Suicide Pact: New Readings of the Second Amendment
Bellesiles, Michael A., Constitutional Commentary
"The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."
Justice Robert H. Jackson(1)
There are many ways of reading the past. The most common and popular is a focus on the subject itself, a narrative of the events with a little analysis mixed in. A second is the scholarly discourse, the author entering into a conversation with his or her predecessors in the profession. And then there is the personal search by the individual author for meaning in the past, a format favored by those interested in identity history and politics, and, all too often, by legal scholars. This third tack is using history in the service of some current position; what Bernard Bailyn called "the twin sins of anachronism and presentism."(2) The first two approaches pursue "history" as a professional responsibility, the third as a policy struggle with only one possibly correct position.
Laura Kalman's recent book, The Strange Career of Legal Liberalism,(3) offers an outstanding dissection of this division in scholarly approaches. Legal scholars, she quotes Frank Michelman as stating, "min[e]" the past and "make a case" for a specific, pre-exiting perspective.(4) Such writers ransack the past, seeking supportive arguments and quotations to promote and enhance their case for the present. Like big game hunters they return from their safari with their prized quotes, having paid no attention to the wider environment or social context of their trophies. They rarely descend into a period to get a sense of the nuances and complexities; and they certainly never bother to count, to arrive at the aggregate rather than the exceptional. As Morton Horwitz put it, this "lawyer's history ... involves roaming through history looking for one's friends."(5)
Good historians do not attempt to use the past to craft a correct formula for current conduct (a classic misreading of George Santayana). They do not seek a pedigree, as Kalman put it.(6) Lawyers, who "appropriated historians for advocacy purposes,"(7) have not hesitated to seize upon republicanism, the supposed ideology of the nation's founding, as a useful paradigm with an imagined applicability to present circumstances. But the present does not exist to provide precedent for some future society. It seems so obvious, yet somehow still needs stating whenever lawyers write legal history.
There are of course many notable exceptions. Andrew Kull's Color Blind Constitution(8) leaps to mind as a work of solid historical scholarship which follows the evidence wherever it may lead, and which is authentically concerned to get the context of legal developments just right. Nonetheless, far too many legal scholars, most especially on issues revolving around the Second Amendment, seem not to understand why one would bother but to argue some imagined client's cause; nor can they conceive what possible use history is if it does not provide usable authority. A historian like William Leuchtenburg who finds and uses evidence contrary to an initially held position may be incomprehensible to many legal scholars.(9) "Leuchtenburg's compliment is the lawyer's insult," Kalman writes. "It is [the] lawyers' business to build paradigms. Too much orderliness, however, makes historians suspicious."(10) As Edmund Morgan wrote Felix Frankfurter, the historian rejects "the demand for symmetry," avoiding sharp dichotomies which misrepresent the past.(11) Put another way, professional historians immediately doubt any case for which all the evidence falls consistently on one side.
Historians know that history is full of ambiguities and paradoxes, and expect to find them. That explains why most historians of early America shrugged their shoulders in bemusement over the Second Amendment debates and said little, until recently. …