Monday, December 27, 2010

History Office Law
Mike Rappaport

Recently, I linked to this op ed by distinguished historian Pauline Meier.  The piece defended Justice Breyer's comments on the Heller case that criticized the Heller majority and argued that the original intent of the Framers did not favor a right to bear arms for self defense. 

The piece is a perfect example of why originalists are often frustrated by many historians who opine on originalist issues.  They claim to have superior knowledge of the history, and they are certainly well versed in it.  But they can't seem to wrap their minds around the idea that originalism is not simply about history.  In the version that the Supreme Court employed in Heller, and that most originalists today follow, it is the original meaning of the Second Amendment that is the question at issue, not the original intent of the Framers.  Originalism is about a certain type of law, not merely history. 

Meier may or may not be right about the original intent (and I find her arguments not terribly strong), but she does not even address the original meaning.  As a result, a well respected historian comes across as unsophisticated about the legal issue.  And, sadly, Meier is not alone.

I recognize that the training of historians does not incline them towards original meaning analysis. But that is no excuse.  Historians can complain all they want to about "law office history," but at least as big a problem in this area is "history office law."

Cross posted at The Originalism Blog.

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Mike Rappaport


Briefly, if Madison's intention was as the writer suggests, then that intention was irrelevant, for it runs contrary to the express language of the Amendndment as ratified. When the prefatory participial phrase listing the militia as a safeguard of states' rights is elevated to a "clause," the rabbit is put into the hat.

The distinction between militia and individuals is a false one. The militia in the 18th Century was not the National Guard activated for duty in the Middle East. It was civil society under arms, a safeguard against both merciless savage tribes and domestic insurrections. Note that the Declaraton of Independence references those very threats.

At that level, the distinction between a national armed force and individual self-defense is blurred. Nor is such a vision of the RKBA wholly obsolete. In the lest Century, a threat of domestic insurrection was laid against us as a pretext for expeansion of the role of government. The threat was couched as a naked highwayman's demand. "Stand and deliver," we were told, "or 'they' will burn your communities and not just their own."

Only "they" never did. A few orchestrated spates of looting and arson, never, not one single time, spread into "our" homes and neighborhoods. Had they done so, the domestic insurrectionists would wave encountered Yamamoto's apocryphal "rifles behind every blade of grass."

Now this was much less a real consideration than a spiritual one. Nevertheless, just the idea of civil society saying to the government's criminal minions, "You want our lives and property? Come and take them," makes all the difference in the world.

Guns in private hands make a big, big differnce in how we look at the threats made to ourselves as individuals. This in turn makes a difference in how we collectively respond to those threats.

Posted by: Lou Gots | Dec 27, 2010 1:22:56 AM

I speak as an ignorant furriner, of course, but the idea that "the original intent of the Framers did not favor a right to bear arms for self defense" seems so preposterous that one must wonder if it has ever been pronounced by anyone who has not taken a drink or two.

Posted by: dearieme | Dec 27, 2010 8:35:20 AM

People of that day had the bad habit of writing their thoughts down in voluminous letters. It is impossible after an honest search to mistake their opinion on anything.

The ultimate authority ... resides in the people alone. ... The advantage of being armed, which the Americans possess over the people of almost every other nation ... forms a barrier against the enterprises of ambition.

Noah Webster
Before a standing army can rule, the people must be disarmed.

Firearms are second only to the constitution in importance; they are the peoples liberty teeth.

Patrick Henry
Guard with jealous attention the public liberty. Suspect everyone who approaches that public jewel. Unfortunately, nothing will preserve it but downright force.

If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all forms of self-defense which is paramount to all positive forms of self-government, and which against usurpations of the national rulers may be exerted with infinitely better prospects of success than against those of the rulers of an individual state.

The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves from tyranny in government.

Thomas Paine
When the government fears the people, it is liberty. When the people fear the government, it is tyranny.

Do not trust a government that does not trust its own citizens with guns.

John Adams
Arms in the hands of citizens may be used at individual private self-defense.

Samuel Adams
The constitution shall never be prevent the people of the United States who are peaceable citizens from keeping their own arms.

Thomas Paine
Horrid mischief would ensue were the law-abiding deprived the use of them... the weak will become prey to the strong.

Patrick Henry
The great object is that every man is armed. Everyone who is able may have a gun.

Justice Joseph Story
The right of the citizens to keep and bear arms has justly been considered as the palladian of the liberties of the republic; since it offers a strong moral check against the usurpations and arbitrary powers of the rulers; and will generally, even if they are not successful in the first instance, enable the people to resist and triumph over them.

Noah Webster
The supreme power in America cannot enforce unjust laws by sword; because the whole body of people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States.

On every question of construction carry ourselves back to the time when the Constitution was adapted, recollect the spirit manifested in the spirit of the debates and instead of trying what meaning may be squeezed out of the text or invented against it conform to the probable one in which it was passed.

At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous.

Precedents are dangerous things; let the reign of government then be braced and held with a steady hand.

It would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights. Confidence is everywhere the parent of despotism. Free government is founded in mistrust, and not in confidence. It is mistrust and not confidence which prescribes limited constitutions, to bind down those whom we are obliged to trust with power. Our Constitution has accordingly fixed the limits to which, and no further, our confidence may go
In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.

de Tocqueville
Within the sphere of office drawn for them, the law generally leaves American officials a freer rein than ours. Sometimes the majority even allows them to stray from those rules. Thus habits are forming at the heart of freedom that one day could be fatal to its liberties.

Posted by: james wilson | Dec 27, 2010 9:23:25 AM

The militia was every able bodied man between the ages of, what, 16 and 60?

If we want to go with that concept now, and arm every able bodied man between the ages of 16 and 60, I might be wlling to view that as an improvement.

Posted by: km | Dec 27, 2010 10:41:59 AM

I don't see anything about the right of the authorities in the Rt. Hon Blackstone's Commentary, Nor does Sir George Tucker seem to agree with Prof Meier.

Posted by: Stan Morris | Dec 27, 2010 5:04:31 PM

It really is true about law and historians, and about many economists as well. Law isn't that difficult to get the hang of, and yet to the uninitiated, even something as basic as original meaning, which is no more than what the words meant, just goes swish over their heads. And seemingly by the time the historian has tenure, a Pulitzer Prize or whatever, it's just too late for them to learn anything. And yet intellectually, the ideas are about as difficult to grasp as long division. A big part of it must be that there are only costs to the historian who stands up and says, like a first year law student, oh, I get it now, thus suggesting that he and other historians have little to contribute to the debate, at least without doing a lot more work.
Another point might be that I think a lot of historians are trained in a way to make them think that the idea of original meaning makes no sense. Everything is so historical, so contextualized, that the idea you could extract a meaning from the past and put it in terms a person in the present could understand, is just impossibly naive. I associate this with various po-mo philosophical positions I don't have much patience for as they strike me as so obviously false. And of course they would make the very idea of law inoperable, but then, that is fine with most of these sorts anyway, who I tend to think of as desiring government by endless faculty meeting.

Posted by: Tom Smith | Dec 28, 2010 8:53:53 AM

She and other historians would also benefit from a primer on "motive" versus "intent."

Posted by: enemyofthepeople | Dec 29, 2010 2:59:14 PM