Heller, new originalism, and law office history: "Meet the new boss, same as the old boss"

UCLA Law Review

Volumn 56, Issue 5, 2009, Pages 1095-1125

  Cornell, Saul ^a  

^a OHIO STATE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 78650594003     PISSN: 00415650     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (194)

1. District of Columbia v. Heller, 128 S. Ct. 2783 (2008).
2. Richard A. Posner, in Defense of Looseness: The Supreme Court and Gun Control, NEW REPUBLIC, Aug. 27, 2008, at 32-33.
3. 410 U.S. 113 (1973).
4. J. Harvie Wilkinson, Of Guns, Abortions, and the Unraveling Rule of Law, 95 VA. L. REV. 253 (2009).
5. 381 U.S. 479 (1965).
6. Cass R. Sunstein, Second Amendment Minimalism: Heller as Griswold, 122 HARV. L. REV. 246, 260, 263-64 (2008);
7. see also Reva B. Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 HARV. L. REV. 191 (2008).
8. For a useful overview of the politics of the gun control debate, see ROBERT J. SPITZER, THE POLITICS OF GUN CONTROL (4th ed. 2008).
9. See Wilkinson, supra note 4, at 266.
10. For an argument against incorporation, see Lawrence Rosenthal, Second Amendment Plumbing After Heller: Of Standards of Scrutiny, Incorporation, Well-Regulated Militias, and Criminal Street Gangs, 41 URB. LAW. 1 (2009).
11. For an argument for incorporation, see Nelson Lund, Anticipating Second Amendment Incorporation.' The Role of the Inferior Courts, 59 SYRACUSE L. REV. 185 (2008).
12. See generally MARK V. TUSHNET, OUT OF RANGE: WHY THE CONSTITUTION CAN'T END THE BATTLE OVER GUNS (2007).
13. For criticism of the case, see supra notes 2-6.
14. Randy Barnett, News Flash: The Constitution Means What it Says, WALL ST. J., June 27, 2008, at A13.
15. Id.
16. See, e.g., Siegel, supra note. 6;
17. Sunstein, supra note. 6;
18. Symposium, 69 OHIO ST. L.J. 603 (2008);
19. Symposium: District of Columbia v. Heller, 59 SYRACUSE L. REV. 165-308 (2008).
20. Symposia on the case are forthcoming in the Lewis and Clark Law Review, Upcoming Issue, http://www.lclark.edu/org/lclr/upcoming.html (last visited Apr. 15, 2009),
21. and the Hastings Law Journal, The Second Amendment After Heller, http://www.uchastings.edu/hlj/symposium/ heller.html (last visited Apr. 15, 2009).
22. There is a large amount of scholarly literature on originalism.
23. See generally, JACK N. RAKOVE, INTERPRETING THE CON STITUTION : THE DEBATE OVER. ORIGINAL INTENT ( 1990);
24. Daniel A. Farber, The Originalism Debate: A Guide for the Perplexed, 49 OHIO ST. L.J. 1085 (1989);
25. Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 Nw. U. L. REV. 226 (1988).
26. For an excellent pro-originalist overview of these debates, see KEITH E. WHITTINGTON, CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW (1999).
27. For recent endorsements of this methodology, see Randy E. Barnett, The Original Meaimig of the Commerce Clause, 68 U. CHI. L. REV. 101, 105-08 (2001),
28. and John O. McGinnis & Michael B. Rappaport, Symmetric Entrenchment: A Constitutional and Normative Theory, 89 VA. L. REV. 385, 391-96 (2003).
29. On the notion of standards for originalists, see H. Jefferson Powell, Rules for Originalists, 73 VA. L. REV. 659 (1987).
30. For incisive critiques of this method and its lack of historical sophistication, see Martin S. Flaherty, History "Lite" in Modern American Constitutionalism, 95 COLUM. L. REV. 523, 523-29 (1995)
31. and Larry D. Kramer, When Lawyers Do History, 72 GEO. WASH. L. REV. 387, 405-07 (2003).
32. See PAUL GRICE, STUDIES IN THE WAY OF WORDS (1989).
33. For a critique of Grice, see WAYNE A. DAVIS, IMPLICATURE: INTENTION, CONVENTION, AND PRINCIPLE IN THE FAILURE OF GRICEAN THEORY (1998).
