The Second Amendment Standard of Review after McDonald: 'Historical Guideposts' and the Missing Arguments in McDonald v. City of Chicago

73 Pages Posted: 9 Aug 2010 Last revised: 17 Oct 2011

See all articles by Patrick J. Charles

Patrick J. Charles

Government of the United States of America - Air Force

Date Written: December 31, 2010


In McDonald v. City of Chicago a narrow 5-4 plurality held that the “Second Amendment right recognized in Heller” is incorporated to the States as applied to United States citizens. The plurality was extremely divided with Chief Justice Roberts and Justice Kennedy joining only portions of Justice Alito’s opinion. Meanwhile, Justices Thomas and Scalia each wrote their own concurrence. In the end, what stands out is that the five Justices comprising the McDonald plurality were the same five Justices that decided the majority opinion in District of Columbia v. Heller. However, unlike the unified Heller majority, the McDonald plurality was divided as to how the Second Amendment should be incorporated through the Fourteenth Amendment. While Chief Justice Roberts and Justices Scalia, Kennedy, and Alito incorporated the Heller right through the Fourteenth Amendment’s Due Process Clause, Justice Thomas incorporated it through the Privileges or Immunities Clause.

This division is significant in many respects. Perhaps what is most important is that the voting paradox effectively limited incorporation to the right recognized in Heller - the right of armed individual self-defense of the home with a handgun - to citizens, for Justice Thomas’s concurrence states: I conclude that the right to keep and bear arms applies to the States through the Privileges or Immunities Clause, which recognizes the rights of United States “citizens.” The plurality concludes that the right applies to the States through the Due Process Clause, which covers all “person[s].” Because this case does not involve a claim brought by a noncitizen, I express no view on the difference, if any, between my conclusion and the plurality’s with respect to the extent to which the States may regulate firearm possession by noncitizens.

Whether aliens, lawfully present, undocumented or both, have a constitutional right to arms is just one of the many legal issues left unanswered by the McDonald opinion. Another unsettled issue involves any clarification as to a standard of review for Heller’s longstanding regulatory prohibitions. The opinions of Justices Alito and Thomas merely recite Heller’s constitutional presumption as to traditional regulatory “prohibitions on the possession of firearms by felons and the mentally ill,” and “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sales of arms.” Furthermore, the hope that a more expansive Second Amendment would be identified was dashed when every opinion in the plurality merely incorporated the limited right recognized in Heller - nothing more. Not even Heller’s brief mention of the importance of bearing arms to hunt was restated as dicta and the prefatory language “well-regulated militia” did not appear once in the opinion or concurrences of the plurality.

In short, the McDonald decision did little to change the legal landscape of “gun rights” as we know it other than that State and municipal governments cannot outright ban handgun possession in the home. This begets the question, “What, if any, other Second Amendment protections will be extended, and what is the constitutional standard of review by which future courts may extend them?” Surprisingly, the answer to this question rests with the courts using “historical guideposts.” While the plurality shunned history’s academic consensus in examining the constitutional scope of the right to “keep and bear arms,” it ironically affirmed that this same history will aid courts in carving out future Second Amendment protections.

The Court’s deviation from historical academia is not a novel concept. Throughout our jurisprudence, justices have wrestled with history; coming to conclusions that do not comport with the historical consensus. Perhaps the primary reason for the differences of interpretation rests with the conflicting duties of a historian compared to that of an advocate or jurist. Historians sort through thousands of pieces of historical evidence to recreate an event according to “beliefs, attitudes, philosophies, prejudices and loyalties that are not those of our day,” removing themselves from modern biases, which often leaves us with more questions than answers. Advocates use historical evidence differently. They compile data and facts as a means to place their client in the best position to succeed in the cause or litigation. Also this evidence is narrowly focused, and but a sampling of the whole. While advocates may properly quote sources and provide historical facts, they ignore or recast others and fail to remove their modern biases. More importantly, advocates often lack the historical expertise to provide context - a crucial aspect of the historical profession in determining the truth and credibility of the work. Not to mention, given the goal of an advocate is to succeed in the litigation, they are almost compelled to cast history in a light that supports their stance, not what accepted historical methodologies command. It is a rare occurrence that advocates and jurists are applauded by professional historians.

