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[717]
The Power Side of the Second Amendment
Question: Limited, Enumerated Powers and the
Continuing Battle over the Legitimacy of the
Individual Right to Arms
NICHOLAS J. JOHNSON
†
Roughly a decade has passed since the Supreme Court’s decision in District of Columbia v.
Heller and the battle over the basic legitimacy of the right to keep and bear arms continues. A
significant segment of the academy, the Bar, and the judiciary remains skeptical about the
constitutional bona fides of the individual right to arms. A primary source of that skepticism is
the view pressed most forcefully by professional historians that the Second Amendment had
nothing to do with individual self-defense and at best protects an “individual militia right” that
has no practical application in modern America. This Article will show that the historians’
account is deeply flawed historiography and a dubious rebuttal to the individual rights view
because it ignores the role of limited power in the understanding of rights under the original
Constitution.
†
Professor of Law, Fordham University School of Law. I would like to thank Ellen Johnson, Alex
Haberman, and Geremy Kaplan for their excellent research assistance. I also would like to thank George
Mocsary, Marc Arkin, Clare Huntington, Jack Krill, Robert Cottrol, Andrew Kent, Bob Kaczorowski, Jed
Shugerman, Saul Cornell, the participants in the Fordham Law School Behind the Book program, and the
participants in the Fordham Constitutional History Workshop for their comments and reactions to the ideas and
early drafts of this Article.
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718 HASTINGS LAW JOURNAL [Vol. 70:717
TABLE OF CONTENTS
INTRODUCTION ............................................................................................... 719
I. THE POSITIVIST MISTAKE OF THE HISTORIANS’ CREATIONIST ACCOUNT OF
THE SECOND AMENDMENT .................................................................. 725
II. THE RIGHTS-PROTECTING LIMITED POWER STRUCTURE OF THE ORIGINAL
CONSTITUTION .................................................................................... 729
A. THE LINKAGE BETWEEN INDIVIDUAL RIGHTS AND LIMITED
FEDERAL POWER AS UNDERSTOOD IN THE RATIFICATION
PERIOD ......................................................................................... 729
B. AN ILLUMINATING EXAMPLE OF THE LINKAGE BETWEEN
INDIVIDUAL RIGHTS AND LIMITED POWER IN THE POST-
RATIFICATION PERIOD ................................................................. 736
III. THE EXPLICIT LINKAGE BETWEEN LIMITED POWER AND THE SECOND
AMENDMENT: A CONVERSATION DISSERVED BY PROFESSIONAL
HISTORIANS ......................................................................................... 738
A. WILLIAM RAWLE’S A VIEW OF THE CONSTITUTION IN CONTEXT
WITH AN ALLUSION TO ST. GEORGE TUCKER .............................. 739
B. WILLIAM RAWLE ON THE SECOND AMENDMENT ........................ 742
C. WILLIAM RAWLE ON THE SECOND AMENDMENT AND HISTORIANS
THROWING STONES ..................................................................... 743
IV. THE LINKAGE BETWEEN LIMITED POWER AND THE RIGHT TO ARMS
CONTINUES INTO THE TWENTIETH CENTURY ...................................... 748
A. LIMITED POWER DICTATES THE STRUCTURE OF THE FIRST
FEDERAL GUN CONTROL LEGISLATION: THE NATIONAL FIREARMS
ACT OF 1934 ................................................................................ 750
B. SOME REMINDERS ABOUT THE MODERN COMMERCE POWER AND
AN ILLUMINATING SEARCH FOR POWER IN OTHER PLACES—WHAT
ABOUT THE MILITIA POWER? ...................................................... 758
1. The Commerce Clause ........................................................... 758
2. The Militia Power and the Historians’ Telling Concession .. 760
V. INTEGRATING LIMITED POWER INTO RIGHT TO ARMS JURISPRUDENCE: A
KEENER LENS ON HELLER ................................................................... 764
A. THE HELLER DISSENTERS’ “INDIVIDUAL MILITIA RIGHT” .......... 765
B. THE LIMITED POWER CRITIQUE REVEALS THE DEEP FLAWS IN THE
INDIVIDUAL MILITIA RIGHT THEORY .......................................... 768
CONCLUSION ................................................................................................... 769
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INTRODUCTION
Roughly a decade has passed since the Supreme Court’s decision in
District of Columbia v. Heller,
1
and the battle over the basic legitimacy of the
right to keep and bear arms continues. Liberal Justices on the Court have
criticized Heller as a mistake and expressed the hope that it will be overturned.
Justice Ginsburg has described Heller as “a very bad decision.”
2
Justice Breyer
pressed the point in an interview where he contended that the dissenting opinion
of retired Justice Stevens reflected the best view of the substance of the Second
Amendment.
3
In 2014, after his retirement, Justice Stevens published a book that
extended his argument that the Second Amendment only protects a right to arms
while serving in the militia.
4
In the lower courts, the prevailing standard for deciding Second
Amendment claims bears no resemblance to Heller’s pronouncement that guns
in common use are constitutionally protected. In a 2014 Harvard Law Review
forum, Alan Gura (who represented Dick Anthony Heller before the Court in
2008) lamented the generally accurate boast by a former Brady Center attorney
that the intermediate scrutiny filter urged in Justice Breyer’s Heller dissent
“appears headed for an unexpected triumph” in the lower courts.
5
Gura
complained that “[m]any lower court judges have simply not reconciled
themselves to Heller and McDonald, and can be counted upon to resist rather
than implement these decisions.”
6
According to Gura, the mechanism for this
resistance is an “analytical approach” that reflects “Justice Breyer’s sentiments
about Second Amendment claims far more than those of Justice Scalia or the
other members of the Court who formed the majorities in Heller and
McDonald.”
7
Members of the majorities in Heller and McDonald v. City of Chicago
8
have sharply criticized the lower courts’ treatment of the precedents. Justice
Thomas’s 2015 dissent (joined by Justice Scalia) in the Court’s denial of
certiorari in Jackson v. City of San Francisco described the Second Amendment
jurisprudence of the lower federal courts as something more pernicious than
simple disagreement about how to administer ambiguity
1
. 554 U.S. 570 (2008).
2
. See Opinion, Ruth Ginsburg’s Victory Lap, WALL ST. J. (July 11, 2016, 7:20 PM),
http://www.wsj.com/articles/ruth-ginsburgs-victory-lap-1468279234.
3
. See Interview by Charlie Rose with Justice Stephen Breyer (Oct. 6, 2016),
https://charlierose.com/vId.eos/29278 (describing the dissenters’ agreement with Justice Stevens).
4
. JOHN PAUL STEVENS, SIX AMENDMENTS: HOW AND WHY WE SHOULD CHANGE THE CONSTITUTION
(2014); see also John Paul Stevens, Opinion, The Five Extra Words that Can Fix the Second Amendment, WASH.
POST (Apr. 11, 2014), https://www.washingtonpost.com/opinions/the-five-extra-words-that-can-fix-the-second-
amendment/2014/04/11/f8a19578-b8fa-11e3-96ae-f2c36d2b1245_story.html?utm_term=.968b186113ff.
5
. Alan Gura, The Second Amendment as a Normal Right, 127 HARV. L. REV. F. 223, 224 (2014) (internal
quotation marks omitted) (quoting Allen Rostron, Justice Breyer’s Triumph in the Third Battle over the Second
Amendment, 80 GEO. WASH. L. REV. 703, 707 (2012)).
6
. Id.
7
. Id. at 224–25 (quoting Rostron, supra note 5, at 756).
8
. 561 U.S. 742 (2010).
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720 HASTINGS LAW JOURNAL [Vol. 70:717
within Heller and McDonald.
9
The San Francisco ordinance seemed very much
like one of the restrictions overturned in Heller in that it required handguns to
be locked away and thus unavailable for immediate self-defense in the home,
except when carried on the person.
10
The Ninth Circuit acknowledged that this
burdened self-defense. However, by passing the question through “means-ends”
scrutiny analysis, the court concluded that the state interest in preventing
suicides and interfamily violence was a significant counterbalancing
justification.
11
Thomas complained that no instruction to apply scrutiny analysis to the
Second Amendment can be found in Heller or McDonald, and the lower courts’
application of it shows that “something was seriously amiss.”
12
Thomas
criticized that “[d]espite the clarity with which we described the Second
Amendment’s core protection for the right of self-defense, lower courts,
including the ones here, have failed to protect it.”
13
Thomas’s dissent (joined by Justice Gorsuch) in the Court’s 2017 denial of
certiorari in Peruta v. California was even more forceful.
14
The case came up on
en banc reversal of a panel conclusion that the Second Amendment required a
state to permit some form of carrying firearms for self-defense outside the home.
According to Thomas, the Ninth Circuit’s en banc reversal of the panel decision
was “indefensible” and the Supreme Court’s denial of certiorari in the case
showed that the Second Amendment is evolving into a “disfavored right.”
15
9
. 135 S. Ct. 2799, 2799 (2015) (Thomas, J., dissenting from denial of certiorari). The Ninth Circuit
denied a motion for preliminary injunction against a San Francisco ordinance requiring that handguns in the
home be locked away except when carried on the person. Jackson v. City of San Francisco, 746 F.3d 953 (9th
Cir. 2014). Petitioners challenged that the law impairs their core right of self-defense because, among other
things, it requires them to lock their guns away while sleeping, bathing, etc., and thus impedes or prevents
effective self-defense in a substantial range of scenarios. Id. at 963–64.
10
. Jackson, 135 S. Ct. at 2800 (Thomas, J., dissenting from denial of certiorari).
11
. Jackson, 746 F.3d at 966.
12
. Jackson, 135 S. Ct. at 2801 (Thomas, J., dissenting from denial of certiorari).
13
. Id. at 2799 (Thomas, J., dissenting from denial of certiorari).
14
. 137 S. Ct. 1995, 1996–2000 (2017) (Thomas, J., dissenting from denial of certiorari).
15
. Id. at 1999 (Thomas, J., dissenting from denial of certiorari) (“The Court’s decision to deny certiorari
in this case reflects a distressing trend: the treatment of the Second Amendment as a disfavored right. The
Constitution does not rank certain rights above others, and I do not think this Court should impose such a
hierarchy by selectively enforcing its preferred rights. The Court has not heard argument in a Second
Amendment case in over seven years—since March 2, 2010, in McDonald v. City of Chicago. Since that time,
we have heard argument in, for example, roughly 35 cases where the question presented turned on the meaning
of the First Amendment and 25 cases that turned on the meaning of the Fourth Amendment. This discrepancy is
inexcusable, especially given how much less developed our jurisprudence is with respect to the Second
Amendment as compared to the First and Fourth Amendments.” (citations omitted)).
For other assessments that the Second Amendment has been treated as a second class right, see Robert
J. Cottrol & George A. Mocsary, Guns, Bird Feathers, and Overcriminalization: Why Courts Should Take the
Second Amendment Seriously, 14 GEO. J.L. & PUB. POL’Y 17 (2016); Nicholas J. Johnson, Heller as Miller:
Court Decisions Dealing with Firearms, in 1 GUNS AND CONTEMPORARY SOCIETY: THE PAST, PRESENT, AND
FUTURE OF FIREARMS AND FIREARM POLICY 83, 83–102 (Glenn. H. Utter ed., 2016); David Kopel, Opinion, The
2nd Circuit’s Second-Class Second Amendment Intermediate Scrutiny, WASH. POST (Oct. 23, 2015),
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/10/23/the-2nd-circuits-second-class-
second-amendment-intermediate-scrutiny/?utm_term=.c8a1e564fd14.
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One explanation for the continuing conflict over the basic legitimacy of the
individual right to arms is consequentialist. The right to own and carry a gun can
conflict with and have a tremendous impact on other important interests. But
that does not account for everything.
Another part of the explanation is conceptual. A significant segment of the
academy, the Bar, and the judiciary remains skeptical about the constitutional
bona fides of the individual right to arms. Heller, many still say, rests on
fundamental errors. The most damning criticism comes from professional
historians who almost uniformly consider Heller to be a mistake.
In 2015, for example, historian Paul Finkelman—a longtime critic of
Heller—published an article criticizing that “the Court’s historical analysis
could not get a passing grade in any serious college history course.”
16
This sort
of critique by professional historians continues to fuel the intellectual opposition
to Heller.
This Article will engage these critical assessments of Heller by showing
that the account of the Second Amendment offered by professional historians is
crucially flawed because it ignores the role of limited power in the understanding
of rights under the original Constitution, and that this failure has led to an
erroneous, positivist account of the right to arms.
17
We sometimes need reminding that the U.S. Constitution did not create
individual rights. The document that emerged from the Constitutional
Convention in September 1787, and was ratified in 1788, protected individual
rights through a structure of limited, enumerated powers. The limited grant of
jurisdiction to the new federal government was widely viewed as equally, if not
more, effective than a positive declaration of rights.
18
That protection did not
disappear when the Bill of Rights was ratified in 1791.
The professional historians who have entered the field of Second
Amendment advocacy have almost uniformly asserted that the Amendment had
nothing to do with individual self-defense and at best protects some sort of
individual militia right that has no practical application in modern America. But
that account ignores the backdrop of limited, enumerated federal power and its
impact on the understanding of rights during the Founding Era—a theme that
16
. Paul Finkelman, The Living Constitution and the Second Amendment: Poor History, False Originalism,
and a Very Confused Court, 37 CARDOZO L. REV. 623, 624 (2015).
17
. A variety of works by professional historians present the creationist account of the Second Amendment.
This Article critiques them in two ways. Several of those works are critiqued in the text. See, e.g., infra text
accompanying notes 114–126. Six other representative works are critiqued in the footnotes accompanying
relevant text. See infra notes 37, 135, 203, 210, 233. These six works are deemed representative because Justice
Breyer’s dissent in McDonald v. City of Chicago cites them for the view that professional historians have shown
that Heller is a mistake. 561 U.S. 742, 914–17 (2010) (Breyer, J., dissenting).
18
. See, e.g., THE FEDERALIST NO. 84, at 512–13 (Alexander Hamilton) (Clinton Rossiter ed., 1961);
Richard A. Epstein, The Proper Scope of the Commerce Power, 73 VA. L. REV. 1387, 1390 (1987) (“Hamilton
treated jurisdiction as a more effective guarantor of individual rights than a bill of rights, because he believed
that it provided clear and powerful lines to keep government from straying beyond its appointed limits.”).
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722 HASTINGS LAW JOURNAL [Vol. 70:717
historians in other contexts generously acknowledge.
19
This is ironic because
professional historians have claimed a special role as translators of the Second
Amendment, arguing that their unique training guarantees a richer treatment of
context and texture than one finds in “law office histories.”
20
So it is striking that
the prevailing account by professional historians fails to engage one of the most
powerful rights-protecting themes of the early Republic.
One of the most pointed demonstrations of this failing is in the Professional
Historians’ Amicus Brief in Heller, which was submitted in opposition to the
claim that the Second Amendment protects an individual right to arms for self-
19
. The historians’ creationist account of the Second Amendment is fundamentally at odds with the general
historical account of the Bill of Rights, which plainly acknowledges the essential linkage between individual
rights and limited power under the early Constitution. Colleen Sheehan’s 2016 Salmon P. Chase Lecture at the
U.S. Supreme Court is illustrative. Sheehan lays the basic ground work for her commentary with a summary that
explains James Madison’s reservations about adding a bill of rights to the Constitution:
Madison was not originally in favor of adding a bill of rights to the Constitution. He was
especially anxious about the push for a second convention in order to include a bill of rights in the
document . . . .
Madison was also concerned that a written catalogue of rights might have the practical effect of
narrowing the scope of some essential rights, . . . . Since the United States Constitution was one of
enumerated powers, all powers not delegated to the central government are reserved to the people
or to the states. Thus it makes sense to enumerate the specific powers of government in the
Constitution rather than attempt to list the broad reservoir of individual rights. In contrast, a bill of
rights made good sense in the British constitution, in which the rights and liberties of the subjects
were gradually carved out from the sovereign Crown and later from Parliament. In the United States
Constitution, the government does not grant rights to the people. Instead, the sovereign people grant
power to the government. . . . Madison believed the potential danger emanating from a bill of rights
in a constitutional system was that some might assume that rights not listed are rights not possessed.
Colleen A. Sheehan, Speech at the Third Annual Salmon P. Chase Lecture & Colloquium (Dec. 2, 2016), in
Colleen A. Sheehan, Third Annual Salmon P. Chase Lecture: The Measure and Elegance of Freedom: James
Madison and the Bill of Rights, 15 GEO. J.L. & PUB. POL’Y 513, 514 (2017) (emphasis added) (footnotes
omitted).
Elsewhere, Richard Fallon has demonstrated how, conceptually, “[w]e have no way of thinking about
constitutional rights independent of what powers it would be prudent or desirable for government to have.”
Richard H. Fallon, Jr., Individual Rights and the Powers of Government, 27 GA. L. REV. 343, 344 (1993). Fallon
worried that “the claim that individual rights are too conceptually interconnected with government powers to
function as independent constraints may seem so obvious as to be unilluminating.” Id. More than two decades
ago I argued that modern expansive conceptions of federal power explained the then outcast status of the Second
Amendment. See Nicholas J. Johnson, Plenary Power and Constitutional Outcasts: Federal Power, Critical
Race Theory, and the Second, Ninth, and Tenth Amendments, 57 OHIO ST. L.J. 1555, 1580–85 (1996).
20
. See, e.g., Brief of Amici Curiae Jack N. Rakove, Saul Cornell, David T. Konig, William J. Novak, Lois
G. Schwoerer et al. in Support of Petitioners at 33–34, District of Columbia v. Heller, 554 U.S. 570 (2008) (No.
07-290) (internal quotation marks omitted) [hereinafter Historians’ Brief] (“Historians can best contribute to the
resolution of contemporary constitutional disputes by recovering and reconstructing the context within which
the adopters of particular clauses thought and acted. The process of recovering and reconstructing what the past
was like must pay close attention to the value of particular texts, the statements that bear most directly on the
matter in dispute. But equally important, it must also convey a sense of context, which requires locating particular
pieces of historical evidence within a framework that best allows us to evaluate their probative value. The
historian’s recurring complaint about ‘law office history,’ as it is colloquially disparaged, is that it routinely
indulges in the selective and uncritical use of quotations, stripped from the context in which they were uttered,
and given meanings that contemporaries would have been astounded to learn they carried. Because of the
exceptional passions surrounding the Second Amendment, this one realm of constitutional controversy appears
more susceptible to this kind of misuse than any other.” (citation omitted)).
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defense. The Historians’ Brief not only acknowledges, but forcefully asserts,
that at the time of the Framing, “[o]utside the question of whether militia
members would be armed at national, state, or personal expense, there was no
credible basis upon which the national government could regulate possession of
firearms.”
21
So how can the Historians’ Brief admit that the new national government
could not prohibit individual possession of firearms and still present a
“historical” analysis concluding that there was no constitutional right to arms for
self-defense? The answer is that it (1) offers a narrow positivist account that
ignores the linkage between individual rights and limited federal power, and (2)
tacitly injects twentieth-century notions of federal power into its nominally
eighteenth-century analysis of the right to arms.
The Historians’ Brief—like the scholarship that fuels it—hopes to show
that few people were worried about the federal government restricting private
firearms in 1789, and therefore it is a mistake to conclude that individual rights
were on the agenda when the Second Amendment was proposed and ratified.