34. See Lawrence B. Solum, District of Columbia v. Heller and Originalism (Nov. 11, 2008) (unpublished research paper, Illinois Public Law and Legal Theory Research Paper Series No. 08-14, Univ. Ill. College of Law), available at http://papers.ssn.com/sol3/papers.cfm?abstractid=1241655;
35. Lawrence B. Solum, Semantic Originalism (Nov. 22, 2008) (unpublished research paper, Illinois Public Law and Legal Theory Research Paper Series No. 7-24, Univ. 111. College of Law), available at http://papers.ssrn.com/sol3/ papers.cfm?abstract-id= 1120244.
36. One of the most serious problems with Solum's Gricean version of originalism is that it turns Founding-era interpretive practice on its head. Most interpretive theories in the Founding era did not use "semantic, meaning" as the primary means of establishing meaning, but used it as one of several strategies designed to illuminate the intent of the legislator. On Founding-era interpretive practice, see infra note 25.
37. For two other thoughtful critiques of Solum's variant of originalism, see Stephen M. Griffin, Rebooting Originalism, 2008 U. ILL. L. REV. 1185
38. and Larry Kramer, Two (More) Problems With Originalism, 31 HARV. J.L. & PUB. POL'Y 907 (2008).
39. SEE ROBERT J. SPITZER, SAVING THE CONSTITUTION FROM LAWYERS: HOW LEGAL TRAINING AND LAW REVIEWS DISTORT CONSTITUTIONAL MEANING 49-53 (2008).
40. As a general rule, most historians are more interested in questions about authorial intent and hence would likely find Grice's notion of speaker meaning more valuable than his concept of semantic meaning. See, e.g., MEANING AND CONTEXT: QUENTIN SKINNER AND HIS CRITICS (James Tully ed., 1988).
41. On the relevance of reader response theory as a mode for the history of political thought, see. J.G.A. POCOCK, VIRTUE, COMMERCE, AND HISTORY: ESSAYS ON POLITICAL THOUGHT AND HISTORY, CHIEFLY IN THE EIGHTEENTH CENTURY (198.5)
42. and Martyn P. Thompson, Reception Theory and the Interpretation of Historical Meaning, 32 HIST. & THEORY 248 (1993). Grice's theory provides no concrete guidance about the difficult empirical questions related to establishing semantic meaning in a historical context.
43. Indeed, in several informal chats with philosophers about the application of Grice to constitutional originalism, there was general bewilderment as to why anyone would think that Grice could help solve the fundamental problems faced by originalism, which are matters of historical evidence and interpretation, not issues about the philosophy of language.
44. On the problems with law office history, see Matthew J. Festa, Applying a Usable Past: The Use of History in Law, 38 SETON HALL L. REV. 479 (2008);
45. Alfred H. Kelly, Clio and the Court: An Illicit Love Affair, 1965 SUP. CT. REV. 119 (1965);
46. Mark Tushnet, Interdisciplinary Legal Scholarship: The Case of History-in-Law, 71 CHI.-KENT L. REV. 909, 917-25 (1996).
47. Indeed, originalist Richard Kay makes a strong case that the new originalism is much more prone to manipulation than the old originalism, see Richard S. Kay, Original Intention and Public Meaning in Constitutional Interpretation, 103 Nw. U. L. REV. (forthcoming), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1259867.
48. For a critique of Solum's views of sentence meaning, see Stanley Fish, Intention Is All There Is: A Critical Analysis of Aharon Barak's Purposive Interpretation in Law, 29 CARDOZO L. REV. 1109, 1124 n.60, 1127 n.64 (2008).
49. For a summary of the philosophical and linguistic critiques of Grice's work, see SIOBHAN CHAPMAN, PAUL GRICE, PHILOSOPHER AND LINGUIST 190-216 (200.5).
50. See also, Wayne Davis, Implicature, in THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Edward N. Zalta ed., Winter 2008 ed.), http://plato.stanford..edu/ entries/implicature/#3.
51. Griffin, supra note 19. This point has recently been underscored by Larry Kramer.
52. See Kramer, supra note 19.
53. Caleb Nelson, Originalism and Interpretive Conventions, 70 U. CHI. L. REV. 519, 521 (2003).
54. On the debate over the Founders' views of the matter, see Charles A. Lofgren, The Original Understanding of Original Intent?, 5 CONST. COMMENT. 77 (1988);
55. H. Jefferson Powell, The Original Understanding of Original Intent, 98 HARV. L REV. 885 (1985);
56. and, most authoritatively, Jack N. Rakove, The Original Intention of Original Understanding, 13 CONST. COMMENT. 159 (1996).
