The Bad History in Scalia's Gun-Rights Opinion

James II of England

I left paying subscribers in terrible suspense last time. Contra the late Justice Scalia, in his landmark gun-rights opinion in Washington, D.C., v. Heller, which calls the opening of the Second Amendment a prefatory clause, grammatically, I identified it as an absolute phrase, really grammatically, and said that the absolute phrase, when used the way it’s used in the Second, can be toxic to clarity, as it is in the Second. I doubt anybody’s had a decent night’s sleep waiting for the followup.

And yet I’m putting off explaining that idea in this post, because I think the grammatical explanation will make more sense if I look today not at Scalia’s bad grammar but at his bad history—which is what this blog is supposed to be about anyway. I’ll close the grammar circle in my next post, showing why the amendment is gibberish, and then we can move on to other matters.

Like Justice Alito, in the leaked opinion proposing to overturn Roe v. Wade, Scalia invokes a lot of supposedly deep Anglo-American history in Heller, in support of his view that the right protected by the Second is an individual one, not a right exercised solely in the context of militia service. These judges love what they think of as history—they really mean heritage—because they want everything they believe politically to be supported by long traditions of judiciousness in ascertaining the nature of rights. It’s a kind of Whiggish, Anglophile fetish of settlement, which our founders pretty much invented the American version of, and the founders too thought of themselves as deep students of history, so the judges’ use of history in constitutional interpretation can become circular, upholding the founders’ values by upholding modern decision-making, and vice versa. It’s all supposed to cohere

Yet actual history always threatens coherence.

Because the justices as a group are addicted to history, and yet can’t handle it, some queasy discussion often occurs during oral argument. Debating history in a fair-minded manner isn’t really their job, so they’re not good at it, yet when the judges have a majority, their historical conclusions rule.

Scalia exemplifies the approach, citing chapter and verse in his Heller opinion on the primary and secondary sources that support his foregone conclusions and ignoring those that challenge it. And Justice Stevens’s dissent makes no more realistic sense historically than Scalia’s opinion does.

As you probably know all too well by now, I think the more history and grammar you apply to the Second Amendment, the less sense the amendment makes. Nobody’s ever going to legitimately prove anything about the nature of the right the amendment purports to protect. But you can’t decide court cases or dissent from such decisions with thinking like that. Judges gonna judge.

There’s no time to look at all of Scalia’s presumptions about history in Heller, so I too will cherrypick. An interesting presumption has to do with 18th C. militias and what people then called “standing armies.” These misconceptions are fairly common.

In the opinion, Scalia refers to 18th C militias’ effectiveness, as if the effectiveness were an established fact needing no explication. While some 18th C. ideologies had it that militias were highly effective, and some retro-gunnish people today think so too, in the real-life 18th C. they weren’t. Scholarship by John W. Shy showed as long ago as the early 1960’s that the militia system, fabled in song and story, was largely in disarray by the time of the American Revolution. Certainly Washington, Knox, Hamilton, and other officers of the War of Independence found units recruited from the militia unbearably weak, insubordinate, prone to just throwing down their weapons and running away.

In American oratory, the militia won independence. To General Washington, the militia came close to losing it.

Washington and the other high officers were snobbish types, and maybe they were wrong about the citizen soldier. The point here isn’t to prevail with a history-based argument—that’s what the justices keep trying to do!—but to note that Scalia doesn’t feel any need to look into the issue critically and take account of highly cogent points of view that contradict his assumptions, which is what understanding history requires. He just goes on talking authoritatively about the importance of understanding history.

The term “standing army” referred to a professional, hired, regular army, maintained in peacetime. (That is: an army.) Among some 18th C. Americans, an ethos prevailed of objecting to such forces as implements of royal tyranny for adventuring abroad and keeping the people down at home, which complemented the lauding of militia as citizen soldiers—the people themselves as the military. Washington and Hamilton, though, wanted a standing army for the U.S., and in 1792 they got one.

In Second Amendment terms, Scalia frames the militia-vs.-standing-army issue this way:

The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved.

And this:

There are many reasons why the militia was thought to be “necessary to the security of a free state.” First, of course, it is useful in repelling invasions and suppressing insurrections. Second, it renders large standing armies unnecessary—an argument that Alexander Hamilton made in favor of federal control over the militia.

