St. George Tucker's Lecture Notes, the Second Amendment, and Originalist Methodology: A Critical Comment

Saul Cornell[*]

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More than two hundred years after the publication of his influential edition of Blackstone’s Commentaries, St. George Tucker, the distinguished Jeffersonian jurist, is at the center of controversy.  Gun-rights advocates claim Tucker as their spiritual forebear, but opponents of this view argue that Tucker’s interpretation of the Second Amendment[1] can not be pressed into service in the modern gun debate without doing great violence to his thinking.  The stakes in this intellectual debate have been raised in the wake of the Supreme Court’s historic decision in District of Columbia v. Heller.[2]  In that decision, two very different interpretations of Tucker’s views of the Second Amendment were set out.  Justice Scalia adopted the gun-rights view of Tucker and Justice Stevens took the opposing view. One of the central points of contention in this modern debate over Tucker arises from the learned judge’s earliest discussion of the Second Amendment in his unpublished law lectures.[3]

The Lecture Notes of St. George Tucker: A Framing Era View of the Bill of Rights

David T. Hardy[*]

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Few if any legal figures in the early republic held the status of St. George Tucker.  Educated in the law by William and Mary’s George Wythe, Tucker succeeded him as the College’s professor of law, a post he held from 1790 until his appointment to the bench in 1804.[1]  While at William and Mary, he produced an edition of Blackstone’s Commentaries,[2] annotated in light of American law.  The text became “the standard work on American law for a generation” and Tucker remained the most frequently cited American legal scholar for over two decades.[3]  Tucker’s role in American legal scholarship was likewise striking.  He has been termed “the first modern American law professor” and creator of the American law degree.[4]

Tucker had exceptional opportunity to observe the legal events at the Founding.  His closest friend, John Page, and his brother Thomas Tucker served in the first House; they and others kept him informed, by correspondence, of its events.[5]  He was temperamentally suited to analyze the Framing period.  His edition of the Commentaries was far from a reprint of the original; Tucker documented at length where the American States had refused to adopt common law principles, and where the new Constitution and Bill of Rights diverged from them.[6]  While Blackstone had seen the common law as supra-personal and beyond improvement, Tucker delighted in documenting how Americans of his time had improved upon it and eliminated its shortcomings.[7]

Largely forgotten today, Tucker returned to some legal prominence last Term, when the majority in District of Columbia v. Heller[8] cited his annotated Blackstone’s Commentaries as proof that the Second Amendment had originally been understood as an individual right to arms.[9]  The dissent also invoked Tucker’s lecture notes to argue that, during the Framing period, he had seen it as a militia-related right of States.[10]

Tucker taught his law students from extensive handwritten lecture notes, compiled in bound volumes.  His notes were preserved, and today are archived in the Tucker-Coleman Collection of the Earl Gregg Swem Library at the College of William and Mary.[11]  The following is a transcription of the portion dealing with the Bill of Rights, which follows Tucker’s discussion of the limits placed upon Congress by Article I, Section 10.  The main text appears to date from 1791–92, with some marginal notes added later.[12]  Given his position and their dating, Tucker’s notes are exceptional evidence of original public understanding and indispensible tools for originalist interpretation.