a425couple
2019-10-11 19:22:56 UTC
from
https://www.nationalreview.com/magazine/2018/08/27/the-truth-about-the-second-amendment/
AUGUST 27, 2018, ISSUE
The Truth about the Second Amendment
By CHARLES C. W. COOKE
August 9, 2018 11:09 AM
It was always meant to protect an individual right
Stop me if you’ve heard this one before. In 1791, the Founding Fathers
placed into the U.S. Constitution a set of ten amendments that we refer
to collectively as the “Bill of Rights.” Among them was an innocuous
measure designed to protect state militias against federal overreach.
Until the 1970s, nobody believed that this meant anything important, or
that it was relevant to modern American society. But then, inspired by
profit and perfidy, the dastardly National Rifle Association recast the
provision’s words and, sua sponte, brainwashed the American public into
believing that they possessed an individual right to own firearms.
Right?
Wrong.
Simply put, the above charge, which is popular in the press and in some
quarters of the academy, is not true. In fact, it’s farcical. Certainly,
the last few decades have brought with them a sea change in both the
jurisprudence and the academic literature that undergird the Second
Amendment. And certainly, there has been a move away from the
mid-20th-century consensus that the Second Amendment was either
meaningless — in 1975, the American Bar Association proclaimed bizarrely
that “it is doubtful that the Founding Fathers had any intent in mind
with regard to the meaning of this Amendment” — or wholly without teeth
as a protector of individual rights. And yet, contrary to popular
claims, these transformations did not represent a novel revolution in
meaning or interpretation but rather a much-needed restoration of what
for most of American history was supremely, even mundanely, obvious:
that “the right of the people to keep and bear arms” means “the right of
the people to keep and bear arms.”
Commenting in 2007 on Parker v. District of Columbia — in which the
United States Court of Appeals for the District of Columbia Circuit held
that the Second Amendment protected an individual right — the New York
Times’ Adam Liptak explained that we had reached a turning point in the
dispute. “Only a few decades ago,” wrote Liptak, this “decision would
have been unimaginable.” Indeed, he confirmed, “there used to be an
almost complete scholarly and judicial consensus that the Second
Amendment protects only a collective right of the states to maintain
militias. That consensus no longer exists.” And yet, as Liptak went on
plainly to record, that was not because the bogeymen had successfully
peddled a lie before a parade of activist judges, but because the
consensus of the mid 20th century had finally been exposed as a mistake.
In fact, Liptak explained, a good deal of the spadework that led us to
Parker, Heller, and the rest was done on the left — by “leading liberal
law professors” such as Sanford Levinson, Laurence Tribe, and Akhil Reed
Amar, all of whom came gradually “to embrace the view that the Second
Amendment protects an individual right to own guns.” Bit by bit, and in
concert with the crucial work of figures such as Don Kates, Joyce Lee
Malcom, Stephen Halbrook, and Glenn Reynolds, many of America’s
“liberal” academics came to understand that, far from being an
aberration, the “Standard Model” of the Second Amendment, as this view
is known, was just that: standard. Moreover, as Liptak noted, they came
to believe that “the earlier consensus reflected received wisdom and
political preferences rather than a serious consideration of the
amendment’s text, history and place in the structure of the
Constitution.” Or, as Levinson had put it in 1989 in his influential
Yale Law Journal article “The Embarrassing Second Amendment,” “the best
explanation for the absence of the Second Amendment from the legal
consciousness of the elite bar, including that component found in the
legal academy, is derived from a mixture of sheer opposition to the idea
of private ownership of guns and the perhaps subconscious fear that
altogether plausible, perhaps even ‘winning,’ interpretations of the
Second Amendment would present real hurdles to those of us supporting
prohibitory regulation.”
