All knew that the Supreme Court was poised to speak in a new voice on the Second Amendment. Sixty-six friend of the court briefs from scholars, lawmakers, and interest groups tumbled into the clerk’s office. Linguists wrote to explain the meaning of the preamble. Early American historians explained the history of the amendment’s ratification. The NAACP Legal Defense Fund, the American Bar Association, organizations against domestic violence, Jews for the Preservation of Firearms Ownership, and many others weighed in. Many expected the George W. Bush administration to speak for those who opposed the D.C. law. Instead, the brief filed by Solicitor General Paul Clement equivocated. Second Amendment rhetoric aside, the Department of Justice argued that the Appeals Court ruling would endanger bans on weapons such as machine guns. It endorsed a “reasonable” Second Amendment right, and said the Court of Appeals had not applied that analysis in striking down the ban on loaded handguns. Conservatives pounced. Vice President Dick Cheney filed his own far more adamant brief, with a majority of members of the House and Senate, backing Heller.
At the argument before the justices, the surprise was the degree to which originalism had triumphed. There were few questions about current gun laws, or the toll of gun violence, or legislative history, or precedent: all the things prior courts relied on to make major decisions. Queries from the justices focused heavily on colonial, early American, even seventeenth-century British history. The smell of snuff could have pervaded the courtroom. Much history was fuzzy, at best. Justice Anthony Kennedy asked of the amendment, “It had nothing to do with the concerns of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that?” The District’s lawyer, former acting Solicitor General Walter Dellinger, explained that the debate over the amendment—all of which took place on the Eastern seaboard, far from grizzly danger—focused on militias and fighting government tyranny. Justice Stephen Breyer noted that guns kill or wound 80,000 to 100,000 Americans per year. Would it be unreasonable for a city with a high crime rate to ban handguns? “You want to say yes,” Scalia instructed Heller’s lawyer. He agreed.
HELLER’S PUBLIC MEANING
On the last day of the term in June 2008—in the final opinion announced before the presidential election—the Supreme Court issued its ruling.
Five to four, the justices voted to strike down the capital’s gun law. Chief Justice Roberts, Anthony Kennedy, Clarence Thomas, and Samuel Alito joined Scalia’s opinion. Justices John Paul Stevens, Ruth Bader Ginsburg, David Souter, and Stephen Breyer dissented. For the first time, the Court ruled that the Second Amendment recognizes an individual right to own a gun unrelated to militia service. Scalia wrote the opinion, a sure sign the Court would move aggressively to the right. Roberts had done something Rehnquist never would: he assigned Scalia the job of writing the big one. It remains Scalia’s most important majority opinion.
At last, Scalia could apply his honed judicial model to a consequential case. How did he do so? A close read is instructive.
Scalia does not seek to explain the Framers’ original intent: this is emphatically an opinion focused on a closely parsed text, regardless of what it meant to those who wrote and ratified it. The Second Amendment, he begins, “is naturally divided into two parts: its prefatory clause and its operative clause.” But he has a surprising way to deal with that prefatory clause, the homage to the “well regulated militia being necessary to the security of a free state,” so important to the Framers. He skips right over it. Scalia simply lops off the first half of the amendment, just as in the bowdlerized quote in the NRA headquarters lobby.
What counts is the second half. This is the right way to read the amendment, Scalia’s opinion explains, because that is the way people in the past used to read constitutional provisions. In support he turns to a treatise on statutes published in 1874, nearly a century later. Other than to show off his clerks’ research skills, why then? One clue is that statutes and constitutional provisions were seen differently in the late 1700s, when the Second Amendment was written. There, the proper construction was loose. Moreover, lawyers in the Founding Era knew they were seeking to win approval from ordinary citizens who played a much greater role in ratification.
Then Scalia takes the reader on an almost claustrophobic reading of the words of the amendment’s second part. Who are “the people”? The majority concludes quickly that meant all members of the political community. It simply announces peremptorily: “We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.”
Then, “keep and bear arms.” As we have seen, the overwhelming public usage of “bear arms” at the time of the Constitution referred to military service. Scalia’s opinion could have grappled with this in any number of ways. Instead, it mulls over each word separately (and out of sequence): “arms” and “bear” and “keep” are parsed and defined one at a time. The analysis verges on tendentious: “At the time of the founding, as now, to ‘bear’ meant to ‘carry.’ ” As source material, it cites three separate dictionaries from the 1700s. It all has the feel of an ambitious Scrabble player trying too hard to prove that triple score word really does exist. At times this word search stretches credibility.
The phrase “bear Arms” also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: to serve as a soldier, do military service, fight or to wage war. . . . But it unequivocally bore that idiomatic meaning only when followed by the preposition “against,” which was in turn followed by the target of the hostilities.