22
But this approach misunderstands our constitutional structure. It presumes that
the constitutional rights were created by the positive act of constitutional
amendment in 1791.
This “creationist” account is fundamentally flawed. The Bill of Rights did
not create individual rights. It simply affirmed a select list drawn from a broad
spectrum of rights already protected in 1788 by virtue of the limited power
granted to the new federal government. Limited, enumerated power prevented
the new government from acting in ways that would infringe the rights of
individuals and the prerogatives of the states.
The historians’ positivist misstep leads to a core analytical mistake. Rather
than examining the Second Amendment in the context of the limited federal
power environment of the eighteenth century, the historians’ creationist account
treats it like a slender, affirmative grant of rights by a federal government that,
two hundred years later, wields power over anything remotely related to
commerce.
The best that might be said for the historians’ creationist account is that it
focuses on refuting particular individual rights claims that are themselves
positivist in nature.
23
But that explanation is no absolution. Indeed, it is an
indictment. The historians’ myopic focus on repudiating “law office histories”
has resulted in an abdication of the obligation to present a fulsome and
evenhanded historical assessment.
Understanding the right to arms in historical context demands that one view
the Second Amendment as a function of the limited, enumerated powers of the
21
. Id. at 31 (emphasis added).
22
. Id. at 35.
23
. See, e.g., Finkelman, supra note 16, at 629–30 (criticizing Don Kates and Stephen Halbrook and
arguing that these “individual rights advocates . . . are not trained historians, and many [] [] are funded, hired, or
otherwise supported by the NRA . . . .”).
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724 HASTINGS LAW JOURNAL [Vol. 70:717
newly created federal government. The linkage between individual rights and
limited federal power was one of the most pervasive rights-protecting themes of
the Founding Era and is presented by William Rawle,
24
one of the leading
commentators of the post-Ratification period as a core aspect of the
constitutional right to arms. This understanding of the Second Amendment
extended well into the twentieth century. Indeed, it is a primary driver of the first
federal gun control law, the 1934 National Firearms Act, which was structured
as a prohibitive tax on the view that Congress had no outright constitutional
authority to ban “gangster weapons.”
Integrating limited power into the historical assessment of the Second
Amendment generates important returns. It shows that the historians’ creationist
account is a deeply-flawed and dubious rebuttal to the view that the Second
Amendment protects an individual right to arms. Also, thinking about the
Second Amendment’s linkage to limited federal power offers a keener
assessment of the Supreme Court’s decision in Heller. Integrating limited power
sharpens the evaluation of competing accounts of the Second Amendment
offered by the Heller majority and dissenters. It leaves one skeptical about the
dissenters’ “individual militia right” because that right must exist in a space
where the Constitution expressly grants the federal government plenary power
(over the militia). Moreover, it fortifies the Heller majority’s affirmation of a
preexisting individual right to arms for self-defense—a right that thrives in a
space where even the Historians’ Brief admits there was no eighteenth-century
federal power to act.
25
Integrating limited power also shines a better light on one of the most
criticized aspects of Heller. Critics have argued that Heller is poor originalism.
Some of the sharpest criticisms have focused on Heller’s validation of most
modern federal gun regulation as presumptively lawful without even a hint of
historical analysis.
26
Some cynics have dubbed this the “Kennedy paragraph,”
speculating that these concessions were a blunt capitulation necessary to gain
the vote of Justice Anthony Kennedy.
Recognizing the linkage between limited power and the right to arms
dampens this criticism. It shows the Kennedy paragraph as a response to the
challenge of conducting an originalist assessment of rights, against a backdrop
of federal power that shifted dramatically over time. The Heller majority meets
this challenge by explaining the Second Amendment as an affirmation of a pre-
existing right that is not constrained by any motive for codification expressed in
the prefatory Militia Clause.
27
That construction flows naturally from the
24
. WILLIAM RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 125 (2d ed.,
William S. Hein & Co., Inc. 2003) (1829).
25
. See Historians’ Brief, supra note 20, at 31.
26
. See e.g., Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L.
REV. 1343, 1356 (2009); Sanford Levinson, United States: Assessing Heller, 7 INT’L J. CONST. L. 316, 316
(2009).
27
. District of Columbia v. Heller, 554 U.S. 570, 577–78 (2008).
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Constitution’s original commitment to firm boundaries on government
authority—boundaries that help delineate individual rights.
On the other hand, judicial administration of the modern right to arms must
accommodate the reality that the federal government now wields vastly more
power than was contemplated by the original constitutional design—power
sufficient to consume virtually any claim of rights, so long as the government
interest is sufficiently compelling. Heller accommodates that reality by deeming
most of the federal firearms regulation that has emerged since the New Deal to
be presumptively lawful.
28
This Article elaborates these points in five parts. Part I details the mistakes
of the historians’ creationist account of the Second Amendment. Part II
demonstrates the linkage between constitutional rights and limited power with a
focus on the ratification debates and early post-Ratification disputes about the
exercise of federal power. Part III examines the explicit linkage between the
right to arms and limited power as articulated in early constitutional
commentary. Part III also shows how historians have ignored and obscured that
linkage. Part IV shows how the linkage remained central to the understanding of
the Second Amendment well into the twentieth century and explains the limited
reach of the first federal gun control law (the 1934 National Firearms Act). Part
IV also demonstrates how the historians’ creationist account rests on a view of
federal power that did not emerge until the middle of the twentieth century.
Finally, Part V shows how the linkage between the right to arms and limited
power offers a neutral tool for evaluating the competing views of the Second
Amendment articulated by the majority and dissenters in Heller.
I. THE POSITIVIST MISTAKE OF THE HISTORIANS’ CREATIONIST ACCOUNT OF
THE SECOND AMENDMENT
In a 1990 dissent, Justice William Brennan, joined by Justice Thurgood
Marshall, provided a reminder about the origin and structure of rights under our
constitution:
In drafting both the Constitution and the Bill of Rights, the Framers strove to
create a form of Government decidedly different from their British heritage.
Whereas the British Parliament was unconstrained, the Framers intended to
create a Government of limited powers. The colonists considered the British
Government dangerously omnipotent. . . . Americans vehemently attacked the
notion that rights were matters of “favor and grace,” given to the people from the
Government.
Thus, the Framers of the Bill of Rights did not purport to “create” rights.
Rather, they designed the Bill of Rights to prohibit our Government from
infringing rights and liberties presumed to be pre-existing.
29
28
. Id. at 626–27.
29
. United States v. Verdugo-Urquidez, 494 U.S. 259, 287–88 (1990) (Brennan, J., dissenting) (citations
omitted).
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Brennan was urging an expansive view of the Fourth Amendment that
many readers will find attractive. But his point is not limited to the Fourth
Amendment. It is a warning against the mistake of viewing individual rights as
something created by the Bill of Rights.
The Framers and ratifiers of the Constitution and Bill of Rights viewed the
limited, enumerated powers of the new federal government established in 1788
as a driving influence on the scope of individual rights. As a general matter,
professional historians acknowledge this. However, the small band of historians
who have entered the Second Amendment debate systematically ignore the
influence of limited power and instead advance a fundamentally-flawed
creationist account of the right to arms.
The historians’ creationist account fuels the continuing skepticism of
Heller. Justice Breyer’s dissent in the follow-up case of McDonald v. City of
Chicago illustrates this influence:
Since Heller, historians, scholars, and judges have continued to express the
view that the Court’s historical account was flawed.
Consider as an example of these critiques an amici brief filed in this case by
historians who specialize in the study of the English Civil Wars. They tell us that
Heller misunderstood a key historical point. Heller’s conclusion that “individual
self-defense” was “the central component” of the Second Amendment’s right “to
keep and bear Arms” rested upon its view that the Amendment “codified a pre-
existing right” that had “nothing whatever to do with service in a militia.” That
view in turn rested in significant part upon Blackstone having described the right
as “the right of having and using arms for self-preservation and defence,” which
reflected the provision in the English Declaration of Right of 1689 that gave the
King’s Protestant “subjects” the right to “have Arms for their defence suitable to
their Conditions, and as allowed by Law.” The Framers, said the majority,
understood that right “as permitting a citizen to ‘repe[l] force by force’ when ‘the
intervention of society in his behalf, may be too late to prevent an injury.’”
The historians now tell us, however, that the right to which Blackstone
referred had, not nothing, but everything, to do with the militia. As properly
understood at the time of the English Civil Wars, the historians claim, the right
to bear arms “ensured that Parliament had the power” to arm the citizenry: “to
defend the realm” in the case of a foreign enemy, and to “secure the right of ‘self-
preservation,’” or “self-defense,” should “the sovereign usurp the English
Constitution.” Thus, the Declaration of Right says that private persons can
possess guns only “‘as allowed by law.’” Moreover, when Blackstone referred to
“‘the right of having and using arms for self-preservation and defence,’” he was
referring to the right of the people “to take part in the militia to defend their
political liberties,” and to the right of Parliament (which represented the people)
to raise a militia even when the King sought to deny it that power. Nor can the
historians find any convincing reason to believe that the Framers had something
different in mind than what Blackstone himself meant.
30
30
. McDonald v. City of Chicago, 561 U.S. 742, 914–17 (2010) (Breyer, J., dissenting) (alteration in
original) (last emphasis added) (citations omitted) (first quoting Heller, 554 U.S. at 599, 592–93; then quoting
id. at 593–94; then quoting id. at 595; then quoting Historians’ Brief, supra note 20, at 3, 8–13, 23–24; then
quoting id. at 13; and then quoting id. at 4, 24–27). At the beginning of this passage, Justice Breyer cites six
works by professional historians in support of the proposition that Heller’s historical account is wrong. Id. at
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Justice Breyer neatly summarizes the historians’ creationist account, and
his critique of the preexisting right to arms reflects the core mistake of the
analysis he cites. Breyer’s argument rests on historical accounts that simply push
the creationist story back in time. They suggest that the preexisting constitutional
right to armed self-defense would have been created earlier by some positive
act, and then embraced by Americans who then codified it in the Second
Amendment. Breyer’s review of the literature shows the pervasiveness of the
historians’ positivist mistake. The historians, Breyer explains, cannot “find any
convincing reason to believe that the Framers had something different in mind
than what Blackstone himself meant.”
31
On this point, Breyer has been led astray by historians who have abandoned
the search for context. As demonstrated in Part II below, there is abundant
evidence that the Framers and ratifiers of the Constitution and the Bill of Rights
saw constitutional rights as the prerogatives that thrived in the vast territory
outside the national government’s jurisdiction. It was the scheme of limited,
enumerated powers, not Blackstone, that protected individual rights from
infringement by the new federal government. Rights were secured because the
new government had no authority to infringe on myriad individual prerogatives.
In the intervening years since Heller was decided, proponents of the
historians’ creationist account of the Second Amendment have maintained their
attack on terms that invite judges to treat Heller as an unfortunate mistake. Paul
Finkelman’s recent critique, The Living Constitution and the Second
Amendment: Poor History, False Originalism, and a Very Confused Court,
conveniently distills that literature and carries the argument forward.
32
Finkelman has been a strident critic of the individual rights view, was a signatory
to the Historians’ Brief in Heller, and was cited prominently in Justice Breyer’s
dissent in McDonald v. City of Chicago.
Finkelman’s analysis is a classic and revealing demonstration of the
creationist account and its positivist mistake. After an introduction that is harshly
914 (Breyer, J., dissenting). This Article will present and engage the historians’ creationist account in a more
detailed way through a series of footnotes critiquing representative examples of that work, including the six
works cited by Justice Breyer. This Article will summarize and critique those works in context infra note 37
(Nathan Kozuskanich & William Merkel), note 135 (Saul Cornell), note 203 (Paul Finkelman), note 210 (Patrick
Charles), and note 233 (David Konig). Additionally this Article engages three other renditions of the historians’
creationist account. See infra text accompanying notes 32–36 & 149–150 (Paul Finkelman); infra text
accompanying notes 117–119 & 129–130 (addressing two articles by Saul Cornell).
The list of six works in the order cited by Justice Breyer in McDonald is: David Thomas Konig, Why
the Second Amendment Has a Preamble: Original Public Meaning and the Political Culture of Written
Constitutions in Revolutionary America, 56 UCLA L. REV. 1295 (2009); Paul Finkelman, It Really Was About
a Well Regulated Militia, 59 SYRACUSE L. REV. 267 (2008); PATRICK J. CHARLES, THE SECOND AMENDMENT:
THE INTENT AND ITS INTERPRETATION BY THE STATES AND THE SUPREME COURT (2009); William G. Merkel,
The District of Columbia v. Heller and Antonin Scalia’s Perverse Sense of Originalism, 13 LEWIS & CLARK L.
REV. 349 (2009); Nathan Kozuskanich, Originalism in a Digital Age: An Inquiry into the Right to Bear Arms,
29 J. EARLY REPUBLIC 585 (2009); Saul Cornell, St. George Tucker’s Lecture Notes, the Second Amendment,
and Originalist Methodology: A Critical Comment, 103 NW. U. L. REV. 1541 (2009).
31
. McDonald, 561 U.S. at 916 (Breyer, J., dissenting) (emphasis added).
32
. See generally Finkelman, supra note 16.
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critical of Heller, Justice Scalia, and “standard model” scholars,
33
Finkelman
engages the Framing story in a way that carefully elides the linkage between
rights and power. Take for instance his claim that James Madison, Alexander
Hamilton, and John Jay “casually dismissed” calls for a bill of rights in the
Federalist Papers because, “the Antifederalists could not all agree on what
protections of liberty they wanted.”
34
This is profoundly misleading. As
demonstrated in Part II, the Federalist Papers, as well as the ratification debates
and surrounding correspondence, show that the core objection to a bill of rights
was that rights already were protected by the limited grant of power to the new
federal government, and, further, that any attempt to list individual rights would
create the false impression that rights not enumerated did not exist.
Not only does Finkelman elide the function of limited power in defining
and protecting rights, he goes a step further to offer a more obscure replacement.
Finkelman plainly acknowledges that Madison had in mind some mechanism
other than a bill of rights that would protect individual liberty.
35
But according
to Finkelman, Madison believed that liberty would be adequately protected in
absence of a bill of rights through “the competing interests caused by diversity
of the people.”
36
It is telling that he presents the “diversity of the people” as a
complete remedy and simply ignores the widely-articulated view that individual
rights were protected by the express limits on the powers of the new federal
government.
37
33
. Finkelman uses insult quotes to describe standard model “scholars,” who he then characterizes as “gun
rights propagandists” and unserious purveyors of law office histories who have failed to present competent
history or analysis. Id. at 624–27.
34
. Id. at 638 (citing THE FEDERALIST NO. 38 (James Madison)).
35
. Id. (“In Federalist 48 Madison argued that a bill of rights would be useless.”).
36
. Id. (citing THE FEDERALIST NO. 51 (James Madison)).
37
. Justice Breyer’s McDonald dissent cites with approval Nathan Kozuskanich’s, Originalism in a Digital
Age: An Inquiry into the Right to Bear Arms. McDonald, 561 U.S. at 914–17 (Breyer, J., dissenting); see also
Kozuskanich, supra note 30. Kozuskanich presses the creationist account of the right to keep and bear arms
based on a literal counting of the uses of the term “bear arms” in early records. Id. at 587. Like Finkelman,
Kozuskanich subtly elides the context of limited power in which the Framers understood rights against the new
federal government. After chiding that Justice Scalia’s opinion in Heller “has little use for relevant context,”
Kozuskanich repeats that sin with a single, glancing allusion to the limited power theme. Id. at 589. Kozuskanich
claims that the Bill of Rights emerged “as a way to appease men who were not satisfied to let the separation of
powers guarantee their liberties.” Id. at 597. Kozuskanich’s suggestion that separation of powers was the
foundation of individual rights prior to ratification of the Bill of Rights ignores the vital rights-protecting role of
limited power under the early Constitution. This subtle omission is essential to sustaining the historians’
creationist account of the Second Amendment.
This criticism is illuminated by comparing Kozuskanich’s explanation to a standard historical critique
of how the Constitution protected rights absent a bill of rights. Jeff Broadwater’s explanation of Madison’s initial
opposition to a bill of rights (in an analysis unrelated to the Second Amendment) is illustrative: “[Madison]
thought the Constitution’s elaborate system of checks and balances, its division of power between the state and
federal governments, and its careful enumeration of congressional prerogatives adequately protected individual
rights.” Jeff Broadwater, George Mason, James Madison, and the Evolution of the Bill of Rights, 15 GEO. J.L.
& PUB. POL’Y 547, 560–61 (2017).
Note how Broadwater integrates limited power as an important factor in the protection of individual
rights along with the checks and balances that Kozuskanich references. Note also how checks and balances are
brakes on factionalism, and address worries about majoritarian abuse of powers plainly granted (the sort of thing
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Finkelman broadly reflects the work of professional historians with
creationist arguments that focus minutely on the text of comparable state arms
provisions, on the view that what was created by the states was also created
under the federal Constitution.
38
As the balance of this Article will show, that
aspect of the creationist account ignores the fact that, unlike the state
governments, the new federal government had very defined and limited powers.
The protection of rights against federal action was a far different thing from the
protection of rights against state governments wielding general police powers.
Part II demonstrates in detail how the historians’ creationist account of the
Second Amendment ignores perhaps the most powerful rights-protecting theme
of the Framing Era.
II. THE RIGHTS-PROTECTING LIMITED POWER STRUCTURE OF THE ORIGINAL
CONSTITUTION
The scheme of limited, enumerated federal powers was the primary mode
of protecting individual rights under the original Constitution, and the
rights-protecting function of limited power is integral to understanding the
Second Amendment in historical context. Subparts II.A and II.B illustrate this
theme as it was debated prior to ratification of the Constitution and applied in
the post-Ratification period.
A. THE LINKAGE BETWEEN INDIVIDUAL RIGHTS AND LIMITED FEDERAL
POWER AS UNDERSTOOD IN THE RATIFICATION PERIOD
The proposal that emerged from the Constitutional Convention in
September 1787, and was ratified in 1788, did not include a bill of rights. But
that did not mean that it failed to protect individual rights. The Constitution was
presented as an instrument that protected individual rights through a limited
grant of power to the new federal government.
Madison worried about in Federalist 51). But Kozuskanich fails to mention the system of limited enumerated
powers that protected the liberties that the Constitution gave Congress no power to infringe. One cannot know
exactly why Kozuskanich’s presentation is crafted this way. But we can say that ignoring limited power sidesteps
the most serious flaw in Kozuskanich’s dismissive account of the individual right to arms.
Another glaringly obvious problem with Kozuskanich’s analysis is that it focuses entirely on the phrase
“bear arms” as if the right to “keep” is simply not part of the text. Here, Kozuskanich is extending the work of
William Merkel, one of the other historians that Justice Breyer cites in support of the claim that Heller rests on
unsound historiography. See Merkel, supra note 30. Merkel’s is an unabashedly creationist account grounded,
he says, on “syntax, the debates in the first Congress, and historical context to make the claim that the two parts
of the [Second] Amendment were logically and linguistically dependent.” Id. at 365. Merkel also engages the
inevitable criticism that even if bear arms has a military connotation, what should one make of the right to keep.
