Fake Second Amendment History[Updated April 26&27, 2017]
Jonathan Gienapp, an assistant professor of history at Stanford University, recently wrote a long article urging all historians to oppose confirmation of Neil Gorsuch as an Associate Justice of the U.S. Supreme Court. What was the basis for this opposition? A disagreement between a "few historians" (including Professors Gienapp, Jack Rakove, and Saul Cornell) and originalists in the legal community regarding which of the two professions can best understand historical materials from the Founding Era. Reading Professor Gienapp's article, one is left with the distinct impression that originalists, such as former Supreme Court Justice Antonin Scalia (and now Justice Gorsuch) eschew any reliance upon history in cases involving the language and intent of the U.S. Constitution. Gienapp's view is that such originalists "have escaped history".
"How originalists have exploited their new fortifications to repel historical expertise is best captured in their reaction to the so-called historians’ amicus brief filed for the Supreme Court in conjunction with the controversial Second Amendment case from 2008, District of Columbia v. Heller... That case—which centered on a D. C. handgun ban—ultimately turned on the original meaning of the amendment. And historians reached the diametrically opposite conclusion from the one advanced by Justice Scalia in the Court’s majority opinion...."
[The above link includes my direct response to Professor Gienapp's article.]
There are multiple historical problems with the views expressed in Professor Gienapp's article, and some of them will be addressed in this post. First is the assumption that the Heller historians not only got the Second Amendment's history right, but also backed up their conclusion with proof based on primary period sources, and took all of the relevant period sources into account in their examination of the subject. Along with that assumption comes the corollary assumption that it must be Justice Scalia and the Heller majority involved in any historical error. The second problem with the article is the assumption that only historians can accurately get at historical reality, with its corollary that everyone else must rely upon professional historians' views because of their academic credentials. A third problem is that, if these assumptions are incorrect, and they are, then reliance upon the historians' Heller brief as poster child for politicized action against a judicial nomination is historically foundationless politicization of the profession, which it is.
Neither Justice Scalia for the majority of the Court, nor Justice Stevens in his Heller dissent, cited the professional historians' brief for American Bill of Rights history, with Stevens citing it only once about the English Bill of Rights. There are at least two reasons for lack of reliance upon it by the justices in Heller. First, there is very little actual American Bill of Rights history to be found in the historians' brief, and second, the brief contains numerous errors of fact, erroneously conflated history, and extensive irrelevant material as far as the actual historical point in the Heller dispute. Justice Stevens dissent, which largely followed right along with the historians' assertions in their brief, still had to directly contradict it twice regarding specific historical points. The historians' Heller brief was so historically unreliable that direct citation regarding American history was not possible even by its supporters in the Supreme Court's minority.
One example of that historical unreliability is a multiple error found in just one assertion in the brief regarding how many of the eight early states with declarations of rights made them part of their state's constitution:
“In only two states (Pennsylvania in 1776, Massachusetts in 1780) were they made part of the actual constitutions.”
This claim in the historians' Heller brief is contradicted multiple times in three of the period sources actually under discussion by the historians. Three states, North Carolina 1776, Vermont 1777, and New Hampshire 1784 copied various features of the two named states making their declarations of rights part of their constitutions. Vermont alone had three different designations to that effect within its constitution. None of the fifteen professional historian signers of the Heller brief were familiar enough with the relevant period sources to recognize their assertion was in direct conflict with historical reality, a point analyzed and documented in this post at this blog. Is this what Professor Gienapp refers to as "historical expertise"? This intellectual embarrassment of the first order from the historians' brief is just the tip of an iceberg of such errors, and those go hand in hand with a fundamental conflation error mixing up Founding Era Second Amendment Bill of Rights predecessors with entirely unrelated militia powers amendment history, as analyzed and documented in this post.
