The rule of history

Decisions like Thursday's Supreme Court ruling on DC's gun law reminded me why I'm glad I went into history and not law. The decision is largely based on history and parsing the language of the Second Amendment to understand the original meaning. What did "bear arms" mean in the 18th century? An amicus (friend of the Court) brief from linguists was submitted with one suggestion. The justices looked at state constitutions, Quaker beliefs, debates in the House of Lords, Thomas Jefferson's writings, and 19th century court cases. Justice Scalia accuses Justice Stevens of "flatly misreading the historical record." It all sounds a lot like an historical monograph.

So why be glad to be an historian rather than a judge? Because when I wind together historical contexts and do a close analysis of quotes, the end to my argument is an intellectual one. History is messy, and there are always multiple ways of combining the evidence to come to a particular conclusion. There is no one right answer, no claim that I hand down as absolute Truth. But when judges make historical arguments, they are recreating the law of the land from one of many possible histories.

Back to the gun control case: this is a legal question, not an historical one. As Justice Breyer notes in his dissent, examining DC's law with traditional legal instruments (such as "rational basis" or "strict scrutiny") might lead the Court to different answers. Certainly it's fascinating to look at the historical context and what the founders intended, but the founders also intended to bar non-whites and women from voting and to perpetuate slavery. The 21st century is a very different place from the 18th, which is why we go by the rule of law rather than the rule of history.

More reading...

• A good survey of historical research on the 2nd amendment
• A liberal columnist's view in support of the decision
• The NY Times' condemnation of the decision
• Amicus briefs, including those by academics on both sides of the case