According to Merkel, “The text describes one right, coupled syntactically to the militia and to the security of a
free State, and that right is to ‘keep and bear Arms’—not own guns and carry weapons.” Id. at 367. While Merkel
savages Justice Scalia for ignoring context (one of his headings is “Failure, Fraud and Originalism”), id. at 378,
Merkel makes not one mention of the limited power environment of the original Constitution or the importance
of limited power to the understanding of rights against the new federal government.
38
. See, e.g., infra notes 114–134 and accompanying text.
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Alexander Hamilton’s Federalist 84, urging ratification of the Constitution
without a bill of rights—just as it emerged from the Convention—is a classic
presentation of the rights-protecting function of limited power. Reflecting
numerous articulations of the jurisdictional boundaries of the new federal
government, Hamilton explained how a bill of rights was inapt in a Constitution
that protected individual rights through a scheme of limited powers:
[A] minute detail of particular rights is certainly far less applicable to a
Constitution like that under consideration, which is merely intended to regulate
the general political interests of the nation, than to a constitution which has the
regulation of every species of personal and private concerns.
39
Hamilton distinguished between the new Constitution, and other pacts that
contained bills of rights. The proposed American Constitution was different, he
said, from those comparatively weak instruments and their reservations of rights
because the grant of power to the American government would be comparatively
limited:
It has been several times truly remarked that bills of rights are, in their origin,
stipulations between kings and their subjects, abridgements of prerogative in
favor of privilege, reservations of rights not surrendered to the prince. Such was
MAGNA CARTA, . . . . Such, also, was the Declaration of Right presented by the
Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into
the form of an act of Parliament called the Bill of Rights. It is evident, therefore,
that, according to their primitive signification, they have no application to
constitutions, professedly founded upon the power of the people and executed by
their immediate representatives and servants. Here, in strictness, the people
surrender nothing; and as they retain everything they have no need of particular
reservations . . . .
40
Madison pressed this same theme in Federalist 14, emphasizing that the
new American government was constrained by an express and limited grant of
powers: “[I]t is to be remembered that the general government is not to be
charged with the whole power of making and administering laws. Its jurisdiction
is limited to certain enumerated objects . . . .”
41
In a famous passage, Hamilton argued that an affirmative bill of rights
actually would endanger rights by ostensibly creating exceptions (that is, rights)
to powers that were never granted. Notice below how he links rights and powers
and presents limited power as a more robust protection of rights than
enumeration:
I go further and affirm that bills of rights, in the sense and to the extent in
which they are contended for, are not only unnecessary in the proposed
Constitution but would even be dangerous. They would contain various
exceptions to powers which are not granted; and, on this very account, would
afford a colorable pretext to claim more than were granted. For why declare that
things shall not be done which there is no power to do?
42
39
. THE FEDERALIST NO. 84, supra note 18, at 513.
40
. Id. at 512–13.
41
. THE FEDERALIST NO. 14, at 102 (James Madison) (Clinton Rossiter ed., 1961) (emphasis added).
42
. THE FEDERALIST NO. 84, supra note 18, at 513.
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Note how Hamilton describes “rights” as “exceptions to powers.” Then, in
the last sentence, he explains how a bill of rights would be a superfluous
declaration “that things shall not be done, which there is no power to do.” This
framing presents individual rights and limited power as inexorably linked.
Madison and Hamilton provide some of the most famous articulations of
this principle, but other supporters of the new Constitution also urged reliance
on the rights-protecting function of limited power. James Wilson of
Pennsylvania forcefully argued that a bill of rights was superfluous and even
dangerous compared to the rights-protecting function of limited power.
Speaking in Philadelphia in October, 1787, less than a month after the new
Constitution had been submitted to the states for ratification, Wilson asserted
that it would have been “superfluous and absurd” for the Federal convention “to
have stipulated with a federal body of our own creation, that we should enjoy
those privileges, of which we are not divested either by the intention or the act
that has brought that body into existence.”
43
Then, in November 1787, at the Pennsylvania ratifying convention, Wilson
pressed the point further in language that emphasized the linkage between
individual rights and limited power:
[I]n a government consisting of enumerated powers, such as is proposed for the
United States, a bill of rights would not only be unnecessary, but, in my humble
judgment, highly imprudent. In all societies, there are many powers and rights
which cannot be particularly enumerated. A bill of rights annexed to a
constitution, is an enumeration of the powers reserved. If we attempt an
enumeration, every thing [sic] that is not enumerated is presumed to be given.
The consequence is, that an imperfect enumeration would throw all implied
power into the scale of the government; and the rights of the people would be
rendered incomplete.
44
Wilson finished with an aggressive rendition of the full range of individual
rights that were protected against the federal government by the scheme of
limited, enumerated powers: “To every suggestion concerning a bill of rights,
the citizens of the United States may always say, we reserve the right to do what
we please.”
45
Half a year later, George Washington credited Wilson’s caution as an
example of a widespread sentiment. In an April 1788 letter to the Marquis de
Lafayette, Washington stated that there was unanimity at the Constitutional
Convention on the importance of protecting individual rights.
46
Any
43
. Hon. James Wilson, Substance of an Address to a Meeting of the Citizens in Philadelphia, in
PAMPHLETS ON THE CONSTITUTION OF THE UNITED STATES, PUBLISHED DURING ITS DISCUSSION BY THE PEOPLE,
1787–1788, at 97, 97 (Paul Leicester Ford ed., Brooklyn 1888) (emphasis added).
44
. 2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL
CONSTITUTION 409 (Jonathan Elliot ed., Philadelphia, J. B. Lippincott Co., 2d ed. rev. 1836) [hereinafter ELLIOT,
DEBATES ON THE FEDERAL CONSTITUTION] (emphasis added) (“an enumeration of the powers” emphasis in
original).
45
. Id. at 410 (emphasis added).
46
. George Washington’s April 1788 letter to Lafayette suggests unanimity at the Convention on the
importance of protecting individual rights, but disagreement over whether the express limits on federal power
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disagreement was over whether the structure of limited, enumerated powers was
the proper and exclusive mechanism:
[T]here was not a member of the convention, I believe, who had the least
objection to what is contended for by the advocates for a Bill of Rights and Trial
by Jury. The first, where the people evidently retained every thing [sic], which
they did not in the express terms give up, was considered nugatory, as you will
find to have been more fully explained by Mr. Wilson and others; . . . .
47
In North Carolina, James Iredell, a future Justice of the Supreme Court,
advanced Wilson’s point this way:
[W]hen it is evident that the exercise of any power not given up would be an
usurpation, it would be not only useless, but dangerous, to enumerate a number
of rights which are not intended to be given up; because it would be implying in
the strongest manner, that every right not included in the exception might be
impaired by the government without usurpation, and it would be impossible to
enumerated every one. Let anyone make what collection or enumeration of rights
he pleases, I will immediately mention twenty or thirty more rights not contained
in it.
48
James Madison pressed the idea that limited power was the best protection
of individual rights at the Virginia Convention in an attempt to win support from
a stubborn group of Anti-federalists led by Patrick Henry. Madison urged that
the limited grant of power to the new government made an explicit declaration
of rights unnecessary:
[T]he powers granted by the proposed constitution, are the gift of the
people, . . . . [N]o right of any denomination, can be cancelled, abridged,
restrained or modified, by the general government, or any of its officers, except
in those instances in which power is given by the constitution for these purposes.
There cannot be a more positive and unequivocal declaration of the principle of
the adoption—that every thing [sic] not granted is reserved. This is obviously and
self-evidently the case, without the declaration.
49
Henry objected, arguing that the logical steps required to appreciate how
limits on federal power protected individual rights against the new government
might be lost on some members of the new Republic. Simpler minds, he claimed
(seriously or not), would only be comforted by an affirmative expression of
rights:
were sufficient protection. Letter from George Washington to the Marquis de Lafayette (Apr. 28, 1788), in 11
THE WRITINGS OF GEORGE WASHINGTON, 1785–1790, at 254, 256 (Worthington Chauncey Ford ed., New York
& London, G.P. Putnam’s Sons 1891).
47
. Id. (emphasis omitted).
48
. 4 ELLIOT, DEBATES ON THE FEDERAL CONSTITUTION, supra note 44, at 174. Iredell ultimately lost the
point that a bill of rights was a greater risk. An equal or greater worry was creeping expansion of power. Witness
Timothy Bloodworth’s response to Iredell. “I still see the necessity of a bill of rights. Gentlemen use
contradictory arguments on this subject, if I recollect right. Without the most express restrictions, congress may
trample on your rights. Every possible precaution should be taken when we grant powers. Rulers are always
disposed to abuse them.” Id.
49
. 3 id. at 559–60 (emphasis added). Further, Madison cautioned, the Bill of Rights would be dangerous
because at some future point usurpers might argue that “every thing [sic] omitted, is given to the general
government.” Id.
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Wherefore is religious liberty not secured? One honorable gentleman, who favors
adoption, said that he had had his fears on the subject. If I can well recollect, he
informed us that he was perfectly satisfied, by the powers of reasoning, (with
which he is so happily endowed,) that those fears were not well grounded. There
is many a religious man who knows nothing of argumentative reasoning; there
are many of our most worthy citizens who cannot go through all the labyrinths of
syllogistic, argumentative deductions, when they think that the rights of
conscience are invaded. This sacred right ought not to depend on constructive,
logical reasoning.
50
Patrick Henry, George Mason, and others at the Virginia Convention urged
making ratification of the Constitution conditional on the first Congress passing
individual-rights amendments. Madison countered with a promise that he would
submit amendments guaranteeing individual rights if the Virginia Convention
would ratify the Constitution without explicit conditions.
51
Federalists in New
York, North Carolina, and Rhode Island made similar concessions.
52
Madison
kept his promise. He campaigned for the House of Representatives on the
assurance that he would seek amendments protecting essential rights.
53
By the
time he introduced individual-rights amendments to the first Congress, he
seemed firmly committed to the idea.
54
The opposition by Henry, Mason, and other Anti-federalists underscores a
crucial point about the pervasiveness of the limited power theme. The
Anti-federalists either opposed the new federal government entirely or thought
that it had been delegated too much power. Federalist advocates of the new
Constitution took the most sanguine view of the new government and its powers.
So it is telling, for our purposes, that Federalist proponents of the new federal
government are such vociferous advocates of the limited power theme.
One might question whether statements in pamphlets, speeches, and private
correspondence are fully representative of prevailing views.
55
The state
ratification debates blunt that criticism and show plainly that the people’s
representatives saw limited federal power as crucial to the understanding of
individual rights. Hamilton, Madison, Wilson, and others argued forcefully that
any attempt to fashion a bill of rights would actually diminish the protection of
individual rights that was built into the scheme of limited, enumerated powers.
And while the case against a bill of rights did not prevail, the argument did
prompt the ratifying conventions to endorse the Constitution and amendments
in a way that underscored the link between limited power and individual rights.
50
. Id. at 302–03.
51
. O’Neil v. Vermont, 144 U.S. 323, 370 (1892) (stating that the Constitution was ratified without a bill
of rights upon the expectation “encouraged by its leading advocates, that, immediately upon the organization of
Government of the Union” a bill of rights would be introduced and adopted); see also James F. Kelley, Comment,
The Uncertain Renaissance of the Ninth Amendment, 33 U. CHI. L. REV. 814, 819–23 (1966).
52
. ROBERT ALLEN RUTLAND, THE ORDEAL OF THE CONSTITUTION 37, 193 (1966).
53
. Kelley, supra note 51, at 819 n.23.
54
. Id.
55
. For example, when I presented this Article at a 2017 Fordham Legal History Colloquium, Professor
Saul Cornell objected that James Wilson was a rich aristocrat whose views and interests could not be presumed
to represent those of the broader community.
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Virginia responded to the warnings that a bill of rights might diminish the
protection of individual rights that was built into the scheme of limited powers
with language that explicitly rejected any such implication. Along with its
ratification of the Constitution, Virginia cautioned:
That those clauses which declare that congress shall not exercise certain powers
[referring to proposals for explicit enumeration of certain of rights], be not
interpreted in any matter whatsoever; to extend the powers of congress; but that
they be construed either as making exceptions to the specified powers where this
shall be the case, or otherwise, as inserted merely for greater caution.
56
Note how Virginia’s ratification statement treats individual rights and limits on
federal power as synonymous. Also note the demand for assurance that the
protection of rights already inherent in the Constitution’s limited power structure
not be diminished by any explicit enumeration of certain rights.
Virginia’s was the first in a line of similar proposals. New York offered its
own proposed amendments to the Constitution and, like Virginia, made it clear
that explicitly enumerated rights were “to be construed either as exceptions to
certain specified powers, or as inserted merely for greater caution.”
57
The linkage between rights and powers is demonstrated vividly by the
North Carolina Convention, which described its individual rights proposals
using the language of limited power. The North Carolina rights proposals were
cast as “those clauses which declare that congress shall not exercise certain
powers.”
58
Like Virginia, the North Carolina Convention also cautioned that its
proposals for enumerated rights were “inserted merely for greater caution.”
59
Rhode Island offered a similar cautionary language. Like the others, it used
the language of limited power to describe nascent declarations of rights. Rhode
Island also made clear that any explicit declarations of rights should not
constitute a grant of additional powers, and that rights were still protected by the
enumerated limits on federal power:
[T]hose clauses in the said Constitution, which declare that Congress shall not
have or exercise certain powers, do not imply that Congress is entitled to any
powers not given by the said Constitution, but such clauses are not to be construed
either as exceptions to certain specified powers, or as inserted merely for greater
caution.
60
The Pennsylvania Convention also underscored the importance of the new
government’s limited jurisdiction. The state proposed an amendment stating that
“congress shall not exercise any powers whatever, but such as are expressly
given to that body by the constitution of the United States.”
61
56
. DEBATES AND OTHER PROCEEDINGS OF THE CONVENTION OF VIRGINIA 475 (2d ed. Richmond,
Enquirer-Press 1805) (emphasis added).
57
. 1 ELLIOT, DEBATES ON THE FEDERAL CONSTITUTION, supra note 44, at 361 (emphasis added).
58
. 4 id. at 242 (emphasis added).
59
. Id. (emphasis added).
60
. HON. WILLIAM R. STAPLES, RHODE ISLAND IN THE CONTINENTAL CONGRESS: WITH THE JOURNAL OF
THE CONVENTION THAT ADOPTED THE CONSTITUTION, 1765–1790, at 675 (Reuben Aldridge Guild ed.,
Providence, Providence Press Co. 1870).
61
. 2 ELLIOT, DEBATES ON THE FEDERAL CONSTITUTION, supra note 44, at 503.
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The ratifying conventions caused advocates of the new Constitution to
reconsider the importance of a bill of rights. James Madison’s thinking about the
linkage of individual rights and limited power by the end of the Virginia
Convention is demonstrated in his October 17, 1788 letter to Thomas Jefferson,
who was then serving as Minister to France.
62
Jefferson wrote Madison in July
arguing that a bill of rights was essential. Madison’s response is consistent with
his commitment at the Virginia Convention to propose a bill of rights in the first
congress. Recall Paul Finkelman’s claim that Madison objected to a bill of rights
because Anti-federalists could not decide what rights they wanted.
63
Here, in
contrast, we see Madison expressing more serious structural concerns, rooted in
the linkage between individual rights and enumerated powers:
[T]here are some who wish for further guards to public liberty and individual
rights. As far as these may consist of a constitutional declaration of the most
essential rights, it is probable they will be added; though there are many who
think such addition unnecessary, and not a few who think it misplaced in such a
Constitution. . . . My own opinion has always been in favor of a bill of rights,
provided it be so framed as not to imply powers not meant to be included in the
enumeration. At the same time, I have never thought the omission a material
defect . . . .
I have not viewed it in an important light—1. Because I conceive that in a
certain degree, though not in the extent argued by Mr. Wilson, the rights in
question are reserved by the manner in which the federal powers are granted. 2.
Because there is great reason to fear that a positive declaration of some of the
most essential rights could not be obtained in the requisite latitude. I am sure
that the rights of conscience in particular, if submitted to public definition, would
be narrowed much more than they are likely ever to be by an assumed power.
64
Madison took seriously the concern that enumerating rights would
diminish the protections inherent in the scheme of limited powers, by implying
that rights not enumerated were surrendered. His response was a proposal that
eventually became the Ninth Amendment. The initial proposal read this way:
The exceptions here or elsewhere in the constitution, made in favor of
particular rights, shall not be so construed as to diminish the just importance of
other rights retained by the people, or as to enlarge the powers delegated by the
constitution; but either as actual limitations of such powers, or as inserted merely
for greater caution.
65
62
. Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), in 14 THE PAPERS OF THOMAS
JEFFERSON 16, 18 (Julian P. Boyd ed., 1958).
63
. Finkelman, supra note 16, at 632–35.
64
. THE MIND OF THE FOUNDER: SOURCES OF THE POLITICAL THOUGHT OF JAMES MADISON 156–57
(Marvin Meyers ed., rev. ed. 1973) (emphasis added). Other observers detail a variety of political motives for
Madison’s transition to advocate of a bill of rights. See, e.g., Carol Berkin, To “Counteract the Impulses of
Interest & Passion”: James Madison’s Insistence on a Bill of Rights, 15 GEO. J.L. & PUB. POL’Y 527, 530 (2017)
(stating that Madison sought to “drive a wedge” between Anti-federalist leaders and their followers by ensuring
that the Federalists got credit for passing a bill of rights); Broadwater, supra note 37, at 563 (noting that Madison
sought among other things to encourage North Carolina and Rhode Island to ratify the Constitution); Jud
Campbell, Judicial Review and the Enumeration of Rights, 15 GEO. J.L. & PUB. POL’Y 569, 571 (2017) (finding
that Madison considered the enumeration of rights important to the practical and political task of judging).
65
. 1 ANNALS OF CONG. 452 (1789) (Joseph Gales ed., 1834).
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The final version of the Ninth Amendment declares that “[t]he enumeration
in the Constitution, of certain rights, shall not be construed to deny or disparage
others retained by the people.”
66
Madison’s correspondence on the Ninth Amendment demonstrates the
continuing linkage between individual rights and limited power. In a letter to
George Washington, written shortly after Congress had proposed the Bill of
Rights, Madison commented on Edmund Randolph’s objection to the wording
of the Amendment.
67
Randolph worried about the phrasing of “retained” rights.
“His argument,” Madison explained to Washington,
was applied in this manner—that as the rights declared in the first ten of the
proposed amendments were not all that a free people would require the exercise
of, and that as there was no criterion by which it could be determined whether
any other particular right was retained or not, it would be more safe and more
consistent with the spirit of the 1st & 17th amend[ments] proposed by Virginia
that this reservation ag[ainst] constructive power, should operate rather as a
provision ag[ainst] extending the powers of Cong[ress] by their own authority,
than a protection to rights reducible to no definite certainty.
68
Madison’s critique of this objection suggests how limiting power and
declaring rights were different ways of stating the same thing:
[O]thers, among whom I am one, see not the force of this distinction, . . . .
. . . If a line can be drawn between the powers granted and the rights retained,
it would seem to be the same thing, whether the latter be secured by declaring
that they shall not be abridged, or that the former shall not be extended.
69
B. AN ILLUMINATING EXAMPLE OF THE LINKAGE BETWEEN INDIVIDUAL
RIGHTS AND LIMITED POWER IN THE POST-RATIFICATION PERIOD
The boundaries on the jurisdiction of the new federal government were
important components of the debates and controversies of the post-Ratification
era. One of the most prominent was the controversy surrounding the 1798 Alien
and Sedition Acts.
