Hovering above the current political debate over gun control legislation is the question of constitutional limits.1 The Supreme Court's 2008 decision in District of Columbia v. Heller2 holds that the Second Amendment restricts regulation of the private possession of firearms. The decision is based largely on legal historyparticularly the English origins of the amendment and the historic significance of its words and syntax. The court acknowledges that "the right secured by the Second Amendment is not unlimited" but has declined to define the full scope of permissible regulation.3 As a result, the Heller decision has opened the door for challenges to gun control laws throughout the country, leaving the lower courts with legal history as the main tool for resolving such challenges.
In the past few weeks, federal courts have issued three significant decisionson the West Coast, in Chicago, and here in New Yorkthat warrant the attention of anyone who cares about gun control, pro or con. Two of those decisions discuss legal history at length. This article will suggest that the New York court reached the wiser conclusion of the two, because it properly recognized that legal history is too complex and uncertain a vehicle for setting policy on gun control today.
On Nov. 27, 2012, a unanimous panel of the U.S. Court of Appeals for the Second Circuit and, separately, a judge of the U.S. District Court for the Northern District of California each came out with rulings that rejected constitutional challenges to gun regulations in those states.4 Two weeks later, on Dec. 11, 2012, the U.S. Court of Appeals for the Seventh Circuit, by a 2-1 margin, invalidated an Illinois law that forbids possession in public of a "ready-to-use" firearm, with limited exceptions.5 The author of the Seventh Circuit's majority opinion, Judge Richard Posner, expressly criticized the Second Circuit's ruling in several respects, including its "historical analysis."
The fact that history should play a prominent role in the current debate over the scope of permissible gun regulation comes straight out of Heller, which struck down gun control regulations in Washington, D.C.6 Justice Antonin Scalia, who wrote for the 5-4 majority, is a longtime exponent of "originalism" in constitutional interpretation, which focuses attention on "what the text [of the relevant constitutional provision] was thought to mean when the people adopted it."7Heller provided an opportunity for Justice Scalia to demonstrate how, in his view, history should be used to settle a litigated constitutional question.
Collective or Individual Right?
The subject of historical scrutiny in Heller is the wording of the Second Amendment, which provides:
A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.8
At issue was the question whether the amendment protected a "collective right" associated with state militias or instead an "individual right" to possess and use guns for nonmilitary purposes like personal self-defense. The Supreme Court's 1939 decision in United States v. Miller seemed to have settled that question in favor of the "collective" interpretation when it upheld the National Firearms Act of 1934, which barred the possession of so-called "sawed-off shotguns."9 The majority in Heller, however, concluded that Miller was not controlling and that the Founders originally intended the Second Amendment to preserve an ancient right of individuals to have guns for self-protection.10
Historical analysis permeates both the Heller majority decision by Scalia and the principal dissent by Justice John Paul Stevens. Central to Scalia's argument is his contention that "the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right."11 According to Scalia, the Second Amendment was prefigured in the English Declaration of Rights of 1689, which includes a clause stating: "That the Subjects, which are Protestants, may have Arms for their Defence suitable to their Conditions, and as allowed by Law."12 The Declaration of Rights was presented to Prince William of Orange and his wife Mary for their acceptance as a precondition to being named King and Queen in 1689. Scalia calls the arms clause "an assurance from William and Mary…that Protestants would never be disarmed," and thus served as "the predecessor to our Second Amendment."
Much else in the Heller majority decision depends upon Scalia's account of Second Amendment history. In contrast, Stevens' dissenting opinion provides an altogether different historical account. On the English Declaration of Rights as the supposed source of a personal arms right, Stevens is dismissive. He contends that the relevant language actually had a regulatory function and "did not establish a general right of all persons, or even of all Protestants, to possess weapons."13
The historical writing on behalf of both the majority and the dissenters in Heller is lively, entertaining, and unfortunately oversimplified. As the American historian, Jack N. Rakove, observes in his Pulitzer Prize-winning work, Original Meanings, "it is no easy task to discover the original meaning of a clause" in the Constitution.14 It turns out the issue is far more complex than suggested by Scalia or, for that matter, Stevens.
In reality, the convoluted history of regulation of personal arms in England is worthy of a doctoral dissertation.15 Conflicting and contradictory patterns are discernible going back to the post-Roman period preceding the Norman invasion. Restrictions on personal possession of weapons appear in the laws of King Cnut, the Danish ruler of England in the early 11th century. The Statute of Northampton (1328) declared that no one could "go nor ride armed by night or by day in fairs, markets, nor in the presence of the justices or other ministers," upon pain of criminal penalty. Tudor laws limited the possession of guns to persons with income of at least £100 per year, reflecting a hierarchical society. They remained in force under the Stuart monarchs in the 17th century, supplemented by edicts of outright disarmament during Cromwell's Interregnum government (1649-60).16