The Lecture Notes of St. George Tucker: A Framing Era View of the Bill of Rights has just been published by the Northwestern University Law Review Colloquy. The article, by David Hardy, will also appear in the printed edition of the N.W.U.L. Rev.
St. George Tucker is perhaps the preeminent source of the original public meaning of the Constitution. His 5-volume American edition of Blackstone’s Commentaries was the by far the leading legal treatise in the Early Republic. Tucker included extensive analysis, in footnotes and in an appendix, explaining how the English common law of Blackstone had been changed in America. Tucker’s analysis of the Second Amendment plainly described it as an individual right, encompassing the keeping and bear of arms for personal self-defense, for hunting, and for militia service. Justice Scalia’s majority opinion in Heller quoted from Tucker’s American Blackstone.
Justice Stevens’ dissent in Heller cited a 2006 article by historian Saul Cornell. That article stated that Tucker’s 1791-92 lecture notes described the Second Amendment as relating only to the militia.
David Hardy’s article reviews Tucker’s lecture notes, as they involve various freedoms enumerated in the Bill of Rights. Hardy finds that Tucker’s view of the Constitution was far more libertarian (regarding issues such as free speech and press, or warrantless searches) than either modern Supreme Court doctrine, or the views sometimes ascribed to the Founders.
As for the Second Amendment, Hardy finds that Cornell’s article, and therefore Justice Stevens’ opinion, contains a major factual error: the militia language which Cornell quoted was not from Tucker’s description of the Second Amendment. The language was from Tucker’s explanation of Article I’s grant of militia powers to Congress. Tucker’s description of the Second Amendment comes 20 pages later in the 1791-92 lecture notes, and is nearly a verbatim match with the text Tucker’s 1803 book, unambiguously describing the Second Amendment as encompassing a personal right for a variety of purposes, not just for militia service.
The Cornell article is St. George Tucker and the Second Amendment: Original Understandings and Modern Misunderstandings, 47 Wm. & Mary L. Rev. 1123 (2006). Perhaps the error in article, and the derivative error in a Supreme Court opinion, could have been averted with bettter cite-checking.
Readers interested in Tucker may also be interested in my article The Second Amendment in the Nineteenth Century (BYU L. Rev.)(also discussing the scholarship of Tucker’s son Henry St. George Tucker, and his grandson John Randolph Tucker), and in Stephen Halbrook’s response to Cornell, St. George Tucker