Once that “serious consideration” was undertaken, the house of cards
fell, and Americans got back their right to keep and bear arms. Perhaps
the neatest illustration of the change can be found in the work of
Harvard’s Laurence Tribe. In the 1978 edition of his American
Constitutional Law textbook, the Second Amendment is mentioned only in
a footnote, and cast solely as a means by which “to prevent such federal
interferences with the state militia as would permit the establishment
of a standing national army and the consequent destruction of local
autonomy.” The 1988 revision contains the same characterization. The
2000 edition, by contrast, confirms that the provision represents an
individual right. “The amendment achieves its central purpose,” Tribe
maintained, “by assuring that the federal government may not disarm
individual citizens without some unusually strong justification. . . .
That assurance in turn is provided through recognizing a right . . . on
the part of individuals to possess and use firearms in defense of
themselves and their homes.”
What a difference a decade can make.
Given the way the Second Amendment is written, it is perhaps
unsurprising that the confusion came to pass. Indeed, in 1880, the great
scholar Thomas Cooley all but anticipated it in what was likely the most
widely read legal textbook of the era. “It may be supposed from the
phraseology of this provision that the right to keep and bear arms was
only guaranteed to the militia,” Cooley noted in his General Principles
of Constitutional Law. “But this,” he explained, “would be an
interpretation not warranted by the intent.”
The militia, as has been elsewhere explained, consists of those persons
who, under the law, are liable to the performance of military duty, and
are officered and enrolled for service when called upon. But the law may
make provision for the enrolment of all who are fit to perform military
duty, or of a small number only, or it may wholly omit to make any
provision at all; and if the right were limited to those enrolled, the
purpose of this guaranty might be defeated altogether by the action or
neglect to act of the government it was meant to hold in check. The
meaning of the provision undoubtedly is, that the people, from whom the
militia must be taken, shall have the right to keep and bear arms, and
they need no permission or regulation of law for the purpose.
Given changing sensibilities; the evolving meaning of words; the decline
of a shared republican worldview that regarded government as an
auxiliary, not all-conquering, domestic force; and a healthy helping of
cynical gamesmanship from the gun-control movement and its allies in the
press, one can comprehend how we went from a widespread understanding
that Americans enjoyed the right to keep and bear arms to breathless
online headlines insisting that the “gun lobby” has “rewritten the
Second Amendment!” “Arms,” “state,” “militia,” “well-regulated” — these
terms have all changed in the popular imagination in the years since
1791, as have what we would now refer to as America’s “gun politics.”
For many unfamiliar with the history, the mistake is a forgivable one.
For those who are familiar, however, it is most decidedly not. Indeed,
to be cognizant of the history is to arrive at one clear and
unmistakable conclusion: that the “collective right” theory is just
nuts. As a 1982 Senate report on the meaning of the Second Amendment
concluded bluntly, it is “inescapable that the history, concept, and
wording of the second amendment to the Constitution of the United
States, as well as its interpretation by every major commentator and
court in the first half-century after its ratification, indicates that
what is protected is an individual right of a private citizen to own and
carry firearms in a peaceful manner.”
That word, “inescapable,” is a good one, for it is simply impossible to
review the post-Revolution era and come away with the impression that
the Second Amendment protects some convoluted state-led right. Even if
we ignore that the word “people” is used in the self-evidently
individual protections that surround the Second Amendment — and even if
we ignore that James Madison proposed to insert the “right to bear arms”
next to the other individual rights listed in Article I, Section 9, and
not next to the militia clause in Article I, Section 8, clause 16 — a
brief audit of contemporary interpretations tells us all we need to know.
It may seem remarkable to modern sensibilities, but it was not at all
unusual in the 19th century to read politicians and scholars openly
worrying that the people might be left unable to remove their government
should the course of human events run sour. In Letters from the Federal
Farmer 53, Richard Henry Lee proposes that “to preserve liberty, it is
essential that the whole body of people always possess arms, and be
taught alike, especially when young, how to use them.” You will notice,
I assume, that Lee’s purpose in hoping that “the whole body of people
always possess arms” is “to preserve liberty” rather than, say, to
“defend the country” or to “prevent domestic insurrection.” That matters
a great deal, demonstrating as it does that we are talking here about
something other than a proto–National Guard.