70
That debate is pertinent here because it demonstrates the
linkage between individual rights and limited power in a way that mirrors the
right to arms question.
The Sedition Act criminalized, among other things, making false
statements critical of the federal government.
71
Madison, Jefferson and others
argued that the Sedition Act violated the First Amendment.
72
But their
66
. U.S. CONST. amend. IX.
67
. Letter from James Madison to George Washington (Dec. 5, 1789), in 5 THE WRITINGS OF JAMES
MADISON 431–32 (Gaillard Hunt ed., 1904).
68
. Id. at 431.
69
. Id. at 431–32.
70
. The 1798 Alien and Sedition Acts include: Naturalization Act, ch. 54, 1 Stat. 566 (1798); Alien Friends
Act, ch. 58, 1 Stat. 570 (1798); Alien Enemy Act of 1798, ch. 66, 1 Stat. 577; Sedition Act, ch. 74, 1 Stat. 596
(1798).
71
. Sedition Act, 1 at 596–97.
72
. See O. John Rogge, “Congress Shall Make No Law . . .,” 56 MICH. L. REV. 331, 344–65, 367–74
(1958).
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arguments were not limited to text or history of the positive declarations in the
First Amendment. Their assessment of the First Amendment right was linked
directly to the proposition that Congress had no power to impose the Sedition
Act.
73
Madison also forcefully rejected the notion that powers implied under the
Necessary and Proper Clause could justify the Sedition Act, arguing that the
power to suppress insurrections did not imply a power to prevent insurrections
by “punishing whatever may lead or tend to them.”
74
This approach pervades the
Virginia Resolution of 1798, drafted by Madison and adopted as the Virginia
Legislature’s formal declaration that the Sedition Act was unconstitutional.
75
That critique is a model for understanding constitutional rights as a function of
limited federal power.
[T]he General Assembly doth particularly protest against the palpable and
alarming infractions of the constitution, in the two late cases of the “alien and
sedition acts,” . . . the first of which exercises a power no where delegated to the
federal government; . . . and the other of which acts, exercises in like manner a
power not delegated by the constitution, but on the contrary expressly and
positively forbidden by one of the amendments thereto; a power which more than
any other ought to produce universal alarm, because it is levelled against that
right of freely examining public characters and measures, and of free
communication among the people thereon, . . . .
76
The Kentucky Resolution is an equally famous rebuke of the Alien and
Sedition Acts, and another vivid demonstration of the link between individual
rights and limited federal power.
77
Thomas Jefferson ultimately acknowledged
authorship, but the Kentucky Resolution (like the Virginia Resolution)
represents the sentiment of a people articulated by their elected representatives:
Resolved, that the several states composing the United States of
America, . . . constituted a General Government for special purposes, delegated
to that Government certain definite powers, . . . .
. . . .
. . . that it is true as a general principle, and is also expressly declared by one
of the amendments to the Constitution that “the powers not delegated to the
United States by the Constitution, nor prohibited by it to the states, are reserved
to the states respectively or to the people;” and that no power over the freedom
of religion, freedom of speech, or freedom of the press being delegated to the
United States by the Constitution, nor prohibited by it to the states, all lawful
powers respecting the same did of right remain, and were reserved to the states,
or to the people: . . . that in addition to this general principle and express
73
. Id. at 336–37.
74
. Id. at 350 (internal quotation marks omitted) (quoting 6 THE WRITINGS OF JAMES MADISON 383–84
(Gaillard Hunt ed., 1906)).
75
. Virginia Resolutions, 21 December 1798, NAT’L ARCHIVES: FOUNDERS ONLINE,
http://founders.archives.gov/documents/Madison/01-17-02-0128 (last visited Mar. 17, 2019).
76
. Id. (emphasis added).
77
. Resolutions Adopted by the Kentucky General Assembly, PRINCETON U.,
https://jeffersonpapers.princeton.edu/selected-documents/resolutions-adopted-kentucky-general-assembly (last
visited Mar. 17, 2019).
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738 HASTINGS LAW JOURNAL [Vol. 70:717
declaration, another and more special provision has been made by one of the
amendments to the Constitution which expressly declares, that “Congress shall
make no law respecting an Establishment of religion, or prohibiting the free
exercise thereof, or abridging the freedom of speech, or of the press, . . . .”
78
Notice how both resolutions reflect the cautions and expectations of the
ratification conventions that the enumeration of particular rights should not
diminish the protection of rights that was inherent in the scheme of limited
powers. They describe free speech as a right protected by both the scheme of
limited powers as well as the affirmative declaration of the First Amendment.
Applied to the Second Amendment, that template would dictate that the codified
right to arms be understood in the context of the eighteenth-century federal
power to infringe it.
The controversy surrounding the Virginia and Kentucky Resolutions also
helps illuminate the spectrum of views about the legitimate scope of federal
power. The Alien and Sedition Acts were a tool of the Federalist Party to
disenfranchise and deport supporters (mainly Frenchmen) of the bourgeoning
opposition party (the Jeffersonian Republicans).
79
President John Adams, who
signed the Acts into law, would go to his grave claiming that they were the work
of an extreme faction of congressional Federalists and never really had his
support.
80
But the fact that these infamous laws were enacted suggests that many
people disagreed with or were willing to disregard the themes of the Virginia
and Kentucky Resolutions.
81
Indeed, disagreement about the authority and
direction of the federal government would fuel an estrangement between
President Adams and his Vice-President, Jefferson, that would last for more than
a decade.
82
This rift and the disagreements that followed fueled a diversity of views
about the boundaries of federal power. And that diversity confirms the
importance of positioning particular evidence that the Second Amendment
should be understood as a function of limited federal power on the spectrum of
early views about the authority of the new federal government. The next Part
engages that task.
III. THE EXPLICIT LINKAGE BETWEEN LIMITED POWER AND THE SECOND
AMENDMENT: A CONVERSATION DISSERVED BY PROFESSIONAL HISTORIANS
Granting the general proposition that the eighteenth-century Constitution
used limited power as a protection of individual rights, skeptics still might
demand some direct indication that the Second Amendment should be
78
. Id. (emphasis added).
79
. JOSEPH J. ELLIS, FOUNDING BROTHERS: THE REVOLUTIONARY GENERATION 190 (2000).
80
. Id. at 191.
81
. See id. at 198. Both resolutions were forwarded to legislators in other states with the hope that they
would join the fight for repeal. No other states were willing to join, and several legislative bodies expressly
condemned the idea that state legislatures had the authority to nullify federal action. See Berkin, supra note 64,
at 544.
82
. ELLIS, supra note 79, at 198, 205–25.
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illuminated by that principle. The sharpest answer comes from one of the most
influential constitutional law treatises of the early Republic, William Rawle’s A
View of the Constitution of the United States of America, first published in 1825.
Rawle’s presentation of the Second Amendment hinges explicitly on the
principle that “[n]o clause in the Constitution could by any rule of construction
be conceived to give to congress a power to disarm the people.”
83
Rawle’s linkage of limited power with the Second Amendment is
important for three reasons. First, because Rawle rejected Jeffersonian strict
construction in favor of a broader, more supple view of federal power. Second,
because of the clarity with which Rawle demonstrates the linkage between
limited federal power and the constitutional right to arms. Third, because
Rawle’s integration of limited power into understanding the Second Amendment
has been affirmatively obscured by a leading professional historian whose work
fueled the dissenters’ arguments in Heller and McDonald. These three points are
elaborated in Subparts III.A, III.B, and III.C below.
A. WILLIAM RAWLE’S A VIEW OF THE CONSTITUTION IN CONTEXT WITH AN
ALLUSION TO ST. GEORGE TUCKER
Rawle provides an explicit, period confirmation that the eighteenth-century
right to arms must be understood in the context of the limited federal power
environment of the time. His assessment gains resonance when we consider his
place among the luminaries of the Revolutionary Era.
Rawle’s family was colonial Quaker aristocracy. His great-grandfather
represented Pennsylvania in the provincial assembly.
84
The Rawle clan balked
at armed resistance against the British and Rawle’s stepfather served as Mayor
of Philadelphia during the British occupation of the city in 1777 through 1778.
85
By 1778, Rawle’s stepfather had been declared a traitor by the Revolutionary
Assembly.
86
When the British army evacuated Philadelphia in the summer of
1778, Rawle’s family fled to New York, which was still under British control.
William was about nineteen at the time.
87
In New York, Rawle read law with a loyalist lawyer and in 1781 sailed to
England for further study.
88
After Washington’s victory at Yorktown, William
returned to America and swore allegiance to the revolutionary government.
89
By
1783 he was ensconced as a member of the Bar in his native Philadelphia.
90
83
. RAWLE, supra note 24, at 125 (emphasis added).
84
. H. Jefferson Powell, Editor’s Introduction to the Second Edition of WILLIAM RAWLE, A VIEW OF THE
CONSTITUTION OF THE UNITED STATES OF AMERICA xi, xiii (H. Jefferson Powell ed., Carolina Academic Press
2009) (2d ed. 1829).
85
. Id. at xiv.
86
. Id.
87
. Id.
88
. Id.
89
. Id.
90
. Id.
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Rawle was a talented lawyer with a long social pedigree and he quickly
rose to prominence. Benjamin Franklin invited him into the exclusive Society of
Political Inquiries where he socialized with men like Gouverneur Morris,
Benjamin Rush, and George Washington.
91
During the debates over ratification of the new Constitution, Rawle aligned
with the Federalists.
92
In 1791, President Washington appointed him U.S.
Attorney for Pennsylvania, where Rawle litigated a series of high-profile cases,
including the prosecution of the leaders of the Whiskey Rebellion.
93
As one might expect from his experience, Rawle’s view of the Constitution
and, particularly, the boundaries on federal power was more expansive than
many competing views. His view of federal power stands in sharp contrast, for
example, to St. George Tucker’s 1803 treatise, View of the Constitution of the
United States (“Tucker’s View”) (a title appropriated by Rawle with evident
intent to strike a contrast with Tucker).
94
Tucker’s View was published as an appendix to his annotated presentation
of Blackstone’s Commentaries. Tucker’s adaptation of Blackstone was the
singular restatement of American law in the Jeffersonian Era
95
and vigorously
advanced the Jeffersonian model of strict construction of federal powers.
96
Tucker urged that proper interpretation of the Constitution must proceed
from the premises that “[t]he powers delegated to the federal government, are,
in all cases, to receive the most strict construction that the instrument will bear,
where the rights of a state or of the people, either collectively, or individually,
may be drawn in question”
97
and that the federal government “can possess no
legitimate power, but such as is absolutely necessary for the performance of a
duty, prescribed and enjoined by the constitution.”
98
Tucker also presents the Second Amendment as an individual right; he is
an important marker for placing Rawle on the spectrum of views about the
legitimate scope of federal power during the Founding Era.
99
Tucker’s edition of Blackstone’s Commentaries included numerous
annotations showing how the English tradition was narrower than the American
conception of rights. Blackstone wrote that Englishmen had a right to arms “for
their defence suitable to their condition and degree, and such as allowed by
law.”
100
Tucker emphasized that the American right to arms contained no
91
. Id. at xv.
92
. Id.
93
. Id. at xvi; United States v. Mitchell, 2 U.S. (2 Dall.) 348 (1795).
94
. Powell, supra note 84, at xxi.
95
. Id.
96
. This is exhibited, for example, in the Kentucky Resolution and in Jefferson’s worries about the
constitutional foundation for the Louisiana Purchase.
97
. Powell, supra note 84, at xxii–xxiii (emphasis added) (internal quotation marks omitted) (quoting 1
ST. GEORGE TUCKER, BLACKSTONE’S COMMENTARIES WITH NOTES OF REFERENCE app. at 154 (Philadelphia,
William Young Birch & Abraham Small 1803) [hereinafter TUCKER’S BLACKSTONE]).
98
. Id. at xxiii (citing TUCKER’S BLACKSTONE, supra note 97, at 170).
99
. 2 TUCKER’S BLACKSTONE, supra note 97, at 143–44.
100
. Id. at 143 (footnote omitted).
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qualification as to condition or degree. Tucker’s annotation 41 also criticized
that Blackstone’s qualification “as allowed by law” was a conduit for disarming
Englishmen under the guise of game laws.
101
Tucker’s Appendix describes the American right to keep and bear arms as
“the true palladium of liberty.”
102
He contrasts it with the English right, which
had been eroded on the “specious pretext of preserving the game . . . [s]o that
not one man in five hundred can keep a gun in his house without being subject
to penalty.”
103
Tucker made a similar point about the American right to arms
bearing by way of contrast to the English law of treason.
104
English law applied
a rebuttable presumption that a gathering of armed men was motivated by
treason and insurrection.
105
In America by contrast, “the right to bear arms is
recognized and secured in the constitution itself.”
106
Further, Tucker explained,
“[i]n many parts of the United States, a man no more thinks, of going out of his
house on any occasion, without his rifle or musket in his hand, than a[] European
fine gentleman without his sword by his side.”
107
Compared to Rawle, Tucker advanced a narrower view of federal power
and was especially cautious where power conflicted with individual rights. He
actually used the right to arms to demonstrate how federal power should be
narrowly construed when it conflicts with individual rights. Tucker presented a
strict formula for interpreting the Necessary and Proper Clause that seeks to
preserve enumerated rights against untrammeled assertions of power. He laid
out two steps: First, whether Congress is asserting a clearly expressed power;
and second,
[i]f it be not expressed, the next enquiry must be, whether it is properly an
incident to an express power, and necessary to it’s [sic] execution. . . .
. . . [T]his construction of the clause in question [“necessary and proper”], []
is calculated to operate as a powerful and immediate check upon the proceedings
of the federal legislature . . . . To which we may add, that this interpretation of
the clause is indispensably necessary to support that principle of the constitution,
which regards the judicial exposition of that instrument, as the bulwark provided
against undue extension of the legislative power.
108
Tucker demonstrated the proper application of this approach by showing
how the Necessary and Proper Clause could not be construed to nullify the right
to keep and bear arms, even when the root authority was Congress’s power to
prevent insurrections:
If, for example, congress were to pass a law prohibiting any person from bearing
arms, as a means of preventing insurrections, the judicial courts, under the
101
. Id. at 143–44 & n.41; see also NICHOLAS J. JOHNSON ET AL., FIREARMS LAW AND THE SECOND
AMENDMENT: REGULATION, RIGHTS, AND POLICY 231–35 (2012).
102
. 1 TUCKER’S BLACKSTONE, supra note 97, app. at 300.
103
. Id.
104
. 5 id. app. at 19.
105
. Id.
106
. Id.
107
. Id.
108
. 1 id. app. at 288.
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construction of the words necessary and proper, here contended for, would be
able to pronounce decidedly upon the constitutionality of these means. But if
congress may use any means, which they choose to adopt, the provision in the
constitution which secures to the people the right of bearing arms, is a mere
nullity; and any man imprisoned for bearing arms under such an act, might be
without relief . . . .
109
Tucker took a narrower view than Rawle about the scope of federal power.
According to Rawle, the Constitution’s “known intention” was to grant “all the
powers necessary for the attainment of the great objects” outlined in the
Preamble.
110
H. Jefferson Powell, one of the foremost twentieth-century
authorities on Rawle, explains that Rawle’s treatise from the title onward
111
argues against Tucker’s strict constructionism in favor of a constitutionalism
that “justif[ied] a much broader understanding of national power than
Jeffersonian orthodoxy admitted.”
112
Thus, the comparison to Tucker is
important because it places Rawle among the more generous interpreters of
federal power to infringe individual rights.
B. WILLIAM RAWLE ON THE SECOND AMENDMENT
Rawle’s constitutional law treatise became widely acknowledged as a
leading specimen of the genre. Supreme Court Justice Joseph Story, writing as
a member of the Harvard Law School faculty, praised Rawle’s treatise and cited
it repeatedly in his own 1933 treatise.
113
Rawle’s treatise continued to be used
as a text at Harvard Law School even after Story had published his own
commentaries.
114
Here is Rawle’s full treatment of Second Amendment:
In the second article, it is declared, that a well regulated militia is necessary
to the security of a free state; a proposition from which few will dissent. Although
in actual war, the services of regular troops are confessedly more valuable; yet,
while peace prevails, and in the commencement of a war before a regular force
can be raised, the militia form the palladium of the country. They are ready to
repel invasion, to suppress insurrection, and preserve the good order and peace
of government. That they should be well regulated, is judiciously added. A
disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to
its own country. The duty of the state government is, to adopt such regulations as
will tend to make good soldiers with the least interruptions of the ordinary and
useful occupations of civil life. In this all the Union has a strong and visible
interest.
The corollary, from the first position, is, that the right of the people to keep
and bear arms shall not be infringed.
109
. Id. app. at 289 (emphasis added).
110
. Powell, supra note 84, at xxviii (internal quotation marks omitted) (quoting RAWLE, supra note 24, at
29–30).
111
. Id. at xxi.
112
. Id. at xxviii.
113
. Id. at xi–xii, xi n.1 (citing 2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED
STATES 245 (Boston, Hilliard, Gray & Co. 1833)).
114
. Id. at xiii.
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The prohibition is general. No clause in the Constitution could by any rule of
construction be conceived to give to congress a power to disarm the people. Such
a flagitious attempt could only be made under some general pretence by a state
legislature. But if in any blind pursuit of inordinate power, either should attempt
it, this amendment may be appealed to as a restraint on both.
In most of the countries of Europe, this right does not seem to be denied,
although it is allowed more or less sparingly, according to circumstances. In
England, a country which boasts so much of its freedom, the right was secured to
protestant subjects only, on the revolution of 1688; and it is cautiously described
to be that of bearing arms for their defence, “suitable to their conditions, and as
allowed by law.” An arbitrary code for the preservation of game in that country
has long disgraced them. A very small proportion of the people being permitted
to kill it, though for their own subsistence; a gun or other instrument, used for
that purpose by an unqualified person, may be seized and forfeited. Blackstone,
in whom we regret that we cannot always trace the expanded principles of rational
liberty, observes however, on this subject, that the prevention of popular
insurrections and resistance to government by disarming the people, is oftener
meant than avowed, by the makers of forest and game laws.
This right ought not, however, in any government, to be abused to the
disturbance of the public peace.
An assemblage of persons with arms, for an unlawful purpose, is an
indictable offence, and even the carrying of arms abroad by a single individual,
attended with circumstances giving just reason to fear that he purposes to make
an unlawful use of them, would be sufficient cause to require him to give surety
of the peace. If he refused he would be liable to imprisonment.
115
Rawle’s understanding of the right to arms as a function of limited federal
power is especially telling considering his disagreement with Tucker’s strict
construction of federal power. Rawle was far more willing than Tucker to
acknowledge implied federal power where it was necessary and proper to the
pursuit of some legitimate national end. Even Rawle, however, could discern no
federal power that would allow the federal government to prohibit individuals
from keeping and bearing private arms for self-defense.
C. WILLIAM RAWLE ON THE SECOND AMENDMENT AND HISTORIANS
THROWING STONES
Rawle’s explicit affirmation of the linkage between limited power and the
meaning of the Second Amendment directly contradicts the historians’
creationist account, and the treatment of Rawle by proponents of the creationist
account is telling. One of the most prominent advocates of the creationist
account is historian Saul Cornell, whose scholarship is cited by dissenters in
Heller and McDonald.
