The Second Amendment

by Michael Waldman

  the word “state”: Heller, 554 U.S. at 597.

  It strolls through contemporary state constitutions: Scalia also includes Vermont. That state’s charter mirrored the Pennsylvania version that included the right of personal defense. But Vermont was a separate republic at the time the Bill of Rights was drafted. It did not join the United States until 1791. Heller, 554 U.S. at 601.

  “type of weapon at issue”: Heller, 554 U.S. at 622.

  “unsurprising that such a significant matter”: Heller, 554 U.S. at 625.

  “Like most rights”: Heller, 554 U.S. at 626.

  “it may be true”: Heller, 554 U.S. at 628.

  an outlier: Heller, 554 U.S. at 629.

  “Scalia translated a right”: Jeffrey Toobin, The Oath: The Obama White House and the Supreme Court (New York: Random House, 2012), 114.

  “The Sceond Amendment was adopted”: Heller, 554 U.S. at 637 (Stevens, J., dissenting).

  Stevens made a consequential strategic choice: Judge Richard Posner writes, “By delving into the eighteenth-century historical materials [Stevens] implicitly conceded the legitimacy of the conservative Justices’ ‘originalist’ approach. He threw in the theoretical towel. He may well have the better of the historical case, but who will notice?” Richard A. Posner, “The Rise and Fall of Judicial Self- Restraint,” California Law Review 100, no. 3 (2012): 549. Posner’s article is adapted from his Brennan Center Jorde Lecture of October 2010.

  “the beginning rather than the end”: Heller, 554 U.S. 687 (Breyer, J., dissenting).

  hundreds of state Supreme Court decisions: Breyer cites Adam Winkler, “Scrutinizing the Second Amendment,” Michigan Law Review 105 (2007): 683.

  the overarching theme of the Constitution: Breyer calls “originalism” (in interpreting the Constitution) and “textualism” (in interpreting statutes) both “literalism.” He writes, “Literalism has a tendency to undermine the Constitution’s efforts to create a framework for democratic government—a government that, while protecting basic individual liberties, permits citizens to govern themselves, and to govern themselves effectively. Insofar as a more literal interpretive approach undermines this basic objective, it is inconsistent with the most fundamental original intention of the Framers themselves.” Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (New York: Random House, 2005), 131–32.

  The New York Times gave it one sentence: The Times’s long-standing and esteemed Supreme Court correspondent later offered a “mea culpa.” See Linda Greenhouse, “Weighing Needs and Burdens: Justice Breyer’s Heller Dissent,” Syracuse Law Review 59 (2008): 300.

  misquoting Patrick Henry: A photo of Dick Heller after the decision can be found at www.nytimes.com/imagepages/2009/03/17/us/17bar_ready.html.

  “vindication of originalism”: Coyle, The Roberts Court, 163.

  Reva Siegel argued in a brilliant article: Siegel, “Dead or Alive,” 191.

  even if “hundreds of judges”: Heller, 554 U.S. 570, 624, n. 24 (2008).

  it can be appropriate for a court to recognize a right: Cass R. Sunstein, “Second Amendment Minimalism: Heller as Griswold,” Harvard Law Review 122 (2008): 261–62.

  Certainly it would have prompted an uproar: A point made by Sunstein, ibid., 208.

  This new school of liberal scholars: See, for example, Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (New York: Farrar, Straus & Giroux, 2009); Robert Post and Reva Siegel, “Roe Rage: Democratic Constitutionalism and Backlash,” Harvard Civil Rights-Civil Liberties Law Review 42 (2007): 373–433; Reva Siegel, “2005–06 Brennan Center Symposium Lecture, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the de facto ERA,” California Law Review 94 (2006): 1323–1419; Kramer, The People Themselves.

  President George W. Bush had interviewed: Elisabeth Bumiller, “An Interview by, Not with, the President,” New York Times, July 21, 2005.