Lee’s view was neither outré nor limited to his particular
anti-Federalist worldview. On the contrary: His assumptions were echoed
across the political spectrum and throughout the century that followed.
Explaining the unamended Constitution in the Pennsylvania Gazette in
February 1788, the Federalist Tench Coxe celebrated that “the unlimited
power of the sword is not in the hands of either the federal or state
governments, but, where I trust in God it will ever remain, in the hands
of the people.” A year later, in the course of endorsing the proposed
Bill of Rights, Coxe confirmed that the Second Amendment was designed
not to protect the nation, the states, or the federal government, but to
protect the people: “Whereas civil-rulers,” he wrote, “not having their
duty to the people duly before them, may attempt to tyrannize, and as
military forces, which must be occasionally raised to defend our
country, might pervert their power to the injury of their fellow
citizens, the people are confirmed by the article in their right to keep
and bear their private arms.” It would, of course, be preposterous to
suggest that such a rebellion would be carried out under the auspices of
a federal government that enjoyed plenary power over the militias.
Coxe’s understanding was common. In his 1803 edition of Blackstone’s
Commentaries, the jurist St. George Tucker proposed that Americans “may
reasonably hope that the people will never cease to regard the right of
keeping and bearing arms as the surest pledge of their liberty,” and
recorded that in America “the right of the people to keep and bear arms
shall not be infringed; . . . and this without any qualification as to
their condition or degree, as is the case in the British government.”
The Second Amendment, Tucker suggested, was “the true palladium of
liberty.”
In the reference book that replaced Tucker’s, William Rawle’s 1825 A
View of the Constitution of the United States of America, it is
emphatically stated that the Second Amendment’s “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.” This fact,
Rawle reasoned, would give Americans a better chance at staying free,
for while in Europe “the prevention of popular insurrections and
resistance to government” is achieved “by disarming the people,”
Americans had a constitutional prophylactic that “may be appealed to as
a restraint.”
Nor did the third great book of the era dissent one iota from this
understanding. In his Commentaries on the Constitution of the United
States (1833), Joseph Story channeled Tucker in affirming that “the
right of the citizens to keep and bear arms has justly been considered
as the palladium of the liberties of a republic” and summed up the
spirit of the age by insisting that, in addition to the benefits it
conferred upon the militias that were drawn from those citizens, the
amendment offered “a strong moral check against the usurpation and
arbitrary power of rulers.”
Indeed, so obvious was it to the people of the United States that the
right came glued to liberty and citizenship that it was referenced by
both sides during the explosive fight over slavery and its aftermath. In
his abhorrent majority opinion in Dred Scott v. Sanford, Justice Roger
B. Taney simply assumed that citizens were able to carry firearms and
then used that dreadful prospect as a reason why blacks must never be
afforded citizenship. Should Dred Scott prevail, Taney wrote, blacks
would be “entitled to the privileges and immunities of citizens,” which
would “give them the full liberty of speech in public and in private
upon all subjects upon which its own citizens might speak; to hold
public meetings upon political affairs, and to keep and carry arms
wherever they went.”
After the Civil War, the Republicans amended the Constitution to ensure
that another Dred Scott decision would be impossible. Introducing his
proposed 14th Amendment to Congress, John Bingham explained that he
hoped to guarantee to freed blacks the “privileges and immunities” of
which Taney had spoken, which, he recorded, were “chiefly defined in the
first eight amendments to the constitution.” Jacob Howard, a key sponsor
of Bingham’s proposal, told the Senate explicitly that this included the
“right to keep and bear arms.” Somewhere, Lysander Spooner must have smiled.