116
Cornell has acknowledged that Rawle was “an
115
. RAWLE, supra note 24, at 125–26 (footnotes omitted).
116
. District of Columbia v. Heller, 554 U.S. 570, 671 (2008) (Stevens, J., dissenting); id. at 685 (Breyer,
J., dissenting); McDonald v. City of Chicago, 561 U.S. 742, 900, 901 n.44, 914, 933 (2010) (Stevens, J.,
dissenting).
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influential lawyer and constitutional commentator.”
117
But given Rawle’s clarity
on the linkage between the right to arms and limited federal power, Cornell’s
substantive analysis of Rawle is remarkable.
In a Fordham Law Review article that was cited in Justice Breyer’s Heller
dissent, Cornell claims that Rawle “viewed the right to bear arms as inextricably
linked to the militia.”
118
As shown above, Rawle does discuss the militia in his
first paragraph. Indeed, Rawle’s discussion is fully consistent with the
explanation in Heller that the militia depends on an armed citizenry.
119
However, Rawle also plainly states that on the question of whether federal
power can infringe the right of the people to keep and bear arms, “[t]he
prohibition is general.”
120
He continues, “[n]o clause in the Constitution could
by any rule of construction be conceived to give to congress a power to disarm
the people.”
121
It is a mystery how Cornell extracts from this an endorsement by
Rawle of a right to arms “inextricably linked to the militia.”
122
The mystery deepens when we consider Rawle’s explicit examples of
individual arms-bearing outside the context of the militia. Individual
arms-bearing is embedded in Rawle’s caveat that the right “ought not . . . be
abused to the disturbance of the public peace.”
123
The exceptions articulated in
Rawle’s last paragraph are even more telling:
An assemblage of persons with arms, for an unlawful purpose, is an
indictable offence, and even the carrying of arms abroad by a single individual,
attended with circumstances giving just reason to fear that he purposes to make
an unlawful use of them, would be sufficient cause to require him to give surety
of the peace.
124
Rawle acknowledges exceptions to the right, in the case of an armed
assemblage of “for an unlawful purpose.”
125
The general subject of this
exception is the corresponding lawful “assemblage of persons with arms.”
126
This was no casual concession for the man who prosecuted the perpetrators of
the Whiskey Rebellion.
127
The corresponding principle of the stated exception to individual
arms-bearing is even more telling. Rawle explains that “even the carrying of
117
. Saul Cornell & Nathan DeDino, A Well Regulated Right: The Early American Origins of Gun Control,
73 FORDHAM L. REV. 487, 503 (2004).
118
. Id. at 504 (emphasis added).
119
. Id. at 503–04.
120
. RAWLE, supra note 24, at 125 (emphasis added).
121
. Id. (emphasis added).
122
. Cornell & DeDino, supra note 117, at 504.
123
. RAWLE, supra note 24, at 126.
124
. Id. (emphasis added).
125
. Id.
126
. Id.
127
. Carl Bogus, a longstanding critic of the individual rights view of the Second Amendment has argued
that George Washington’s comments about and response to the Whiskey Rebellion refute the idea that the
Second Amendment anticipated armed resistance to tyranny. See Carl T. Bogus, There’s No Right of Revolution
in a Democracy, CNN (Jan. 27, 2011, 8:30 AM), http://www.cnn.com/2011/OPINION/01/27/
bogus.right.rebel/index.html.
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arms abroad by a single individual” might be punished upon a showing of
unlawful purpose.
128
This exception is carved out of the protected sphere of
lawful carrying of arms abroad by a single individual.
What does Cornell say about Rawle’s presentation of the Second
Amendment as function of limited federal power and the individual rights that
correspond to Rawle’s description of unlawful arms bearing? Absolutely
nothing. He ignores it. The balance of Cornell’s analysis describes state and local
arms regulations (but tellingly, no federal ones) on the assumption that they
prove something about the Second Amendment. His analysis seems oblivious to
the fact that federal power over individual arms was a different question from
local or state regulation grounded on sweeping police powers.
This error is highlighted by Cornell’s critique of Rawle excerpted here:
In contrast to modern gun rights theory, Rawle believed that there could be no
right to bear arms without regulation.
Gun rights legal scholars have made a number of remarkable, almost
phantasmagorical claims about the meaning of the term “well
regulated.” . . . This version of early American history more closely resembles
the Bizarro world described in Superman comic books and rendered in hilarious
terms in America’s best-loved postmodern situation comedy Seinfeld, than it does
the constitutional thought of the Founding Era. . . . Finding evidence to show that
the Bizarro Second Amendment is a fiction created by modern gun rights
scholarship, and not an accurate representation of early American history, is not
difficult. If one simply looks at the gun laws adopted in the Founding Era and
early Republic, the evidence for robust regulation is extensive. If American
history fit the Bizarro model, then gun regulation after the adoption of the Second
Amendment would have virtually disappeared.
129
Cornell’s contention that the Second Amendment should have caused state
and local gun regulation to disappear ignores or is oblivious to the fact that the
Amendment operated in the context of limited, enumerated federal powers,
powers that were (and nominally still are) far narrower than the police powers
exercised by the states. The modest early gun laws Cornell discusses are mostly
state or local regulations.
130
His claim that an individual right to arms against the
federal government should have caused those state and local laws to disappear
demonstrates a fundamental disregard for the context in which the Second
Amendment emerged.
The problem becomes critical when we appreciate that Cornell has steered
Justices of the Supreme Court toward a similar misstep. Consider for example
Justice Breyer’s Heller dissent. With a citation to Cornell, Breyer repeats this
mistake almost exactly. Here is Breyer:
[C]olonial history itself offers important examples of the kinds of gun regulation
that citizens would then have thought compatible with the “right to keep and bear
arms,” whether embodied in Federal or State Constitutions, or the background
128
. RAWLE, supra note 24, at 126.
129
. Cornell & DeDino, supra note 117, at 504–05 (emphasis added) (footnotes omitted).
130
. Many of these regulations are more akin to safe storage or zoning laws than direct arms restrictions.
See generally id. at 502–03.
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common law. And those examples include substantial regulation of firearms in
urban areas, including regulations that imposed obstacles to the use of firearms
for the protection of the home.
Boston, Philadelphia, and New York City, the three largest cities in America
during that period, all restricted the firing of guns within city limits to at least
some degree. . . .
Furthermore, several towns and cities (including Philadelphia, New York,
and Boston) regulated, for fire-safety reasons, the storage of gunpowder, a
necessary component of an operational firearm. Boston’s law in particular
impacted the use of firearms in the home very much as the District’s law does
today.
131
Cornell has been a strident critic of “law office histories” that conjure up
“Bizarro World” claims of an individual right to arms.
132
In a 2013 article, he
characterized the majority opinion in Heller as a “scam” resting on
“manipulations and misrepresentations.”
133
In the first part of that article,
Cornell offers a series of lessons about context and reminds us how important it
is for scholars to “pay attention to what an author said, but . . . also ask what an
author was doing by making a particular statement on a given occasion.”
134
In
his treatment of Rawle, Cornell violates these basic tenets by eliding Rawle’s
statement about the absence of federal power to disarm Americans and ignoring
the rights-protecting theme of limited federal power that pervaded the Founding
Era.
Cornell has played an outsized role in the litigation over the meaning of the
Second Amendment. He has described being in the room with counsel and
representatives from the District of Columbia as the preparation for the Heller
litigation was underway and was a primary force behind the Historians’ Brief.
135
131
. District of Columbia v. Heller, 554 U.S. 570, 683–85 (2008) (Breyer, J., dissenting) (emphasis added)
(citations omitted).
132
. See generally Cornell & DeDino, supra note 117.
133
. Saul Cornell, Meaning and Understanding in the History of Constitutional Ideas: The Intellectual
History Alternative to Originalism, 82 FORDHAM L. REV. 721, 740–42 (2013).
134
. Id. at 730.
135
. In November 2016 Saul Cornell and I appeared together at the Fordham Law School program, Behind
the Book. Professor Cornell offered a detailed account of his participation in the planning and preparation for
the District’s presentation before the Supreme Court in Heller. Professor Cornell repeated that account at a
Fordham Legal History Colloquium in February 2017, where we both appeared and I discussed this Article.
Professor Cornell is one of the historians cited in Justice Breyer’s McDonald dissent for the proposition
that Heller is fundamentally flawed. McDonald v. City of Chicago, 561 U.S. 742, 914–17 (Breyer, J., dissenting)
(citing Cornell, supra note 30).
Cornell’s article is a classic example of the historians’ creationist account and the positivist mistake.
Cornell repeats and may be one source of the positivist mistake highlighted in the introduction of this Article.
Recall the assertion in the Historians’ Brief that at the time of the Framing, “Outside the question of whether
militia members would be armed at national, state, or personal expense, there was no credible basis upon which
the national government could regulate the possession of firearms.” Historians’ Brief, supra note 20, at 31.
The Historians’ Brief hoped to show that few people were worried about the federal government
restricting private firearms in 1789, and therefore it is a mistake to conclude that individual rights were on the
agenda when the Second Amendment was proposed and ratified. But that approach presumes that constitutional
rights were created by the positive act of constitutional amendment in 1791.
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That brief demonstrates how, as a group, professional historians have failed to
incorporate limited power into their assessment of the constitutional right to
arms.
This failure has broad implications because some in the judiciary have
elevated the role of professional historians in translating the right to arms. For
example, Justice Breyer, citing the historians’ creationist account, argued in
McDonald that the Court got it wrong in Heller and that should be enough to
reverse the decision or at least not extend it.
136
Historians themselves have
claimed that the right to arms rests on “law office histories” that are
insufficiently textured and fail to account for context and complexity.
137
These sorts of critiques suggest that professional historians are neutral
arbiters of balls and strikes, whose more fulsome analysis will put the Second
Amendment in proper context. But “historical” accounts that ignore the limited
power context of the eighteenth-century right to arms are just advocacy under
the false banner of neutrality.
138
A militia-centric approach does not absolve one from engaging the limited
power component of the right to arms question. Assume arguendo that the
motivation for codifying the right of the people to keep and bear arms was to
protect a well-regulated militia. Now consider the definition of “militia”
articulated in United States v. Miller—the 1939 Supreme Court decision that
Justice Stevens and individual rights skeptics say is a better view of the Second
Cornell’s 2009 article repeats this mistake almost exactly. Through an interpretation of St. George
Tucker, Cornell not only acknowledges but forcefully asserts that “the scope of federal power was limited to the
‘protection and defence of the community against foreign force and invasion’ and to the equally important role
of suppressing ‘insurrections among ourselves.’ All matters related to individual self-defense, by contrast, fell
within the scope of state authority.” Cornell, supra note 30, at 1547 (footnote omitted) (quoting Brutus, Essays
of Brutus, in 2 THE COMPLETE ANTI-FEDERALIST 400–01 (Herbert J. Storing ed., 1981). This only makes sense
under a view that rights against the federal government, including the right to arms, were created by an
affirmative grant from government. That is simply false.
136
. Dissenting in McDonald, Justice Breyer criticized Heller this way:
The Court based its conclusions almost exclusively upon its reading of history. But the relevant
history in Heller was far from clear: Four dissenting Justices disagreed with the majority’s historical
analysis. And subsequent scholarly writing reveals why disputed history provides treacherous ground
on which to build decisions written by judges who are not expert at history.
Since Heller, historians, scholars, and judges have continued to express the view that the Court’s
historical account was flawed. . . .
. . . .
. . . The historians concede that at least one historian takes a different position, but the Court,
they imply, would lose a poll taken among professional historians of this period, say, by a vote of 8
to 1.
If history, and history alone, is what matters, why would the Court not now reconsider Heller in
light of these more recently published historical views?
McDonald, 561 U.S. at 914–16 (Breyer, J., dissenting) (emphasis added) (citations omitted).
137
. See, e.g., Historians’ Brief, supra note 20, at 33.
138
. For the false claim of neutrality, see Cornell, supra note 133, at 742 (“Heller’s manipulations and
misrepresentations of the past are not simply a function of a failure to sample enough sources. Scalia’s opinion
does not lack evidence, but the sources are selected for ideological reasons, not according to
any neutral scholarly criteria.” (emphasis added)).
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Amendment than Heller.
139
Miller underscores that the militia is the body of the
people bearing their own private arms. Here is the operative passage from
Miller:
The signification attributed to the term Militia appears from the debates in
the Convention, the history and legislation of Colonies and States, and the
writings of approved commentators. These show plainly enough that the Militia
comprised all males physically capable of acting in concert for the common
defense. “A body of citizens enrolled for military discipline.” And further, that
ordinarily when called for service these men were expected to appear bearing
arms supplied by themselves and of the kind in common use at the time.
140
Even granting a militia-centric view of the Second Amendment, the crucial
question remains: What could Americans do with the private arms that Miller
presumes, when they were not engaged with the militia? An honest search for
the answer must consider the limits on federal action built into the scheme of
limited powers, how rights were understood within that scheme, and the power
(or lack of it) of the federal government to regulate arms-use and arms-bearing
outside the context of the militia.
IV. THE LINKAGE BETWEEN LIMITED POWER AND THE RIGHT TO ARMS
CONTINUES INTO THE TWENTIETH CENTURY
Rawle’s 1825 assessment of the Second Amendment as a function of
limited federal power was fully in accord with the sentiment of the times. Early
congressional debates offer striking examples of what it means to take the
limited federal power seriously. These debates included contentious arguments
over the power to legislate, the time and manner of administering certain oaths
of office,
141
the power of the President to remove executive branch officers,
142
the power to provide charitable relief to foreign refugees,
143
the power to spend
139
. 307 U.S. 174 (1939).
140
. Id. at 179 (emphasis added).
141
. 4 ELLIOT, DEBATES ON THE FEDERAL CONSTITUTION, supra note 44, at 343–45.
142
. Id. at 350–403. In the debates on the Bill for Establishing an Executive Department to be Denominated
the Department of Foreign Affairs, Representative Smith from South Carolina demonstrated the skeptics position
this way: “I am clear that the President alone has not the power. . . . this inference is supported by that clause in
the Constitution, which provides that all civil officers of the United States shall be removed from office on
impeachment . . . .” Id. at 351 (emphasis added).
143
. On the Memorial of the Relief Committee of Baltimore, for the Relief of St. Domingo Refugees, Mr.
Madison remarked that
the government of the United States is a definite government, confined to specified objects. It is not
like the state governments, whose powers are more general. Charity is no part of the legislative duty
of the government. It would puzzle any gentleman to lay his finger on any part of the Constitution
which would authorize the government to interpose in the relief of the St. Domingo sufferers. The
report of the committee, he observed, involved this constitutional question—whether the money of
our constituents can be appropriated to any other than specific purposes.
Id. at 431.
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money to encourage certain occupations,
144
a rebuff by President Madison of the
power to “set apart . . . funds for internal [infrastructure] improvements”
145
(action that today one would say is at the core of the commerce power), and even
a dispute about the power of Congress to correspond with foreign nations.
146
These exacting early critiques of federal power set the tone for evaluating
Rawle’s explanation that the Second Amendment’s “prohibition” on Congress
infringing the right to arms was “general” because “[n]o clause in the
Constitution could by any rule of construction be conceived to give to congress
144
. On the Bill to Encourage Cod Fisheries by Granting Bounties (Feb. 3, 1792), Representative Giles
stated: “[I]n no part of the Constitution could he, in express terms, find a power given [t]o Congress to grant
bounties on occupations.” Id. at 426. James Madison pressed the objection this way:
It is supposed by some gentlemen, that Congress have authority . . . to grant bounties
[even] . . . under a power by virtue of which they may do any thing [sic] which they may think
conducive to the general welfare! . . .
. . . [T]his is not an indefinite government, deriving its powers from the general terms prefixed
to the specific powers—but a limited government, tied down to the specified powers, which explain
and define the general terms.
. . . .
. . . .
. . . .
. . . If Congress can employ money indefinitely to the general welfare, . . . in short, every thing
[sic], from the highest object of state legislation down to the most minute object of police, would be
thrown under the power of Congress . . . .
The language held in various discussions of this house is a proof that the doctrine in question was
never entertained by this body. Arguments, wherever the subject would permit, have constantly been
drawn from the peculiar nature of this government, as limited to certain enumerated powers, instead
of extending, like other governments, to all cases not particularly excepted.
Id. at 427–29.
145
. Id. at 468. The Bonus Bill pledged certain surpluses toward “a fund for constructing roads and canals,
and improving the navigation of watercourses, in order to facilitate . . . internal commerce among the several
states.” Id. On March 3, 1817, President Madison returned the Bank Bonus Bill to the House of Representatives
with a statement of objection that provided in part:
I am constrained, by the insuperable difficulty I feel in reconciling the bill with the Constitution of
the United States, to return it, with that objection . . . .
. . . [I]t does not appear that the power, proposed to be exercised by the bill, is among the
enumerated powers; or that it falls, by any just interpretation, within the power to make laws
necessary and proper for carrying into execution those or other powers vested by the Constitution in
the government of the United States.
The power to regulate commerce among the several states cannot include a power to construct
roads and canals, and to improve navigation of watercourses, in order to facilitate . . . commerce . . . .
To refer the power in question to the clause “to provide for the common defence and general welfare,”
would be contrary to the established and consistent rules of interpretation . . . . Such a view of the
Constitution would have the effect of giving to Congress a general power of legislation, instead of
the defined and limited one hitherto understood to belong to them . . . .
Id. at 468–70.
146
. See id. at 434 (discussing the Motion of Mr. Tazewell to Strike Out a Complimentary Reply to the
French Republic, January 6, 1796).
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a power to disarm the people.”
147
Rawle’s assessment was fully apiece with the
times.
Still, the skeptic might seek more direct evidence of Rawle’s assessment in
action; some pointed treatment by lawmakers explicitly linking the right to arms
and limited federal power. That demand is answered by the first ever attempt at
federal gun control—the proposal for the National Firearms Act of 1934
(NFA).
148
Both the timing of the NFA (enacted more than a century after the
publication of Rawle’s A View of the Constitution of the United States of
America) and its structure (fashioned as a tax rather than a prohibition) are
consistent with Rawle’s 1825 assessment of the right to arms as a function of
limited power.
Presented during the first year of Franklin Roosevelt’s presidency, the NFA
bill was guided by an analysis from the Justice Department that underscores the
flawed assumptions about federal power that the historians’ creationist account
tacitly infuses into criticisms of Heller. Subpart IV.A demonstrates that point
through an account of the enactment of the NFA. Subpart IV.B provides a
discussion of the modern Commerce Clause that shows how the historians’
creationist account tacitly infuses mid-twentieth-century notions of federal
power into its nominally historical account of the Second Amendment.
A. LIMITED POWER DICTATES THE STRUCTURE OF THE FIRST FEDERAL GUN
CONTROL LEGISLATION: THE NATIONAL FIREARMS ACT OF 1934
Well into the twentieth century, limited federal power remained a core
influence on the understanding of the scope and application of the individual
right to arms. The Second Amendment, understood as a function of limited
federal power, was a primary factor dictating the structure of the NFA. The
legislative history of the NFA is a withering rebuttal to the charge by
professional historians that the individual rights view of the Second Amendment
is a modern fabrication. Historian Paul Finkelman illustrates that criticism with
the claim upon which the Supreme Court’s decision in Heller rests:
[T]he Court has essentially adopted the modern, ahistorical reinterpretation of the
Second Amendment that its supporters arrogantly call the “Standard Model.”
