1. “The Second Amendment and Militia Rights: Distinguishing Standard Model Legal Theory from the Historical Record” by Patrick J. Charles

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September 23rd, 2013

In this Journal’s symposium edition Gun Control and the Second Amendment, Nicholas J. Johnson argues the Standard Model Second Amendment is the correct interpretation in both law and history.  In particular, Johnson chastises any historically based militia interpretation as “nonsense” because it conflates rights with duties.[1]  Frustrated with different militia focused interpretations of the Second Amendment, he queries: “How many tries are allowed before the enterprise loses credibility?”[2]  To those historians that have waded through the evidentiary record, the irony of Johnson’s view that scholarship should not improve and evolve in response to new research and on-going scholarly debate will not go unnoticed.  Johnson shares with other supporters of the self-styled Standard Model a preference for ideology over evidence.  The Standard Model “right to shoot, to train, or to gather for shooting practice or other activity with their individual arms that approximates or facilitates the militia duty”[3] is not the Founders’ right, but closer in spirit to Daniel Shays, not James Madison.[4]

Still to Johnson the Model is the better option because it provides us with a bundle of Second Amendment rights rather than a series of duties.[5]  The problem with this construct is that the Founders understood rights in republican terms, not modern individualistic libertarian ones.  Johnson also does little to rebut the abundance of historical evidence supporting that the right to keep and bear arms in a government sanctioned well-regulated militia was considered a palladium of liberty.[6]  He provides no evidence to dispute this historical fact other than, as I understand it, that he does not agree in terms of twenty-first century application.

As an example of his frustration, Johnson highlights my article The 1792 National Militia Act, the Second Amendment, and Individual Militia Rights.[7]  This deserves a response.  To begin, it is worth stating my article’s purpose, which was to address a number of post McDonald v. City of Chicago lawsuits claiming the 1792 National Militia Act should be read by the courts as vesting an individual right to carry arms for self-defense and crime prevention, as well as a number of militia-centric rights to include rights to train, associate, and form non-government sanctioned militias.[8]  My article showed such claims to be nothing more than the mythical fabrications of lawyers.[9]  However, at numerous points, Johnson criticizes my article as a “vivid example” as to why a non-Standard Model construct is “just nonsense.”[10]

To be clear, where Johnson and I diverge is the scope of any militia-centric Second Amendment rights.  While the four corners of the Constitution and the accompanying historical record conveys the Second Amendment militia-centric right as embodying a right to participation in government sanctioned militias,[11] Johnson outright rejects this reading on three grounds.  First, he argues such an interpretation is nonsense because the federal and State governments could exclude people from service.[12]  Second, he finds it difficult to come up with a “list of illustrations of the militia right in action.”[13]  Third and lastly, Johnson argues my militia articulation of the Second Amendment is nothing more than a duty masquerading as a right.[14]  Each criticism suffers from the same deficiencies.  Johnson not only fails to meet the historian’s burden, but he also outright rejects what constituted a late eighteenth century constitutional well-regulated militia.  Johnson is certainly entitled to his opinion that my historical findings are nonsense.  It is impossible to take Johnson’s criticisms seriously, however, when he is presenting a twenty-first century argument, not a late eighteenth century one.[15]

As the Standard Model developed, so too did its arguments as a means to counter any criticisms.  In the mid-1990s, the Model was up against the collective rights approach.  The collective rights understanding of the Second Amendment contained no individual component, and viewed the right to “keep and bear arms” as solely a State matter.[16]  But there was a serious problem with a collective rights view.  The Second Amendment was a right of “the people” in one form or another.[17]  It is primarily for this reason that the Standard Model gained sway in legal circles, but there were other arguments.  One was that the collective rights theory presented a number of preemption consequences that would essentially undo federal gun laws.[18]  In presenting this argument, Standard Model writers did not delve into the historical record.  Instead they presented a “thought experiment” in late twentieth century terms.[19]

At the turn of the twenty-first century a number of historians examined the Second Amendment closer than ever before.[20]  What they found was the Second Amendment contained both individual and collective components.[21]  Many concluded that the right to keep and bear arms in a well-regulated militia was the gravitas of the Amendment, not the textually loose paradigm being presented by Standard Model writers.[22]  It is here that the Standard Model preemption argument, which had been used to dismiss the collective rights interpretation, was reapplied to combat these new historical findings.[23]  But here again Standard Model writers did not delve into the historical record.[24]  They again conjured legal arguments without even a basic understanding of a well-regulated militia and its parts in the late eighteenth century.  It is within this spirit—a lack of historical consciousness—that I read Johnson’s preemption criticism, for he too fails to meet the historian’s burden of providing substantiated historical evidence in support of his claim.