57. See discussion, supra note 23.
58. On Blackstone's incompatibility with plain-meaning originalism, see Saul Cornell, The Original Meaning of Original Understanding: A Neo-Bladcstonian Critique, 67 MD. L. REV. 150 (2007).
59. See discussion infra pp. 1100-04. New originalism's emphasis on plain meaning is much closer in spirit to Anti-Federalist theories of constitutional interpretation than to Federalist notions, which is hardly surprising given the neo-Anti-Federalist leanings of the modern American Right.
60. See Saul A. Cornell, The Changing Historical Fortunes of the Anti-Federalists, 84 NW. U. L. REV. 39, 59-60 (1990);
61. Peter J. Smith, Sources of Federalism: An Empirical Analysis of the Court's Quest for Original Meaning, 52 UCLA L. REV. 217, 223 (2004).
62. Kramer, supra note 19, at 911.
63. District of Columbia v. Heller, 128 S. Ct. 2783, 2788 (2008)
64. (quoting United States v. Sprague, 282 U.S. 716, 731 (1931)
65. and citing Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 188 (1824)).
66. See, e.g., Brutus, Essays of Brutus XI, m THE COMPLETE ANTI-FEDERALIST 358, 417-22 (Herbert J. Storing ed., 1981). Although there is a superficial resemblance to some Anti-Federalist ideas, Scalia's approach to preambles draws on the notions of nineteenth-century Federalists, such as James Kent. In this sense, Scalia's jurisprudence is a bit like one of the magical creatures from the world of Harry Potter, a sort of constitutional Hippogriff, an imaginary creature part eagle and part horse, or in Scalia's case, an eighteenth century Anti-Federalist head and nineteenth-century Federalist body.
67. For the most recent literary use of the image of the Hippogriff, see J. K. ROWLING, HARRY POTTER AND THE PRISONER OF AZKABAN 114-17 (Scholastic Inc. 2001).
68. Brutus, supra note 30, at 401.
69. See Solum, supra note 18, at 19.
70. For a general discussion of the idea of popular constitutionalism, see LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004);
71. SAUL CORNELL, THE OTHER FOUNDERS ANTI-FEDERALISM AND THE DISSENTING TRADITION IN AMERICA, 1788-1828, at 81-134 (1999).
72. 1U.S. (1 Dall.) 319 (Pa. 1788).
73. The judge in the case used a charge of constructive contempt to imprison Oswald and effectively bypass the press, the jury, and the legislature.
74. For further discussion of the Oswald libel case, see CORNELL, supra note 33, at 130-33.
75. Id. at 133-34
76. (quoting NORMAN L. ROSENBERG, PROTECTING THE BEST MEN: AN INTERPRETIVE HISTORY OF THE LAW OF LIBEL 62-65 (1986)).
77. Powell, supra note 16, at 667-68;
78. Nelson, supra note 25.
79. On Madison's effort to work out a theory of originalism in the 1790s, see Rakove, supra note 25.
80. On the scholarly debates over Madison shifting views, see Gordon S. Wood, Is There a James Madison Problem?, in LIBERTY AND AMERICAN EXPERIENCE IN THE EIGHTEENTH CENTURY 425 (David Womersley ed., 2006).
81. Rakove, supra note 25, at 172-73.
82. STANLEY ELKINS & ERIC MCKITRICK, THE AGE OF FEDERALISM. (1993);
83. DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: THE FEDERAUST PERIOD, 1789-1801 (1997).
84. WILLIAM. BLACKSTONE, 1 COMMENTARIES *59.
85. Id. at *51 (emphasis added).
86. Id.
87. for more on Blackstone's method, see Cornell, supra note 26.
88. 2 ANNALS OF CONG., 1946-54 (1834) (statement of Rep. Elbridge Gerry).
89. Id. This was how Justice Stevens read the Second Amendment in his dissent.
90. See District of Columbia v. Heller, 128 S. Ct. 2783, 2822 (2008) (Stevens, J., dissenting).
91. BLACKSTONE, supra note 41, at *54.
92. See Saul Cornell, Originalism on Trial: The Use and Abuse of History in District of Columbia v. Heller, 69 OHIO ST. L.J. 625, 639 (2008).