That is plainly wrong. When the Framers debated giving conscientious objector status to those “religiously scrupulous of bearing arms,” Madison and Gerry were not worried about those too physically weak to lift a musket. “Giving ‘bear Arms’ its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war—an absurdity that no commentator has ever endorsed.” Well, yes: that is exactly the specter that worried some Anti-Federalists: that people would be barred from serving in state militias.
Scalia fumes and fusses about the words. “Bear” must mean “carry,” since “keep” means “keep.” Otherwise, “It would be rather like saying ‘He filled and kicked the bucket’ to mean ‘He filled the bucket and died.’ Grotesque.” Harrumph, he might have added. “Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.”
The opinion then strolls, Wikipedia-like, through the historical background before the Founding Era: it describes England’s 1688 Glorious Revolution and the limited right to arms it granted some Protestants. (The colonists changed that right in drafting the Second Amendment, anyway.) It made the powerful point that for colonists, the right to have guns was “fundamental,” a “natural right.” The amendment did not create a new right, but acknowledged an existing one.
There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not. Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.
The opinion then spends precisely two pages (out of sixty-four) on “a well regulated militia.” It agrees that the Constitution defines those entities with precision, as the military forces controlled by state governments—but breezily asserts that the amendment referred to something else, meaning “all able-bodied men.” The Constitution refers to “the” militia, but the amendment refers to “a” militia, which is apparently something else entirely. Scalia also declares that the word “state” connotes government generally, rather than the way it is meant every single other place it is used
in the Constitution: to refer to states, such as Rhode Island or Georgia.
Glancingly, the opinion does grapple with the nub of the challenge: the fact that the Second Amendment was driven largely by fear that many Founders had that state militias would be disarmed by the central government. The amendment thus confirmed the right to “keep and bear arms.” But the opinion never really addresses the connection between that fear and the decision to respond with an amendment. It strolls through contemporary state constitutions, only one of which explicitly protected arms for self-defense at the time of the amendment’s drafting—the very menu from which Madison and colleagues chose their markedly more limited language.
At its best, Scalia’s opinion makes strong points: Madison was bent on reassuring Federalists that nothing would change the structure of the Constitution. Given that, how could this articulated right actually reassure those who worried about the state militias? Madison originally intended the militia provisions to be part of the Bill of Rights, rather than inserted into Article I itself. At its worst, it engages in sleight-of-hand. The opinion selectively cites later commentators from the 1800s who agree with an individual rights interpretation. It snipes at Stevens’s dissent, which quotes the jurist Joseph Story in an 1833 treatise as focusing his attention on the militia. “That is wrong.” Actually, it isn’t. The majority opinion simply looks at an earlier section of Story’s lecture than Stevens had.
It is the fog of history that rolls most notably across the pages. There are plenty of things we do not know, and many more that have lost their validity over time. Earlier Scalia wrote that to truly engage in originalism requires a gargantuan level of historical inquiry. He essentially chose to ignore the actual, stated, publicly known purpose of the amendment—focusing instead on what the words must have meant, if the right dictionaries are consulted.
Scalia professes to practice a refined form of originalism: not a futile search for the subjective “intent” of the Founders, but “original public meaning.” This was the most visible opportunity he would have to apply this approach. In the end it appears to be little more than “words with friends.” Even accepting, somehow, that what was meant then—in 1791—should control our actions today, “public meaning” can mean little without context. The context was the fight over the militia and the army. And that context is, basically, ignored. Such a genuine historic inquiry would not be without ambiguities. We would be uncomfortable with the idea that states could fight wars against the U.S. Army. We would recognize that the Founders expected people to have military weapons in their homes. (Muskets, not rocket-propelled grenade launchers, but still.) Above all, the principal fact about the world of the militias and the Second Amendment is that it is gone, both in terms of people’s concerns and even the institutions they sought to address them.
The Court’s ruling overturned two centuries of precedent. Usually justices acknowledge that fact, as when Brown v. Board of Education overturned Plessy v. Ferguson. Instead of being intellectually honest about that, Scalia’s opinion insists it did no such thing. Most relevant is the Miller case from 1939, which found that the Second Amendment did not protect guns not used for “military purposes.” The majority does not say it overrules Miller. Rather, it explains that Miller simply held that the sawed-off shotgun was not covered by the right: the “type of weapon at issue was not eligible for Second Amendment protection.” With a shrug the justices deem it “unsurprising that such a significant matter has been for so long judicially unresolved.”
But the Bill of Rights has mostly been applied to the states for a half century now. And federal gun laws began in the 1930s. Indeed, Scalia himself sat on the Court when it considered some of them. The Court’s previous reluctance to find an individual right to a handgun was not an oversight, or the result of tardiness. It reflected the judicial consensus.
