Joseph Story

The District of Columbia gun control case is having the side effect of placing before the public historical figures whose names rarely get mentioned in the media. Just yesterday, I read an interview that Hugh Hewitt conducted with two law school deans about the case. One of them raised Joseph Story as having made an important point in the Second Amendment debate:

But also, you look at Joseph Story, who in the key treatise in the 1830’s, looking at the founding understanding of these things, talks about the moral check that having a right to keep and bear arms would pose on governmental power from becoming tyrannical.

Joseph Story is little known today, except by historians and lawyers with a historical bent. But he was a preeminent lawyer and judge of the first half of the Nineteenth Century. Among other things, he served as an Associate Justice on the Supreme Court from 1811 until his death in 1845. He was also a Professor of Law at Harvard and the author of a three-volume treatise on Constitutional Law, Commentaries on the Constitution of the United States (1833), which was generally regarded as the leading treatise on the subject at the time.

Here is the section of Story's Commentaries to which the quote from the interview refers. I have divided the section into two paragraphs to make it more readable:

§ 1890. The importance of this article [the Second Amendment] will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people.

The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.

It is probably a coincidence, but Justice Story has also been on the mind of our present Chief Justice, John Roberts, who gave a talk last week on James Madison's appointment of Story to the Supreme Court. Reports are here and here.