93. Jack Balkin has attempted to reconcile originalism and the living constitution, but his effort to square the circle has not drawn much support.
94. See Jack M. Balkin, Abortion and Original Meaning, 24 CONST. COMMENT. 291 (2007).
95. For a critique of this effort, see Mitchell N. Berman, Originalism and Its Discontents (Plus a Thought or Two About Abortion), 24 CONST. COMMENT. 383 (2007).
96. Moreover, it is odd to think that one would interpret Founding language from a particular moment in the nineteenth century.
97. For a thoughtful exploration of how Heller might have been justified by an analysis of an evolving tradition, see William Eskridge, Jr., Tradition and the People's Constitution: Sodomy and Guns: Tradition as Democratic Deliberation and Constitutional Interpretation, 32 HARV. J.L. & PUB. POL'Y 193, 203 (2009).
98. Heller, 128 S. Ct. at 2790 n.4.
99. Id. at 2826 (Stevens, J., dissenting) (citations omitted).
100. Id. at 2789-90 (majority opinion).
101. Id. at 2790 n.4.
102. LEWIS CARROLL, THE ANNOTATED ALICE: ALICE'S ADVENTURES IN WONDERLAND AND THROUGH THE LOOKING GLASS 87-91 (1960).
103. BLACKSTONE, supra note 41, at *60.
104. See 2 ANNALS OF CONG, supra note 45, at 1946-54. This was how Justice Stevens read the Second Amendment in his dissent. See Heller, 128 S. Ct. at 2822 (Stevens, J., dissenting).
105. To support this conclusion, Scalia cites Clayton E. Cramer & Joseph Edward Olson, What Did "Bear Arms" Mean in the Second Amendment?, 6 GEO. J.L. & PUB. POL'Y 511 (2008). If one tallies the sources cited in this article, the results are rather shocking. The first twenty-eight citations deal primarily with English sources. A reference to the most important digital collection of early printed sources understates the usages of bear arms within a military context, missing almost ninety-five such uses. For a useful corrective, one that was available to Scalia and to other members of the Court in Heller,
106. see Nathan Kozuskanich, Originalism, History, and the Second Amendment; What Did Bearing Arms Really Mean to the Founders?, 10 U. PA. J. CONST. L 413 (2008). The vast majority of the sources in Cramer and Olson's essay are from the nineteenth century. If one looks at the actual sources from the Founding era, they turn out to number less than a handful, including one that talks about bearing a gun, not bearing arms.
107. Heller, 128 S. Ct. at 2797
108. (citing 49 LONDON MAG. OR GENTLEMAN'S MONTHLY INTELLIGENCER. 467 (1780)). It is ironic that Scalia, who generally frowns upon citation of foreign legal traditions, would use a non-American source as a cornerstone for his argument in Heller. For Scalia's tirade against foreign law
109. , see Jeremy Waldron, Foreign Law and the Modem lus Gentium, 119 HARV. L. REV. 129, 130-32 (2005). The case most closely associated with this tirade is Roper v. Simmons, 543 U.S. 551 (2005).
110. The mission statement of the Georgetown Journal of Law and Public Policy makes its ideological bias clear: The Georgetown Journal of Law & Public Policy (GJLPP) is published twice annually by students of the Georgetown University Law Center. GJLPP is a scholarly legal journal with a focus on conservative, libertarian, and natural law thought. Though the bulk of our content will either advocate or critique conservative, libertarian, or natural law positions, our Washington location allows us to stay abreast of all areas of law and public policy. We hope that practitioners, professors, judges, and students of all stripes will enjoy reading and submitting to GJLPP. See Georgetown Law: About GJLPP, http://www.law.georgetown.edu/journals/gjlpp/About- Description.html (last visited May 22, 2008).
111. In his blog entry for Oct. 18, 2007, gun rights activist Clayton Cramer had this to say about this material: Sorry, but I am assisting in preparation of amicus briefs for the D.C. case. I'm weaponizing the research that I did for my last book, Armed America. (Yes, just like weaponizing uranium, I'm concentrating it and refining it until you can't put it too close together.) I'm also doing some original research that is beginning to produce WMDs of Second Amendment legal arguments-stuff that is more devastating than has been used in legal or intellectual warfare before. For obvious reasons, I can't tell you about it - we need to keep everything holstered and discreet until the last minute. Clayton Cramer's Blog, http://www.claytoncramer.com/weblog (Oct. 18, 2007, 20:43 EST).