And then—after engaging in hyper-literal readings of words, and after pages of highly selective historical readings from two hundred years ago that ignore the history of the past hundred years—suddenly the opinion veers away from originalism altogether.
Like most rights, the right secured by the Second Amendment is not unlimited. From [the English legal writer] Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. . . . Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
This eminently sensible list barges into the text, seemingly from nowhere. Is it the price to secure a fifth vote (perhaps from Justice Anthony Kennedy, the court’s eternal swing voter)? Are these included with an eye toward public opinion, to show citizens the courts had not leapt fully in bed with the NRA? (“I am originalist. I am not a nut.”) Regardless, no explanation is given why these limitations are acceptable. And why, if these are permitted, the District of Columbia’s law is not.
The opinion offers another clue for future courts: weapons that are “dangerous and unusual” can be banned, but those that are “in common use” cannot. Market share evidently determines constitutionality. This fully severs the first half of the amendment and floats it off to sea. The militia is irrelevant, Scalia writes. For “it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.” Or, to paraphrase the justice’s frequent reply when asked about Bush v. Gore, “Well regulated militias? Get over it.”
Having set out a broad, transformative statement of the right to bear arms, and then limiting it with a seemingly random set of exceptions, the opinion finally gets around to striking down the Washington, D.C., law. The statute, it notes correctly, was an outlier, much stricter than that of other jurisdictions. Handguns are distinct. They are “the quintessential self-defense weapon.” The law only applies to guns kept in the home, where most suicides and domestic assaults take place. Nonetheless, “whatever else [the Second Amendment] leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”
Hearth and home: we’ve come far from “a well regulated militia” and the “security of a free state.” The New Yorker’s Jeffrey Toobin summarized it well: “Scalia translated a right to military weapons in the eighteenth century to a right to handguns in the 21st.”
The opinion drew two lengthy dissents. Stevens wrote an impassioned assessment of the purpose, historical roots, and intended meaning of the amendment. Stevens found himself arguing emphatically that the militias were—and still are—the protected party. This is what has been called the “states’ rights” version of the Second Amendment. “The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia,” he declared flatly.
It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several states. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.
It is in Stevens’s dissent that we hear at length from Madison himself, from the debates over the Second Amendment and its meaning by the men who frame
d and ratified it. The dissent powerfully sets out the historic record. The elderly jurist, seeing the Court begin to lurch from the caution it had displayed during most of his time on the bench, seems incredulous at the majority’s blasé mien as it abandons two centuries of precedent. “Even if the textual and historical arguments on both sides of the issue were evenly balanced,” he writes, “respect for the well-settled views of all our predecessors on this Court, and for the rule of law itself, would prevent most jurists from endorsing such a dramatic upheaval in the law.” Stevens made a consequential strategic choice. He made a better originalist argument than Scalia. Plainly he believed he had the facts on his side: both original public meaning and original intent. But his focus on the doings of Framers from 1791 missed a chance to make the point that there is something amiss about allowing ourselves to be guided entirely by their choices, ignoring the intervening two-hundred-plus years of history, law, and social development.
Breyer issued his own dissent. He chose a different tack. In effect, Breyer stipulated that there was an individual right. What then? What kind of right? And how do we know when it has been violated? Historical evidence about the scope of the right is “the beginning, rather than the end, of any constitutional inquiry.” To decide on a particular regulation of guns “requires us to focus on practicalities, the statute’s rationale, the problems that called it into being, its relations to those objectives—in a word, the details.” Breyer proposed an “interest balancing inquiry,” in which judges had no choice but to weigh the costs and benefits of a particular law. And gun regulation was exactly the kind of area where democratically elected governmental bodies, such state legislatures or Congress, are “likely to have greater expertise and greater institutional factfinding capacity.” Where lawmakers could draw different results from different facts, courts should defer and let them do so. Citing UCLA’s Adam Winkler, he notes that hundreds of state Supreme Court decisions on firearms law took this approach. Breyer’s dissent rings with the voices of Holmes and Brandeis. It also reflects the approach he set out in his own book, Active Liberty. In his view, the overarching theme of the Constitution is democracy, and judges had better be very careful when overturning the work of popularly elected branches. The majority brushed that idea aside: Breyer was proposing little more than a “judicial balancing test.” But the people had already balanced the interests, albeit people wearing breeches in 1791. Breyer’s dissent received short shrift on decision day. The New York Times gave it one sentence. In the real world, in subsequent years, it has had far greater impact as judges and legislatures tried to sort through Heller’s sepia-toned new world.
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