This brings us to Johnson’s second issue with the historical record—it is difficult to come up with a “list of illustrations of the militia right in action.”[25]  Here Johnson delivers a common legal argument that gun rights advocates are currently employing to advance robust Second Amendment rights both inside and outside the home.[26]  In essence, as I understand him, Johnson is for advancing militia-centric rights under a paradigm similar to how the judiciary handles the First, Fourth or Fifth Amendment claims, rather than the Third or Seventh Amendment.  But given that the Supreme Court relied on history, why should this be the case?[27]  Furthermore, to compare the Second Amendment to the First Amendment would not only be historically illegitimate, but doctrinally problematic on a number of levels.[28]  If historical legitimacy and accuracy matter, it makes sense for the judiciary to apply longstanding ideological and philosophical restraints rather than interest balancing or twenty first century preferences.[29]  This means the Court must recognize those “arms” regulations that are part of our Anglo-American tradition.[30]  If this approach is deemed inadequate by Johnson, and he still feels the judiciary must apply some existing jurisprudential construct, Darrell A.H. Miller makes a convincing case that the Seventh Amendment is the answer.[31]

There is another reason as to why Johnson’s “list of illustrations” concern is unavailing—one does not need to provide a detailed list for each and every right, especially when each right maintains a distinct historical pedigree and may be triggered in only a few circumstances.  Historically understood, the right to take part in defending one’s liberties in a well-regulated militia—against enemies foreign or domestic—was viewed as a fundamental right of Englishmen.[32]  Its origins developed in mid-seventeenth century England and were restated by members of the founding generation to be one of the palladiums of liberty.[33]  The historical record is clear in this regard.  Again, Johnson is welcome to opine that it is nonsense.  However, for Johnson’s opinion to be historically viable in late eighteenth century terms requires substantiated evidence supporting it.  It is a burden Johnson cannot satisfy.

Perhaps Johnson’s point is that we must accept the Second Amendment as the public understood it when the Fourteenth Amendment was ratified.  Under this historical paradigm, Johnson is on record stating the Second Amendment was an individual right to resist tyranny and combat political violence.[34]  But this paradigm is problematic on two levels.  First, by the late nineteenth century, State courts were divided as to whether Second Amendment should be interpreted in this light.[35]  Second, and more importantly, the Fourteenth Amendment did not undo the division of militia powers as articulated by the Constitution.[36]  The fact of the matter is the federal and State governments retained concurrent authority to assemble, train, and call out the militia.[37]

The 1886 decision in Presser v. Illinois expounds this point.[38]  In Presser, the Supreme Court unanimously held that the States may ban the formation of independent militias or paramilitary associations.[39]  Indeed, the Court acknowledged that “all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States,” but this did not mean the people carrying arms in their individual capacity were effectuating the Second Amendment’s well-regulated militia purpose.[40]  To be clear, the Supreme Court held any militia rights to bear arms are intimately linked with the function of the government.[41]  In the words of John Marshall Harlan, who was one of the Justices that decided Presser :

The militia is composed of the people outside of the regular forces, and every man is of the militia according to the law of the state in which he lives. . . .

. . . .