  “After decades of criticizing”: J. Harvie Wilkinson III, “Of Guns, Abortions, and the Unraveling Rule of Law,” Virginia Law Review 95, no. 2 (2009): 253, 264–65.

  Posner is one of America’s leading public intellectuals: See Richard A. Posner, Public Intellectuals: A Study of Decline (Cambridge: Harvard University Press, 2002). Posner’s list of leading public intellectuals is on page 209. He made number 70.

  “It is questionable”: Richard A. Posner, “In Defense of Looseness,” The New Republic, August 27, 2008, www.newrepublic.com/article/books/defense-looseness.

  Posner’s review: Richard A. Posner, “The Incoherence of Antonin Scalia,” The New Republic, September 13, 2012, www.tnr.com/article/magazine/books-and-arts/106441/scalia-garner-reading-the-law-textual-originalism.

  “simply, to put it bluntly, a lie”: Richard A. Posner, “Richard Posner Responds to Antonin Scalia’s Accusation of Lying,” “The Plank” (blog), The New Republic, September 20, 2012, www.newrepublic.com/blog/plank/107549/richard-posner-responds-antonin-scalias-accusation-lying.

  “Words don’t have intrinsic meanings”: Frank J. Easterbrook, foreword to Reading Law: The Interpretation of Legal Texts by Antonin Scalia and Bryan A. Garner (Minneapolis: West Publishing, 2012), xxv.

  “living political community”: Posner, “The Incoherence of Antonin Scalia.”

  same five justices: Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). The case is analyzed in Monica Youn, ed., Money, Politics and the Constitution: Beyond Citizens United (New York: Century Foundation, 2011).

  “Sooner or later”: Edmund Morris, Theodore Rex (New York: Random House, 2001), 360.

  Roberts joined the majority: National Federation of Independent Business v. Sebelius, 567 U.S. ___ (2012).

  “Lost Constitution”: Randy Barnett, Restoring the Lost Constitution: The Presumption of Liberty (Princeton: Princeton University Press, 2004).

  overturned the key provision of the Voting Rights Act: Shelby County v. Holder, 570 U.S. ___ (2013).

  It poses severe challenges: For a powerful early analysis, see Joseph Fishkin, The Dignity of the South, 123 Yale Law Journal Online 175 (2013), http://yalelawjournal.org/2013/06/08/fishkin.html.

  made clear their itch: Northwest Austin Municipal Utility District No. 1 v. Holder, 557 U.S. 193 (2009).

  Roberts first sought a narrower ruling: Toobin, The Oath, 167–68.

  The Court sprang multiple leaks: Ibid., 287–91.

  “[We] have no power”: United States v. Windsor, 570 U.S. ___ (2013) (Scalia, J., dissenting).

  rare public rebuke: Adam Liptak, “Court Is ‘One of Most Activist,’ Ginsburg Says, Vowing to Stay,” New York Times, August 24, 2013.

  no more prone to strike down: Lee Epstein and Andrew D. Martin, “Is the Roberts Court Especially Activist? A Study of Invalidating (and Upholding) Federal, State and Local Laws,” Emory Law Journal 61 (2011): 737–58. They were responding to Posner, “The Rise and Fall of Judicial Self-Restraint,” which argued that in an earlier era both liberal and conservative judges were less likely to invalidate statutes.

  Its other public events: James Madison Program in American Ideals and Institutions, Spring 2013 Calendar of Events, http://web.princeton.edu/sites/jmadison/calendar/current%202.html.

  “I don’t apologize”: The speech and audience reaction are described in Ushma Patel, “Scalia Favors ‘Enduring,’ Not Living, Constitution,” Princeton University Office of Information, posted December 11, 2012.

