Heller's Manufactured Gun Rights Can Be Traced to a Flawed Law Review Article
by Robert J. Spitzer
Mr. Spitzer is Distinguished Service Professor of Political Science at SUNY Cortland. The author of a dozen books focusing mostly on the presidency and gun control, his most recent book is: Saving the Constitution from Lawyers: How Legal Training and Law Reviews Distort Constitutional Meaning.
The momentous Supreme Court decision, D.C. v. Heller, has for the first time interpreted the Second Amendment's right to bear arms as protecting an individual right for citizens to have guns for personal uses, "such as self-defense within the home," pushing aside the "well regulated militia" basis for this right stipulated in the first half of the amendment's sentence. In sweeping aside four past high court decisions and over forty lower court cases, the five-member majority concluded that the amendment doesn't really mean what it says. But lost in Heller's tumult is the origin of this newfound individual right.
Of all the admittedly incomplete direct evidence pertaining to the meaning of the Second Amendment, including the Bill of Rights debates during the First Congress and many federal court decisions, none of it supports an individualist reading of the right to bear arms. In a cartoonish depiction of the pivotal 1939 Miller Supreme Court case, Justice Antonin Scalia's majority opinion dispatches it by saying that it only protects ownership of militia weapons, and nothing more. "Beyond that," Scalia writes, Miller "provided no explanation" of the Second Amendment, an assertion contradicted by Justice John Paul Stevens' extended quotations from the case in his dissent.
As if to validate the suspicions of many historians that good lawyers make bad historians, Scalia's opinion relies heavily on history-by-assertion, saying for example that "we find no evidence" that the phrase in the Second Amendment "keep and bear arms" "bore a military meaning." No evidence? None? Pulitzer Prize winning historian Garry Wills (1), among others, found the phrase "refers to military service"; "arms," Wills said, "means military service in general." "History, philology, and logic," Wills found, "furnish no solid basis for thinking the Second Amendment has anything to do with the private ownership of guns."
While this leaves open the door to reinterpreting the Second Amendment on other bases, it all but slams shut the idea that it has the originalist pedigree that is the fountainhead of the Heller decision. Where, then, did this interpretation come from?
The answer is a law journal article published in 1960 in the William and Mary Law Review (2), written by a student member of the review's editorial board (and life NRA member) where, for the first time, an article in a serious publication offered two new arguments: that the Second Amendment protected an individual right to bear arms for personal self-defense (ignoring, as did Scalia's decision, the common-law tradition enshrining self-defense rights), and that the amendment created a citizen "right of revolution," a right which, according to the author (but not, thankfully, in Heller), was lawfully exercised by the South during the Civil War. Most importantly, this article ignored the primary evidence explaining the amendment's meaning - the debates of the First Congress - and also past academic writing.
For a new theory in any field to have integrity, especially in a subject as well-trodden as the Constitution, it must be subjected to the intense scrutiny, before publication, found in any discipline. But this article, like nearly all others in the field of law, was never submitted to peer review by subject matter experts, the gold standard for evaluating the worthiness of new research and ideas in every other field of study. The reason is alarmingly simple: these critical decisions are made by the law students who control law reviews, and who, for all their hard work and diligence, possess no expertise about that which they publish. No other discipline would dream of yielding such control to its students.
This article was not the first academic analysis of the Second Amendment. It had been subject to serious scrutiny in over a dozen articles published in law reviews from the late nineteenth century through the 1950s; all of them endorsed the amendment's militia basis. The 1960 article committed the egregious error of not citing any of this past writing (much less confronting its arguments), yet it was the seed from which sprouted dozens of subsequent law journal articles which eventually became Heller's individualist theory.
Within ten years of its publication, two more law journal articles appeared in support of this position; in the 1970s, six more were published; in the 1980s, 21 were published in law journals; in the 1990s, 58, with many more since. During these four decades, a similar number of articles was published on the opposing side, but by now this blizzard of writing on the Second Amendment had transformed agreed-upon meaning into a debate where both sides seemed equally legitimate--as if supporters of "scientific creationism" had succeeded in flooding science journals with articles about evolution to produce an apparent academic stalemate between seemingly equivalent dueling scientific interpretations.
If law journal writing didn't matter, then student control wouldn't either. But law reviews do matter. They shape national policy debates, legislatures, presidents, and, in this case, judges. It is of no small importance that many of President Bush's unprecedentedly expansive claims to presidential power trace back to a 1996 law review article written by law professor and administration lawyer John Yoo. And Scalia's majority opinion in Heller is laced with, and built upon, this law journal writing, replete as it is with "law office history."
