Northeastern University LAW JOURNAL VOL. 3, NO. 1 SPRING 2011 EDITORS’ INTRODUCTION i ARTICLES The Constitutional Significance of a “Well-Regulated” Militia Asserted and Proven With Commentary on the Future of Second Amendment Jurisprudence 1 Patrick J. Charles From Heller to Chicagoland: Will Reconstruction Come to the Windy City? 105 Stephen P. Halbrook The Past and Future Role of the Second Amendment and Gun Control in Fights Over Confirmation of Supreme Court Nominees 123 Allen Rostron Heller, Guns, and History: The Judicial Invention of Tradition 175 David Thomas Konig District of Columbia v. Heller and McDonald v. City of Chicago: The Present as Interface of Past and Future 199 David T. Hardy The Second Amendment as Interpreted by Congress and the Court 225 Sean J. Kealy NOTES Aiming Without A Scope: How Courts Scrutinize Gun Laws After District of Columbia v. Heller 289 Ryan Menard Are Our Schools Doomed? The Effects of the New Second Amendment Jurisprudence on Gun-Free School States 329 Elizabeth J. McEvoy © 2011 Northeastern University Journal of Law Northeastern University LAW JOURNAL EDITORS-IN-CHIEF Zoë Dowd ’11 Erica Virtue ’11 MANAGING EDITORS ARTICLES EDITORS Adam Blechman ‘11 Ryan Menard ‘11 Kristin Doeberl ‘11 Mike Serra ‘11 PUBLICATION EDITORS SYMPOSIUM EDITORS Veronica Louie ‘11 Asya Lakov ‘11 Paola Moll ‘11 Quentin Weld ‘11 FACULTY ADVISORS Professor Michael Meltsner Professor David Phillips Professor Sonia Rolland All works are copyrighted by their authors. JOURNAL STAFF 2010/2011 Senior Staff Bob Barry ‘11 Rachael Gramet ‘11 Nathan Burk ‘12 Laura Healey ‘11 Naureen Charania ‘11 Erin Kravitz ‘11 Libbie DiMarco ‘11 Lily Lockhart ‘11 Deirdre Donahue ‘11 Natane Eaddy ‘11 Meghan MacKenzie ‘11 Ralph Gillis ‘12 Nathaniel Paty ‘11 Shiela Giovannini ‘11 Elizabeth Reardon ‘12 2010/2011 Staff Andrew Angely ‘11 James Hodge ‘11 Elizabeth Ryland ‘11 Melissa Barishman ‘11 Danielle Jurema ‘12 Laura Sannicandro ‘11 Ryan Berry ‘11 Kevin Kam ‘12 Michele Scavongelli ‘12 Caitlyn Bauerle ‘12 Eric Kuzma ‘11 Zach See ‘11 Katherine Beck ‘12 Jason Lederman ‘12 Aws Shemmeri ‘12 Samantha Bushey ‘11 Julie Lee ‘12 Lara Shkordoff ‘12 Anthony Cahill ‘12 Matthew Lee ‘12 Philip Snodgrass ‘12 Diana Chiang ‘12 Ed Mazzaferro ‘12 Michael Stefanilo ‘12 Randy Choiniere ‘12 Elizabeth McEvoy ‘11 Tobin Sullivan ‘12 Stephanie Cocce ‘12 Annie O’Connell ‘11 David Swanson ‘12 Ian Coghill ‘12 Renay Oliver ‘12 Alec Tarberry ‘12 Jonathan Cohen ‘12 Alicia Parmentier ‘12 Matt Thomson ‘11 Joseph DiMaria ‘12 Sara Perkins ‘12 William Turner ‘11 Hailey Ferber ‘11 Amy Perlack ‘12 Shauna Twohig ‘12 Meghan Glynn ‘12 Christina Ricotta ‘12 Rebecca Waisanen ‘12 John Halter ‘12 Glynis Ritchie ‘12 Dan Widrew ‘12 Elisar Hares ‘11 Nelson Rutrick ‘12 Brian Hilburn ‘11 Nancy Ryan ‘11 Editors’ Introduction i The Northeastern University Law Journal is dedicated to exploring emerging legal topics by highlighting differing viewpoints of practitioners and academics within the relevant field. Each year, the Journal hosts a symposium that provides a forum for discussion and exchange of ideas among experts on a topic selected by the Editors. On June 26, 2008, the Supreme Court, in District of Columbia v. Heller,1 clarified the Second Amendment’s application to individuals who are not affiliated with any state-regulated militia but who wish to keep handguns and other firearms for private use in their homes. The Court ruled that individuals have a fundamental right to keep firearms in their homes for self-defense and other lawful purposes. An individual’s Second Amendment right is not unlimited, but the District of Columbia’s handgun ban and trigger-lock requirement were unconstitutional under any level of scrutiny that might apply. On June 28, 2010, in McDonald v. City of Chicago,2 the Supreme Court incorporated through the Due Process Clause of the Fourteenth Amendment this individual right to bear arms. Anticipating the voluminous litigation challenging gun regulations in response to Heller and McDonald, we decided to focus on the recent changes in Second Amendment interpretation as the topic of our 2010 Symposium. On Friday, March 19, 2010, just one day after oral arguments in McDonald, the Journal hosted its 2010 symposium entitled “Chamber to Chambers: The Second Amendment in the New Century.” We brought together legal practitioners and historical experts to discuss the impact of Heller and the potential outcome and impact of McDonald. This edition features the work of speakers at the 2010 symposium, other scholars, and law students. Patrick Charles, the keynote speaker at our 2010 Symposium, analyzes the history of the “well-regulated militia” language of the Second Amendment’s prefatory clause. He relates the great importance a militia had in England and Eighteenth century America, not only to the common defense, but also to the development of discipline and virtue in individuals. In his article, Stephen Halbrook examines the legislative history 1 554 U.S. 570, 128 S. Ct. 2783 (2008). The astv majority of our work on this volume was complete prior to Heller’s publication in the U.S. Reports. As a result, we cite to the Supreme Court Reporter for this case throughout. 