Alas, things did not quite pan out that way. In Texas, as in so many
other former slave states, the judiciary joined with legislators in
denying freedmen their birthrights — at the cost of the plain meaning of
the law if necessary. In 1859, before the Civil War, the Texas supreme
court had ruled in Cockrum v. State that both the Second Amendment and
its equivalent in the state constitution protected an “absolute” right
to keep and bear arms. “A law cannot be passed to infringe upon or
impair it,” the court determined, “because it is above the law, and
independent of the law-making power.” In 1871, however, the same court —
with some of the same members! — argued precisely the opposite when
upholding a law that made it illegal for any Texan to carry “on or about
his person, saddle, or in his saddle-bags, any pistol.” Nothing had
changed in the text in the interim. How powerful a force is motivated
reasoning.
For a while, such reasoning prevailed. But as with all great untruths,
it was eventually done in by the weight of its contradictions and the
scale of its delusions. The aberration in American history was not
Heller but what immediately preceded Heller and passed for academic
scholarship and judicial rigor in the middle of the 20th century. It was
clear in the 18th century what the Second Amendment meant. It was clear
in the 19th century, too. It was clear before ratification, at the time
of ratification, and after ratification. It was clear before the Civil
War, and during the drafting of the 14th Amendment, and to the
postbellum segregationists who undermined it whenever they could. It was
clear when almost every state added its own protections of the right to
keep and bear arms and, in so doing, made a mockery of the idea that the
right they were emulating had been born of a desire to limit federal
power. There has been precisely one plot to recast the Second Amendment
and, in the words of Thomas Jefferson, to “make it a blank paper by
construction,” and that was the plot that flowered briefly in the middle
of the 20th century. We must resolve to make sure that it never does so
again.
CHARLES C. W. COOKE is the editor of National Review Online. @charlescwcooke
IN THIS ISSUE
ARTICLES
LAW & THE COURTS
What Kind of Originalist?
By RAMESH PONNURU
The conservative legal debates that a Justice Kavanaugh might influence.
ELECTIONS
John Kasich’s 2020 Dream
By HENRY OLSEN
It is unlikely to survive contact with political reality
https://www.nationalreview.com/magazine/2018/08/27/the-truth-about-the-second-amendment/
AUGUST 27, 2018, ISSUE
The Truth about the Second Amendment
By CHARLES C. W. COOKE
August 9, 2018 11:09 AM
It was always meant to protect an individual right
Stop me if you’ve heard this one before. In 1791, the Founding Fathers
placed into the U.S. Constitution a set of ten amendments that we refer
to collectively as the “Bill of Rights.” Among them was an innocuous
measure designed to protect state militias against federal overreach.
Until the 1970s, nobody believed that this meant anything important, or
that it was relevant to modern American society. But then, inspired by
profit and perfidy, the dastardly National Rifle Association recast the
provision’s words and, sua sponte, brainwashed the American public into
believing that they possessed an individual right to own firearms.
Right?
Wrong.
Simply put, the above charge, which is popular in the press and in some
quarters of the academy, is not true. In fact, it’s farcical. Certainly,
the last few decades have brought with them a sea change in both the
jurisprudence and the academic literature that undergird the Second
Amendment. And certainly, there has been a move away from the
mid-20th-century consensus that the Second Amendment was either
meaningless — in 1975, the American Bar Association proclaimed bizarrely
that “it is doubtful that the Founding Fathers had any intent in mind
with regard to the meaning of this Amendment” — or wholly without teeth
as a protector of individual rights. And yet, contrary to popular
claims, these transformations did not represent a novel revolution in
meaning or interpretation but rather a much-needed restoration of what
for most of American history was supremely, even mundanely, obvious:
that “the right of the people to keep and bear arms” means “the right of
the people to keep and bear arms.”
