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The Second Amendment in Historiographical Crisis: Why the Supreme Court Must Reevaluate the Embarrassing “Standard Model” Moving Forward, 39 Fordham Urb

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The Second Amendment in Historiographical Crisis: Why the Supreme Court Must Reevaluate the Embarrassing “Standard Model” Moving Forward, 39 Fordham Urb View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Fordham University School of Law Fordham Urban Law Journal Volume 39 Number 5 Symposium - Gun Control and the Second Amendment: Development and Controversies in the Article 2 Wake of District of Columbia v. Heller and McDonald v. Chicago March 2016 The econdS Amendment in Historiographical Crisis: Why the Supreme Court Must Reevaluate the Embarrassing “Standard Model” Moving Forward Patrick J. Charles Follow this and additional works at: https://ir.lawnet.fordham.edu/ulj Part of the Jurisprudence Commons, Legal History Commons, Second Amendment Commons, and the Supreme Court of the United States Commons Recommended Citation Patrick J. Charles, The Second Amendment in Historiographical Crisis: Why the Supreme Court Must Reevaluate the Embarrassing “Standard Model” Moving Forward, 39 Fordham Urb. L.J. 1727 (2012). Available at: https://ir.lawnet.fordham.edu/ulj/vol39/iss5/2 This Article is brought to you for free and open access by FLASH: The orF dham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Urban Law Journal by an authorized editor of FLASH: The orF dham Law Archive of Scholarship and History. For more information, please contact [email protected]. CHARLES_CHRISTENSEN (DO NOT DELETE) 2/6/2013 10:45 PM THE SECOND AMENDMENT IN HISTORIOGRAPHICAL CRISIS: WHY THE SUPREME COURT MUST REEVALUATE THE EMBARRASSING “STANDARD MODEL” MOVING FORWARD Patrick J. Charles* Introduction ........................................................................................... 1728 I. The Standard Model Second Amendment Exposed .................. 1733 A. The Historical Dilemma Presented by the Standard Model .................................................................................... 1735 B. Excavating the Standard Model’s Poor Foundation ....... 1746 1. History Lesson 101: Interpreting Text Without Historical Context Is Just a Con .................................. 1753 2. History Lesson 102: Answering Any Historical Query First Requires Substantiated Evidence to Support It ....................................................................... 1760 3. History Lesson 103: Lawyering Historical Sources Is Not an Objective History ......................................... 1767 * Patrick J. Charles is the author of numerous articles on the right to arms, constitutional history, and standards of review. A former sergeant with Marine Corps Security Battalion, Mr. Charles received his J.D. from Cleveland-Marshall School of Law and his B.A. in History and International Affairs from The George Washington University. He currently serves as a historian for the Air Force Special Operations Command 352nd Special Operations Group stationed at Mildenhall, United Kingdom. The contents of this Article are not those of the United States Air Force or the Department of Defense, and are solely the author’s. The author is indebted to the assistance of a number of historians, from a variety of specialties, in compiling and honing the content of this Article. In alphabetical order this includes Saul Cornell, Tim Harris, Erin Rahne Kidwell, Nathan Kozuskanich, Edward G. Lengel, William Pencak, Lois G. Schwoerer, Mary Thompson, Tessa Webber, and Judy Weiss. The author would like to thank Kelvin Chan, Jordan Gusich, and Simon Tompkins for their assistance in acquiring source material, and Kimberly Carson for inviting him to the Fordham Urban Law Journal Symposium. Lastly, the author is indebted to the invaluable advice, support, and correspondence of Quentin Skinner on the subject of methodology. This Article is dedicated to the late James S. Cockburn, a former professor of the author at Georgetown Law, distinguished legal historian, and unmatched storyteller of legal history. 1727 CHARLES_CHRISTENSEN (DO NOT DELETE) 2/6/2013 10:45 PM 1728 FORDHAM URB. L.J. [Vol. XXXIX 4. History Lesson 104: Be True to What the Historical Record Provides .......................................... 1776 II. The Embarrassing Standard Model Saga Continues ................ 1791 A. The Rise and Fall of Joyce Lee Malcolm’s Thesis on the Anglo-American Right ................................................ 1795 1. England’s Ahistorical Armed Public Against Private and Public Violence ......................................... 1800 2. Correcting False Notions of Article VII ..................... 