In the world of law journals, publication decisions by student editors are too often based on factors like author reputation, affiliation with the institution publishing the journal, sheer length, and whether the submission seems unusual or unorthodox. No one with control over publication is in a position to know whether the author knows what has already been written on the subject, whether the argument is legitimate, the history sound. Yes, additional articles can be published pointing out such flaws, but this negates the very idea of scholarly writing, where vetting must occur before publication, for the very reason that publication is itself the most important act legitimating an idea.
Gun rights enthusiasts, eager to establish an "originalist" constitutional pedigree for their developing political movement, used student-run law reviews to craft and burnish an idea that, until now, found no traction in the courts. Constitutional doctrine is properly ever-evolving, but that evolution ought not to be shaped by manufactured provenance masquerading as scholarship.
(1) Garry Wills, A Necessary Evil (New York: Simon & Schuster, 1999), 257-59.
(2) Stuart R. Hays, "The Right to Bear Arms, A Study in Judicial Misinterpretation," William and Mary Law Review 2(1960): 381-406.
Detailed documentation of numerous historical errors in the professional historians' Heller amicus brief supporting Washington DC can be found in a series of posts at On Second Opinion Blog.
The 24 posts are titled, Root Causes of Never-Ending Second Amendment Dispute, and begin on January 24, 2009.
http://onsecondopinion.blogspot.com
Clayton E Cramer - 7/9/2008
Elliot's Debates, published in 1836, has an index that includes "Rights of the citizen declared to be --" and then lists all of the rights, and in which amendment they appear. You can see the page at http://memory.loc.gov/cgi-bin/ampage?collId=lled&;fileName=001/lled001.db&recNum=14&itemLink=r?ammem/hlaw:@field(DOCID+@lit(ed0019))%230010008&linkText=1
Among the rights listed are "To keep and bear arms" under Amendment 2. Not a "right of the states" or a "right of the militia" but "of the citizen." Clear enough? And oddly enough, there is nothing under "Rights of the citizen declared to be --" that lists the militia clause.
Professor Spitzer has once again embarrassed himself by not reading Scalia'a opinion, or the amicus briefs upon which it is based. Had he done so, he would not have beclowned himself.
Professor Spitzer claims that Scalia is merely asserting without evidence that "bear arms" wasn't exclusively military in meaning. Professor Spitzer needs to actually read Scalia'a opinion, where he cites a forthcoming Georgetown Journal of Law and Public Policy article by Joe Olson and myself, where we demonstrate that "bear arms" is repeatedly used in the Constitutional era to refer to private carrying of arms for self-defense--and a couple of the sources that we cite are prominent lawyers of the period, such as John Adams and James Wilson: member of the Constitutional Convention; one of the first associate justices of the Supreme Court; principal author of the 1790 Pennsylvania Constitution. I will agree that a majority of the uses of "bear arms" in this period do have a military context--but then again, that's what happens when most of the documents you read are governmental in nature.
There are dozens of examples of "bear arms" being used to refer to individuals carrying weapons for self-defense. Wills is wrong about this, and when it comes Wills saying, "Not there" and me presenting dozens fo examples to show that they are there, only a fanatic would decide to take Wills over primary sources.
Because as early as Nunn v. State (Ga. 1846), the Georgia Supreme Court struck down a Georgia law for violating the Second Amendment.
embrace both Federal and State governments--nor is there anything
in its terms which restricts its meaning. The preamble which was
prefixed to these amendments shows, that they originated in the
fear that the powers of the general government were not
sufficiently limited. Several of the States in their act of
ratification recommended that further restrictive clauses should he
added. And in the first session of the first Congress, ten of
these amendments having been agreed to by that body, and afterwards
sanctioned by three-fourths of the States, became a part of the
Constitution. But admitting all this, does it follow that because
the people refused to delegate to the general government the power
to take from them the right to keep and bear arms, that they
designed to rest it in the State governments? Is this a right
reserved to the States or to themselves? Is it not an inalienable
right, which lies at the bottom of every free government? We do
not believe that, because the people withheld this arbitrary power
of disfranchisement from Congress, they ever intended to confer it
on the local legislatures. This right is too dear to be confided
And there are dozens of other decisions in the antebellum period that acknowledge the Second Amendment protects an individual right--even though most agreed that it only limited the power of the federal government.
I am a Mencken fan long time. Please tell me the source of your quote.