2 130 S. Ct. 3020 (2010). ii NORTHEASTERN UNIVERSITY LAW JOURNAL Vol. 3, No. 1 of the Fourteenth Amendment, rather than focusing only on that of the Second Amendment. He finds a clear intent to incorporate the Second Amendment against the states during Reconstruction, when southern states used Black Codes to disarm and terrorize newly freed slaves. Allen Rostron surveys the role the Second Amendment has played in the confirmation hearings of Supreme Court nominees. He outlines the way in which some justices have foreshadowed their judicial opinions in confirmation testimony before Congress. Rostron also shows that as the debate over guns in the United States has become more politicized, Supreme Court confirmation hearings have, at times, provided a much- needed venue for reasoned and thoughtful discussion. David Thomas Konig’s article explores the “invented tradition” of legally sanctioned gun use in the United States. He argues that by basing decisions on faulty history, the judiciary endorses the faulty history as fact. According to Konig, this historical invention has created the premise for the modern right to arms. It has masked the true history of gun use in America, he claims, and has misinformed popular and judicial understanding of that history. David Hardy accounts first-hand the past three decades of legal scholarship on the Second Amendment and its legal interpretation. Since he started writing on the topic in 1974, legal academia’s understanding of the right to bear arms has shifted drastically, culminating in the Supreme Court rulings in Heller and McDonald. Hardy sets forth a practical application of the rulings, which call into question many statutes passed before the fundamental right to arms was recognized and incorporated. Sean Kealy argues that the Framers addressed a perceived defect in the Constitution by giving individuals the right to arms as a check on state and federal government powers. In his historical interpretation, the prefatory language relates to the government’s responsibility to provide for a well-regulated militia and organize a common defense. An individual’s responsibility to obey reasonable state regulation and assist in the common defense in exchange for his right to arms was also well understood historically. Since the Second Amendment was originally meant to protect public safety, the article questions the wisdom of the federal government restricting states’ ability to regulate firearms at a point in history when public safety in some communities may be better served by restricting individual possession. Editors’ Introduction iii In addition to practitioners, two Northeastern School of Law students contributed articles to this edition. Ryan Menard picks up where Scalia’s Heller opinion left off, by evaluating the levels of review available to courts that are now tasked with determining the legality of gun regulations. Menard proposes a simple doctrine these courts should adopt. Elizabeth McEvoy’s article focuses on the status of the law regulating the right to bear arms in school zones in the wake of Heller and McDonald. We are extremely proud of the hard work and long hours our staff dedicated to publishing this edition. We are grateful to our faculty advisors, Professors Michael Meltsner, David Phillips, and Sonia Rolland, as well as the Northeastern University School of Law administration, faculty, and staff, for their support and guidance as the Journal continues to grow. We would especially like to extend thanks to our authors for contributing their commentaries and perspectives on this timely and important issue. Northeastern University Law Journal Editorial Board January 2011 iv NORTHEASTERN UNIVERSITY LAW JOURNAL Vol. 3, No. 1 The Constitutional Significance of a “Well-Regulated” Militia Asserted and 1 Proven With Commentary on the Future of Second Amendment Jurisprudence THE CONSTITUTIONAL SIGNIFICANCE OF A “WELL-REGULATED MILITIA” ASSERTED AND PROVEN WITH COMMENTARY ON THE FUTURE OF SECOND AMENDMENT JURISPRUDENCE Patrick J. Charles* Table of Contents Introduction 2 I. The Early Anglo Origins of a “Well-Regulated Militia” 9 II. A “Well-Regulated Militia” and England’s 1757 Militia Act 22 A. The Commentary of the Mid-Eighteenth Century Concerning Militia Reform 25 B. The 1757 Militia Act and the Significance of Well-Regulation and Discipline 35 III. The American “Well-Regulated Militia” – Different or the Same? 42 IV. Revolution, Constitutions, and “A Well-Regulated Militia” 51 V. Commentary on the Future of Second Amendment Jurisprudence Including a “Well-Regulated Militia” 86 Conclusion 102 2 NORTHEASTERN UNIVERSITY LAW JOURNAL Vol. 3, No. 1 Introduction In McDonald v. City of Chicago, a narrow 5-4 decision held that the “Second Amendment right recognized in Heller”1 is incorporated to the States as applied to American citizens.2 The plurality consisted of the * Patrick J.