. . . The particular object of [the Second Amendment] . . . was to make it certain that the Congress of the United States should never have it in its power to say to any state, “You shall have no regular trained militia with arms in their hands.”  This militia, as contradistinguished from regular troops, are the boys at home around their local government, attached as they ought to be to their home and to their local government, and therefore ready if emergency requires to defend that home government against a government outside.  Therefore, the fathers said that is necessary to the freedom of the people, to the security of the people, and therefore an act of Congress which should say that no state should have any militia, should have no troops with guns in their hands, is a nullity . . . . That was the provision of the Bill of Rights, “And the right to keep and bear arms, shall not be infringed.”  Well, there was a statute in the state of Kentucky which punished a man for carrying concealed deadly weapons.  A man carried a pistol, and he was tried and fined under the statute for carrying concealed deadly weapons.  And he said, “Under the Constitution of the United States, as well as the Constitution of Kentucky, I have a right to bear arms.”  “No,” says the court.  “It is the militia that may bear arms, and you, going around here among your peaceful neighbors, pretending to be as unprotected as they are but carrying a concealed deadly weapon, that is doing something that the state may prevent.”[42]

This still leaves Johnson’s third criticism—the founding generation’s militia-centric right to take part in defending one’s liberties is nothing more than a duty masquerading as a right.[43]  This is undoubtedly Johnson’s strongest argument.  From a historian’s viewpoint, one must concede that to the twenty-first century mind it is difficult to fathom a right would coincide with military duty, allegiance to government, being physically capable of performing military exercises, and subjecting one’s self strict military discipline.[44]  But the Second Amendment and the Constitution were not ratified in the twenty-first century.  Both were accepted at a time when it was firmly believed that well-regulated militias would guarantee the security and viability of the United States for years to come.[45]  And the Constitution placed these militias under the concurrent authority of the federal and State governments, not at the independent whims of individuals.[46]  This point is only strengthened by contemporaneous State Second Amendment analogues proclaiming the military—which included militias—shall always be “subordinate” to the civil authority.[47]  The fact is that the right no longer functions the way it was originally understood because of other changes in society, and the law hardly provides proof that the right could not have existed in a different historical era with different assumptions about the military, law, and government.

By no means am I casting Johnson’s argument aside as a modern legal theory that the courts may adopt.  The Standard Model militia construct would certainly afford rights to form, associate, drill, train, stockpile military style arms, etc.[48]  But the fact remains that neither Johnson nor Standard Model writers can claim their theory is historically supported, particularly once the evidentiary record is fully unpacked.  In late eighteenth century terms, the theory that Johnson and Model writers are pushing resembles a late eighteenth century “unregulated” or “ill-regulated” militia, not a constitutional “well-regulated” one.[49]

 


* Patrick J. Charles is the author of numerous articles on legal history and standards of review. Mr. Charles received his J.D. from Cleveland-Marshall College of Law, and his B.A. in History and International Affairs from the George Washington University.  He is a historian for the United States 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, solely the author’s.

Φ Suggested citation: Patrick J. Charles, The Second Amendment and Militia Rights: Distinguishing Standard Model Legal Theory from the Historical Record, 41 Fordham Urb. L.J. City Square 1 (2013), http://urbanlawjournal.com/?p=1326.

        [1].  See Nicholas J. Johnson, Rights Versus Duties, History Department Lawyering, and the Incoherence of Justice Stevens’s Heller Dissent, 39 Fordham Urb. L.J. 1503, 1514-18 (2012).

        [2].  Id. at 1526.

        [3].  Id. at 1513.  This approach is similar to other Standard Model historical claims that have proven to be historically unsupported. Compare Stephen P. Halbrook, The Founders’ Second Amendment: Origins of the Right to Bear Arms 181-83 (2008) (noting support among the Founders for the Standard Model right to bear military arms in order to check the power of foreign and federal armies, regardless of citizens’ involvement in militia), with Patrick J. Charles, The Constitutional Significance of a “Well-Regulated Militia” Asserted and Proven With Commentary on the Future of Second Amendment Jurisprudence, 3 Ne. U. L.J. 1, 71-83 (2011) (arguing that the right to bear arms is intimately linked to participation in a “well-regulated militia” and noting that many influential members of the founding generation feared an insubordinate armed citizenry).

        [4].  Daniel Shays’ rebellion proved influential in discarding the Articles of Confederation and adopting the more resolute Constitution. See generally Robert A. Gross, The Uninvited Guest: Daniel Shays and the Constitution, in In Debt to Shays: The Bicentennial of an Agrarian Rebellion 1 (Robert A. Gross ed., 1993).  For evidence that Shays’ actions were inconsistent with the right to arms, see Patrick J. Charles, Scribble Scrabble, the Second Amendment, and Historical Guideposts: A Short Reply to Lawrence Rosenthal and Joyce Lee Malcolm, 105 Nw. U. L. Rev. 1821, 1825-29 (2011).

