A challenge of Heller‘s historical interpretations

Jack Rakove is a professor of history at Stanford University.

Having taken the leading role in drafting a historians’ amicus brief in support of the District of Columbia in Heller, I sat the current litigation in McDonald v. (my native) Chicago out. In part this was because I had already given the issue my best shot already, and in part it was because I thought the result in McDonald was wholly predictable. But I am also open to the idea that shifts in both legal and popular attitudes about the constitutional status of the private ownership of firearms may well have occurred by the mid-nineteenth century, and that these would plausibly warrant treating the status of the right to keep and bear arms on more individualistic grounds than a proper original understanding of the discussions of the late-eighteenth century would justify.

Even so, a very quick reading of the opinions this morning heartens my view of the future of Second Amendment litigation (and that it will have quite a future seems like a sure bet, since Chicago is reportedly ready to propose new regulations to replace those struck down or impugned by McDonald).

The most encouraging note, from my vantage point, is the willingness of the two dissenting opinions to challenge the historical suppositions (for I cannot call them valid arguments) that underlay the original decision in Heller, formulaically repeated now in the opinion for the Court. Whether the right to arms is properly numbered among those that are so “deeply rooted in this Nation’s history and tradition” as to justify a high and proud place in the legal realm of “ordered liberty” thus remains open to question, and the answer to that question invites historians to continue their active participation in the fray. Far from conceding that Heller definitively resolved these questions, the dissents insist that the bad history written in 2008 is still bad history in 2010. As Justice Stevens notes, the Heller majority “preferred to rely on sources created much earlier and later in time than the Second Amendment itself, while his own dissent then “focused more closely on sources contemporaneous with the Amendment’s drafting and ratification.”

The dissents are also encouraging for the attention they pay to inviting a serious reconsideration of the nature of police power arguments about the legitimacy of extensive state regulation of access to and use of firearms. In my (perhaps impressionistic) view, this was one aspect of the historical reconstruction of the larger issues which has never attracted the attention it merits. Even conceding that a shift toward a more individualistic conception of the right occurred by Reconstruction, I remain skeptical that the adopters of either the Second or the Fourteenth Amendment would have thought that they were restricting the capacity of state and local governments to legislate broadly in pursuit of public safety. By encouraging a renewed look at the history of this legislation, we may actually obtain a better understanding of the nature of firearms governance over the entire course of “this Nation’s history and tradition.”