'Armed in America' historian defends militia-centric understanding of Second Amendment
Patrick J. Charles knows more about the Second Amendment than most. After spending a decade pouring over microreels filled with evidence of the founders’ contentious drafting of the Constitution, the U.S. Air Force senior historian and legal scholar penned three books parsing out the context behind the nation’s conception of gun ownership.
His opinion doesn’t sit well with the gun rights community. This, despite his belief the Supreme Court got it right with the landmark Heller v District of Columbia in 2008. He also says partisan reimagining of Second Amendment history isn’t limited to conservatives, either.
“Whether you’re talking about the collective rights argument or whether you’re talking about the individual rights arguments, there’s been people on both sides who’ve misappropriated historical evidence over time or failed to fully contextualize it,” he said. “So that’s what really kept driving me forward (in my research).”
His work has garnered the attention of federal judges in the Second, Fourth, Seventh, Ninth and D.C. District Courts of Appeals. Even Supreme Court Justice Stephen Breyer used a passage from the historian’s previous book in the landmark McDonald v. City of Chicago — the 5-4 decision that affirmed the Second Amendment applies to state and local governments — saying the flawed historical record of Heller meant the constitutional right of gun ownership for private self-defense was muddy, at best.
“People often get confused when they see terms like self defense or self preservation and they automatically think, oh that’s my right to self defense,” Charles said. “But that’s not what the framers are referring too. It’s broader, legal language and a philosophical debate about communal liberty that they were concerned about preserving.”
Charles sparred onstage with fellow legal scholar Brannon Denning at the National Constitution Center in Philadelphia last month over his painstaking interpretations. Both men agree the historical narrative used in legal opinions doesn’t reflect reality, but Denning — as a lawyer — says he’s less concerned.
“History is obviously relevant,” he said. “I think what has happened is, courts and others have sort of created what might be termed as a ‘usable past’ … I think as a matter of constitutional law we feel like we need to build a bridge to the past and sometimes … that’s not necessarily done according to Hoyle, history as practiced by historians. But I think for lawyers, it works.”
Charles said evidence found in congressional debate transcripts during the ratification of the Constitution and public responses to the Bill of Rights never referenced individual self-defense, not even once. He argues, instead, the framers were mostly concerned with protecting citizens from a tyrannical federal army. Militia, being comprised of the local population, would be less inclined to mistreat or abuse their authority as a protective force, according to Charles, but would be rendered useless without firearms.
“That’s more or less why I come to the conclusion it had nothing per se to do with our individual conception of the right today,” he said. “That’s not to say the right doesn’t exist today. It is, it’s in Heller. Or that the right has never existed in our history. It did. It grew in the 19th century. But based upon that conception alone, the central idea of how important a militia was to the founding era’s view of republican liberty cannot be overstated.”
Denning disagrees, saying the intertwined nature of the role of a militia member enables both views of the right.
“Because the militia was the people … to me, it speaks to both,” he said. “It speaks to trying to ensure that the militia would remain a force in being and protecting the ability of the constituent parts of the militia to be armed.”
It’s a viewpoint the Supreme Court affirmed in Heller a decade ago, holding the Second Amendment guarantees an individual’s right to arm themselves for self-defense in the home. Charles agrees with this ruling, but says the historical narrative used to support it is inherently flawed.
“I think you could say with the Castle Doctrine in the 14th century in Germanic law … the castle doctrine basically says I have the right to defend my home if it becomes assailed and I do not have to retreat in my home if my home is under attack,” he said. “If you think and you apply common sense logic that a handgun is one of the most common weapons owned in the United States, the court holding in Heller is legitimate on its face. The court holding, but not everything else around it. Everybody on all sides just wanted to throw away and write a new narrative.”
Charles’s biggest gripe? The fallacy that one general understanding of civilian gun ownership existed from 1689 until the ratification of the 14th Amendment in 1868. The Second Amendment’s interpretation as an individual right wasn’t born until the 19th century, he argues, and didn’t take on its modern day relevance until the rise of the National Rifle Association’s political prominence beginning in the 1930s.
But for the nation’s founders, he says, “a well-regulated militia” meant more than just being “well-trained.”
“It was about being well disciplined, adhering to the rule of law about standing up and fighting, about being loyal to the government,” he said. “There were all these larger tenants to being a quote unquote well-regulated militia from the late 17th century to the late 18th century that go well beyond just having a gun. Many commentators at the time talked about how without that, you had an armed mob. And that that armed mob was more dangerous to liberty than for you just to have a gun. They forsaw that.”
Editor’s Note: Headline changed at 1:02 p.m. EST. Patrick Charles clarifies that he does not support the collective rights interpretation of the Second Amendment, as the initial headline indicated.