        [5].  Johnson, supra note 1, at 1513.

        [6].  Charles, supra note 3.

        [7].  Patrick J. Charles, The 1792 National Militia Act, the Second Amendment, and Individual Militia Rights: A Legal and Historical Perspective, 9 Geo. J.L. & Pub. Pol’y 323, 324-29 (2011).

        [8].  561 U.S. 3025 (2010); Charles, supra note 3, at 71-83.

        [9].  See generally Charles, supra note 3, at 71-83.

      [10].  Johnson, supra note 1, at 1514.

      [11].  See U.S. Const. art. I, § 8, cl. 16; U.S. Const. amend. II. See generally Charles, supra note 7; Charles, supra note 3.

      [12].  Johnson, supra note 1, at 1509-10, 1523.

      [13].  Id. at 1510.

      [14].  Id. at 1511-18.

      [15].  Johnson’s argument is similar to a 1995 “thought experiment” by earlier Standard Model writers. See Glenn Harlan Reynolds & Don B. Kates, The Second Amendment and States’ Rights: A Thought Experiment, 36 Wm. & Mary L. Rev. 1737 (1995).  Johnson’s concerns about rights versus duties and how a collective rights understanding would operate in practice also closely parallel those of another Standard Model criticism of Justice Stevens’ Heller dissent. See David T. Hardy, Ducking the Bullet: District of Columbia v. Heller and the Stevens Dissent, 2010 Cardozo L. Rev. de novo 61.  But these arguments lack historical credibility. See 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, 1773-76 (2012).

      [16].  See, e.g., Keith Ehrman & Dennis Henigan, The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?, 15 U. Dayton L. Rev. 5 (1989).

      [17].  U.S. Const. amend. II.

      [18].  See Reynolds & Kates, supra note 15, at 1751-57.

      [19].  See Charles, supra note 15, at 1773-76.

      [20].  The first serious historical debate over the scope of the Second Amendment was between Lawrence Delbert Cress and Robert Shalhope in the mid-1980s. See Robert E. Shalhope & Lawrence Delbert Cress, The Second Amendment and the Right to Bear Arms: An Exchange, 71 J. Am. Hist. 587 (1984).  The debate was not dispositive.  Instead, it provided academia with the first “responsible” look at the “collective” versus “individual” rights debate. Charles, supra note 15, at 1828-29.

      [21].  See, e.g., Saul Cornell, A Well-Regulated Militia and the Origins of Gun Control in America 2 (2006).

      [22].  See, e.g., id.; Lois G. Schwoerer, To Hold and Bear Arms: The English Perspective, in The Second Amendment in Law and History: Historians and Constitutional Scholars on the Right to Bear Arms 207, 207–21 (Carl T. Bogus ed., 2000); H. Richard Uviller & William G. Merkel, The Militia and the Right to Arms, or, How the Second Amendment Fell Silent 1-5 (2003); Robert E. Shalhope, Book Review, 108 Am. Hist. Rev. 1442, 1442-43 (2003).

      [23].  See J. Norman Heath, Exposing the Second Amendment: Federal Preemption of State Militia Legislation, 79 U. Det. Mercy L. Rev. 39, 71-72 (2001).

      [24].  See, e.g., Heath, supra note 22 (analyzing almost entirely case law without analysis of the historical circumstances surrounding these decisions).

      [25].  Johnson, supra note 1, at 1510.

      [26].  As it stands today, this argument has proved unavailing in a number of Circuit Court opinions, particularly the attempt by advocates to import facets of First Amendment doctrine into the Second Amendment. See, e.g., Woollard v. Gallagher, 712 F.3d 865, 882 (4th Cir. 2013); Kachalsky v. County of Westchester, 701 F.3d 81, 101 (2d Cir. 2012).