This is not an interpretation that any legal scholar or constitutional theorist
would have recognized before the 1990s. And it is an interpretation that almost
no serious historians have accepted.
Until the 1960s, almost no organization (much less any Court) had argued
that the Second Amendment prohibited firearms regulations by either the
national government or the states.
149
Finkelman’s criticism of the “Standard Model” simply ignores the
consensus of nineteenth-century constitutional commentators and the plain
147
. RAWLE, supra note 24, at 125 (emphasis added).
148
. National Firearms Act, ch. 757, Pub. L. No. 73-474, 48 Stat. 1236 (1934).
149
. Finkelman, supra note 16, at 626 (emphases added) (footnotes omitted).
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evidence that proponents and ratifiers of the Fourteenth Amendment aimed to
extend the individual right to arms for self-defense to freedmen.
Even more remarkable is Finkelman’s affirmative citation of two sentences
from the volumes of testimony in the 1934 NFA hearings.
150
Those hearings
resoundingly refute Finkelman’s claim and underscore how the understanding
of the Second Amendment as a function of limited federal power, articulated by
William Rawle in 1825, prevailed well into the twentieth century.
The 1934 NFA aimed to address the problem of “gangster weapons” that
had been used in the notorious violence of the Prohibition Era.
151
Although a
drop in gun crime followed the repeal of Prohibition in 1933, the Roosevelt
Administration had, in its first year, already developed the NFA proposal. A
version of that proposal was ultimately enacted into law and continues today as
the primary law regulating machine-guns, silencers, and other esoteric
firearms.
152
In testimony before the House Ways and Means Committee, U.S. Attorney
General Homer Cummings, sponsor of the bill, explained that the proposal did
not ban any guns outright. Cummings was skeptical about the constitutional
authority for an outright ban. Instead, Cummings explained, the NFA would rest
mainly on the taxing power.
153
Cummings made clear that the NFA had “been drafted with an eye to
constitutional limitations” explaining, “we have established in our Department
an organization to . . . concentrate on a program that is constitutional.”
154
Addressing a committee question about extending the scope of the bill,
Cummings offered this illuminating summary of the constitutional obstacles:
We are confronted, gentlemen, with a very serious problem, and if the
committee, . . . could devise a way of dealing with these armaments . . . if that
could be made a matter of prohibition under some theory that permits the Federal
Government to handle it, this would be of great assistance. But there is some
difficulty there, you see.
. . . .
It would be quite all right with me; but, of course, we have no inherent police
powers to go into certain localities and deal with local crime. It is only when we
can reach those things under the interstate commerce provision, or under the use
of the mails, or by the power of taxation, that we can act.
155
150
. Id. (“In 1934 the chief lobbyist for the NRA asserted in testimony before Congress, ‘I do not believe
in the general promiscuous toting of guns. I think it should be sharply restricted and only under licenses.’”
(quoting MICHAEL WALDMAN, THE SECOND AMENDMENT: A BIOGRAPHY 88 (2014))).
151
. JOHNSON ET AL., supra note 101, at 529, 530.
152
. See id. at 353–72.
153
. The National Firearms Act of 1934: Hearings on H.R. 9066 Before the H. Comm. on Ways & Means,
73d Cong. 6, 13, 19 (1934) [hereinafter Hearings on H.R. 9066] (statement of Hon. Homer S. Cummings, U.S.
Att’y Gen.). Among other things the Act would impose a $200 tax (more than 3,000 in today’s dollars) on the
regulated class of guns and regulated items. Id. at 12.
154
. Id. at 4, 5.
155
. Id. at 8 (emphases added).
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In a separate colloquy, Cummings was pressed by Representative Hill
about how much power could be garnered from the Commerce Clause to justify
the various restrictions in the proposed NFA. Note that this was before today’s
expansive interpretation of the Commerce Clause had emerged:
MR. HILL. Now you are proceeding under two provisions of the Constitution
as a basis for this legislation. One is the taxing power and the other is the
regulation of interstate commerce.
ATTORNEY GENERAL CUMMINGS. Yes.
MR. HILL. How far does the character of interstate commerce follow a
firearm? For instance, with a gun that is imported, of course that would be
international commerce and would come under this provision; but take a
domestic product. A manufacturer ships a gun into another State from that in
which it is manufactured. It is in interstate commerce. Now if the person receiving
that gun, purchasing that gun, sells it to some other person within the same State
as he is, does the interstate commerce character still obtain?
ATTORNEY GENERAL CUMMINGS. Well we would get that person, if he is a
criminal, under the taxing provision.
156
This exchange shows the Justice Department’s skepticism about the scope
of federal power to infringe private, intrastate possession and transfer of
firearms.
157
Similarly instructive is Cummings’s answer to Representative James
McClintic’s question of whether registration of existing pistols (the initial
proposal extended to handguns) might be added to the bill. Cummings
responded, “We were afraid of that, sir,” and “I am afraid it would be
unconstitutional.”
158
This concern would be repeated and illuminated by the
subsequent testimony of Assistant U.S. Attorney General Joseph Keenan.
One of the most direct discussions of the linkage between the Second
Amendment and limited federal power appears in an exchange between
Cummings and Representative David Lewis of Maryland. This colloquy
presents the individual right to arms as a function of the power to restrict it.
Notice first, how Lewis describes the right to arms as a constraint on legislative
power and, second, how Cummings presents the NFA as a legitimate exercise
of the enumerated taxing power that avoids conflict with the Second
Amendment.
156
. Id. at 23–24. Hill’s question and Cummings’ response reflect the then-prevailing Supreme Court
jurisprudence that commerce was buying and selling but not simply manufacturing. See Hammer v. Dagenhart,
247 U.S. 247, 272 (1918) (“The production of articles, intended for interstate commerce, is a matter of local
regulation.”). This approach to commerce would fuel the Court’s 1935 decision in A.L.A. Schechter Poultry
Corp. v. United States, 295 U.S. 495, 498 (1935) (concluding that once poultry shipped from other states reached
the Schechter facility interstate commerce ended and subsequent regulation of the goods inside the state was a
matter of state jurisdiction).
157
. The practical effect of the taxing power was limited in that taxing might add expense to gun ownership,
but could not prohibit it. Cummings made it clear that the theory of the roughly one-hundred percent tax on NFA
guns was mainly to aid prosecution of gangsters who likely would not pay the tax or acquire an NFA license.
Hearings on H.R. 9066, supra note 153, at 10, 12.
158
. Id. at 13 (emphasis added).
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MR. LEWIS. What I have in mind mostly, General, is this: The theory of
individual rights that is involved. . . .
. . . .
MR. LEWIS. . . . Lawyer though I am, I have never quite understood how the
laws of the various States have been reconciled with the provision in our
Constitution denying the privilege to the legislature to take away the right to carry
arms. Concealed-weapons law, of course, are familiar in the various States; there
is a legal theory upon which we prohibit the carrying of weapons—the smaller
weapons.
ATTORNEY GENERAL CUMMINGS. Of course we deal purely with concealable
weapons. Machine guns, however, are not of that class. Do you have any doubt
as to the power of the Government to deal with machine guns as they are
transported in interstate commerce?
MR. LEWIS. I hope the courts will find no doubt on a subject like this, General;
but I was curious to know how we escaped that provision [the Second
Amendment] in the Constitution.
ATTORNEY GENERAL CUMMINGS. Oh, we do not attempt to escape it. We are
dealing with another power, namely, the power of taxation, and of regulation
under the interstate commerce clause. You see, if we made a statute absolutely
forbidding any human being to have a machine gun, you might say there is some
constitutional question involved. But when you say “We will tax the machine
gun” and when you say that “the absence of a license showing payment of the tax
has been made indicates that a crime has been perpetrated,” you are easily within
the law.
159
The NFA hearings spanned five days over two months in the spring of
1934. Attorney General Cummings was the first witness at the opening of the
hearings on April 16. Subsequently, Assistant Attorney General Keenan
represented the Justice Department. Keenan’s testimony on May 16, 1934 is a
strong affirmation of the linkage between limited power and keeping private
arms. The first example is in an exchange with Representative Allen Treadway
of Massachusetts. It shows Treadway’s sense that Congress should ban machine
guns without any concern for constitutional authority and Keenan’s reminder
that the federal government is one of limited, enumerated powers:
MR. TREADWAY. What benefit is there in allowing machine guns to be legally
recognized at all? Why not exclude them from manufacture?
MR. KEENAN. We have not the power to do that under the Constitution of the
United States. Can the Congressman suggest under what theory we could
prohibit the manufacture of machine guns?
MR. TREADWAY. You could prohibit anybody from owning them.
MR. KEENAN. I do not think we can prohibit anybody from owning them. I do
not think that power resides in Congress.
160
Keenan’s caution to Treadway is repeated in an exchange with
Representative Claude Fuller of Arkansas and Representative Fred Vinson of
Kentucky. Notice here how Keenan acknowledges the vast difference between
159
. Id. at 18–19.
160
. Id. at 100 (emphases added).
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the powers of the federal government compared to the authority of states
wielding general police powers:
MR. FULLER. What would you think of a law which prohibits the manufacture
or sale of pistols to any person except the Government or an officer of the law?
MR. KEENAN. I think that would be an excellent provision if the Congress
had power to enact such legislation. We think it would be a good thing. The way
that can be attacked, naturally, is by some action of the State assemblies.
MR. FULLER. We could enact a law declaring it a felony to sell them.
MR. KEENAN. I do not think that power resides in the Congress. The Federal
Government has no police powers.
MR. FULLER. It could require them to be registered and pay them full value
and then destroy the weapons.
MR. KEENAN. I do not think that power resides in Congress.
MR. VINSON. It is because of that lack of power that you appear in support of
the bill to do something indirectly through the taxing power which you cannot do
directly under the police power?
MR. KEENAN. I would rather answer that we are following the Harrison
[Narcotics] Act, and the opinions of the Supreme Court.
161
Later in the hearing, Keenan emphasized the function of limited power in
defining the scope of federal arms regulation by way of comparison. In an
exchange with Representatives Vinson and Hill about the constitutionality of
establishing a sweeping registration provision using the taxing power, Keenan
emphasized that the U.S. Congress does not have the sort of broad power
wielded by the British Parliament:
Referring again to the British law, they have no difficulty; they do not have the
same constitutional limitations and constitutional questions that we
have. . . . [T]he point I am trying to make is we are struggling with a difficult
problem, with limited powers of the Federal Government.
162
The Committee also received testimony from Charles Imlay, representing
the National Conference of Commissioners on Uniform State Laws. Imlay
testified in favor of regulation within the scope of the commerce power, but his
exchange with Representatives Treadway and Reed shows his agreement with
the Justice Department about the limits of that power:
161
. Id. at 101–02 (emphases added). The NFA was modeled on the 1914 Harrison Narcotics Tax Act,
which used the federal taxing power to impose stringent controls on the possession or sale of cocaine and opiates.
Harrison Narcotics Tax Act, Pub. L. No. 63-223, 38 Stat. 785 (1914). The Supreme Court upheld this use of the
taxing power, by a 7–2 vote. United States v. Doremus, 249 U.S. 86 (1919); United States v. Jin Fuey Moy, 241
U.S. 394 (1916). Later, the 1970 Controlled Substances Act would be modeled on the Gun Control Act of 1968.
Compare Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213, with Comprehensive Drug Abuse
Prevention and Control Act of 1970, Pub. L. No. 91-153, 84 Stat. 1236. In Sonzinsky v. United States, 300 U.S.
506, 513 (1937), the Court rejected the argument that the NFA tax was a sham because it was not intended to
raise revenue. In recent decades, the Supreme Court has become more vigorous about policing the boundary
between a tax and a criminal penalty. See, e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 565–70
(2012); Dep’t of Revenue v. Kurth Ranch, 511 U.S. 767, 784 (1994).
162
. Hearings on H.R. 9066, supra note 153, at 134. Compare id., with Sheehan, supra note 19
(summarizing the very different context in which rights are understood in the United States versus the United
Kingdom).
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MR. IMLAY. I am in favor of State laws that forbid the manufacture of
machine guns except for those few uses [need by police and guards in banks or
government buildings].
MR. TREADWAY. You cannot go as far as to say that we can sidestep the
Constitution sufficiently to prevent their manufacture?
MR. IMLAY. I think not. I think you can pass a bill which says you cannot ship
machine guns across State lines. That is as far as the Mann Act goes.
. . . .
. . . .
MR. REED. . . . Do you know of any power other than the taxing power and
the power to regulate interstate commerce by which we could prevent the
manufacture of firearms?
MR. IMLAY. I know of no other power.
163
So here, solidly into the twentieth century, we find an important practical
application of William Rawle’s 1825 description of the right to arms as a
function of limited federal power.
164
The 1934 NFA hearings proceeded on a
view of federal power prevailing at the passage of the 1914 Harrison Narcotics
Act, on which the NFA was modeled.
165
Franklin Roosevelt (FDR) had been in
163
. Hearings on H.R. 9066, supra note 153, at 150 (emphasis added).
164
. Similar worries surrounded the passage of the 1938 Federal Firearms Act (FFA), which had the modest
goals of requiring that those engaged in the transfer of firearms in interstate commerce obtain a federal license.
Federal Firearms Act, Pub. L. No. 75-785, 52 Stat. 1250 (1938). Sympathetic commentary from 1939 noted the
continuing concern about the source of federal authority for regulation of private firearms under the NFA (1934)
and the FFA (1938), and laments the limited authority of the federal government to regulate private firearms
toward the end of crime control:
The transition of crime from a chiefly local problem to one of interstate and even international
proportion has been taking place since the World War. This gradual change, necessarily resulting in
a partial disability of local law enforcement, engendered the clamor for federal crime control.
Accordingly, in 1933, the Senate directed the Committee on Commerce to investigate the subjects of
kidnapping, “racketeering,” and other forms of crime, and to recommend the necessary remedial
legislation. To the layman it might seem that the only authority required for passage of such laws
would be the police power but actually, the United States Government is, in this respect, under the
very burdensome restraint of the Tenth Amendment. The national government has no police power
except that expressly or impliedly granted it by the Constitution.
The important powers through which Congress may try to curb crime are the power to tax, the
power over interstate and foreign commerce, and the power “to make all laws which shall be
necessary and proper for carrying into execution the foregoing powers.” The power to tax has been
responsible for the control of narcotics and machine guns [the latter a reference to the NFA], while
the power over interstate and foreign commerce has resulted in the control over kidnapping, white
slavery, stolen motor vehicles, and opium for smoking purposes.
Alfred M. Ascione, The Federal Firearms Act, 13 ST. JOHN’S L. REV. 437, 437–38 (1939) (emphasis added)
(footnotes omitted) (quoting U.S. CONST. art. 1, § 8, cl. 18). Alfred M. Ascione served as New York City Tax
Commissioner, New York Municipal and Civil Court Judge, and, for more than two decades, as a New York
Supreme Court Judge. Obituary, Alfred M. Ascione, 73, Retired Judge, Is Dead, N.Y. TIMES, Mar. 16, 1989, at
B16.
165
. The NFA still operates today as the primary source of regulation of machine guns, short barreled long
guns, silencers, and other uncommon devices. See JOHNSON ET AL., supra note 101.
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office for little more than a year, and the battle to implement his transformative
New Deal was just ramping up.
166
Soon the Supreme Court’s rebuff of early New Deal legislation in cases
like A.L.A. Schechter Poultry Corp. v. United States
167
and Carter v. Carter Coal
Co.
168
would fuel the brinksmanship of Roosevelt’s 1937 court packing plan.
Ultimately, what FDR criticized as the “horse and buggy”
169
view of the
Commerce Clause would succumb to the “butterfly effect”
170
version that
prevails today. By 1942, the Supreme Court would conclude that the Commerce
Clause granted Congress power over the amount of wheat a farmer could grow
for private consumption because the cumulative impact might affect the national
price of wheat, which Congress had an interest in controlling.
171
Still, decades more would pass before Congress would claim the sort of
power over private firearms that is tacitly infused into the historians’ supposedly
eighteenth-century account of the Second Amendment. An early marker of that
move is the Supreme Court’s 1971 decision in United States v. Bass,
172
which
evaluated the asserted source of federal power for the Gun Control Act of 1968
(GCA).
173
The 1968 GCA was different from the NFA in that it applied to all
modern firearms (around 350 million guns today, versus a few hundred thousand
esoteric guns regulated under the NFA).
174
The 1968 Omnibus Crime Act included explicit restrictions that attempted
to disarm a narrow class of citizens, including any felon who “receives,
possesses, or transports [a firearm] in commerce or affecting commerce . . . .”
175
The defendant in Bass was indeed a felon who had possessed a gun.
176
But
“[t]here was no allegation in the indictment and no attempt by the prosecution
166
. After winning the 1932 election, Roosevelt took office in March 1933.
167
. 295 U.S. 495 (1935).
168
. 298 U.S. 238 (1936) (invalidating the Bituminous Coal Conservation Act on the view that commerce
was trade, so buying and selling of coal was commerce, but coal mining itself was not).
169
. Press Release, President Franklin D. Roosevelt, Press Conference No. 209, at 320 (May 31, 1935),
http://www.fdrlibrary.marist.edu/_resources/images/pc/0022.pdf (discussing Schechter Poultry).
170
. See generally JOHN P. KRILL, JR., FEDZILLA VS. THE CONSTITUTION: HOW A GOVERNMENT OF LIMITED
POWER MUTATED INTO A MONSTER TRAMPLING THE CONSTITUTION (2014). Jack Krill deploys this term to great
effect in his critique of modern commerce clause jurisprudence. The butterfly effect is a theory that a very small
change in a complex system can dramatically affect outcomes—for example, the flap of a butterfly’s wings
might, along with other variables, affect the trajectory of a storm. Krill shows how this sort of reasoning mirrors
judicial validations of congressional action grounded on the commerce power.
171
. Wickard v. Filburn, 317 U.S. 111 (1942) (marking a period of broad Supreme Court deference to
federal regulation of matters that indirectly affect interstate commerce).
172
. 404 U.S. 336 (1971), aff’g 434 F.2d 1296 (2d Cir. 1970).
173
. Gun Control Act of 1968, Pub. L. No. 90-618, § 102, 82 Stat. 1213 (codified as amended at 18. U.S.C.
§§ 921–28 (2012)).
174
. See JOHNSON ET AL., supra note 101, at 454–87.
175
. Bass, 404 U.S. at 337 (internal quotation marks omitted) (quoting the Omnibus Crime Control and Safe
Streets Act of 1968, Pub. L. No. 90-351, § 1201, 82 Stat. 197). The firearms regulated under the GCA are the
ordinary rifles shotguns and handguns that make up the vast majority of the roughly 350 million guns owned in
the United States. JOHNSON ET AL., supra note 101, at 454–87. The NFA by comparison governs only a few
hundred thousand relatively esoteric firearms. Id.
176
. Bass, 404 U.S. at 337–38.
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to show that either firearm had been possessed ‘in commerce or affecting
commerce.’”
177
The government proceeded on the assumption that the statute
“banned all possessions and receipts of firearms by convicted felons, and that no
connection with interstate commerce had to be demonstrated in individual
cases.”