112. Heller, 129 S. Ct. at 2795.
113. See 2 ANNALS OF CONG. supra note 45, at 1947-49.
114. Wilkinson, supra note 4, at 270.
115. Id.
116. See id. at 271;
117. Sunstein, supra note 6, at 255-57.
118. See Posner, supra note 2, at 35;
119. Sunstein, supra note 6, at 255.
120. Siegel, supra note 6, at 196.
121. Id. at 196-97.
122. On the connections between Jefferson and Lincoln, see GARRY WILLS, LINCOLN AT GETTYSBURG: THE WORDS THAT REMADE AMERICA 42-43, 84-87, 103-05 (1993).
123. Indeed, the bizarre nature of Second Amendment scholarship prompted historian Jack Rakove to describe this field as a sort of 'Twilight Zone," a reference to the popular science fiction TV show hosted by Rod Serling. Jack N. Rakove, Confessions of an Ambivalent Originalist, 78 N.Y.U. LREV. 1346, 1354-55 (2003).
124. Eugene. Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. REV. 793 (1998). For a critique of the ahistorical character of Volokh's analysis,
125. see David Thomas Konig, The Second Amendment: A Missing Transatlantic Context for the Historical Meaning of "the Right of the People to Keep and Bear Arms," 22 LAW & HIST. REV. 119, 154 n.96 (2004).
126. Volokh, supra note. 70, at 794 (quoting R.I. CONST, of 1842 art I, § 20) (quotation marks added).
127. For the most recent effort to chart this transformation, see SEAN WlLENTZ, THE RISE OF AMERICAN DEMOCRACY: JEFFERSON TO LINCOLN (2005).
128. For a quick overview of the debate over the transition from republicanism to liberalism, see Suzanna Sherry, Civic Virtue and the Feminine Voice in Constitutional Adjudication, 72 VA. L. REV. 543, 551 n.23 (1986). For a more recent effort to chart these issues and their relevance to constitutional theory,
129. see Festa, supra note 22.
130. Volokh, Reference Materials, State Constitutional Rights to Keep and Bear Arms, 11 TEX. REV. L. & POL. 191, 209 (2006) (quoting several state "right-to-bear-anns provisions).
131. On this shift, see SAUL CORNELL, A WELL-REGULATED MILITIA: THE FOUNDING FATHERS AND THE ORIGINS OF GUN CONTROL IN AMERICA 138-65 (2006).
132. Barnett, supra note 16, at 248.
133. See, e.g., Brief for Jack N. Rakove et al. as Amici Curiae Supporting Petitioners at 9-13, District of Columbia v. Heller, 128 S. Ct. 2783 (2008) (No. 07-290) (hereinafter Historian's Brief).
134. Saul Cornell, Commonplace or Anachronism: The Standard Model, the Second Amendment, and the Problem of History in Contemporary Constitutional Theory, 16 CONST. COMMENT. 228-30 (1999).
135. See Nathan Kozuskanich, Defending Themselves: The Original Understanding of the Right to Bear Arms, 38 RUTGERS L.J. 1041, 1045-46 (2007).
136. Id. at 1069-70.
137. Supporters of the individual rights view of the 1776 Constitution have been unable to produce any contemporary evidence for their reading. Rather, they have once again read history backwards, using James Wilson's comments on the 1790 Constitution as the basis for reconstructing the meaning of the earlier document. The two provisions were not only drafted by different bodies, but the two provisions are structured differently. The earlier provision links the right to bear arms with the traditional Whig attack on standing armies. The latter provision clearly separates the two. What is less clear is how widely held Wilson's view was at the time. Thus, Albert Gallatin, another member of the convention, did not conceive of the right in the same way as Wilson. Nor do Pennsylvania Courts appear to have seen this provision as having constitutionalized the common law right of self defense. For further discussion and analysis of these sources,
138. see Kozuskanich, supra note 79. See also CORNELL, supra note 75, at 39-70.
139. On the use and abuse of the Dissent of the Minority in the debate over the Second Amendment, see Historian's Brief, supra note 77, at 22-24; Cornell, supra note 26.
