Looking to Colonial Era Practices To Determine The Scope of the Second Amendment

November 15th, 2011

Very often, originalists look to what the Founding Generation did during the 1790s as evidence of what the Second Amendment should mean. Though, there are some weaknesses—both practical, and constitutional—with his argument. First, it is unclear whether the Second Amendment could have practically placed any limitations on these laws at the time. Gunfight jumps between laws and regulations enacted both before and after 1791—the year the Second Amendment was ratified. Cases before 1791 would have no bearing on our Bill of Rights, other than to establish practices of the founding generation. Even for laws enforced after 1791, the Second Amendment, as were all of the other amendments, were still legally irrelevant for these state laws.[1] The Bill of Rights did not apply place limitations on the states until 1868, and the ratification of the Fourteenth Amendment—and really had no meaningful effect until decades later.[2] The Second Amendment did not apply to the states until 2009! Looking at this era in which the Second Amendment was a dead letter as a means to construct the Second Amendment seems circular.

Second, during this time, the founding generation routinely infringed constitutional rights. The Alien & Sedition Acts, the most flagrant violation of the free speech in our nation’s history, was passed shortly after the First Amendment’s ratification.[3] Would anyone hold this law and practice as an example of how free speech was originally understood? To the contrary. The Supreme Court has looked as the Alien & Sedition Act as the exact opposite of how we view the First Amendment.[4] This thrust may be a stronger argument against originalism in general—and belies a curious double standard whereby Justices who usually scorn the formalistic originalism, such as Justices Breyer and Stevens, hold up historical practices as evidence of their position in Heller, but not elsewhere.[5]

Third, jurisprudentially, the concept of judicial enforcement of individual rights was largely a product of the twentieth century. Winkler notes that there was “no record or anyone’s complaining that [these] laws infringed the people’s right to keep and bear arms.”[6] That no one complained—or filed suit challenging these laws—was perhaps more a reflection of prevailing views of constitutional review, rather than an endorsement of the laws. Lest we forget that Marbury v. Madison, decided in 1803, a decade after the Bill of Rights’s ratification, was hailed as an inappropriate usurpation of unelected courts by man.[7]

Fourth, there are similar problems with the gun control laws that pervaded the wild west. Looking to the practices of the late-18th century to derive constitutional values would not be a favorable journey for purposes of the Eighth Amendments—hangings in public were quite routine—and the First Amendment—religious freedom was hardly protected. In short, laws banning guns, combined with an absence of proof that guns weren’t used, is hardly logical proof that the individual right to keep and bear arms for purposes of self defense was not unimportant. Further, there is little proof that these laws were ever enforced well, if at all. The shootout at the O.K. Corral—even if it is an outlier—serves as proof positive that the gun control laws out west were not particularly effective. Certainly many gun control laws are on the books today, yet illegal guns remain. This would seem to have been easier to accomplished in a western town, with lax law enforcement powers. Rather than citing to gun laws, a more compelling proof would be citations to convictions for violations of these laws—though this would also show that people maintained guns in spit of the laws.

[1] Barrron v. Baltimore

[2] Chicago Burlington

[3] Columbia Broadcasting System v. Democratic National Committee, 412 U.S. 94, 156-7 (1973)(“ The Alien and Sedition Acts, 1 Stat. 566, 570, 596, passed early in our history were plainly unconstitutional, as Jefferson believed”).

[4] Lee v. Weisman, 505 U.S. 577, 626 (1992)(Souter, J., concurring)(“ Ten years after proposing the First Amendment, Congress passed the Alien and Sedition Acts, measures patently unconstitutional by modern standards.”).

[5] Id. (“If the early Congress’s political actions were determinative, and not merely relevant, evidence of constitutional meaning, we would have to gut our current First Amendment doctrine to make room for political censorship.”). See also Originalism for Dummies

[6] 117

[7] Marbury