Commenting in 2007 on Parker v. District of Columbia — in which the
United States Court of Appeals for the District of Columbia Circuit held
that the Second Amendment protected an individual right — the New York
Times’ Adam Liptak explained that we had reached a turning point in the
dispute. “Only a few decades ago,” wrote Liptak, this “decision would
have been unimaginable.” Indeed, he confirmed, “there used to be an
almost complete scholarly and judicial consensus that the Second
Amendment protects only a collective right of the states to maintain
militias. That consensus no longer exists.” And yet, as Liptak went on
plainly to record, that was not because the bogeymen had successfully
peddled a lie before a parade of activist judges, but because the
consensus of the mid 20th century had finally been exposed as a mistake.
In fact, Liptak explained, a good deal of the spadework that led us to
Parker, Heller, and the rest was done on the left — by “leading liberal
law professors” such as Sanford Levinson, Laurence Tribe, and Akhil Reed
Amar, all of whom came gradually “to embrace the view that the Second
Amendment protects an individual right to own guns.” Bit by bit, and in
concert with the crucial work of figures such as Don Kates, Joyce Lee
Malcom, Stephen Halbrook, and Glenn Reynolds, many of America’s
“liberal” academics came to understand that, far from being an
aberration, the “Standard Model” of the Second Amendment, as this view
is known, was just that: standard. Moreover, as Liptak noted, they came
to believe that “the earlier consensus reflected received wisdom and
political preferences rather than a serious consideration of the
amendment’s text, history and place in the structure of the
Constitution.” Or, as Levinson had put it in 1989 in his influential
Yale Law Journal article “The Embarrassing Second Amendment,” “the best
explanation for the absence of the Second Amendment from the legal
consciousness of the elite bar, including that component found in the
legal academy, is derived from a mixture of sheer opposition to the idea
of private ownership of guns and the perhaps subconscious fear that
altogether plausible, perhaps even ‘winning,’ interpretations of the
Second Amendment would present real hurdles to those of us supporting
prohibitory regulation.”
Once that “serious consideration” was undertaken, the house of cards
fell, and Americans got back their right to keep and bear arms. Perhaps
the neatest illustration of the change can be found in the work of
Harvard’s Laurence Tribe. In the 1978 edition of his American
Constitutional Law textbook, the Second Amendment is mentioned only in
a footnote, and cast solely as a means by which “to prevent such federal
interferences with the state militia as would permit the establishment
of a standing national army and the consequent destruction of local
autonomy.” The 1988 revision contains the same characterization. The
2000 edition, by contrast, confirms that the provision represents an
individual right. “The amendment achieves its central purpose,” Tribe
maintained, “by assuring that the federal government may not disarm
individual citizens without some unusually strong justification. . . .
That assurance in turn is provided through recognizing a right . . . on
the part of individuals to possess and use firearms in defense of
themselves and their homes.”
What a difference a decade can make.
Given the way the Second Amendment is written, it is perhaps
unsurprising that the confusion came to pass. Indeed, in 1880, the great
scholar Thomas Cooley all but anticipated it in what was likely the most
widely read legal textbook of the era. “It may be supposed from the
phraseology of this provision that the right to keep and bear arms was
only guaranteed to the militia,” Cooley noted in his General Principles
of Constitutional Law. “But this,” he explained, “would be an
interpretation not warranted by the intent.”
The militia, as has been elsewhere explained, consists of those persons
who, under the law, are liable to the performance of military duty, and
are officered and enrolled for service when called upon. But the law may
make provision for the enrolment of all who are fit to perform military
duty, or of a small number only, or it may wholly omit to make any
provision at all; and if the right were limited to those enrolled, the
purpose of this guaranty might be defeated altogether by the action or
neglect to act of the government it was meant to hold in check. The
meaning of the provision undoubtedly is, that the people, from whom the
militia must be taken, shall have the right to keep and bear arms, and
they need no permission or regulation of law for the purpose.
