theConstitutional.org

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.