III. What's the Supreme Court to Do with the Embarrassing Standard Model? - Assessing Three Historical Options

Article excerpt

In a June 1838 edition of the monthly periodical Common School Assistant there appeared a question-and-answer article entitled The Judiciary. (669) The questions asked and answered covered a number of constitutional issues such as state privileges and immunities, trial by jury, excessive bail, warrantless searches, and so on. The second to last question and answer was in regard to the Second Amendment, and read as follows:

Q.--Have the people of the United States a right to keep and bear arms?

A.--Yes; inasmuch as a well-regulated militia is necessary to the security of a free country. (670)

For nearly four decades, legal academics, historians, and laymen have written thousands of pages over the meaning of the Second Amendment, yet within the span of only twenty-nine words a teaching assistant's book succinctly asked and answered a constitutional question as the Founding Fathers envisioned. A well-regulated militia was not merely an armed citizenry. (671) It was so much more. In the words of Secretary of War James Barbour, a well-regulated militia was an unquestionable "political maxim ... universally subscribed to ... [as] the natural defence of a free people." (672) It was of such importance to the success of the Early Republic that Barbour requested the states amend and improve the 1792 National Militia Act accordingly. He hoped "in an object of such vital importance as a well regulated militia, minor objections will be sacrificed to the attainment of so great a good." (673)

Today there is little, if any, dispute that the necessity of a well-regulated militia in our everyday life is minimal. In the late eighteenth century and early nineteenth century, however, a well-regulated militia served a larger societal purpose. Its "advantages" were not "confined to its military and civil uses exclusively." (674) A well-regulated militia also provided a "moral influence on society and individual character" that was so "deserving" of American admiration. (675) As stated in an (1833) article published in The Military and Naval Magazine of the United States:

   It regulates the eccentricities of youth, inculcates subordination
   to authority, teaches obedience to the laws, and respect for those
   who are entrusted with their administration. Its associations
   promote civility, good manners, and friendly intercourse in
   society. Its exhibitions are public, encouraging cleanliness of
   person, and eliciting that pride of character which leads to the
   fear of reproach, and enlivens the desire of distinction. Its
   employments are active, requiring judgment and decision. Its
   exercises are manly, giving grace to the person, vigor to the
   muscle, and energy to the mind. Its duties are scientific, inciting
   to study, and inducing inquiry. Its objects are patriotic,
   animating the best feelings of the heart. Its offices, open to all,
   are the incentives of honorable ambition, affording to those in
   humble stations, whose merits might otherwise remain unnoticed,
   opportunities for disclosing those virtues and talents which
   recommend them for civil preferment, as well as military promotion;
   and thus it is, this truly republican institution, in conne[ct]ion
   with our systems of public education and establishments of
   religious instruction, contributes to produce that just
   subordination in society which influences all its conduct, and
   constitutes an orderly community. (676)

After reading this powerful narrative it is dumbfounding how anyone can equate a well-regulated militia with a mere armed society. Yet this poor definition is what so many Standard Model writers have prescribed. (677) What is worse is that Heller's dicta seems to have endorsed it with but one sentence: "[T]he adjective 'well-regulated' implies nothing more than the imposition of proper discipline and training." (678) Then in an attempt to sync the Second Amendment's prefatory language with its operative clause, the Court wrote:

   We reach the question, then: Does the preface fit with an operative
   clause that creates an individual right to keep and bear arms? …