140. Brutus, Essays of Brutus VII, in 2 THE COMPLETE ANTI-FEDERALIST 358, 400-05 (Herbert. J. Storing ed., 1981).
141. Id. at 400-01.
142. Id. at 401.
143. See Tench Coxe, "A Freeman," PA. GAZETTE, Jan. 23, 1788, reprinted in FRIENDS OF THE CONSTITUTION: WRITINGS OF THE "OTHER" FEDERALISTS 88, 95 (Colleen A. Sheehan & Gary L. McDowell eds., 1998).
144. Id. Coxe later wrote about the Second Amendment protecting private arms owned for a public purpose. Tench Coxe, A Pennsylvanian, FED. GAZETTE, June 18, 1789, reprinted in THE ORIGIN OF THE SECOND AMENDMENT: A DOCUMENTARY HISTORY OF THE BILL OF RIGHTS IN COMMENTARIES ON LIBERTY, FREE GOVERNMENT AND AN ARMED POPULACE 1787-1792, at 670, 671 (David E. Young ed., 2d ed. 1995) [hereinafter, A DOCUMENTARY HISTORY]. Coxe was clearly talking about the arms of the soldier, and their use in the militia. In another essay, he wrote that Congress had no power to disarm the militia: "Their swords, and every other terrible implement of the soldier, are the birthright of an American." Tench Coxe, A Pennsylvanian III, PA. GAZETTE, Feb. 20,1788,
145. reprinted in A DOCUMENTARY HISTORY, supra, at 275, 276.
146. See generally CORNELL, supra note 75, at 137-65.
147. THE MICHIGAN CONSTITUTIONAL CONVENTIONS OF 1835-36, at 283 (Harold M. Dorr, ed., 1940) (statement of John Biddle).
148. Id.
149. MICH. CONST, of 1835, art. I, § 13, reprinted in THE MICHIGAN CONSTITUTIONAL CONVENTIONS OF 1835-36, supra note 89, at 599 app.
150. See Saul Cornell, The Ironic Second Amendment, 1 ALBANYGOV'T L. REV. 292, 306-07 (2008).
151. See Volokh, supra note 74, at 203.
152. Stephen P. Halbrook, The Right to Bear Arms in Texas: The Intent of the Framers of the Bill of Rights, 41 BAYLOR L. REV. 629, 643 (1989)
153. (quoting DEBATES OF THE TEXAS CONVENTION 311 (Houston 1846) (statement of John Hemphill)).
154. DEBATES OF THE TEXAS CONVENTION, supra note 94, at 311-12.
155. Cornell, supra note 92, at 306;
156. Halbrook, supra note 94, at 644
157. (quoting DEBATES OF THE TEXAS CONVENTION, supra note 94, at 312).
158. See Cornell, supra note 92, at 306;
159. Halbrook, supra note 94, at 644.
160. See Cornell, supra note 92, at 306-07;
161. Halbrook, supra note 94, at 645
162. (quoting DEBATES OF THE TEXAS CONVENTION, supra note 94, at 312-13).
163. For cases supporting a militia based view, see State v. Buzzard, 4 Ark. 18 (1842) and
164. Aymette v. State, 21 Tenn (2 Hum.) 154 (1840). For cases supporting the individual rights view,
165. see Nunn v. State, 1 Ga. 243, 250-51 (1846)
166. and Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90 (1822).
167. See Sanford Levinson, Why the Second Amendment Is Worth Our Continued Attention: An Introduction to the Symposium, 1 ALBANY GOV'T L REV. viii, xi, xvi (2008).
168. District of Columbia v. Heller, 128 S. Ct. 2783, 2807 (2008).
169. BENJAMIN L. OLIVER, THE RIGHTS OF AN AMERICAN CITIZEN 177 (Boston, Marsh, Capen & Lyon, Philadelphia, P.H. Nicklin & T. Johnson 1832).
170. David Kopel notes, "St. George Tucker appears regularly in Standard Model articles discussing the Second Amendment. It is perhaps significant that none of the anti-individual writers even admit Tucker's existence, let alone attempt to address the meaning of the most important law book of the Early Republic."
