Analysis

When history is pressed through filters of legal advocacy, what comes out may be very different, depending, of course, upon the filter used. The Constitution’s Second Amendment — the one that guarantees “a right to keep and bear arms” — has a history that has been examined exhaustively for generations, and the disagreements over how to read it have gone on unendingly. Now, opposite sides in the Supreme Court case testing the scope and meaning of that Amendment — the case that comes up for argument next Tuesday morning — have taken their turn at reading the history as a matter of legal advocacy. Not unexpectedly, James Madison, the primary architect of the Amendment, is caught in the middle. And that is but an illustration of the history — the histories — that have been laid before the Justices.

When a convention met in Virginia to consider ratifying the proposed Constitution, Madison was a delegate. When some delegates said a new national convention should be called to change the document, a committee on which Madison sat tried to head off that maneuver by offering a list of 40 changes that would be passed along to the First Congress to consider. One contained the words “the people have a right to keep and bear arms” as well as these words: “a well regulated militia…trained to arms is the proper, natural and safe defence of a free state.” Another proposed that anyone with religious objections to “bearing arms” should be allowed to pay someone else “to bear arms in his stead.”

When Madison, in the First Congress, sat down to draft what would become the Second Amendment, his draft was to combine all of those words and phrases into a composite: “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.”

In the end, these are the words that wound up in the Amendment: “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.”

What does that history show? To the District of Columbia government and its mayor, that sequence shows that the Amendment had a military-only focus. Its brief argues: “Reading the text of the Second Amendment as a unified whole to protect only militia-related firearm rights reflects the concerns expressed by the Framers from the time of the Consitutional Convention through adoption of the Amendment by the First Congress.” The brief goes on to examine some history from the deliberations in the First Congress, suggesting that “Madison’s draft was revised to make the Amendment’s exclusively military focus even clearer.”

But, starting from some of the same historical bases, a group named Academics for the Second Amendment (law professors who set up their group in 1992 to advocate an individual rights interpretation) comes out differently. It agrees that Madison crafted his initial proposal primarily from the work of the Virginia ratifying convention’s committee. The proposal to have a right to keep and bear arms and to recognize a militia as a key to defense, the Academics say, was intended to embrace a concept of “essential and inalienable rights of the people.” Another set of the Virginia proposals discussed distribution of government power for dealing with military needs, not rights. Madison, the Academics contend, wrote his draft from the rights proposals, not the distribution of power. They go on to address activity in the First Congress, noting that the Senate voted down a proposal to add the military needs idea to the Constitution — language that, they note, Madison left out of his draft.

The technique of advocacy in each case — and this is typical of the other historical ruminations put before the Court — is to examine history with some selectivity rather than comprehensively. Note, in the example about Madison’s choices, that some parts of the history are the same, but others are not, yet each points to a conclusion supporting that side’s core argument. That, of course, is more the method of those with legal skills than those trained in history’s disciplines.

Another example comes in the two sides’ review of the English history that lies behind the Second Amendment, and the issue at stake before the Court. Going back to the Glorious Revolution of 1688 and its early aftermath, each side sees its perceptions validated by the English Bill of Rights accepted by William and Mary. Article VII guaranteed Protestants that they would have “arms for their defense suitable to their condition and as allowed by law.”

A group of 15 constitutional historians, supporting the District of Columbia, reads that provision as a specific response to the need to safeguard the Protestant population and all of England from a restoration of Catholicism. Moreover, their brief goes on, Article VII was only a part of a larger movement to vindicate the supremacy of Parliament. The historians sum up: “The liberty Englishmen cherished would be secured by confirming that a Parliament respectful of their rights and representative of society would have sovereign authority to make law. Article VII endorsed the idea that well-to-do Protestants might keep arms against the threat of a Catholic restoration, but as the formula ‘according to law’ made clear, this imposed no limit on the reach of parliamentary power.”

On the other side, Joyce Lee Malcolm, a professor of legal history at George Mason Law School and the author of two books on the English right to arms, goes back to the same English history in a joint brief she filed with the Cato Institute. Citing the same language of Article VII of the English Bill, the professor and Cato say: “This article set out a personal right.” It was part of a list of rights that accompanied 12 indictments against King James II, including one indictment that accused him of disarming Protestants. The brief adds: “Neither the article nor the indictment tied having arms to militia service, which the Declaration nowhere mentioned.” The brief sums up that “by the Second Amendment’s adoption, Americans had inherited a broadly applicable and robust individual right that had been settled for at least fifty years. This right of course had limits, but they did not intrude on the core right to keep firearms to defend home and family: They confirmed it.”

Much of the disagreement in the legal briefs in the D.C. gun case focuses on the impact that guns, and, alternatively, the impact that gun control laws, have on racial and other minorities. Again, history is brought to bear to support the conclusions stated in the two sides’ conflicting briefs.

For example, the NAACP Legal Defense Fund notes one historian’s argument that a function of the “well regulated militia” of the Second Amendment was used during colonial times and afterward to help maintain slavery and suppress slave rebellion. And it argues that the Black Codes of the post-Civil War Reconstruction era should not be confused with modern attempts to control gun laws. Those Codes, it says, were blatantly discriminatory, but there is no proof of that in the D.C. gun ban’s history. By contrast, the Congress of Racial Equality, in a lengthy excursion into the history of the Black Codes of Reconstruction days, notes that those provisions “often prohibited the purchase or possession of firearms” by freed slaves. It cites an 1867 report of the Anti-Slavery Conference concluding that blacks were “forbidden to own or bear firearms, and thus were rendered defenseless against assaults.” (One of the authors of the CORE brief is law professor Robert Cottroll of George Washington University — who also is cited as one of the authorities in the brief of the NAACP LDF.)

On another level, there is strong disagreement, from a number of former U.S. attorneys general and other ex-officials in the Justice Department top echelon, about what that Department’s history says about the nature of the Second Amendment. One group, led by former Attorneys General Janet Reno and Nicholas Katzenbach, stresses the decades during which their Department supported the view that the Amendment did not embrace a private, individual right — and notes that the Department put that argument before the Supreme Court when it last examined the Amendment’s meaning: U.S. v. Miller, in 1939 (which, they recall, was “the first and only Second Amendment challenge to federal firearms legislation resolved by this Court”). But a different group, led by former Attorneys General Edwin Meese and William P. Barr, conclude that the Department’s history on the subject did not “provide well-reasoned, or even consistent, support” for the view that the Amendment does not protect an individual right. And they counter the other ex-officials’ citation to the U.S. brief in the Miller case by noting that the argument picked out in the other brief was only an argument alternative to others that were consistent with an individual rights view.

Perhaps it was inevitable: the notion that silence speaks also comes into arguments about what history has to say (or not). Eighteen Democratic members of Congress, for example, cite the Supreme Court’s “decades-long silence” in addressing the meaning of the Second Amendment as a reason for the Court now to pay more attention to what Congress was doing during that time: passing many laws to impose gun control without fretting over the Second Amendment. But, countering that argument, Vice President Cheney and a majority of the current members of the House and Senate examine that period of congressional activity and find in it repeated instances of legislative comments supporting the individual rights theory, including “a scholarly report” by a Senate subcommittee in 1968 saying that what the Amendment protects “is an individual right of a private citizen to own and carry firearms in a peaceful manner.” And, in its own suggestion of eloquence in silence, that brief recites references to an individual rights theory in pending bills that Congress has not enacted.

Posted in District of Columbia v. Heller, Uncategorized