The Hamilton reference is to The Federalist. That's funny, because Hamilton was deeply disingenuous when arguing for federal control over the militia on the basis of avoiding a standing army. Nobody wanted both federal control over militia and a standing army more than Hamilton did; he had no confidence in militia, even when federally controlled, as an alternative to regulars. Federal judges’ tendency to refer to The Federalist when invoking history, as if it were authoritative on the Constitution’s meaning—in the real past, those essays were a propaganda effort in favor of ratification—is totally ahistorical.

But Scalia’s larger point also gets us into some deeply rooted heritage that pre-existed the 18th C., affected the Constitution, and reverberates today.

As quoted above, Scalia says the Antifederalists feared that the federal government would disarm the people. But what the Antifederalists really feared was that federal control over the states’ militia, as set out in the Constitution, would remove a sovereign power of the states, turning the legislatures, which had been in command, into mere drill sergeants passing down orders from above. Because that’s exactly what the federal power was intended to do, the Federalists denied the intention, and this disingenuous fight about state and federal power regarding military matters survives in the slippery language of the Second (“security of a free state”). It was also translated during the ratification debates into a fear not of disempowering the states but of disarming the people as a whole.

And fear played. As Scalia puts it:

. . . That history showed that the way tyrants had eliminated a militia consisting of all the ablebodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights.

Scalia thus rationalizes the federal power to ban the states’ militia, which he discerns in the main body of the Constitution, with a practical means of maintaining militia anyway, by making it illegal, via the Second, for the federal government—not to abolish state militias, which he knows it can—but to violate an individual right of people to keep and bear the kind of arms militias use.

That points to an absurdity embedded in the Constitution, in which the amendment and the main text were at war with one another from the get-go, but to Scalia it all coheres perfectly because he grounds the rationalization in some muddled ideas about the English Bill of Rights of 1689. He gets them mainly from the historian Joyce Lee Malcolm’s 1994 book To Keep and Bear Arms, beloved not only by the NRA but also by other scholars at the time, and very beloved by Scalia. Malcolm traces an individual right to keep and bear arms —Scalia calls it “ancient”—to the conflicts that led to the 1689 settlement that ended the English civil wars, brought in William and Mary as constitutional monarchs, and birthed the Bill of Rights, whose Article VII protects a right—of Protestants—”to hold and bear arms.”

That might all sound kind of credible. Many people, not just Scalia, have said that the Second Amendment descends from Article VII. What’s fascinating, though, is that what really seems to have descended from 1689, first to our founders and then to us, are ideas about arms and rights that were just as fantastical and un-thought-out in 1689 as they were in 1789 and remain today. That’s what “deep-rootedness in our history and tradition,” to paraphrase Justice Alito, so often turns out to mean.

I’ve just read a brilliantly argued and unbeatably well-buttressed essay, published in 2000 by the scholar Lois G. Schwoerer, which takes Malcolm’s work on the individual nature of the right completely apart. Schwoerer even mentions Scalia, warning him off the opinion he would hold eight years later. (He then goes ahead and actually cites her in Heller while totally ignoring her conclusions. Ah, the importance of history and citation!)

What Schwoerer shows and Scalia ignores: there’s nothing ancient about the right. It was novel in 1689, and nobody back then could possibly have conceived of it as an individual right. The Catholic James II had been disarming Protestants. As part of the new deal, the aggrieved Protestants asked for a Protestant right to keep and bear arms and asked to get their confiscated arms back. “This right was drafted, apparently, with hotheaded speed,” says Schwoerer, “out of deep rage over the treatment that some had endured. It was not a carefully thought-out article.”

I think it’s worth noting, in that context, that the Protestants had kept and borne arms under James II, yet when the king decided to take their arms, the keeping and bearing arms couldn’t stop him from taking them. The notion that a right to keep and bear arms provides a way of avoiding standing armies and defending against tyranny has never been anything but symbolic, political, and gestural, of zero practical use to the big dream it feeds, that of obstructing government military power when turned against the people. The 1689 Protestants were saying “We want our guns back now, and you have to promise never to take them again, the way the bad old king did, and we want that in writing.” To which the answer was something like “Sure, why not.”

I used to think it was modern weaponry that rendered obsolete the Second’s idea of a populace armed against tyranny. What’s your favorite .38 or 12-guage going to do against tanks, planes, and bombs? But then, what’s your blunderbuss going to do against 25 mounted dragoons? Schwoerer’s history—real history—shows us that in the glory days of 1689, manufacturing an “ancient” individual right to keep and bear arms, and making it a bulwark of liberty, became a beloved trope of what some call English history but might better be called English literature.