1807 3. The 1662 Militia Act and 1671 Game Act Evidentiary Debacle ..................................................... 1819 4. William Blackstone Said What?—Misconceptions of the “Fifth Auxiliary Right” Continue .................... 1822 5. The Anglo-American Intellectual Deficiency ............ 1824 B. The Standard Model “Domino Effect” and Subsequent “Domino Defect” ........................................... 1827 III. What’s the Supreme Court to do With the Embarrassing Standard Model?—Assessing Three Historical Options ....... 1842 A. Option 1—Standard Model Dictum Wins, History Loses, But Should It? .......................................................... 1846 B. Options 2 and 3—the Judiciary, Historical Consciousness, and Preserving the Historical Record .... 1854 Conclusion .............................................................................................. 1864 INTRODUCTION In the coming years the Second Amendment will face a historical crossroads. Following the Supreme Court’s decisions in McDonald v. City of Chicago1 and District of Columbia v. Heller,2 it is settled, as a matter of constitutional jurisprudence, that the Second Amendment protects armed self-defense in the home with a handgun, and applies equally to the federal and state governments. In both opinions, the majority was guided by a historical theory dubbed the Standard Model3 right to arms.4 Under this Model, the Second Amendment 1. 130 S. Ct. 3020 (2010). 2. 554 U.S. 570 (2008). 3. For the purpose of historiography, in previous writings I referred to the Standard Model as the Individual Right Model. As a matter of original intent, meaning, purpose, and understanding, I have always interpreted the Second Amendment as guaranteeing both an individual and collective right to participate in defending one’s liberty in a government sanctioned militia. Standard Model writers often refer to this interpretation as the “modified collective right” approach. See PATRICK J. CHARLES, THE SECOND AMENDMENT: THE INTENT AND ITS CHARLES_CHRISTENSEN (DO NOT DELETE) 2/6/2013 10:45 PM 2012] HISTORIOGRAPHICAL CRISIS 1729 provides an individual right to possess and use arms, divorced from government sanctioned militias, as a means to (1) check government tyranny through an armed citizenry,5 (2) provide the means to repel force with force should one be assailed in private or public,6 and (3) provide for the common defense.7 Indeed, the history supporting an “individual right” to arms is vast and undeniable.8 However, the historical evidence supporting the Standard Model theory is circumstantial at best,9 leaving the future of Second Amendment INTERPRETATION BY THE STATES AND THE SUPREME COURT (2009) [hereinafter CHARLES, THE SECOND AMENDMENT]. This right was derived from the English 1689 Declaration of Rights. See Patrick J. Charles, “Arms for Their Defence”?: An Historical, Legal, and Textual Analysis of the English Right to Have Arms and Whether the Second Amendment Should Be Incorporated in McDonald v. City of Chicago, 57 CLEV. ST. L. REV. 351, 352 (2009) [hereinafter Charles, “Arms for Their Defence”?]. For more on this author’s historiography, see infra notes 9 and 18. 4. See Don B. Kates, A Modern Historiography of the Second Amendment, 56 UCLA L. REV. 1211 (2009). The first commentator to coin the term was Glenn Harlan Reynolds. See Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 TENN. L. REV. 461, 463 (1995). 5. See Heller, 554 U.S. at 600 (“If . the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia—if, that is, the organized militia is the sole institutional beneficiary of the Second Amendment’s guarantee—it does not assure the existence of a ‘citizens’ militia’ as a safeguard against tyranny.”) (citations omitted). 6. See id. at 592 (“Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.”); id. at 595 (“[W]e do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.”). 7. See id. at 595 (“In United States v. Miller, we explained that ‘the Militia comprised all males physically capable of acting in concert for the common defense.’ That definition comports with founding-era sources.”) (citations omitted). 8. Prior to the Heller decision, historians were in agreement that the Second Amendment and its English predecessor enshrined an individual right connected to militia service. See SAUL CORNELL, A WELL-REGULATED MILITIA AND THE ORIGINS OF GUN CONTROL IN AMERICA (2006); LOIS G. SCHWOERER, THE DECLARATION OF RIGHTS, 1689, at 74–78 (1981); H. RICHARD UVILLER & WILLIAM G. MERKEL, THE MILITIA AND THE RIGHT TO ARMS, OR, HOW THE SECOND AMENDMENT FELL SILENT 165 (2003). 9. The Heller Court relied on a textual approach to constitutional interpretation. See 554 U.S. at 578–603. The Court buttressed this claim by relying on the flawed thesis of historian Joyce Lee
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