  CHAPTER EIGHT: FROM HELLER TO SANDY HOOK

  noisy shooting late at night and early in the morning: Summary of Newtown Police Department Gunshot Complaints, www.newtown-ct.gov/Public_Documents/NewtownCT_LegCouncilMin/ordinance/gunshot.pdf.

  hunters and gun activists crowded monthly meetings: Nanci G. Hutson, “Town Ponders Target Shooting Limits,” Danbury News-Times, www.newstimes.com/local/article/Town-ponders-target-shooting-limits-3794087.php#photo-3336959; Fred Musante, “Proposed Firearms Ordinance
Scrapped by Committee,” Newtown Patch, September 13, 2012, http://newtown.patch.com/groups/editors-picks/p/opponents-convince-committee-to-scrap-proposed-fireara04e81cf38.

  “This is a freedom that should never be taken away”: The unnerving saga of the gun fight in Newtown before the massacre is described in Michael Moss and Ray Riviera, “In Town at Ease with Its Firearms, Tightening Gun Rules Was Resisted,” New York Times, December 16, 2012, www.nytimes.com/2012/12/17/nyregion/in-newtown-conn-a-stiff-resistance-to-gun-restrictions.html?pagewanted=all&_r=0.

  National Shooting Sports Foundation website seemed frozen in place: “National Shooting Sports Foundation,” accessed July 19, 2013, http://web.archive.org/web/20130115194748/http://nssf.org/Industry/.

  thirty thousand Americans die from guns: “Firearm Injury in the U.S.,” University of Pennsylvania Firearm and Injury Center, 2011, www.uphs.upenn.edu/ficap/resourcebook/pdf/monograph.pdf.

  Justice Samuel Alito wrote for the majority: McDonald v. Chicago, 561 U.S. 3025 (2010).

  a slightly queasy argument: Historian Eric Foner noted that Supreme Court jurisprudence is beholden to older, more racist accounts of Reconstruction, even as historians have thoroughly revised our understanding of what was intended by the framers of the Civil War amendments. The Court’s conservatives rarely cite the new history, he notes, when it comes to civil rights laws. In McDonald, though, the majority embraced the expansive interpretation of the Fourteenth—while the liberals asserted Cruikshank was still good law. See Eric Foner, “The Supreme Court and the History of Reconstruction—And Vice Versa,” Columbia Law Review 112 (2011): 1603–4.

  “This is good for lawyers.”: “After Supreme Court Ruling, Cities Face Restructuring of Gun Laws,” PBS NewHour, June 28, 2010, www.pbs.org/newshour/bb/law/jan-june10/guns2_06-28.html.

  Gun laws were upheld in all but two: Only the two bans on loaded handguns at home, in Washington, D.C., and Chicago, were struck down. A third law was struck down on procedural due process grounds. See Tina Mehr and Adam Winkler, The Standardless Second Amendment, Issue Brief, American Constitution Society, October 2010.

  According to one tally: See “Post Heller Litigation Summary,” Law Center to Prevent Violence, updated May 20, 2013, http://smartgunlaws.org/post-heller-litigation-summary/; Brian Doherty, “The Second Amendment Cases the Supreme Court Doesn’t Want to Hear,” Reason.com, February 9, 2012, http://reason.com/blog/2012/02/09/the-second-amendment-cases-the-supreme-c.

  As Justice Holmes wrote: Schenck v. United States 249 U.S. 47 (1919) (Holmes, J., dissenting). The popular paraphrase often neglects the key modifier: one cannot falsely shout fire in a crowded theater. Shouting fire in a theater that is actually in flames is another matter.

  multiple justifications for gun regulations: Eugene Volokh, “Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda”, U.C.L.A. Law Review 56 (2009): 1443.

  Another professor: Mark Tushnet, “Permissible Gun Regulations After Heller: Speculation About Methods and Outcomes,” U.C.L.A. Law Review 56 (2009): 1425.

  That is just what most courts have done: Cases applying this two-pronged approach are collected in Woolard v. Galagher, 712 F.3d 865, fn. 23 (4th Cir. 2013).

