St. George Tucker and the Second Amendment: original understandings and modern misunderstandings

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Author: Saul Cornell
Date: Feb. 2006
From: William and Mary Law Review(Vol. 47, Issue 4)
Publisher: College of William and Mary, Marshall Wythe School of Law
Document Type: Article
Length: 13,379 words

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In his View of the Constitution of the United States, St. George Tucker described the Second Amendment as "the true palladium of liberty." (1) Supporters of gun rights have argued that Tucker's comments provide irrefutable proof that the right to bear arms was originally understood to protect an individual right to keep and use firearms for personal self-defense, hunting, and any other lawful activity. (2) This claim rests on a serious misreading of Tucker's constitutional writings. Tucker was a product of an eighteenth-century world quite alien to our own, and his view of the Second Amendment was a product of the struggles of his own day, not the modern debate between gun rights and gun control. The individual rights misreading of Tucker is merely the latest example of how constitutional scholarship has been hijacked for ideological purposes in this bitter debate. (3) To understand what Tucker meant by the phrase "the true palladium of liberty," one must pay careful attention to the political context in which he wrote and the role that the right to bear arms played in his constitutional theory. While partisans of the individual rights theory have misinterpreted Tucker's understanding of the Second Amendment, they are certainly correct to insist that Tucker's views of the Second Amendment are important and merit close attention. (4) Tucker was one of the leading legal thinkers of the Founding Era, and his magisterial study of Blackstone's Commentaries was an influential work of constitutional theory that helped shape the terms of constitutional discourse in the early republic. (5) For originalists, Tucker's Blackstone is particularly important because it drew heavily on the learned jurist's own William and Mary law lectures, which were composed almost contemporaneously with the framing and adoption of the Second Amendment. (6) While originalists are correct to note that Tucker's law lectures provide the first systematic effort to describe the meaning of the Second Amendment and its role in American constitutionalism, Tucker's earliest commentary on the Second Amendment does not support the individual rights view. Indeed, in his unpublished law lectures Tucker not only explicitly described the Second Amendment as a right of the states, but he noted that its inclusion in the Constitution was designed to assuage Anti-Federalists' fears about the Constitution's power over the militia discussed in Article I, Section 8. (7) To underscore the Second Amendment's role as a guardian of states' rights within the federal system, Tucker also linked its function with the Tenth Amendment, the provision of the Bill of Rights most closely associated with federalism, (8) Tucker's earliest writings about the Second Amendment challenge the often-repeated claim that the states' rights theory of the Second Amendment is a modern invention quite alien to the Founding Era. (9)

Tucker's analysis of the Second Amendment in the unpublished law lectures also sheds new light on his discussion of "the true palladium of liberty" more than a decade later. (10) When Tucker's early thoughts about the Second Amendment are set against his later published writing on the...

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Source Citation
Cornell, Saul. "St. George Tucker and the Second Amendment: original understandings and modern misunderstandings." William and Mary Law Review, vol. 47, no. 4, 2006, p. 1123+. Accessed 15 Jan. 2021.
  

Gale Document Number: GALE|A144666188