The Corner

Law & the Courts

Rewriting Heller

Detail of a portrait of James Madison (White House Historical Association/Wikimedia)

At Slate, Saul Cornell once again tries to short-circuit our modern debate over gun control by pretending that the Second Amendment does not protect an individual right to bear arms. I must have written fifty pieces on this topic over the last few years, including in response to Cornell, and there’s nothing new here that would justify doing so again at length. But this part did jump out at me in particular, and it is worthy of a quick response:

Another major problem with Heller that will now confront Gorsuch and Barrett was that it relied heavily on a small body of legal cases from the slave owning South and ignored the rest of America’s legal history.

This is not an accurate description of Heller, as anyone who has read it will know, and it is not an accurate description of “America’s legal history,” either.

The first states to adopt constitutional protections that explicitly referred to an individual right to keep and bear arms were not in the South, but in the North. Cornell likes to argue that America’s “gun culture” is intrinsically Southern, and, in particular, he likes to associate it with “slavery, ‘honor,’ and their associated violence” below the Mason-Dixon line. But this is a somewhat difficult case to make when one considers that the first provision that held “that the people have a right to bear arms for the defence of themselves and the state,” (note the “themselves”) was passed in Pennsylvania in 1776, and that, one year later, it was copied verbatim by Vermont — which was so far away from trying to ape Southern culture that it abolished slavery in the very same document.

When, a few years later, it came time for James Madison to insert a similar provision into the federal constitution, he followed this lead, reserving the right to “the people,” and proposing that it be placed next to the other individual rights listed in Article I, Section 9, rather than next to the militia clause in Article I, Section 8, clause 16.

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