The Second Amendment in Historiographical Crisis: Why the Supreme Court Must Reevaluate the Embarrassing 'Standard Model' Moving Forward

Abstract

In the coming years the Second Amendment will face a historical crossroads. Following the Supreme Court’s decisions in McDonald v. City of Chicago and District of Columbia v. Heller, it is settled, as a matter of constitutional jurisprudence, that the Second Amendment protects armed self-defense in the home with a handgun, and applies equally to the federal and state governments. In both opinions, the majority was guided by a historical theory dubbed the Standard Model right to arms. Under this Model, the Second Amendment provides an individual right to possess and use arms, divorced from government sanctioned militias, as a means to (1) check government tyranny through an armed citizenry, (2) provide the means to repel force with force should one be assailed in private or public, and (3) provide for the common defense. Indeed, the history supporting an “individual right” to arms is vast and undeniable. However, the historical evidence supporting the Standard Model theory is circumstantial at best, leaving the future of Second Amendment history at a critical juncture. Which end of the historical spectrum is to guide future opinions? Does the evidence have to gain the support of the historical community? Does it have to be clear and convincing, or does it merely have to be circumstantial and plausible through hypothetical word association?

In Part I, this Article exposes the Standard Model for what it is not — an objective and thoroughly researched history. It identifies four unquestioned historical methodologies to which the Model has failed to adhere and how one poor account has been built upon another, which ultimately has made the “modern” Second Amendment unrecognizable to the founding generation.

Part II then summarizes why historians view the Standard Model as nothing short of a historical embarrassment. In particular, Part II focuses on the rise and fall of Joyce Lee Malcolm’s work on the right to arms. It then illustrates the interpretative consequences that Malcolm and other Standard Model accounts have had on the Anglo-American understanding of the right to arms.

Lastly, Part III discusses the prudential reasons for reevaluating the Standard Model. In particular, it weighs three historical options that the Supreme Court could adopt for adjudicating future Second Amendment cases and controversies. It then concludes that there is a simple and reasonable construct available to the Court when weighing history. Known as a “historical guidepost” approach, the construct not only ensures the preservation of our history in context, but also allows for constitutional jurisprudence to evolve in the process.

Keywords: Second Amendment, bear arms, keep arms, militia, well regulated militia, originalism, historicism, legal history, historical guideposts, standard model, Supreme Court, District of columbia v. Heller, McDonald v. City of Chicago