The United States Supreme Court validated an American’s individual right to possess firearms in a pair of decisions, District of Columbia v. Heller (2008) and McDonald v. Chicago(2010).
Those decisions, which continue to reverberate in the legal community, were the basis for a daylong symposium on March 9 at Fordham School of Law.
“Gun Control and the Second Amendment” brought experts from government, academia, and the private industry together at Fordham’s Lincoln Center campus. Sponsored by the Fordham Law Journal, the symposium featured panels on gun control restrictions and crime, post-Heller-decision gun rights and evolving concepts of the right to bear arms.
One panel, “Urban Exceptionalism and the Modern Concept of the Militia,” focused on the first phrase in the U.S. Constitution’s Second Amendment, “A well regulated militia being necessary to the security of a free state….” The phrase “well regulated militia” has led to a wellspring of debate among scholars who disagree about whether the writers of the Constitution were referring to organizations or individuals.
Patrick J. Charles, an independent legal consultant and historian for the U.S. Air Force’s 352nd Special Operations Group, derided the idea that any individual could possibly experience the “esprit de corps” that those who actually serve in the military feel.
He said that acceptance of the “standard model” interpretation of the Second Amendment, which recognizes the personal right of individuals to keep and bear arms, is a myth on par with George Washington’s wooden teeth.
“It’s not a ‘well regulated militia;’ it’ an armed rabble,” he said.
“If you’re all walking around with guns, you’re not a militia. I don’t care how much you cite the Federal code. The idea that individuals are above the interests of the state is a joke, and unsupported by historical record.”
Saul Cornell, Ph.D., Fordham’s Paul and Diane Guenther Chair in American History, took particular issue with the Heller decision (which was authored by Justice Antonin Scalia), arguing that it was in reality a “living interpretation” of the constitution masquerading as originalism—a principle of interpretation that tries to discover the original meaning or intent of the constitution.
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Today’s historical successor to the musket, which was been the weapon guaranteed to Americans when the amendment was written, would not be the handgun, but the assault rifle. Therefore, if a militia were constituted today, assault rifles would likely be the weapon of choice.
But perversely, the Heller decision allows for the banning of assault rifles and not handguns, he said.
“The idea that somehow pistols are somehow deeply embedded by the rights guaranteed by the Second Amendment is highly dubious,” he said.
“Had the Heller [decision]been honest about it’s living Constitutionalism, I probably not only wouldn’t have problems with the holding, I would have said ‘Ok, I can’t argue with that principle; most Americans do believe there’s a right to have a handgun.”
Cornell added that it would be amusing to imagine Justice Scalia pursuing this approach in other aspects of jurisprudence. He suggested that, taken to its logical conclusion, such an approach might lead—based on prevailing popular opinion polls—to the protection of gay marriage.
“So maybe Scalia will discover his gentler, ‘living constitution’ side,” he said.
Robert Cottrol, Ph.D., the Harold Pail Green Research Professor of Law and Professor of History and Sociology at George Washington University, suggested that rather than imagine a militia as something akin to an army unit, we [ought to]compare it to a neighborhood crime watch patrol.
“I think we need to look at the issue of inner city crime, and the issue of restoring the well-regulated militia in terms of broad-based citizen participation in defense of community,” he said.
“There’s no reason we can’t in fact develop programs, particularly in dangerous inner city communities, where we get citizens on a volunteer or paid basis, to help protect their community,” he said.
