Reviving "Law Office History": How Academic and Historical Sources Influence Second Amendment Jurisprudence
Small, Adam, American Criminal Law Review
After centuries of relative obscurity, the Second Amendment has become the center of an intense academic and legal battle during the last twenty years. Although the United States has long regulated firearms, (1) only in the 1980's did gun control become a prominent political issue. (2) Once gun control entered the nation's political conscience, there was a surge in academic study of the Second Amendment's language and the historical sources surrounding its adoption. (3) Countless books and law review articles have been published on these issues, and even noted constitutional theorists such as Laurence Tribe have changed their understanding of the Amendment. (4)
In most areas of constitutional law, scholarship tends to follow the courts. The academic debate surrounding the Second Amendment, however, has had a profound impact on courts' analyses of the Amendment. This Note analyzes how the two most recent circuit court opinions discussing the Second Amendment rely on academic writing and historical sources to construct opposite conclusions regarding the Amendment's meaning and purpose. There are some scholars and jurists who have criticized the use of academic writing and historical sources in construing the Second Amendment, referring to it as "law office history." (5) These critics claim that those who use academic and historical sources to construe the Second Amendment use quotations from these sources selectively and without regard for their context; and that as a result these quotations take on a meaning different from what the authors intended. (6) A comparison of the most recent circuit court opinions interpreting the Amendment, (7) however, reveals that despite these criticisms, the use of academic and historical sources to construe the Amendment is unlikely to subside. As courts begin to assess the constitutionality of particular gun control regulations, academic and historical sources are likely to play an important role in determining what kind of laws infringe on the rights guaranteed by the Second Amendment.
The text of the Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." (8) The academic debate has focused on the threshold issue of whose rights the Amendment protects and centers on the preamble to the Amendment. According to the states' rights or collective rights model, the Amendment protects a state's right to preserve and arm its militias. (9) Therefore, individuals lack standing to bring claims under the Second Amendment. This position has been adopted by two federal circuit courts. (10) The individual rights model, however, contends that the preamble defines only the purpose of the right. (11) Thus, supporters of the individual rights model argue that the Second Amendment prevents the federal government from disarming militias by protecting the individual right to keep and bear arms. (12) According to this view, individuals have the right to keep and bear arms, even if they are not affiliated with a formal militia. (13) This position was not accepted by any of the circuit courts until 2001, when the Fifth Circuit adopted it in United States v. Emerson. (14)
A third theory exists between these two models. This intermediate position, sometimes referred to as the sophisticated collective rights model, (15) maintains that individuals have a right enforceable against the federal government, but only to the extent that the individual is affiliated in some way with a militia, and that the weapon at issue is suitable for use in a militia. (16) This position has many variations but has been adopted by several circuits in one form or another. (17) Until March 2007, the District of Columbia Circuit and the Second Circuit were the only federal circuits not to have adopted one of these three models.
In December 2006, the United States Court of Appeals for the District of Columbia Circuit faced a challenge brought by private citizens to the District's gun laws. …