Commonplace or Anachronism: The Standard Model, the Second Amendment, and the Problem of History in Contemporary Constitutional Theory

Article excerpt

A new consensus on the meaning of the Second Amendment appears to be crystallizing among constitutional scholars.(1) This new model asserts that the Second Amendment protects both an individual and a collective right of the people to bear arms. Proponents of this interpretation also argue that Amendment is part of a checking function designed to enable the people to resist government tyranny, by arms if necessary.(2) Borrowing conceptual language from the physical sciences, supporters of this new interpretation contend that scholarship on the Second Amendment has produced a paradigm comparable to that employed by physicists to describe recent research: the new interpretation is dubbed the "Standard Model."(3) To support their interpretation, proponents of the new orthodoxy quote liberally from the writings of Federalists, Anti-Federalists, and early constitutional commentators such as St. George Tucker and Joseph Story, in order to support their claim that a broad consensus existed in post-Revolutionary America on the meaning of the right to bear arms.(4)

The growing chorus of support for the Standard Model among legal scholars contrasts with the cool reaction to the Standard Model among early American historians.(5) While legal scholars have confidently asserted the emergence of a new orthodoxy, there is little sign that historians are likely to come to a similar agreement. Indeed, the dominant trends in recent historiography point in the opposite direction. The notion that American political thought might be understood in terms of a single ideological paradigm has collapsed under the accumulating weight of evidence demonstrating the incredible vitality and diversity of American political culture in the Revolutionary era.(6) Ironically, at precisely the moment that many historians have abandoned the search for a "unified field theory" that can accommodate the heterogeneity of American political culture, legal scholars have turned to the language of physics and proclaimed the existence of a Standard Model.(7) Rather than begin with the assumption of a broad consensus, historical scholarship has increasingly embraced a pluralist model of early American political and constitutional thought.(8)

The flaws in the Standard Model are emblematic of deeper problems in the way history has been used by constitutional scholars.(9) Partisans of the Standard Model have not only read constitutional texts in an anachronistic fashion, but have also ignored important historical sources vital to understanding what Federalists and Anti-Federalists might have meant by the right to bear arms. The structure of legal scholarship has served to spread these errors rather than to contain them. Once published, these errors enter the canons of legal scholarship and are continuously recycled in article after article.(10) Upon closer inspection, the new orthodoxy on the Second Amendment shares little with the Standard Model employed by physicists. Indeed, recent writing on the Second Amendment more closely resembles the intellectual equivalent of a check kiting scheme than it does solidly researched history.

The problem with the legal scholarship associated with the Standard Model is not simply a function of failing to remain up-to-date with the latest trends in early American historiography. Standard Modelers have more fundamentally failed to heed the useful guidelines suggested by H. Jefferson Powell in his important essay, "Rules for Originalists."(11) In that article, Powell correctly warned legal scholars about the dangers of anachronism in constitutional scholarship. The first error is to assume that the framers shared our world view: "The 1787 Constitution and the first twelve amendments," Powell noted, "were written and ratified by people whose intellectual universe was distant from ours in deeply significant ways."(12) The second error, also identified by Powell and committed by the Standard Modelers, is to forget that "[c]onsensus or even broad agreement among the founders is a historical assertion to be justified, not assumed. …