The Second Amendment and the Constitutional Right to Self-Defense William G. Merkel Submitted in partial fulfillment of the requirements for the degree of Doctor of the Science of Law in the School of Law COLUMBIA UNIVERSITY 2013 © 2013 William G. Merkel All rights reserved Chapters Two and Five reprinted from Encyclopedia of the Supreme Court of the United States, 1E. © 2009 Gale, a part of Cengage Learning, Inc. Reproduced by permission. www.cengage.com/permissions. The text in Chapters Three, Four, Seven, Eight, Nine, Ten, Eleven, and Twelve appeared previously as indicated in the Table of Contents. By the terms of the publication contracts and the policies of the publishers, the author, William G. Merkel, retains the right to reuse and republish all of that material in this dissertation. Written confirmation of those rights as acknowledged by the publishers are on file with the author. ABSTRACT The Second Amendment and the Constitutional Right to Self-Defense William G. Merkel This dissertation analyzes the contextual background, drafting history, text, original understanding, interpretive evolution, and contemporary judicial application of the Second Amendment to the United States Constitution. The dissertation develops the argument that as originally understood, the Second Amendment protected a right to keep and bear arms closely linked to and dependent upon service in the lawfully established militia. Two recent United States Supreme Court decisions, Heller v. District of Columbia and MacDonald v. City of Chicago, depart from this original understanding and recognize a constitutional right to weapons possession for purposes of purely private self- defense – particularly self-defense in the home. The dissertation recognizes that there are grounds for recognizing such a right, and that these include natural law, substantive due process, procedural due process, the Ninth Amendment, and emanations from particular provisions in the Bill of Rights including the Second Amendment. At the same time, the dissertation develops the case that the original public understanding mode of interpretation avowedly applied by the Supreme Court in its recent right to arms decisions relies on untenable “law office” history to justify results not dictated by the text, structure, or original understanding of the Constitution or by prior Supreme Court precedent. TABLE OF CONTENTS CHAPTER 1 ……………………………………………………………………………… 1 The Constitutional Right to Self-Defense and Self-Defense in International Law: Reflections on Deadly Drones, Trayvon Martin, and Matters yet to be Decided by the Supreme Court CHAPTER 2 ……………………………………………………………………………… 41 The Second Amendment originally appeared in 4 MACMILLAN ENCYCLOPEDIA OF THE SUPREME COURT OF THE UNITED STATES 354 (2008) CHAPTER 3 ……………………………………………………………………………… 50 Mandatory Gun Ownership, the Militia Census of 1806, and Background Assumptions Centering the Early American Right of Arms: A Cautious Response to Robert Churchill originally appeared in 25 LAW AND HISTORY REVIEW 187 (2007) CHAPTER 4 ……………………………………………………………………………… 62 A Cultural Turn: Reflections on Recent Historical and Legal Writing on the Second Amendment originally appeared in 17 STANFORD LAW AND POLICY REVIEW 671 (2006) CHAPTER 5 ……………………………………………………………………………… 101 Raising Armies originally appeared in 4 MACMILLAN ENCYCLOPEDIA OF THE SUPREME COURT OF THE UNITED STATES 169 (2008) CHAPTER 6 ……………………………………………………………………………… 106 Responding to Randy Barnett Critique previously unpublished excerpts submitted as part of The Authors’ Reply to Commentaries on, and Criticisms of, The Militia and the Right to Arms, or How the Second Amendment Fell Silent which appeared in 12 WILLIAM AND MARY BILL OF RIGHTS JOURNAL 357 (2004) CHAPTER 7 ……………………………………………………………………………… 120 Book Review: Saul Cornell, A Well Regulated Militia: The Founding Fathers and the Origins of Gun Control in America originally appeared in 112 AMERICAN HISTORICAL REVIEW 842 (2007) i CHAPTER 8 ……………………………………………………………………………… 124 Book Review: Stephen P. Halbrook, The Founders Second Amendment: Origins of the Right to Bear Arms originally appeared in 114 AMERICAN HISTORICAL REVIEW 1074 (2009) CHAPTER 9 ……………………………………………………………………………… 128 The District of Columbia v. Heller originally appeared in 1 GUNS IN AMERICAN SOCIETY: AN ENCYCLOPEDIA OF HISTORY, POLITICS, CULTURE, AND THE LAW 233 (2012) CHAPTER 10 ……………………………………………………………………………. 140 The District of Columbia v. Heller and Antonin Scalia’s Perverse Sense of Originalism originally appeared in 13 LEWIS AND CLARK LAW REVIEW 349 (2009) CHAPTER 11 …………………………………………………………………………….. 184 Heller as Hubris, and How McDonald v. City of Chicago May Well Change the Constitutional World as We Know It originally appeared in 50 SANTA CLARA LAW REVIEW 1221 (2010) CHAPTER 12 …………………………………………………………………………….. 