The Thick Edge of the Wedge

Alison LaCroix is an assistant professor at the University of Chicago Law School, and signed an amicus brief in favor of the respondent city in McDonald v. Chicago.

Ever since the Court issued its decision in D.C. v. Heller in 2008, many legal historians have found themselves in the odd position of feeling compelled to defend their methodology against triumphalist congratulations from those outside the field.  In the wake of a decision that found both Justice Scalia and Justice Stevens invoking the Glorious Revolution, early colonial regulations, and the ratification debates, surely legal historians of all persuasions could agree that the insistence of both the plurality and the dissenters on speaking the legal-historical argot was a victory for the methodology.  Even if one disagreed with the justices’ conclusions, perhaps legal historians ought to be grateful that the battle was joined on the field of history.  In short, shouldn’t we see Heller as the moment when the Court finally joined us in the archives?

But, as the Court’s decision in McDonald v. City of Chicago demonstrates, the supposed victory of legal history was pyrrhic at best.  For those of us who insist to our students that a historical approach to constitutional law (as, for example, Philip Bobbitt lists among his six modalities of constitutional argument) need not be an originalist approach, and that larding a brief with a few citations to The Federalist does not amount to historical analysis, the McDonald decision suggests that the originalism-history equivalence remains distressingly fixed.  Despite Justice Stevens’s cautions about “[t]he malleability and elusiveness of history,” a strong current of history-as-objective-social-science runs through the decision.  The result is a collation of data points presented as noncontextualized truths, as though even to allow for the possibility of interpretation would condemn the entire enterprise to the fuzzy realms of postmodern indeterminacy.

Two examples of this misuse of history in McDonald are particularly notable: (1) the discussion of the self-defense rationale; and (2) the second-order question of the proper temporal baseline for determining which moment is the “original” one.

First, the self-defense argument.  In Heller, the Court insisted that the self-defense right was “the central component” of the right to keep and bear arms, despite the fact that it “had little to do with the right’s codification.”  In McDonald, the Court continues to place the entire weight of its argument on the self-defense right, which the plurality denominates a fundamental right meriting incorporation under the Due Process Clause of the Fourteenth Amendment.

But the Court’s equation between self-defense in the modern era — for example, the desire of the petitioners to keep handguns in their homes in order to protect themselves against criminal activity – and Anglo-American attitudes toward arms-bearing in the seventeenth and eighteenth centuries glosses over a key difference between the reasons for arms-bearing in those very different eras.  The Court’s rationale for the right is protection of the individual, the family, and the home against intruders and violent criminals.

The examples the Court cites, however – the 1689 English Bill of Rights’ protection of the right to bear arms; colonial Americans’ invocation of the rights of Englishmen to keep arms – have to do not with random acts of violence by individuals, but with resisting illegitimate exercises of governmental power.  The Court’s citation of Joseph Story’s statement that the right to bear arms is “the palladium of the liberties of a republic” tells the whole story, for Story goes on to say that arms-bearing “offers a strong moral check against the usurpation and arbitrary power of rulers.”  The same republican justification holds for the Kansas Free Soilers the Court cites.

In other words, the evil that seventeenth-, eighteenth-, and nineteenth-century commentators believed the right to bear arms would avoid was not home invasions by individual criminals, but the overthrow of the republic.  In virtually all the Court’s historical examples, a governmental regime is behind both the coerced disarmament and the violence.  Petitioners, meanwhile, are sympathetic individuals afflicted by crime but are not making the same sort of two-pronged republican liberty claim in which the government is both attempting to strip them of their arms-bearing rights and threatening them with violence.  For historians, such differences in motivation clearly demonstrate that one is looking at two fundamentally different times and worldviews, and that therefore an easy translation is impossible.

The second point concerns the Court’s shifting interpretive baseline.  Just when is the relevant “original” moment for the justices?  At least three possible moments suggest themselves as possibilities: (1) the Constitutional Convention; (2) the congressional debates over the Civil Rights Act of 1866 and the Fourteenth Amendment in 1868; or (3) the Court’s own twentieth-century cases dealing with incorporation of the Bill of Rights against the states.

Despite the Court’s insistence that the original meaning of the Reconstruction-era debates should determine the content of the Fourteenth Amendment’s protections, the Court is surprisingly quick to dispose of the three cases in which the Court declined to protect arms-bearing against state regulation.  With a brief statement that these three cases (Cruikshank, Presser, and Miller) “all preceded the era in which the Court began the process of ‘selective incorporation,’” Justice Alito disposes of the cases.

But this neat conclusion conceals an important circularity.  The opinion offers no account of how this nonoriginalist interpretation with respect to incorporation (tossing out this trio of major cases) can be reconciled with the overall commitment to originalism (valorizing the congressional debates).  Moreover, Cruikshank and Presser were decided in 1876 and 1886, respectively, putting them roughly in moment (2): the Reconstruction period.  Yet the Court rejects the possibility that the cases might offer any insight on the question before it, even as it seizes on congressional debates from no more than a decade before as objective evidence of late-nineteenth-century original meaning.

The suggestion is that we in 2010 now have access to what they in 1868 meant, even though a different “they” in the 1870s and 1880s had an entirely different idea about what people in 1866 meant.  The plurality opinion thus appears willing to engage in nonoriginalist interpretation in some cases (please disregard those bad old cases that came before we the Court figured out incorporation) while insisting on originalism in other cases (please consider the congressional debates of the 1860s as part of our own moment’s interpretive canon).  If this is the triumph of legal history that we have been waiting for, then we historians might prefer to wait some more.  We are, after all, accustomed to the passage of time.