178
The Second Circuit reversed Bass’s conviction, reasoning that the
Government’s construction of the statute would raise substantial doubt about its
constitutionality.
179
After a lengthy textual analysis, the Supreme Court upheld
the Second Circuit, but on substantively different grounds. The Court’s first
justification was the preference for resolving ambiguous criminal statutes in
favor of leniency. The Court’s second rationale illuminates our subject here:
Congress has traditionally been reluctant to define as a federal crime conduct
readily denounced as criminal by the States. . . . [T]he broad construction urged
by the Government renders traditionally local criminal conduct a matter for
federal enforcement and would also involve a substantial extension of federal
police resources. Absent proof of some interstate commerce nexus in each case,
§ 1202(a) dramatically intrudes upon traditional state criminal
jurisdiction. . . . Absent a clearer statement of intention from Congress than is
present here, we do not interpret § 1202(a) to reach the “mere possession” of
firearms.
180
The Court’s analysis is couched in terms of federal and state division of
power. But it is plain how limits on federal power impact claims of individuals
against the exercise of federal authority. Recall the declarations by luminaries
of the Founding Era that limited jurisdiction guaranteed individual rights against
the federal government.
181
The 1968 GCA, evaluated in Bass, would be amended over time to include
a variety of new restrictions, including, in 1994, an ostensible ban on a narrow
class of guns classified as “assault weapons.”
182
Prior renditions of the 1968
GCA made it illegal for felons and other untrustworthy people to buy or possess
guns. The 1994 Assault Weapon Ban was the first federal gun prohibition that
applied to everyone.
183
Like most federal gun control laws, it was grounded on
the commerce power, which by 1994 had been stretched to the point that there
was no serious dispute about Congress’s authority to enact the ban.
So finally, in 1994, a full two centuries after the framing of the U.S.
Constitution, we encounter the sort of assertion of federal power over private
firearms that the historians’ creationist account implicitly injects into its
177
. Id. at 338.
178
. Id.
179
. Id. at 349–50.
180
. Id. (footnotes omitted) (citations omitted). The Court then emphasized that the Government could
easily meet its evidentiary burden in these cases and offered a series of examples as guidance to prosecutors. Id.
at 350.
181
. See supra Part II.
182
. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 110102, 108 Stat.
1796, 1996–2010.
183
. See id.
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supposedly eighteenth-century analysis of Second Amendment. This modern
vision of federal power is wildly at odds with the original constitutional design.
And it goes without saying that the injection of this twentieth-century conception
of federal power into “historical” assessments of the right to arms is deeply
flawed historiography. This is a far-reaching mistake whose details and
implications are examined in the next Subpart.
B. SOME REMINDERS ABOUT THE MODERN COMMERCE POWER AND AN
ILLUMINATING SEARCH FOR POWER IN OTHER PLACES—WHAT ABOUT
THE MILITIA POWER?
The previous Part criticized the historians’ creationist account of the
Second Amendment for tacitly infusing twentieth-century views about federal
power into a supposedly “historical” assessment of the eighteenth-century right
to arms. This Part will demonstrate just how drastically that twentieth-century
view of federal power departs from the eighteenth-century design. Subpart
IV.B.1 summarizes the critical assessments of the modern commerce power.
Subpart IV.B.2 examines the possibility of arms-regulation under the federal
militia power, toward the end of illuminating the erroneous assumptions about
federal power that undergird the creationist account of the Second Amendment.
1. The Commerce Clause
The commerce power is the foundation of the modern regulatory state.
Article 1, Section 8 of the U.S. Constitution grants Congress the power to
“regulate Commerce with foreign Nations, and among the several States, and
with the Indian Tribes.”
184
Writing it out this way suggests something less
sweeping than the “commerce power” so glibly referenced as the source of
federal authority today.
One gets a full flavor of the narrower view from James Madison’s critique
of the Bank Bonus Bill. In March of 1817, Madison, now President Madison,
declined to sign a congressional proposal to set aside surplus funds to build
infrastructure “in order to facilitate, promote, and give security to internal
commerce among the several states.”
185
Madison sent back the bill with the
objection that:
The power to regulate commerce among the several states cannot include a
power to construct roads and canals, and to improve navigation of watercourses,
in order to facilitate, promote, and secure, such a commerce, without a latitude of
construction departing from the ordinary import of the terms, strengthened by the
known inconveniences [trade protectionism] which doubtless led to the grant of
this remedial power to Congress.
186
184
. U.S. CONST. art. 1, § 8, cl. 3.
185
. 4 ELLIOT, DEBATES ON THE FEDERAL CONSTITUTION, supra note 44, at 468.
186
. Id. at 469. Madison goes on to explain that the bill also cannot be sustained by the power to “provide
for the common defence and general welfare.” Id. (emphasis added) (internal quotation marks omitted) (quoting
U.S. CONST. art. 1, § 8). This sort of construction said Madison would render the “special and careful
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Madison went on to explain that the bill also could not be sustained by the
power to “provide for the common defence and general welfare.”
187
That sort of
construction, said Madison, would render the
special and careful enumeration of powers which follow the clause nugatory and
improper. Such a view of the Constitution would have the effect of giving to
Congress a general power or [sic] legislation, instead of the defined and limited
power hitherto understood to belong to them.
188
For moderns steeped in the jurisprudence of the twenty-first-century
regulatory state, this is a startlingly narrow construction of federal power.
Expansive interpretation of the commerce power is the foundation for much of
what we take for granted as the proper role of the federal government and it is
the express authority for modern federal regulation of firearms.
189
There is virtually no disagreement that the modern conception of federal
power is far broader than the original understanding. Originalists such as Robert
Bork, Justice Antonin Scalia, Justice Clarence Thomas, Randy Barnett, and
Richard Epstein argue that much of the modern regulatory state is highly
suspect. Their conclusions vary from the claim that much of the regulation we
take for granted is unconstitutional, to pragmatic capitulation to the
power-expanding precedents of the New Deal.
190
Even staunch supporters of expansive federal power such as Bruce
Ackerman acknowledge that the reading of the Commerce Clause on which it
rests is at odds with the “Founder’s Constitution.” Ackerman has argued that
this assertion of power was validated by an unofficial amendment to the
Constitution that was implicit in the politics of the New Deal.
191
Ackerman
candidly acknowledges the vast differences between conceptions of federal
power before and after the New Deal.
For our purposes, this shows again why the 1934 NFA hearings, just a year
in to Roosevelt’s first term, would engage the right to arms as a function of
limited power in the way that it was articulated by William Rawle in 1825. This
underscores how the historians’ creationist account fails to match up
eighteenth-century notions of rights and powers and rests on conceptions of
federal power that did not emerge until the middle of the twentieth century.
Toward the same end as Ackerman, Jack Balkin argues that the commerce
power has legitimately expanded over time.
192
He argues that “fidelity to original
meaning does not require fidelity to the original expected applications of text
enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would
have the effect of giving to Congress a general power or legislation, instead of the defined and limited one
hitherto understood to belong to them.” Id.
187
. Id. (internal quotation marks omitted) (quoting U.S. CONST. art. 1, § 8).
188
. Id.
189
. See United States v. Bass, 404 U.S. 336 (1971).
190
. See, e.g., Jack M. Balkin, Commerce, 109 MICH. L. REV. 1, 3 (2010) (positioning Justices Scalia,
Thomas, Barnett, and Epstein on a spectrum of views about the commerce power).
191
. Bruce Ackerman, Constitutional Politics/Constitutional Law, 99 YALE L.J. 453, 457–59 (1989).
192
. See generally Balkin, supra note 190.
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and principle.”
193
But Balkin still acknowledges that “[t]he doctrinal structure
that emerged by the mid-1940s was drastically different from the expectations
of the founding generation.”
194
This is the doctrinal structure, born in the 1940s,
that the historians’ creationist account must presume in order to make the claim
that the individual right to arms is a scam.
195
2. The Militia Power and the Historians’ Telling Concession
With the commerce power ruled out, a search for some power under the
early Constitution allowing the federal government to bar Americans from
having private, defensive firearms might look to the Militia Clause. It is, after
all, the one place within the enumerated powers where Congress is explicitly
authorized to do something regarding citizens and firearms. The Militia Clause
in Article 1, Section 8, allows Congress
[t]o provide for organizing, arming, and disciplining, the Militia, and for
governing such Part of them as may be employed in the Service of the United
States, reserving to the States respectively, the Appointment of the Officers, and
the Authority of training the Militia according to the discipline prescribed by
Congress; . . . .
196
From this, one might attempt to fashion an argument that the militia power
includes some authority to restrict individual firearms for self-defense.
Ironically one of the most forceful refutations of that argument is the Historians’
Brief in District of Columbia v. Heller. The Historians’ Brief is adamant that the
Militia Clause and the debates that swirled around it were not concerned with
the “private rights of individuals”:
Even when Anti-Federalists spoke of the militia being disarmed, their expressed
concern was not the specter of federal confiscation or prohibition of private
weapons, but rather that the national government might neglect to provide arms.
They worried that militiamen might be subject to military justice, or marched to
faraway locations, to their personal inconvenience and the insecurity of their own
communities.
197
. . . .
193
. Id. at 4.
194
. Id. at 3. President Franklin Roosevelt also candidly acknowledged the original narrow parameters of
the commerce power. Press Release, supra note 169, at 321 (discussing Schechter Poultry). President Roosevelt
stated:
[T]here was quite a fear that each of the thirteen states could impose tariff barriers against each other
and they ruled that out. They would not let the states impose tariff barriers but they were afraid that
the lawyers of that day would find some other method by which a state could discriminate against its
neighbor on one side or the other, . . . . Therefore the Interstate Commerce clause was put into the
Constitution with the general objective of preventing discrimination by one of these Sovereign States
against another Sovereign State.
Id.
195
. See Cornell, supra note 133, at 740.
196
. U.S. CONST. art. 1, § 8, cl. 15.
197
. Historians’ Brief, supra note 20, at 21–22.
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. . . Outside the question of whether militia members would be armed at
national, state, or personal expense, there was no credible basis upon which the
national government could regulate possession of firearms.
198
The historians’ admission that Congress had no authority over private
firearms lays bare a core analytical mistake. How is it that the historians can
admit the lack of federal power in the eighteenth century to regulate possession
of firearms and still present a “historical” analysis that says the Second
Amendment presents no barrier to federal legislation banning handgun
possession? The answer is that the historians tacitly inject a twentieth-century
conception of federal power into a supposedly historical analysis of the right to
arms as conceived in the eighteenth century.
Fidelity to context demands that historical assessments of constitutional
rights be measured against conceptions of federal power from the same
period.
199
In this, the historians utterly fail. They are so focused on advancing
198
. Historians’ Brief, supra note 20, at 31. Addressing the worry that the new government would become
too powerful and infringe on state prerogatives, Hamilton’s summary in Federalist 17 of federal and state
jurisdiction and the inherent subjects of national ambition is broadly consistent with the admission in the
Historians’ Brief that the federal government had no authority to prohibit possession of firearms for individual
self-defense. Hamilton explained that the new government would be concerned with national matters like
commerce (meaning trade), finance, negotiation, and war. THE FEDERALIST NO. 17, at 118–20 (Alexander
Hamilton) (Clinton Rossiter ed., 1961). The minutia of day-to-day regulation of the “personal interests” of
individuals would be left with the states and in any case held no interest for ambitious usurpers. Id. at 120.
The regulation of the mere domestic police of a State appears to me to hold out slender allurements
to ambition. Commerce, finance, negotiation, and war seem to comprehend all the objects which
have charms for minds governed by that passion; and all the powers necessary to those objects ought
in the first instance to be lodged in the national depository. The administration of private justice
between the citizens of the same State, the supervision of agriculture and of other concerns of a
similar nature, all those things, in short, which are proper to be provided for by local legislation, can
never be desirable cares of a general jurisdiction. It is therefore improbable that there should exist a
disposition in the federal councils to usurp the powers with which they are connected; because the
attempt to exercise those powers would be as troublesome as it would be nugatory . . . .
. . . .
. . . .
. . . .
. . . .
. . . .
There is one transcendent advantage belonging to the province of the State governments, . . . I
mean the ordinary administration of criminal and civil justice. This, of all others, is the most
powerful, most universal, and most attractive source of popular obedience and attachment. It is this
which, being the immediate and visible guardian of life and property, having its benefits and its
terrors in constant activity before the public eye, regulating all those personal interests and familiar
concerns to which the sensibility of individuals is more immediately awake, contributes more than
any other circumstance to impressing upon the minds of the people affection, esteem, and reverence
towards the government. This great cement of society . . . [would render states] at all times a
complete counterpoise, and, not unfrequently, dangerous rivals to the power of the Union.
Id. at 118–19, 120.
199
. Recall here Madison’s explanation that limiting powers and declaring rights were different paths to the
same thing. THE MIND OF THE FOUNDER: SOURCES OF THE POLITICAL THOUGHT OF JAMES MADISON, supra note
64, at 156–57.
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their creationist view of the right to arms (that the Bill of Rights created rights
rather than affirmed rights that were already protected by the scheme of limited
enumerated powers) that they unwittingly admit the absence of federal power
over private defensive firearms. To keep their argument afloat, the historians are
then forced to pair their eighteenth-century assessment of rights with a
mid-twentieth-century view of federal power.
The Historians’ Brief repeats this mistake in a separate effort to discount
Ratification-era statements that undoubtedly reference individual arms unrelated
to the militia. The historians hope to show that few people were worried about
the danger of the federal government confiscating private firearms and, thus, it
is a mistake to say that protection of individual firearms was on the agenda for
creating rights, and therefore the Second Amendment did not create an
individual right. But in the effort to sustain this narrative, the historians just
underscore the linkage between limited power and the right to arms.
The context is Noah Webster’s response to proposals during the
Pennsylvania Ratifying Convention for the addition of a right to arms
amendment that was undoubtedly individual in nature. Webster framed his
objection with a question. Why not add a further clause, he chided. Why not
declare “[t]hat Congress shall never restrain any inhabitant of America from
eating and drinking, at seasonable times, or prevent his lying on his left side, in
a long winter’s night, or even on his back, when he is fatigued by lying on his
right.”
200
The Historians’ Brief diminishes Webster’s statement as “witheringly
sarcastic.”
201
But a more serious critique, incorporating the linkage between
individual rights and limited power, shows that Webster was arguing that any
assertion that the new federal government could restrict Americans from bearing
“arms for defense of themselves”
202
was superfluous and absurd—on the order
of worrying about the federal government regulating private choices about
eating, drinking, sleeping, and myriad other individual prerogatives that were
protected against federal interference by the scheme of limited, enumerated
powers.
203
200
. Historians’ Brief, supra note 20, at 24 (internal quotation marks omitted) (quoting 15 THE
DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 199 (John Kaminski & Gaspare Saladino
eds., 1976)).
201
. Id.
202
. Id. at 23.
203
. Another analysis by a professional historian cited in Justice Breyer’s McDonald dissent for the
proposition that Heller is fundamentally flawed is Paul Finkelman’s It Really Was About a Well Regulated
Militia. Finkelman, supra note 30; see also McDonald v. City of Chicago, 561 U.S. 742, 914–17 (2010) (Breyer,
J., dissenting). Finkelman’s article is useful to reference here for two reasons. First, it is another illustration of
the flawed creationist view. See Finkelman, supra note 30, at 269–70. Second, because it facilitates deeper
examination of sources of federal power to regulate firearms. See id. at 280–81.
On the first point, Finkelman’s analysis is a classic example of the historians’ positivist mistake as
demonstrated initially by his description of the rights proposals from the ratifying conventions. Finkelman
divides these proposals into two distinct categories of amendments “designed to reduce the power of the national
government” and those “designed to protect civil liberties.” Id. at 269–70. This false dichotomy between limiting
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The view that the federal government had no power to restrict individual
arms for self-defense, suggested by Webster in 1788, is the core of William
Rawle’s 1825 affirmation of the individual right to arms, and the primary reason
that the first federal gun control law, the National Firearms Act of 1934, was
framed as a tax rather than a prohibition.
204
power and liberty protection demonstrates a failure to understand the linkage between limited power and
individual rights that was pervasive during the Framing Era.
At one stage Finkelman’s critique actually acknowledges the limited power arguments made by
Hamilton in Federalist 84 and Madison at the Virginia Convention. Id. at 272. He even notes Madison’s caution
that the structure of the Constitution remains the same—it was that structure that protected rights through limited
power—but resists its implications for understanding individual rights. Id. But Finkelman proceeds as if the
ratification of the Bill of Rights eliminated the rights-protecting function of limited power. This ignores the
ratification cautions and the entire reason for the Ninth Amendment. Id.
On the second point (of federal power to regulate firearms), Finkelman makes an important
contribution with sweeping speculation about other sources of federal power over individual firearms. The
Historians’ Brief and much of the scholarship that fuels it asserts that the original Constitution contained no hint
of federal power over the possession or use of private arms for self-defense. Historians’ Brief, supra note 20, at
8. Nonetheless, Finkelman says that there is a “strong logic” of national government power to engage in some
sort of firearms regulation. Finkelman, supra note 30, at 280. In support of this proposition, he cites the power
to punish piracy and felonies committed on the high seas and offenses against the law of nations, the power to
suppress insurrections and repel invasions, the power to suppress the African Slave Trade after January 1, 1880,
the power to regulate commerce, and the power under Article IV, Section 4, to guarantee to every state a
republican form of government and “to ‘protect’ each state from ‘Invasion’ and ‘domestic Violence.’” Id. at
280–81 (quoting U.S. CONST. art. IV, § 4).
Finkelman’s list is an aggressive and creative rendering of possible sources of federal authority for
firearms regulation. It is difficult to see how any of these provisions grant any greater power over firearms than
is more explicitly granted or implied by the Militia Clause of Article I, Section 8. And as the Historians’ Brief
forcefully asserts, there was no hint during the Framing debates that this authority would restrict the rights of
individuals to possess and use firearms for private self-defense. See Historians’ Brief, supra note 20, at 8. As we
have seen, as late as 1934, the consensus view was that the federal government had no such power over individual
arms possession, even under the Commerce Clause. As the Department of Justice recounted in the NFA hearings,
there was no sense that any other provision of the Constitution provided such power. See Hearings on H.R. 9066,
supra note 153. Not until the jurisprudence of the New Deal had advanced and matured could such a claim be
sustained.
204
. Another limited power base for arms regulation is suggested by the temporary restrictions and rationing
of firearms and ammunition grounded on the war power, during World War II. The first rationing for ammunition
was the War Production Board’s Limitation Order L-286, 8 Fed. Reg. 5,714 (May 4, 1943). For law enforcement
officers, the quarterly quota was 20 centerfire pistol rounds, with no more than 10 in .38 special caliber. Id. at
5,715. Ranchers were allowed 140 rifle rounds, and 25 shotgun shells. Id. Even rations required written
certification by the purchaser that his current stock is inadequate, and that their ammunition would only be used
for the authorized purposes. Id. at 5,714–15. The U.S. military soon accumulated “astronomical” reserves of
ammunition, more than it could store. JOINT MUNITIONS COMMAND, HISTORY OF THE AMMUNITION INDUSTRIAL
BASE 17 (2010). Ration allowances for civilians were increased somewhat, and small quantiles were allowed for
hunters. See 8 Fed. Reg. 11,800 (Aug. 26, 1943); 8 Fed. Reg. 15,488 (Nov. 12, 1943); 9 Fed. Reg. 10,561 (Aug.
