The Duke Center for Firearms Law purports to "serve as a balanced and reliable resource on firearms law for scholars, judges, lawyers, policymakers, journalists, and interested citizens."
Even under its previous director, that mission was often left by the wayside, with Jake Charles routinely finding fault with any judicial decision respecting the right to keep and bear arms. Under new executive director Hayley Lawrence, though, the anti-2A bias is blatantly front and center.
Lawrence has helped groups like Brady United, Giffords, and Everytown for Gun Safety, and has authored a piece for the Journal of Gender, Race, and Justice entitled Toxic Masculinity and Gender-Based Gun Violence in America: A Way Forward that advocates for, among other things, every state in the nation to adopt "red flag" laws.
As part of her duties, Lawrence oversees the Center's "Second Thoughts" blog, where Noah Shusterman, an associate professor at the Chinese University of Hong Kong, recently published a piece called "Second Amendment scholars, there's new work to be done."
In his post, Shusterman takes the position that the Second Amendment never protected an individual right to keep and bear arms unconnected to militia service, which he calls an "originalists’ anachronistic reading of the Amendment." In his view, "the amendment was intended to maintain the militia, rather than to flood society with guns..."
While Shusterman's piece does come with a disclaimer that "This guest post does not necessarily reflect the views of the Duke Center for Firearms Law," the fact that the Center chose to publish it at least indicates they believe Shusterman's argument is worth considering.
So let's consider it. Shusterman's take on the Second Amendment has been foreclosed by the Supreme Court, as well as U.S. history, which is replete with examples of viewing the right to keep and bear arms as one "the people" enjoy, regardless of whether or not they were enrolled in a militia. But Shusterman's warped view of the Constitution is only a preamble to the heart of his post, which is his allegation that the Trump administration is engaging in tyranny.
... when this latest wave of research into the Second Amendment began, or when Scalia wrote D.C. v. Heller, the prospect of the federal government using a professional military force – or, in the terminology of the founding generation, a standing army – to attack its own people seemed unthinkable. Hence Scalia’s comment that “our standing army is the pride of our Nation,” and that “well-trained police forces provide personal security.” Hence, too, the seeming irrelevance of historians’ claims that the Second Amendment grew out of the fear of standing armies, as that fear had been relegated to a distant past.
What seemed unthinkable in 2008 is now our new reality. As I write this, there are 1,500 active-duty troops on standby, should the administration decide to send them, not to Iran or the Ukraine, but to Minneapolis. The administration has activated National Guards in California, Oregon, Washington, DC, and Illinois, withdrawing them only when the courts intervened.
Most notably, this administration has transformed Immigration and Customs Enforcement into an enormous militarized force that is responsible only to the national government, and which seems to not be subject to state law or the Fourth Amendment. Through its actions, ICE has shown that its allegiance is to the current administration, and not to the Constitution.
In other words, this administration is doing exactly what the Second Amendment was meant to prevent.
So what is the work that Shusterman believes historians need to do?
If we are to take into account the original goals of the Constitution and the Bill of Rights, the administration’s policies on domestic policing are far more egregious violations of the Second Amendment than any of New York’s gun laws ever were. And Second Amendment scholars should make that clear – to the judges ruling on these cases, to the politicians authorizing the funding for these militarized forces, and for the local governments who need to decide how to respond to ICE’s arrival.
Whether or not this makes a difference in court cases over the next few years is unclear; the days of trying to out-origin the originalists are probably gone. Fourteen years of disproving Scalia’s histories in Heller did not prevent Bruen. That does not mean there is no value to bringing the Second Amendment into debates about domestic deployment of federal troops.
This argument is just as insipid as Shusterman's insistence that the Second Amendment never protected an individual right to keep and bear arms. The text of the Second Amendment doesn't mention anything about the domestic deployment of federal troops, and if we're looking at U.S history around the time the Second Amendment was ratified then we have to reckon with the fact that President George Washington himself rode at the front of an army comprised of more than ten thousand militia members serving under the federal government to put down the Whiskey Rebellion in western Pennsylvania just three years after the ratification of the Second Amendment.
Does this mean that the Second Amendment wasn't meant, in part, to serve as a check on a tyrannical government? No. Our best guide as to how the Framers thought that would work comes from James Madison in Federalist 46:
... should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter. But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole.
Resistance to federal tyranny comes from the states, who in turn are buttressed by citizens bearing arms.
Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.
The Constitution is a system of checks and balances, and that includes the Second Amendment. By itself, the right to keep and bear arms may not be enough to prevent a tyrannical regime from establishing itself. But as Madison argues, that right combined with a federalist system that still allows states and localities to act where the Constitution forbids the federal government from intruding, does provide a powerful deterrent to tyrants... at least at those who would turn the federal government into an instrument of tyranny.
Shusterman's post isn't a serious bit of academic scholarship. It's a political polemic. It would be one thing for it to appear in The Nation or at DailyKos. It's something else entirely for Duke Center for Firearms Law to deem it worthy of publication, and it's the clearest signal yet that under Lawrence's watch the Center is no longer trying to hide its anti-2A viewpoint under a mask of neutrality.