      [27].  See generally District of Columbia v. Heller, 554 U.S. 570 (2008).  But even if the Supreme Court reviews the Second Amendment challenges as it does First Amendment challenges, the question as to which First Amendment doctrine(s) should be employed is up for debate. See, e.g., Joseph Blocher, Categoricalism and Balancing the First and Second Amendments, 84 N.Y.U. L. Rev. 375 (2009); Darrell Miller, Guns as Smut: Defending the Home-Bound Second Amendment, 109 Colum. L. Rev. 1278 (2009).

      [28].  See Patrick J. Charles, The Faces of the Second Amendment Outside the Home: History Versus Ahistorical Standards of Review, 60 Clev. St. L. Rev. 1, 50-54 (2012); Gregory P. Magarian, Speaking Truth to Firepower: How the First Amendment Destabilizes the Second, 91 Tex. L. Rev. 49 (2012).

      [29].  See Patrick J. Charles, The Second Amendment Standard of Review After McDonald: “Historical Guideposts” and the Missing Arguments in McDonald v. City of Chicago, 2 Akron J. Const. L. & Pol’y 7, 17-21 (2010).

      [30].  See Charles, supra note 4, at 1822-23.

      [31].  See Darrell A.H. Miller, Text, History, and Tradition: What the Seventh Can Teach Us About the Second, 122 Yale L.J. 852 (2012).

      [32].  See Charles, supra note 3, at 22-23 (citing 1 J.G.A. Pocock, Barbarism and Religion: The Enlightenments of Edward Gibbons, 1737-1764, at 104 (1999)).

      [33].  See Charles, supra note 3, at 1-85.

      [34].  See Clayton E. Cramer et al., “This Right is Not Allowed By Governments that are Afraid of the People”: The Public Meaning of the Second Amendment When the Fourteenth Amendment Was Ratified, 17 Geo. Mason L. Rev. 823, 852 (2010) (discussing the importance of freedmen’s right to bear arms in order to resist the oppression of all-white militias and state governments after the Civil War).

      [35].  Prior to the Supreme Court’s 1886 decision in Presser v. Illinois, some State court opinions may be read as supporting Nicholas Johnson’s reading of the Second Amendment. See Nunn v. State, 1 Ga. 243, 251 (1846).  Other state courts that addressed the Second Amendment inferred a limited militia application. See State v. Smith, 11 La. Ann. 633, 633-34 (La. 1856); State v. Wilforth, 74 Mo. 528, 530-31 (1881); English v. State, 35 Tex. 473, 475-77 (1872).  At the same time, there were courts that interpreted the respective state constitutional “bear arms” provision in line with Johnson’s interpretation. See Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90, 91-92 (1822) (asserting an individual right to bear arms for the defense of the individual citizens and the state, regardless of the implication of militia service).

      [36].  See U.S. Const. art. I, § 8, cl. 16.

      [37].  Id.

      [38].  116 U.S. 252 (1886).

      [39].  Id. at 267-68.

      [40].  Id. at 265; Charles, supra note 15, at 1838-39.

      [41].  116 U.S. at 265-66.

      [42].  Brian L. Frye, Justice John Marshall Harlan: Lectures on Constitutional Law, 1987-98, in Hofstra Univ. Sch. Law Legal Studies Research Paper Series, 233-34 (Research Paper No. 12-05), available at http://papers.ssrn.com/sol3/papers
.cfm?abstract_id=2003116.

      [43].  Johnson, supra note 1, at 1511-18.

      [44].  See id. at 1513-18.

      [45].  The attempts by Presidents to amend the 1792 National Militia Act strongly support this point. See Charles, supra note 7, at 348-50.

      [46].  U.S. Const. art. I, § 8, cl. 16.

      [47].  Mass. Const. art. XVII, pt. 1 (“The people have a right to keep and bear arms for the common defence…and the military shall always be held in exact subordination to the civil authority and governed by it.”); N.C. Const. of 1776, art. XVII, pt. 1 (“That the people have a right to bear arms, for the defence of the State…the military should be kept under strict subordination to, and governed by the civil power.”); Ohio Const. of 1802, art. VIII, § 20 (“That the people have a right to bear arms for the defense of themselves and the state; and as standing armies in time of peace, are dangerous to liberty, they shall not be kept up; and that the military shall be kept under strict subordination to the civil power.”).

      [48].  Charles, supra note 15, at 1728-29.

      [49].  Charles, supra note 3, at 86-102.