171. David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU L. REV. 1359, 1378 (footnote omitted) (emphasis omitted);
172. see also Randy E. Barnett, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?, 83 TEX. L. REV. 237, 246 (2004)
173. (reviewing H. RICHARD UVILLER & WILLIAM G. MERKEL, THE MILITIA AND THE RIGHT TO ARMS, OR, HOW THE SECOND AMENDMENT FELL SILENT (2002)) (claiming that an excerpt from Tucker's published work supports an individual-rights interpretation).
174. For an overwrought discussion of the dangers of reversal, see Posting of David Kopel to The Volokh Conspiracy, http://volokh.com/posts/1229984079.shtml (Dec 22, 2008, 17:14 EST), and Alan Gura's essay in this Volume, Alan Gura, Heller and the Triumph of Originalist Judicial Engagement: A Response to Judge Harvie Wilkinson, 56 UCLA L. REV. 1127 (2009).
175. For a sensible discussion of why judicial restraint is likely to preserve Heller, see. Sunstein, supra note 6. On modern gun rights ideology, see generally JOAN BURBICK, GUN SHOW NATION: GUN CULTURE AND AMERICAN DEMOCRACY (2006).
176. District of Columbia v. Heller, 128 S. Ct. 2783, 2839 n.32 (2008) (Stevens, J., dissenting).
177. David Hardy, The Lecture Notes of St. George Tucker: A Framing Era View of the Bill of Rights, 103 Nw. U. L. REV. COLLOQUY 272, 278-79 (2008).
178. Id. at 278.
179. 128 S. Ct. at 2839 n.32 (Stevens, J., dissenting) (quoting St. George Tucker, Ten Notebooks of William and Mary Law Lectures 126-29 (unpublished Tucker-Coleman Papers, located at the Earl Gregg Swem Library at The College of William and Mary)).
180. Hardy, supra note 106, at 278-79.
181. Gura seems to rely heavily on the work of Hardy, supra note 106, and historian Robert Churchill whose insurrectionary view of the Second Amendment has been heavily criticized by other scholars. See David Thomas Konig, Arms and the Man: What Did the Right to "Keep" Arms Mean in the Early Republic?, 25 LAW & HIST. REV. 177 (2007);
182. Saul Cornell, Early American Gun Regulation and the Second Amendment: A Closer Look at the Evidence, 25 LAW & HIST. REV. 197 (2007). For Churchill's views of Tucker, see Robert Churchill, Three Steps Forward, One Step Back, H-NET REVS., Sept. 2007, http://h-net.org/reviews/showrev.php?id=13574 (reviewing CORNELL, supra note 75).
183. Gura appears to have relied on Churchill's discussion of this passage and does not appear to have examined the evidence himself. Churchill's quotation from the passage, it is worth noting, omits the crucial language about the danger of a standing army and thus leaves the impression that the discussion of the game laws refers to an effort to strike at a private right of self defense. When the passage is read in its entirety, it is clear that the fear of disarmament was focused on public, not private action. Churchill, supra note 110.
184. St. George Tucker, Of the Constitution of the United States, in 1 ST. GEORGE TUCKER, BLACKSTONE'S COMMENTARIES: WITH NOTES OF REFERENCE, TO THE CONSTITUTION AND LAWS, OF THE FEDERAL GOVERNMENT OF THE UNITED STATES; AND OF THE COMMONWEALTH OF VIRGINIA 300 app. (Lawbook Exch., Ltd. 1996) (1803). For the full text, see discussion, supra, at pp. 29-30.
185. For a discussion of this question, see Saul Cornell, St. George Tucker's Lecture Notes, the Second Amendment, and Originalist Methodology: A Critical Comment, 103 NW. U. L REV. COLLOQUY 406 (2009).
186. For a more detailed discussion of natural rights theory and self defense in this context, see id. at 413-14.
187. For a discussion of how Tucker's views of the rights of slaves illuminate his views on the right to bear arms, see id. at 415.
188. For the full text, see Tucker, supra note. 108, at 144, quoted in Hardy, supra note. 106, at 278-79.
189. District of Columbia v. Heller, 128 S. Ct. 2783, 2783, 2798-99 (2008) (citation omitted).
190. See Hardy, supra note 106.
191. Id. (emphasis added).
192. Tucker, supra note 112, at 300 app.
193. 128 S. Ct. at 2839 n.32 (2008) (Stevens, J., dissenting).
194. Cf. BURBICK, supra note 104, at 57-65 (discussing similarities and differences between the modem pro-gun view of the amendment and that of the founding fathers).