In many ways it is as if history and advocacy cannot co-exist. This is because the law requires providing definitive answers to questions that historians cannot confirm with accuracy, and often advocates make conclusions that are not supported by social, philosophical, and political norms of the historical era at issue. At the same time, however, history and advocacy must co-exist. This is due to the fact that the use of legal precedent is history in itself. Furthermore, it is almost a necessity that advocates and jurists use some form of historical methodology to determine the legislative intent of statutes, laws, and ordinances. Lastly, and most importantly, history and advocacy must co-exist, for when answering new constitutional questions it is imperative that some aspect of “original intent” be examined through historical sources.

Although history and advocacy must co-exist, this does not mean that history and legal opinions addressing historical events will be or have to be mirror images of one another. To phrase it another way, the differing methodologies of law and history often command that history and the law operate in parallel universes. While each universe may have similarities as to the “who, what, when, and where,” it is the “why” that divides history from that of the law. The Heller opinion offers the perfect example of how the historical and legal professions diverge in this regard. Certainly, there are scholarly works that support the Heller majority’s conclusion and provide the adequate “who, what, when, and where.” However, these works lack the adequate “why” by jumping to predetermined conclusions, maintaining modern ideological biases, and taking events out of context; analyses that are not accepted by historical academia because they conflict with the conducting of historical methodologies.

The fact that historical academia and the Supreme Court have diverged on the Second Amendment does not mean the courts should discard history altogether when examining the “right to keep and bear arms” in future cases and controversies. It needs to be a point of emphasis that - out of the three branches of government - only the judiciary has a duty to preserve our past through precedents, legislative intent, and the Constitution with what is referred to as “original intent.” To put it another way, jurists have a duty to maintain a “historical consciousness.” As Oliver Wendell Holmes wrote: In order to know what [the law] is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two into new products at every stage.

This maintaining of a “historical conciousness” requires jurists to be forthright and honest in their opinions with their use of “historical guideposts.” It is the rare occasion that historical events will specifically correlate with a case or controversy before the court. The best that jurists can hope for is to use “historical guideposts” to explain legal outcomes based on some form of historical methodology.

Perhaps the most persuasive historical methodology for jurists is the use of the combination of Social History and New Intellectual History. Social History focuses on “social groups rather than on individuals, on the masses rather than the elites, and on ordinary folk rather than prominent people.” To put it another way, Social History examines what the Supreme Court has dubbed “public understanding” or “popular understanding”; a showing of social acceptance of an issue, case, or controversy dependent on the era in question. Meanwhile, New Intellectual History stresses political philosophy, “taking the ideas of the founding fathers seriously and [accepting] their rhetoric as reflecting more their view of reality.” In the constraints of judicial review, New Intellectual History takes into account political and philosophical restraints on the issue, case, or controversy dependant on the area in question. Thus a combination of Social History and New Intellectual history gives consideration to both the ideologies of the Founding Fathers and the public understood those ideologies.

This leaves us with the question: “What is a “historical guidepost” within the constraints of Social History and New Intellectual History methodologies?” A “historical guidepost” is a historical event, philosophy, or political ideology that was prominent or influential in impacting the law, statute, or constitutional provision at issue. For the purposes of analyzing the Second Amendment, a “historical guidepost” is either a longstanding historical restriction on the “keeping” or “bearing” of arms circa 1791 or a longstanding philosophical or political ideology for regulating or restricting the “keeping” or “bearing” of arms as understood circa 1791.

This study sets forth to address how the courts should address such “historical guideposts” by prescribing a Second Amendment “historical guidepost” standard of review. First, the purpose of a “historical guidepost” standard of review is to work within the conflicting pursuits of the history and legal professions. As discussed above, it is almost impossible for historians, advocates, and jurists to come to the same historical conclusions. The purpose of a historian is to seek the truth by balancing the historical evidence and attempting to disprove their thesis, which ultimately leads to many questions being unanswered. Meanwhile, advocates and jurists seek to provide definitive answers despite the lack of empirical evidence. Advocates and jurists generally do not seek to disprove their client or position in their pleadings, and almost purposefully seek to recast historical evidence in their favor.