228 McDonald v. City of Chicago originally appeared in 2 GUNS IN AMERICAN SOCIETY: AN ENCYCLOPEDIA OF HISTORY, POLITICS, CULTURE, AND THE LAW 541 (2012) ii Acknowledgements Many wonderful and wonderfully learned and intelligent people have helped enormously as this Dissertation came into shape and rounded into its final form. Not all of them are named here, and no slight is intended to those inadvertently omitted. Those whose special assistance and insights particularly merit recognition include my long time mentor, the late Professor H. Richard Uviller, my J.S.D. advisor, Professor George P. Fletcher, the other members of my Committee, Professor Robert Ferguson and Professor Michael Dorf, my old Constitutional Law Professor, the late Louis Henkin, my Columbia Law School Associates in Law class mates (now all Professors) Joshua Fairfield, Christie Lee Ford, Alana Klein, and Hoi Kong, my historical mentors, Professor Daniel Walker Howe and the late Duncan MacLeod, my long time colleagues Professors Bill Rich, Alex Glashausser, Ali Khan, Michael Kaye, and Jeffrey Jackson, my provocative and learned friend Professor Greg Gordon, my thoughtful interlocutor at the University of South Carolina, Professor Pat Hubbard, and the wonderful research librarians at Columbia Law School, Oxford University, the International Center for Jefferson Studies at Monticello, Washburn Law School, the University of North Dakota School of Law University of South Carolina School of Law, and the Charleston School of Law. Special thanks are also due to wonderful student research assistants including Aimee Betzen, Larry Crow, Matthew Dunavan, Madison Hamile, Brian Lindquist, Reanne Utemark, Sara Salehi, and Whitney Wilder, and to the participants at faculty, junior faculty, and graduate symposia at Oxford University, the University of Kansas, Washburn Law School, and Washington University St. Louis, among others. The constant support and patient assistance of Professor Saul Cornell, surely among the leading serious historians of the Second Amendment, has been invaluable. At the other end of the spectrum, frequent critical but eminently civil encounters with Stephen P. Halbrook, one of the leading proponents of a Second Amendment embracing a private right to self- defense, have forced me to refine my argument at every turn. iii Dedication For my loving and beloved parents, George and Nancy Merkel, and for the ladies in my life, Gayle Goudy and little Clara Merkel. iv 1 CHAPTER ONE THE CONSTITUTIONAL RIGHT TO SELF-DEFENSE AND SELF-DEFENSE IN INTERNATIONAL LAW: REFLECTIONS ON THE STATE OF NATURE, DEADLY DRONES, TRAYVON MARTIN, AND SOME UNSETTLED LEGAL QUESTIONS It is a long-established axiom among political theorists that when people leave the state of nature and enter into civil society, they accept the enforcement of limitations against some of their rights so as to protect and indeed maximize other personal and collective rights—including the right to security—to the greatest extent possible.1 In modern constitutional democracies, it is 1 This proposition was central to the political philosophy of Thomas Hobbes, John Locke, and William Blackstone, three of the English-speaking world’s foundational thinkers on governmental legitimacy. Thus, in endeavoring to convince his readers to accept the authority of the English Commonwealth after the execution of Charles I, Hobbes writes “[f]rom this fundamental law of nature, by which men are commanded to endeavour peace, is derived this second law: that a man be willing, when others are so too, as far forth as for peace and defence of himself he shall think it necessary, to lay down this right to all things; and be contented with so much liberty against other men, as he would allow other men against himself. For as long as every man holdeth this right, of doing anything he liketh; so long are all men in the condition of war. But if other men will not lay down their right, as well as he, then there is no reason for anyone to divest himself of his: for that were to expose himself to prey, which no man is bound to, rather than to dispose himself to peace.” THOMAS HOBBES, LEVIATHAN, Ch. XIV sec. 5, (1651), at 86 in Oxford World’s Classic Edition (1996) (1651). According to Locke’s SECOND TREATISE ON GOVERNMENT, written either to encourage overthrow of the government of James II in 1685 or to justify the newly established constitutional settlement after the Glorious Revolution in 1689, “wherever, therefore, any number of men so unite into one society as to quit every one his executive power of the law of Nature, and to resign it to the public, there and there only is a political or civil society. And this is done wherever any number of men, in the state