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

Article excerpt

Introduction   I. The Standard Model Second Amendment Exposed        A. The Historical Dilemma Presented by the Standard           Model        B. Excavating the Standard Model's Poor Foundation           1. History Lesson 101: Interpreting Text Without              Historical Context Is Just a Con           2. History Lesson 102: Answering Any Historical              Query First Requires Substantiated Evidence to              Support It           3. History Lesson 103: Lawyering Historical Sources              Is Not an Objective History           4. History Lesson 104: Be True to What the              Historical Record Provides  II. The Embarrassing Standard Model Saga Continues        A. The Rise and Fall of Joyce Lee Malcolm's Thesis on           the Anglo-American Right           1. England's Ahistorical Armed Public Against              Private and Public Violence           2. Correcting False Notions of Article VII           3. The 1662 Militia Act and 1671 Game Act              Evidentiary Debacle           4. William Blackstone Said What?--Misconceptions              of the "Fifth Auxiliary Right" Continue           5. The Anglo-American Intellectual Deficiency        B. The Standard Model "Domino Effect" and           Subsequent "Domino Defect" III. What's the Supreme Court to do With the Embarrassing      Standard Model?--Assessing Three Historical Options      A. Option 1--Standard Model Dictum Wins, History         Loses, But Should It?      B. Options 2 and 3--the Judiciary, Historical         Consciousness, and Preserving the Historical Record. Conclusion 

INTRODUCTION

In the coming years the Second Amendment will face a historical crossroads. Following the Supreme Court's decisions in McDonald v. City of Chicago (1) and District of Columbia v. Heller, (2) 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 (3) right to arms. (4) 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, (5) (2) provide the means to repel force with force should one be assailed in private or public, (6) and (3) provide for the common defense. (7) Indeed, the history supporting an "individual right" to arms is vast and undeniable. (8) However, the historical evidence supporting the Standard Model theory is circumstantial at best, (9) 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? (10)

The answers to these questions are significant for a number of reasons, including the long-term validity and objectivity of new originalist paradigms in constitutional interpretation, the role that accepted historical methodologies should play in constitutional jurisprudence, and whether judges can objectively weigh historical evidence or recognize poor and subjective analyses. (11) All three issues are intertwined when examining the constructs of the Standard Model right to arms. A close look at the past four decades of the Model's scholarship reveals that it was the repeated advancement of poor historical paradigms--particularly incomplete research, textualism, legal hypotheticals, and word games--that pushed aside accepted historical methodologies, which in turn led to ahistorical conclusions. …