30, 1944). Japan surrendered in August 1945, and all ammunition limits were removed in November of that year.
World War II also prompted passage of the Property Requisition Act of 1941., Pub. L. No. 77-274, 55
Stat. 742. The Act gave the President sweeping powers to requisition privately owned “machinery, tools, or
materials” that were immediately needed for the national defense, in return for compensation to be paid to the
owners. Id. The Act also stated that it was not to be construed “to impair or infringe in any manner the right of
any individual to keep and bear arms.” Id. It specifically prohibited the President from “requisitioning or
requir[ing] the registration of any firearms [otherwise lawfully] possessed by any individual for his personal
protection or sport.” Id.; see also JOHNSON ET AL., supra note 101, at 377–78; Stephen P. Halbrook, Congress
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V. INTEGRATING LIMITED POWER INTO RIGHT TO ARMS JURISPRUDENCE: A
KEENER LENS ON HELLER
Integrating limited power into the understanding of the eighteenth-century
right to arms provides a keener lens for evaluating Heller and the competing
visions of the Second Amendment reflected by the majority and dissenting
opinions that fuel the continuing disagreement over the legitimacy of the
constitutional right to arms.
Critics charge that Heller is poor originalism.
205
Some of the most pointed
criticisms have focused on Heller’s validation of most modern federal gun
regulation as presumptively lawful without even a hint of historical analysis.
Justice Breyer’s dissent chided, “Why these?”
206
Some cynics have dubbed the
presumptively lawful language the “Kennedy paragraph,” speculating that it was
a blunt capitulation necessary to gain Justice Kennedy’s vote.
The limited-power critique allows for a less cynical explanation. It helps
us understand the “Kennedy paragraph” as a response to the challenge of
conducting an originalist assessment of rights against a backdrop of federal
power that has shifted dramatically over time. Heller meets this challenge in two
steps.
On the question of first principles, Heller recognizes a preexisting
individual right to arms for self-defense that is not constrained by the codifying
language.
207
Then, in blunt capitulation to the modern reality of expansive
federal power, the decision declares that the bulk of existing federal gun
regulations—rooted in the Commerce Clause—should be presumed valid.
208
Thus, in a very practical way, Heller deploys originalism on the core right to
arms question, but still accommodates the inescapable fact that notions of federal
power on which modern federal gun control rests have expanded dramatically
since the eighteenth century.
209
Integrating limited power also sharpens analysis of the theoretical
alternative to the individual right to arms affirmed in Heller—the “individual
militia right” advanced by the Heller dissenters, and elaborated in Justice
Stevens’s book and speeches.
210
That analysis first requires a fuller description
of the individual militia right, which is provided in Subpart V.A below.
Interprets the Second Amendment: Declarations by a Co-Equal Branch on the Individual Right to Keep and
Bear Arms, 62 TENN. L. REV. 597, 599 (1995).
205
. See, e.g., Cornell & DeDino, supra note 117.
206
. District of Columbia v. Heller, 554 U.S. 570, 721 (2008) (Breyer, J., dissenting).
207
. Id. at 598–602.
208
. Id. at 626–27.
209
. See supra Subpart III.B.
210
. One of the most ardent advocates of the individual militia right view of the Second Amendment is
Patrick Charles. See McDonald v. City of Chicago, 561 U.S. 742, 914–17 (2010) (Breyer, J., dissenting) (citing
CHARLES, supra note 30) (criticizing the unsound historiography of Heller). Charles’s approach is wholly
creationist in nature. Charles’s book incorporates views articulated in his earlier work which I critiqued in
Nicholas J. Johnson, Rights Versus Duties, History Department Lawyering, and the Incoherence of Justice
Stevens’s Heller Dissent, 39 FORDHAM URB. L.J. 1503, 1513–18 (2012).
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A. THE HELLER DISSENTERS’ “INDIVIDUAL MILITIA RIGHT”
The primary effort of the dissenters in Heller and McDonald was to reject
the individual rights interpretation. But a credible theory of the Second
Amendment also must give positive content to the Amendment; it must explain
what the Second Amendment does mean. Casual skeptics of the individual right
to arms might still hew to the generally abandoned “states’ rights” or “collective
rights” renditions of the empty Second Amendment,
211
perhaps not even
appreciating that the Heller dissenters replaced it with a different reading that
also would reject most individual rights claims. The linguistic difficulty of
transforming a right of the “people” into a right of the “states” was an obvious
problem with the states’ rights view and seemed even more implausible after the
Court’s decision in United States v. Verdugo-Urquidez,
212
where the Court
concluded that “people,” as used in the Bill of Rights (including the Second
Amendment), was a term of art in the Constitution referring to “a class of
persons who are part of a national community.”
213
This worry spurred the
development of the individual militia right interpretation.
Stevens’s Heller dissent articulates the individual militia right by first
conceding that the Second Amendment protects an individual right.
214
Then he
frames the right as a narrow prerogative to keep and bear arms “for certain
military purposes” while serving in the militia.
215
This theory has obvious utility
in dismissing claims to a right to arms for individual self-defense. But it is more
instructive to try imagining it operating as a substantive constitutional
protection. What exactly does the “right to keep and bear arms for certain
military purposes” mean?
The effort to extract anything concrete from the individual militia right
renders absurdities. Do you have a “right to keep and bear arms for certain
military purposes” even where the government rejects you? Once you are
engaged in military service, are you entitled to bear arms, even where you are
ordered to peel potatoes? Are you entitled to bear the arm of your choice, even
where you are ordered to keep or bear something else or nothing? Can you
demand that the government call out, muster, and drill the militia even where
the authorities have decided against it and prevail in a lawsuit to enforce your
demand?
The individual militia right is sufficiently bizarre that trying to imagine its
content prompts a series of facetious questions. Even more telling is the absence
of discussion of the “individual militia right”
216
in a rare, high-profile episode
211
. I used the term “empty” Second Amendment in Johnson, supra note 210, to describe the multiple
different theories that have attempted to empty the Second Amendment of modern content. Id. at 1512. The
individual militia right is the latest in line, preceded by five earlier variations. Id.
212
. 494 U.S. 259 (1990).
213
. Id. at 265.
214
. District of Columbia v. Heller, 554 U.S. 570, 636 (2008) (Stevens, J., dissenting).
215
. Id.
216
. The individual militia right view also has been called the “civic rights” view of the Second Amendment,
which James Lindgren critiques this way:
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where one would expect it to appear. The context is Woodrow Wilson’s 1917
rebuff of ex-president Theodore Roosevelt’s effort to form a volunteer
expeditionary force to fight in World War I.
Roosevelt deployed every resource available to him, lobbying Congress,
military officers, and foreign ambassadors to intercede with Wilson on his
behalf. Roosevelt convinced George Clemenceau, the rising Prime Minister of
France, to publish an open letter urging President Wilson to permit Roosevelt to
lead a volunteer division in France.
217
He even persuaded Senators Henry Cabot
Lodge and Warren Harding to add an amendment to the 1917 Army
Conscription bill authorizing the participation of four divisions of volunteers
who were not subject to conscription.
218
Roosevelt plainly saw service as a matter of government discretion. He
wired the War Department to “earnestly ask permission to be allowed to raise a
division for immediate service.”
219
Roosevelt was more familiar than most with
the surrounding legal issues. As President he had signed the Militia Act of 1903,
which, among other things, defined the “unorganized militia” as all able-bodied
men between eighteen and forty-five.
220
Secretary of War Newton Baker
[W]ith essentially no original evidence to support their view—and some evidence directly contrary
to it—the states’ rights academics came up with an entirely new view, which they termed the “civic
rights” view. According to this view, the right to keep and bear arms was an individual right, but it
could be exercised only with the permission of the state in a militia. This civic rights theory had the
advantage of not being directly contradicted by most of the available evidence. Since the civic rights
camp was willing to admit that the right was an individual one at bottom, then it could argue that this
individual right could be restricted by the state to only those citizens acting as part of a state militia.
Under this view, there was no individual right to own a gun outside of service in a militia.
The problem with this view was that, again, there was no contemporary evidence from the
Framers’ era to support it, and, indeed, no one had ever heard of the civic rights view for the first
two centuries of the Second Amendment’s existence. The first use of the term “civic right” to describe
the Second Amendment in American law reviews appeared in a 2002 article by the historian Saul
Cornell. It would be strange if most of the Framers held the civic rights view of the Second
Amendment, but kept it a secret from everyone, including the other Framers.
James Lindgren, Foreword: The Past and Future of Guns, 104 J. CRIM. L. & CRIMINOLOGY 705, 707–08 (2015)
(emphasis added) (footnotes omitted).
217
. EDMUND MORRIS, COLONEL ROOSEVELT 495–96 (2010).
218
. Id. at 483–96. Edmund Morris reports that “the Harding amendment was . . . so hot an issue it had to
be settled by a House-Senate conference. The principle argument against letting Roosevelt have his division was
that crackpot militiamen across the country might organize and demand that Wilson send them abroad too.” Id.
at 491. The Conscription Bill ultimately passed with the Harding Amendment included. Id. at 493–94. Thousands
of volunteer applications poured in to Roosevelt from men who were too old or otherwise outside the parameters
of the Conscription Act, but ultimately everyone acknowledged that the final decision rested with President
Wilson. Id. at 494. On May 18, 1917, President Wilson signed the Conscription Bill into law. Id. In an
accompanying statement he thanked Roosevelt for the offer of service, and then rejected it. Id. Wilson’s private
assessment was that Roosevelt and his volunteers were “too old to render efficient service, and in addition to
that fact, he as well as others have shown intolerance of discipline.” Id. at 495 (internal quotation marks omitted).
Nothing in the congressional debates on the 1917 Conscription Bill suggests that anyone thought that there was
a constitutional right to serve. 55 CONG. REC. 1368 (1917).
219
. PATRICIA O’TOOLE, WHEN TRUMPETS CALL: THEODORE ROOSEVELT AFTER THE WHITE HOUSE 306
(2005).
220
. Militia Act of 1903, Pub. L. No. 57-33, 32 Stat. 775.
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reminded Roosevelt of the provisions of the 1903 law as the obese, monoculus,
fifty-seven-year-old persisted in his quest to serve.
221
Rebuffed by Secretary Baker, Roosevelt prevailed personally on President
Wilson in April 1917. Roosevelt promised that he would recruit volunteers only
from men who were exempt from the draft.
222
A War Department memorandum
warned that Roosevelt’s volunteer division would attract romantics who did not
fully understand the hazards ahead.
223
William Howard Taft (Roosevelt’s
successor in the White House and future Chief Justice) cautioned Secretary
Baker that “hard as it was to ‘tear away from the traditions of volunteering
handed down to us from the various wars,’ . . . the volunteer system had resulted
in needless waste and slaughter.”
224
Some worried that Roosevelt aimed to revive his war hero status in
preparation for a run at the presidency in 1920.
225
In debate on the conscription
bill, one senator dismissed any political motivation by Roosevelt, noting that
“[t]here is no politics in begging to serve one’s country.”
226
The characterization
is apt— Roosevelt came hat in hand and pleaded with everyone who might help
him. Finally acknowledging defeat, he lamented, “This is a very exclusive
war . . . and I have been blackballed by the committee on admissions.”
227
If there was any semblance of a constitutional right to engage in military
service—some vague “individual militia right” of the type that Justice Stevens
and the historians offer to explain away the Second Amendment—Theodore
Roosevelt’s attempt to serve in World War I was one of the keenest opportunities
in history for it to appear.
228
The fact that neither Roosevelt nor anyone else
involved ever mentioned the Second Amendment or the “individual militia
right” is fully consistent with James Lindgren’s assessment that “no one had ever
heard of the civic rights view for the first two centuries of the Second
Amendment’s existence.”
229
221
. O’TOOLE, supra note 219, at 306, 319. Roosevelt also had proposed raising a volunteer division to
fight in the brief hostilities with Mexico in 1916 and candidly acknowledged that his participation would require
legislation raising the age limit allowing him to serve. Id. at 300.
222
. Id. at 311.
223
. Id.
224
. Id. at 318.
225
. Id. at 312, 318.
226
. Id. at 313 (emphasis added) (internal quotation marks omitted).
227
. Id. (internal quotation marks omitted). Roosevelt’s valet James Amos reportedly had never seen him
so despondent. MORRIS, supra note 217, at 494. “He was truly in a black mood.” Id. (internal quotation marks
omitted).
228
. Id. at 483–96.
229
. See Lindgren, supra note 216, at 708.
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B. THE LIMITED POWER CRITIQUE REVEALS THE DEEP FLAWS IN THE
INDIVIDUAL MILITIA RIGHT THEORY
Perhaps the strongest indictment of the individual militia right is the
difficulty of imagining it in operation.
230
The Heller majority captures the
problem this way: “[I]f petitioners are correct, the Second Amendment protects
citizens’ right to use a gun in an organization from which Congress has plenary
authority to exclude them.”
231
In another permutation, Justice Scalia chides that
the formulation is “worthy of the Mad Hatter.”
232
Understanding the Second Amendment as a function of limited power
illuminates the deep flaws of the individual militia right theory in two ways.
First, it shows just how difficult it is to fashion an individual right in a space
where federal power is plenary. The fundamental weakness of the individual
militia right is that it tries to fashion rights in a space where federal power to
impose duties on citizens fully occupies the field. The militia power grants
Congress broad authority to impose a range of duties on American citizens.
Militiamen may be required to possess certain arms and accouterments. They
may be required to enroll, muster, and drill. Militiamen may be required to take
commands, submit to military discipline and march out to battle. They may be
required to risk and even sacrifice their lives in service of the nation. In all these
ways, militiamen must perform civic duties imposed by the government and can
be subject to penalties if they refuse. However, it is tremendously difficult to
scratch any sort of individual right out of these various duties.
A focus on the power side of the right to arms equation also provides a
similar but more abstract demonstration of the problem. The militia of course is
a place where there is an explicit grant of power related to citizens and firearms.
Plenary congressional power over the militia in Article 1, Section 8, cuts sharply
against an individual militia right.
Justice Stevens’s Heller dissent turns the Constitution’s limited power
structure on its head. He purports to frame an individual right in a space where
plenary federal power consumes any notion of private rights (the militia) and
denies any right at all in the sphere of personal self-defense where, even the
historians whose work he invokes acknowledge, the original Constitution
created no federal power to act.
Second graders learn to test the accuracy of their arithmetic by doing the
corresponding addition to verify that their subtraction is accurate. The linkage
of rights and powers creates the same dynamic. The individual militia right
theory fails because it does not survive the corresponding power analysis. The
type of right that Stevens theorizes (an individual right to arms while serving in
the militia) evaporates under the Constitution’s explicit grant of plenary power
230
. Consider for contrast, the process of envisioning other enumerated constitutional rights. One can easily
and immediately envision the core circumstances that trigger the other provisions of the Bill of Rights. And that
is equally true for the Heller majority’s view of the Second Amendment.
231
. District of Columbia v. Heller, 554 U.S. 570, 600 (2008).
232
. Id. at 589.
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over the militia to the federal government. That explicit grant of power, against
which an individual right just cannot survive, fully earns Scalia’s rebuke that the
individual militia right is an absurdity “worthy of the Mad Hatter.”
Now consider the power side of the individual rights view of the Second
Amendment. In the context of our original constitutional structure, the
individual right thrived in a space that is comparatively unencumbered by
federal authority to restrict private arms.
CONCLUSION
The historians’ creationist account is a deeply-flawed and dubious rebuttal
to the individual rights view of the Second Amendment. The creationist account
has turned the microscope on whether the Second Amendment is an affirmative
grant of individual rights. But that account ignores much of what is important in
discerning the scope of rights under the original Constitution. How can critics
who ardently press the importance of context willfully ignore the
rights-protecting function of limited power under the original Constitution? How
can they justify injecting a mid-twentieth-century view of federal power into
their supposedly historical assessment of the Second Amendment?
The broader implications of the limited power theme on other possible
rights remain to be seen. The Second Amendment presents a peculiar
opportunity to deploy limited power to illuminate a right whose fundamental
original meaning is contested—the equivalent of contesting whether individuals
or only government can own or operate printing presses. No other provision of
the Bill of Rights has been subject to similar controversy about its core original
meaning, so it is unclear how the template here would transfer to other contexts,
and how precisely it should be reconciled with other aspects of constitutional
jurisprudence.
233
One hopes that those who care about rights will seek to
233
. One obvious question that demands separate analysis is: how does this all fit with the Fourteenth
Amendment? A short answer actually appears in one of the historical critiques cited by Justice Breyer in
McDonald for the position that Heller is flawed. See McDonald v. City of Chicago, 561 U.S. 742, 914–17 (2010)
(Breyer, J., dissenting) (citing Konig, supra note 30). Konig embraces the individual militia right as a matter of
eighteenth-century interpretation agreeing that “[t]he protection of the right to bear arms in the militia . . . takes
on the civic model argued by Saul Cornell and other historians.” Konig, supra note 30, at 1322. Konig’s
innovation is that the view and meaning of the right to arms changed over time, to become individual in nature.
Id. at 1298. The starkest demonstration of this is that by the time of the Fourteenth Amendment the right to arms
was considered to be decidedly individual in character. Id. at 1337. According to Konig, this undercuts originalist
claims that the Second Amendment protects an individual right. He summarizes the point this way: “The need
felt by nineteenth-century Americans to articulate what that right had become—an individual right—proves what
that right had not been when ratified in 1791.” Id. at 1338.
Konig’s analysis of the right to arms under the original Constitution falls to the same criticism that
afflicts the other professional historians’ accounts. It is entirely creationist in nature and ignores the
rights-protecting function of limited power that William Rawle showed was core to understanding the Second
Amendment in context. Note how even Konig’s summary of the eighteenth-century right was one of creation of
something “ratified in 1791.” The body of the article is decidedly creationist in nature, with an exacting focus
on the various influences that should impact our assessment of what was created by the words of the Second
Amendment in 1791. Konig offers rich context for interpreting those words. But he fails even to mention the
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integrate the rights-protecting legacy of limited power into modern
constitutionalism.
fact that the federal government was designed to have limited powers and that this limitation was widely
considered to be the best protection of individual rights both before and after the ratification of the Bill of Rights.
Konig’s analysis does however engage one of the jurisprudential questions that is raised by the claims
of this Article—if limited power is crucial to understanding the right to arms under the original Constitution,
how does that theme fit with the application of the right to arms to the states? The answer as Konig intimates is
that the Fourteenth Amendment was a decidedly positivist act. Id. at 1337. Unlike the rights secured by the
constraints of limited federal power in 1787, constitutional rights enforced against the states by the Fourteenth
Amendment were not a function of some inherent limitations on the authority of the states. Rather, those rights
were created by an affirmative grant and a corresponding shift of existing power away from state governments.
We can disagree about the precise details. But certainly one powerful account is that the individual right to arms,
which Konig would agree was individual in nature by 1870, was established as a right against states pursuant to
the Privileges and Immunities Clause. See generally McDonald, 561 U.S. at 838–50 (Thomas, J., concurring in
part and concurring in the judgment). Notably the effort in McDonald to revive the Privileges and Immunities
Clause of the Fourteenth Amendment.