Second, the “historical guidepost” standard of review works within the constraints of judicial precedent. Although judicial precedent may not comport with the historical consensus, advocates and jurists are almost required to work within the history provided from the higher court. It is usually at the Supreme Court that such controversial history can only be addressed and fixed to comport with the historical consensus.

Third, and most importantly, the “historical guidepost” standard of review requires jurists to maintain a “historical consciousness.” This requires jurists to accept our “changing societies, cultures, and communities” when examining “historical guideposts.” It will be a rare occasion that a modern Second Amendment issue, case, or controversy will exactly replicate restrictions on the “right to keep and bear arms” circa 1791. However, this fact does not disparage that there were longstanding political and philosophical restrictions on arms circa 1791. It is these political and philosophical restrictions that provide historic insight as to the constitutionality of current “arms” regulations. What the “historical guidepost” approach does is it takes into account these philosophies through the combination of Social History and New Intellectual History methodologies.

It must be emphasized that the “historical guidepost” approach seeks to work within the constraints of judicial precedent and stare decisis. It requires a responsible use of history by advocates and jurists within these constraints. Its purpose is not to overturn Heller’s interpretation of the Second Amendment, for only the Supreme Court has the authority to rewrite its version of Second Amendment history even though this version may not comport with the historical consensus. In other words, the “historical guidepost” standard of review requires the inclusion of history through advocacy to solve legal issues, cases and controversies. It does not serve or pretend to serve as providing historical answers. It merely seeks to use history responsibly and as an effective tool to analyze the “right to keep and bear arms.”

In addition to establishing the framework of this judicial standard, the second part of this study sets forth to address two key arguments that were missing from the City of Chicago’s briefs. This includes: 1) differentiating the importance of the right to “keep arms,” the right to “bear arms,” and a “well-regulated militia” through State Second Amendment analogues circa 1789, 1803, and 1868, and 2) providing the Court with competing historical evidence showing that the Fourteenth Amendment’s chief architect, John Bingham, and the whole Reconstruction Congress may have only intended to incorporate the Second Amendment as to protect the right of citizens to take part in defending their liberties in a “well-regulated militia.”

It is within the second part of this study where the methodology of the “historical guidepost” standard of review partially divorces itself from the rest of the study. The analysis of the right to “keep arms,” the right to “bear arms,” and a “well-regulated militia” through State Second Amendment analogues can be viewed as qualifying under the “historical guidepost” approach or accepted historical methodologies. Its purpose is to provide a key legal history argument that the City of Chicago did not fully address in its brief or at oral arguments.

Meanwhile, the analysis of the Fourteenth Amendment ratifiers’ “popular understanding” of how the Second Amendment bound the States through the Privileges or Immunities Clause works solely within accepted historical methodologies. It seeks to expound the argument that the historical record is actually incomplete as to whether the consensus among the ratifiers was that the Second Amendment protected armed individual self-defense of the home. The answer as to what constitutes “popular understanding” of the Second Amendment circa 1868 is not as clear and convincing as the Heller majority and McDonald plurality would have it. The fact that members of Congress viewed the Second Amendment as securing a right against private violence does not dictate how Congress or “popular understanding” as a whole understood it. The Amendment’s mention of a “well-regulated militia” and a “free State” was often construed as protecting purely a militia right. Until a more exhaustive historical study is conducted, historians cannot state with certainty what the drafters’ intent as a whole constituted.

Keywords: Second Amendment, Bear Arms, Keep Arms, Militia, Historical Guideposts, McDonald v. City of Chicago, District of Columbia v. Heller, Skoien, Fourteenth Amendment

Suggested Citation

Charles, Patrick J., The Second Amendment Standard of Review after McDonald: 'Historical Guideposts' and the Missing Arguments in McDonald v. City of Chicago (December 31, 2010). Akron Law Journal of Constitutional Law and Policy, Vol. 2, p. 7, 2010, Available at SSRN:

Patrick J. Charles (Contact Author)

Government of the United States of America - Air Force ( email )

Washington, DC
United States

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