Reliance upon the historical accuracy of the professional historians' Heller brief is just as historically risky and illogical as reliance upon the historical accuracy of Michael Bellesiles book, Arming America, for which a Bancroft prize was awarded and later rescinded. The difference between the two situations being the Heller brief historians are not accused of veracity problems. Instead, they are clearly not overly familiar with relevant period sources, and they appear to have sought out and advanced historical claims that support a preexisting belief regarding the disputed point in the Heller case. There is no doubt that the Heller historians believe the faulty information they provided to the Supreme Court to be accurate. There is also no doubt their brief is the perfect example of History Office Law, twisted history in a legal argument from historians. The opposite, twisted history in a legal argument from lawyers is Law Office History.
The errors, conflated history, and missing essential information of the historians' Heller brief were analyzed and documented here at On Second Opinion Blog in early 2009 in a twenty-four part series, Root Causes Of Never-Ending Second Amendment Dispute. This Blog was established specifically to publicize historically erroneous assertions by professional historians, Supreme Court justices, and various authors concerning the Second Amendment. The Fisking Index Page link at the top of this page provides direct one click access to each of the twenty-four parts of the series for those who really want to know the details of Second Amendment history and how the professional historians managed to make such a train wreck of American history from it.
The study of history is the study of period documentation. Historians' writings about history are not history, they are historiography, writings or stories about history by historians. Confusing history and historiography is a mistake. The suggestion by Professor Gienapp that somehow Justice Scalia has "escaped history" regarding the Second Amendment in the Heller case is patently absurd. The Origin Of The Second Amendment, the only comprehensive reprint of source period documents on the subject was the most cited historical collection among the briefs to the Court, and it was cited by both sides in the dispute as well as the majority opinion from Justice Scalia. The Origin Of The Second Amendment was cited in the Circuit Court for the District of Columbia's Parker decision (2007), which was appealed to the Supreme Court as the Heller case and upheld in the Heller decision, and was also cited in the prior Fifth Circuit Court of Appeals U.S. vs Emerson decision (2001). There were over a hundred such citations in the Emerson decision, which itself was cited in the Parker decision. Thus, there is an extensive background of period historical evidence in linked Federal cases that does not appear within the Heller decision itself.
Also, a newly published history of the Second Amendment, The Founders' View Of The Right To Bear Arms, which was based directly on the period sources reprinted in The Origin Of The Second Amendment, was cited to the Supreme Court in numerous Heller historical briefs. The Founders' View Of The Right To Bear Arms traces and documents every aspect of Second Amendment related terminology and development from Colonial Period use through the Revolutionary and Founding Eras until the final version was ratified by the requisite number of state legislatures.
All Supreme Court justices in the Heller case had equal opportunity to examine this entire historical record, which was placed directly before them right along with the new, clear history linking the essential information into a logical whole. Most of the justices in the Heller case paid attention to that record, making certain their ruling was consistent with it. By the way, the historical source collection and history described above did not originate with professional historians, but instead with the author of this blog, an avocational historian. This information makes clear it was not the case Justice Scalia "escaped history", but rather that he escaped the faulty historiography and "historical expertise" of professional historians wishing to impose their fallacious opinions upon the Court.
A more historically accurate view of this affair is that it was Justice Stevens and those supporting his dissenting Heller opinion who "escaped history" by relying on the Heller historians' unfounded assertions and erroneous history. Justice Stevens dissenting opinion suffers from most of the historical defects found within the historian's brief itself, with some of the historical problems made worse. It was the professional historians brief that escaped history and provided the Court with an unsupportable alternative historical outlook that was at odds with American historical reality.
Professional historians are supposed to study all of the period sources and rely upon them to explicate historical reality. Professor Gienapp, by accepting without question the Heller case brief from Professors Rakove, Cornell, and others, at least as far as the Second Amendment is concerned, is complicit in helping to mold history to fit a certain belief that is at odds with the historical record. Most people wish to understand their country's actual past rather than be indoctrinated with historians' unfounded opinions about it. Completely failing to do what historians are supposed to do is how the profession destroys its own credibility.