Given changing sensibilities; the evolving meaning of words; the decline
of a shared republican worldview that regarded government as an
auxiliary, not all-conquering, domestic force; and a healthy helping of
cynical gamesmanship from the gun-control movement and its allies in the
press, one can comprehend how we went from a widespread understanding
that Americans enjoyed the right to keep and bear arms to breathless
online headlines insisting that the “gun lobby” has “rewritten the
Second Amendment!” “Arms,” “state,” “militia,” “well-regulated” — these
terms have all changed in the popular imagination in the years since
1791, as have what we would now refer to as America’s “gun politics.”
For many unfamiliar with the history, the mistake is a forgivable one.
For those who are familiar, however, it is most decidedly not. Indeed,
to be cognizant of the history is to arrive at one clear and
unmistakable conclusion: that the “collective right” theory is just
nuts. As a 1982 Senate report on the meaning of the Second Amendment
concluded bluntly, it is “inescapable that the history, concept, and
wording of the second amendment to the Constitution of the United
States, as well as its interpretation by every major commentator and
court in the first half-century after its ratification, indicates that
what is protected is an individual right of a private citizen to own and
carry firearms in a peaceful manner.”
That word, “inescapable,” is a good one, for it is simply impossible to
review the post-Revolution era and come away with the impression that
the Second Amendment protects some convoluted state-led right. Even if
we ignore that the word “people” is used in the self-evidently
individual protections that surround the Second Amendment — and even if
we ignore that James Madison proposed to insert the “right to bear arms”
next to the other individual rights listed in Article I, Section 9, and
not next to the militia clause in Article I, Section 8, clause 16 — a
brief audit of contemporary interpretations tells us all we need to know.
It may seem remarkable to modern sensibilities, but it was not at all
unusual in the 19th century to read politicians and scholars openly
worrying that the people might be left unable to remove their government
should the course of human events run sour. In Letters from the Federal
Farmer 53, Richard Henry Lee proposes that “to preserve liberty, it is
essential that the whole body of people always possess arms, and be
taught alike, especially when young, how to use them.” You will notice,
I assume, that Lee’s purpose in hoping that “the whole body of people
always possess arms” is “to preserve liberty” rather than, say, to
“defend the country” or to “prevent domestic insurrection.” That matters
a great deal, demonstrating as it does that we are talking here about
something other than a proto–National Guard.
Lee’s view was neither outré nor limited to his particular
anti-Federalist worldview. On the contrary: His assumptions were echoed
across the political spectrum and throughout the century that followed.
Explaining the unamended Constitution in the Pennsylvania Gazette in
February 1788, the Federalist Tench Coxe celebrated that “the unlimited
power of the sword is not in the hands of either the federal or state
governments, but, where I trust in God it will ever remain, in the hands
of the people.” A year later, in the course of endorsing the proposed
Bill of Rights, Coxe confirmed that the Second Amendment was designed
not to protect the nation, the states, or the federal government, but to
protect the people: “Whereas civil-rulers,” he wrote, “not having their
duty to the people duly before them, may attempt to tyrannize, and as
military forces, which must be occasionally raised to defend our
country, might pervert their power to the injury of their fellow
citizens, the people are confirmed by the article in their right to keep
and bear their private arms.” It would, of course, be preposterous to
suggest that such a rebellion would be carried out under the auspices of
a federal government that enjoyed plenary power over the militias.
Coxe’s understanding was common. In his 1803 edition of Blackstone’s
Commentaries, the jurist St. George Tucker proposed that Americans “may
reasonably hope that the people will never cease to regard the right of
keeping and bearing arms as the surest pledge of their liberty,” and
recorded that in America “the right of the people to keep and bear arms
shall not be infringed; . . . and this without any qualification as to
their condition or degree, as is the case in the British government.”
The Second Amendment, Tucker suggested, was “the true palladium of
liberty.”
In the reference book that replaced Tucker’s, William Rawle’s 1825 A
View of the Constitution of the United States of America, it is
emphatically stated that the Second Amendment’s “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.” This fact,
Rawle reasoned, would give Americans a better chance at staying free,
for while in Europe “the prevention of popular insurrections and
resistance to government” is achieved “by disarming the people,”
Americans had a constitutional prophylactic that “may be appealed to as
a restraint.”