Randll Reese Besch - 7/1/2008
It is part of the recission of general rights of the individual and the inversion of what rights are. That is adding amendments to restrict our rights while the gov't/corporations get superhuman rights. The Bill of Rights generally showed restrictions on gov't to control us and enumerated some of the most important rights we retain. Madison knew he couldn't list all possible rights for the Anti-Fedralist Bill so in the 9th Amendment and reiterated at the beginning of the 10th Amendment there is that general acknowledgement of other "rights retained by the people."
Which includes women controlling their bodies {the 14th also applies} for instance.
Why didn't Madison write it, "the rights of the militia to keep and bear arms shall not be infringed?"
Rarely is the 9th Amendment even mentioned if not universally ignored by jurist prudence at large that I am aware. Also the Bill of Rights is antagonistic to the federalism of John Jay and Alexander Hamilton which was why the Constitution by itself would have failed ratification in 1787.
To know the Heller decision one must be told it. I certainly haven't heard it quoted recently in relation to this strangely atavistic decision by the Supreme Court. Thank you for talking about it Bob.
Florida did it in the mid 1990's with all of the usual hullabaloo of gunfire in the streets and increase in general crime with murder in particular. It didn't happen but those against general gun ownership gave the same warnings even now despite evidence to the contrary. The illegal Drug War isn't figured into the equation either which increases the violence automatically when a general law is against the people.
Lawrence Brooks Hughes - 7/1/2008
Wherever gun-ban laws are nullified crime rates will fall, and these tedious arguments will finally become moot.
As for what the Amerndment says, it does NOT say "the right of the states to keep a well-armed militia shall not be infringed," but instead uses those three little words, "of the people." While English is a difficut language, there is only one way to interpret that phrase, and Scalia has found it. In fact, Roberts brought it up in the first 30 seconds of oral arguments.
The high court probably avoided taking any case like Heller for so many decades because it knew it would have to find the way the majority did last week, or be considered incompetent, and they didn't WANT to stop the coercive idiots who were trying to make gun-ban laws work--because the old majorities were coercive idiots, too.
Bob Beauchamp - 6/30/2008
I'm amazed at how many ordinary people I've run into who, when asked their views on Heller had no idea what the case was about. Then, when it was explained to them that the Court held that indiviudal people have a constitutional right to keep and bear arms, their responses are something like: "I never thought it was in question."
If you think the right to keep and bear arms for self-defense AND defense of the state is manufactured, you must really hate Roe v. Wade (decision finding a constitutional right to abortion). At least the Constitution mentions the concept of keeping and bearing arms. I bet you speak out regularly against the Supreme Court's holdings creating a constitutional right to abortion since the concept isn't even contemplated by the Constitution.
Daniel Sauerwein - 6/30/2008
From the Cornell University Law School website on the Constitution
"Amendment II:
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."
The Founders knew that an armed citizenry would be able to secure their freedom. Joseph Story, Supreme Court Justice from 1811-1845, concluded that tyrants accomplished their goals by disarming the populace and making firearm ownership criminal. He further added that the militia was the best defense of a free society and that having an armed citizenry required some organization, hence state militia.
Why so many people confuse the National Guard with the state militia is frustrating to say the least. The Guard is under the control of the state, but can be federalized, while the militia is completely under state control and is solely for the defense of the state. Many, if not all, state constitutions include a provision stating who is in the state militia and it almost always includes EVERY able-bodied resident of that state. Hence, since we are all part of "a well regulated militia," our right to keep and bear arms is an individual right, so that we can perform our militia duty, should such duty be necessary.
I find that too many people choose to ignore the second half of the amendment in an effort to curtail something that they do not fully understand, namely firearms. Let's remember both parts of the amendment and what they mean. We are all a part of the militia of our states and because of this our right to keep and bear arms for that purpose, as well as any other purpose needed to maintain liberty are not to be infringed.
Joseph Story, A Familiar Exposition of the Constitution of the United States (Washington: Regnery, 1986), 319-320.
Grant W Jones - 6/30/2008
A description of the battle of Bennington:
"This plan being adopted by the general and his council of war, the little militia brigade of undiscipline heroes, with their long brown firelocks, (the best security of a free people) without either cannon or bayonets, was on the 16th day of August, led on to the attack by their bold commanders...." Ethan Allen, "The Narrative of Ethan Allen."
The militia mentioned in the Second Amendment refers to an association of free men using their personal arms to defend their liberties. The historians at HNN seem unable to discern the difference between the federalized National Guard and the Green Mountain Boys.
