Academic journal article Northwestern University Law Review

SCRIBBLE SCRABBLE, THE SECOND AMENDMENT, AND HISTORICAL GUIDEPOSTS: A SHORT REPLY TO LAWRENCE ROSENTHAL AND JOYCE LEE MALCOLM[dagger]

Academic journal article Northwestern University Law Review

SCRIBBLE SCRABBLE, THE SECOND AMENDMENT, AND HISTORICAL GUIDEPOSTS: A SHORT REPLY TO LAWRENCE ROSENTHAL AND JOYCE LEE MALCOLM[dagger]

Article excerpt

In a recent article, Professors Lawrence Rosenthal and Joyce Lee Malcolm provided an intriguing debate1 over the standard of scrutiny that should be applied to restrictions on the Second Amendment in the wake of McDonald v. City of Chicago.2 This Essay illuminates two aspects of that debate. The first is Professor Rosenthal's concern regarding the constitutionality of open-carry or concealed-carry prohibitions. He inaccurately claims that the Founders left insufficient historical evidence to support such prohibitions.3 Thus, this Essay addresses those concerns through the use of "historical guideposts."4 The second aspect this Essay addresses is Rosenthal and Malcolm's characterization of the Second Amendment's "well regulated militia" language,5 for it highlights a historical and legal error that continues to pollute contemporary Second Amendment jurisprudence. As this Essay explains, a "well regulated militia" does not merely equate to "well-trained,"6 nor is it a vehicle to analyze gun control regulations7 in the constraints of the opinion in District of Columbia v. Heller.8

I. SCRIBBLE SCRABBLE REDUX: HISTORICAL GUIDEPOSTS, THE PUBLIC GOOD, AND THE SECOND AMENDMENT

As Professor Rosenthal astutely points out,9 the Heller Court has received much criticism for its classification of longstanding prohibitions.10 Professor Rosenthal then asks whether Heller's presumptively lawful prohibitions will "one day be discarded as inconsistent with the original meaning of the Second Amendment," for "[f]raming-era practice appears to be of little help."11 Indeed, the Heller Court painted with a broad stroke what constitutes a "presumptively lawful" firearm regulation.12 However, the Founding Fathers provided us with some guidance as to whether a challenged regulation falls within the constitutional restraints of the Second Amendment.13

What we today refer to as gun control is not a twentieth-century phenomenon. Since the Norman Conquest, restrictions began appearing on the carrying or using of "arms" as a means to prevent public injury. King Alfred had restrictions on the drawing of any weapon "in the king's hall"14 and the improper carrying of a spear to prevent injury.15 In 1328, King Edward III implemented restrictions on riding or going armed in public places or in the presence of government officials.16 In 1542, King Henry VIII placed a prohibition on "little shorte handguns, and little hagbutts," which were a "great [peril] and [continual fear] and [danger] of the Kings most [loving] subjects."17 Likewise, in 1787, the Pennsylvania Minority Dissent, which was comprised of those members of the Pennsylvania Constitutional Convention that voted against ratifying the Constitution due to the lack of a Bill of Rights, acknowledged it was lawful to disarm individuals for "crimes committed" or when the legislature determined there may be "real danger of public injury from individuals."18

This brief overview reveals that "arms" regulations intended to preserve the peace, as well as to prevent public injury, are part of our Anglo-American tradition. Whether there is a perfect eighteenth-century parallel to modern gun control regulations is not the appropriate question that jurists should examine when determining whether Second Amendment challenges are consistent with framing-era practice.19 For with the advancement of firearm technology, especially the portability, firing rate, and power by which modern firearms operate, it is rare for a modern gun control regulation to mirror an eighteenth-century restriction.20

Therefore, the proper question jurists should ask when examining the historical acceptance of modern gun control regulations is whether the regulation would be "publicly accepted" in the framing era. In other words, the question is whether the Founders would have accepted the restriction as necessary to prevent "public injury" or as in the interest of the "public good."21 This question is answered by examining the ideological and philosophical origins of gun control, not by finding an exact eighteenthcentury parallel. …

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