Nor did the third great book of the era dissent one iota from this
understanding. In his Commentaries on the Constitution of the United
States (1833), Joseph Story channeled Tucker in affirming that “the
right of the citizens to keep and bear arms has justly been considered
as the palladium of the liberties of a republic” and summed up the
spirit of the age by insisting that, in addition to the benefits it
conferred upon the militias that were drawn from those citizens, the
amendment offered “a strong moral check against the usurpation and
arbitrary power of rulers.”
Indeed, so obvious was it to the people of the United States that the
right came glued to liberty and citizenship that it was referenced by
both sides during the explosive fight over slavery and its aftermath. In
his abhorrent majority opinion in Dred Scott v. Sanford, Justice Roger
B. Taney simply assumed that citizens were able to carry firearms and
then used that dreadful prospect as a reason why blacks must never be
afforded citizenship. Should Dred Scott prevail, Taney wrote, blacks
would be “entitled to the privileges and immunities of citizens,” which
would “give them the full liberty of speech in public and in private
upon all subjects upon which its own citizens might speak; to hold
public meetings upon political affairs, and to keep and carry arms
wherever they went.”
After the Civil War, the Republicans amended the Constitution to ensure
that another Dred Scott decision would be impossible. Introducing his
proposed 14th Amendment to Congress, John Bingham explained that he
hoped to guarantee to freed blacks the “privileges and immunities” of
which Taney had spoken, which, he recorded, were “chiefly defined in the
first eight amendments to the constitution.” Jacob Howard, a key sponsor
of Bingham’s proposal, told the Senate explicitly that this included the
“right to keep and bear arms.” Somewhere, Lysander Spooner must have smiled.
Alas, things did not quite pan out that way. In Texas, as in so many
other former slave states, the judiciary joined with legislators in
denying freedmen their birthrights — at the cost of the plain meaning of
the law if necessary. In 1859, before the Civil War, the Texas supreme
court had ruled in Cockrum v. State that both the Second Amendment and
its equivalent in the state constitution protected an “absolute” right
to keep and bear arms. “A law cannot be passed to infringe upon or
impair it,” the court determined, “because it is above the law, and
independent of the law-making power.” In 1871, however, the same court —
with some of the same members! — argued precisely the opposite when
upholding a law that made it illegal for any Texan to carry “on or about
his person, saddle, or in his saddle-bags, any pistol.” Nothing had
changed in the text in the interim. How powerful a force is motivated
reasoning.
For a while, such reasoning prevailed. But as with all great untruths,
it was eventually done in by the weight of its contradictions and the
scale of its delusions. The aberration in American history was not
Heller but what immediately preceded Heller and passed for academic
scholarship and judicial rigor in the middle of the 20th century. It was
clear in the 18th century what the Second Amendment meant. It was clear
in the 19th century, too. It was clear before ratification, at the time
of ratification, and after ratification. It was clear before the Civil
War, and during the drafting of the 14th Amendment, and to the
postbellum segregationists who undermined it whenever they could. It was
clear when almost every state added its own protections of the right to
keep and bear arms and, in so doing, made a mockery of the idea that the
right they were emulating had been born of a desire to limit federal
power. There has been precisely one plot to recast the Second Amendment
and, in the words of Thomas Jefferson, to “make it a blank paper by
construction,” and that was the plot that flowered briefly in the middle
of the 20th century. We must resolve to make sure that it never does so
again.
CHARLES C. W. COOKE is the editor of National Review Online. @charlescwcooke
IN THIS ISSUE
ARTICLES
LAW & THE COURTS
What Kind of Originalist?
By RAMESH PONNURU
The conservative legal debates that a Justice Kavanaugh might influence.
ELECTIONS
John Kasich’s 2020 Dream
By HENRY OLSEN
It is unlikely to survive contact with political reality