregistered firearm 4 Firearms Control and Regulation Act of 1975, 23 D.C. Reg. 1091 (July 23, 1976). SPRING 2019 THE DARTMOUTH LAW JOURNAL 9 within the district and did not allow the registration of handguns in general.5 Furthermore, the law prohibited any lawfully-owned firearm from being stored in the home without either being disassembled or rendered inoperable with a trigger lock.6 In 2002, six residents of the District of Columbia challenged the 1975 Act in federal court alleging that it violated the Second Amendment by criminalizing the possession of a working firearm even within the home.7 The district court dismissed the lawsuit, and on appeal, the D.C. Circuit Court of Appeals found that only one plaintiff, Dick Heller, had suffered a cognizable injury sufficient for standing through denial of a permit.8 Heller, a special police officer who carried a firearm while on duty, had applied to the DC chief of police for a permit for a handgun he wished to keep in his home but was denied because of the 1975 Act.9 Holding that Dick Heller does have a right to possess a functioning firearm—if only for the purposes of home defense—the Court of Appeals reversed, and the Supreme Court granted certiorari.10 A. THE MAJORITY OPINION Justice Scalia begins his opinion with a textual analysis, dividing the text of the Second Amendment into its “prefatory” clause, “A well regulated Militia, being necessary to the security of a free State,” and its “operative” clause, “the right of the people to keep and bear Arms, shall not be infringed.” As a matter of plain grammar, Justice Scalia asserts that the prefatory clause may clarify ambiguities in the operative clause, but it cannot limit or expand the scope of the operative clause.11 In other words, while the need for a well- regulated militia may have been the impetus behind the Second Amendment, its constitutional implications do not necessarily stop there. With this baseline established, Justice Scalia rests most of the following argument on the meaning of the operative clause. Turning first to the “right of the people,” Justice Scalia notes that the only two other uses of this language in the Bill of Rights—in the First and Fourth Amendments—unambiguously refer to individual rights. 12 Furthermore, he observes that every use of “the people” unmistakably refers 5 District of Columbia, 554 U.S.
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