Thread by @BrianDeLay

Justice Thomas's majority opinion reminds us that "Historical analysis can sometimes be difficult." True! So what does the best historical analysis have to say about the purpose of the 2nd Amendment? A thread. nytimes.com/live/2022/06/2…

"A well-regulated militia, being necessary to the security of a free state, the right of the People to keep and bear arms, shall not be infringed." Over the past thirty years, a rich, interdisciplinary body of scholarship has endeavored to understand the purpose of those words.

To oversimplify, most of this work has argued either that the Second Amendment enshrines an individual right to keep and bear arms for public or private purposes, or that the amendment only protects states’ rights to arm militias.

Recently, legal historians have disrupted the individual/collective dichotomy by advancing a third, civic interpretation of the Second Amendment. This newer scholarship is more interested in the broad historical context...

...more willing to integrate social and cultural history with the familiar legal and political sources; more attentive to the range of views white Americans expressed about guns in the eighteenth and nineteenth centuries, and more sensitive to change over time.

Associated most prominently with the historian Saul Cornell, the civic right interpretation situates the amendment in a few critical contexts from the moment of its adoption. These include a dread of standing armies, particularly among anti-Federalists.

They dreaded standing armies for two main reasons: b/c of the coercive threat standing armies posed to their own people, and b/c their great cost encouraged the growth of executive power. [Sound familiar?]

Most who were preoccupied with this anxiety paired it with a belief that state militias amounted to a viable alternative, provided they be adequately armed, trained, and regulated.

Learned debate about arms and state power in the late eighteenth century distinguished between issues comprehended by natural law (like armed rebellion), common law (like armed self-protection), and positive law (like arming the militia).

In other words, the framers seem to have crafted the constitutional amendment to address the third of these issues alone, not because other two were unimportant but because they fell under different domains of law.

A minority (notably including Thomas Jefferson) argued at the state or national levels that constitutions should explicitly include language protecting an individual right to arms, one separate from any civic obligations. They usually lost that argument in the late 18th C.

Finally, the Second Amendment emerged from within a larger debate over the relationship between federal and state power. Anti-Federalists remained deeply anxious that the national government could encroach on individual states by disarming their militias.

The anxiety focused on Art. 1, Section 8 of the Constitution, which gave Congress the power to "provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States." constitution.congress.gov/browse/article…

The Second Amendment was written with this anxiety about Federal power in mind.

Therefore, the most historically informed scholarship on the Second Amendment maintains that its purpose was to guarantee “that citizens would be able to keep and bear those arms needed to meet their legal obligation to participate in a well-regulated militia.”

The Supreme Court viewed this 2nd Amendment in this light until 2008, when a radical majority of 1 ruled that the amendment protected an individual right. The historical case was very weak then, and has been proven even weaker by newer scholarship. umasspress.com/9781558499959/…

Bruen follows from Heller. These are political decisions, unmoored from history. When these disastrous rulings are eventually overturned - it will take a long time but I think that's inevitable - better justices will turn the "Originalists" bogus concern for history against them.