This is due to the fact that today's liberal historians would have, no doubt, enlisted with the Tories. Their hostility to individual rights would have necessitated that decision for them.
Tom Gunn - 6/29/2008
Amending the constitution changes not one whit the pre-existing right to life and the tools necessary for accomplishment.
The militia is every able-bodied individual over the age of 18 with a political connection to the United States. You cannot be excluded by age race gender or religion. To be well regulated you must own and be proficient with the militia useful arms you possess. You need not drill or convene or dress up to meet the qualifications in the second since the second only concerns itself with arms.
Your rights cannot be taken away or infringed. They can be suppressed. eg. Your right to liberty can be suppressed after being adjudicated at trial and found guilty of certain crimes. Your right to arms can be suppressed by being adjudicated a felon or guilty of domestic violence.
John Olerud - 6/29/2008
Who belonged to the militia in 1787? Every adult head of a household belonged to the local militia, and they local government required them to own a firearm. Common sense also dictated that a gun was the first line of home security in the late eighteenth century. If you look at Kathleen Brown's book, "Good Wives, Nasty Wenches, and Anxious Patriarchs" the only adult male members of the Virginia polity denied the right to bear arms by the House of Burgess were slaves. Where do local legislators deny other adult males the right to bear arms in the early republic? If modern Americans want to deny the right to bear arms they can amend the Constitution. If the people to do not approve an amendment that limits or bans individual gun ownership then the point becomes moot. Don’t forget this H.L. Mencken quote, “The urge to save humanity is almost always a false front for the urge to rule.”
The source of historical error in the Heller decision is not found in the majority opinion and is not due to any conspiracy of law review authors starting in 1960. Historical errors in the opinion are found in the dissent and can be traced directly to the opinions expressed in the Heller amicus brief from a large number of historians. There is no excuse for the pro-DC Heller amicus brief from 15 professional academic historians and legal scholars containing a number of obvious errors of fact.
http://hnn.us/articles/47238.html
Mike Hansberry - 6/28/2008
I am aghast, and beside myself with dread having read Mr. Spitzer's comments. Being unable to rest, and with trembling hands, I set out to ascertain for myself the truth of what Wills and others have reported.
My initial inquiries hinted that Spitzer had only glimpsed the tip of the iceberg.
To my shock and horror, after several long minutes of study, I discovered that the courts in Bliss v, Commonwealth (1822) and Nunn v. State (1846), and VERY MANY OTHER state courts, have also "manufactured gun rights"!
But that is not the end of it. Even such giants as James Wilson and Roger Sherman were it on it! In fact, I have found undeniable evidence that the intent to manufacture gun rights goes all the way back to the founding, and very possibly earlier.
Having now thoroughly investigated the matter, the only conclusion that I can draw is that Coxe, Wilson, Sherman, and many others were part of a much earlier group than those identified by Spitzer. This early group was even more vile as their blizzard of writing doubtless provided the seed from which sprouted dozens of subsequent false constructions of the right to keep and bear arms. The despicable Tench Coxe didn't follow the unmistakable idiomatic form in his published articles, so he must have been lying, or at the very least, did not know that he was being used by a vast right wing conspiracy, led by none other than his inside contact James Madison.(1)
(1)I cannot take all the credit for this last finding, as Wills has earlier hinted at this conclusion.
I was referring to the article as a load!
It is called "the Standard Model" for a reason.
I haven't given HNN a thought 'till Shenkman misused the registration list to hawk his book.
I'm willing to bet that the author has no idea what the decision was in Miller. It is a lead pipe cinch that the dissent in Heller has no idea. On page 2 they claim the criminals in Miller were *convicted*! Nothing could be further from the truth.
So one of you anti rights historians or lawyers tell me precisely what the Miller decision was.
David T. Hardy - 6/27/2008
1) Of the four greatest early American legal commentators, spanning 1803-1888, three took an individual rights view, while one took a view not inconsistent with that (talking of militia, not ruling anything else out).
2) Tench Coxe, in newspaper articles published while the Bill of Rights was being debated, described it as a right to keep and bear "private arms."
3) The assertion that a modern law review article advocating individual rights for individual purposes in very modern times came from some one not quite up to the writer's standards, and therefore the approach cannot be correct, does seem a bit thin, logically.
4) I am sure that peer review has a beneficial function. Law reviews, on the other hand, demand rigorous verification of footnotes and sources. Mr. Bellesiles passed the first test easily, but apparently his peers neglected the second. I'd suggest that, on balance, the latter is a better safeguard.