  “need not establish a close fit”: U.S. v. Staten, 578 F.3d 803 (2010).

  the case of a Meadville, Pennsylvania, man: U.S. v. Marzzarella, 614 F.3d 85 (2010).

  Myriad cases used similar logic and language: For some examples of how the circuit courts have handled cases challenging state and federal gun control statutes post-Heller, see United States v. Carpio-Leon, 701 F.3d 974 (4th Cir. 2012) (upholding federal law barring possession of firearms by persons illegally or unlawfully in the United States); Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012) (striking down Illinois’s complete prohibition on carrying firearms in public); NRA v. ATF, 700 F.3d 185 (5th Cir. 2012) (upholding federal law banning the sale of handguns to persons under twenty-one); Hightower v. City of Boston, 693 F.3d 61 (1st Cir. 2012) (upholding Boston law limiting the right to carry a concealed weapon in public to certain licensed individuals); Georgiacarry.org v. Georgia, 687 F.3d 1244 (11th Cir. 2012) (upholding Georgia law prohibiting possession of firearms in specific sensitive locations, such as bars and churches, without management’s permission); United States v. Decastro, 682 F.3d 160 (2d Cir. 2012) (upholding federal law banning transportation of firearms across state lines); United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011) (upholding law banning firearms in vehicles in national parks); Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011) (striking down a Chicago law banning firing ranges in the city); United States v. Reese, 627 F.3d 792 (10th Cir. 2010) (upholding ban on firearm possession by a person subject to a domestic order of protection); United States v. Williams, 616 F.3d 685 (7th Cir. 2010) (upholding law banning firearm possession by felons); United States v. Skoen, 614 F.3d 636 (7th Cir. 2010) (upholding the federal prohibition on firearm possession by persons convicted of domestic violence misdemeanors).

  But those moves now might be limited by a right: The idea of “rights as trumps” has been advanced by Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1978). It has been criticized as elevating the individual over the needs of society in myriad contexts. See Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 1991).

  the Sullivan Act: Kachalsky v. Cacace, 701 F.3d 81 (2d Cir. 2012).

  “a special need for self protection”: Kachalsky, 701 F.3d at 86 (internal quotes and citations omitted).

  The Second Circuit Court of Appeals rejected that bid: Unlike the Supreme Court, the Second Circuit Court of Appeals is known for rulings across partisan or ideological lines. See Monica Youn, Judge Sotomayor’s Record in Constitutional Cases (New York: Brennan Center for Justice, 2009).

  “ ‘important governmental interest’ ”: Kachalsky, 701 F.3d at 100.

  “picked out one particular kind of arm”: People ex. Rel. Darling v. Warden of City Prisons, 154 A.D. 413, 422 (1st Dep’t 1913).

  “the unwisdom of the Supreme Court’s recent decisions”: Richard Posner, “Gun Control—Posner’s Comment,” The Becker-Posner Blog, February 20, 2011, accessed July 17, 2013, www.becker-posner-blog.com/2011/02/gun-control-posners-comment.html. He gathered his critique in his 2013 volume, Richard A. Posner, Reflections on Judging (Cambridge: Harvard University Press, 2013), 185–86.

  “The Supreme Court rejected the argument”: Moore v. Madigan, 702 F. 3d 933, 935 (2012).

  “Twenty-first century Illinois”: Ibid., 937.

  verged on satire: Writing on the Atlantic website, Garrett Epps scolded Posner. The opinion was “unforgivably flippant in its treatment of what is literally a life-and-death issue in every city and state in the nation.” Epps pointed to this line from the ruling: “[The Second Amendment right] is not a property right—a right to kill a house-guest who in a fit of aesthetic fury tries to slash your copy of Norman Rockwell’s painting Santa with Elves.” He says Posner’s friends suggested he was being ironic, given his well-publicized criticisms of Heller. “Posner may be having us on. If so, however, his satiric intentions do not render the opinion defensible.” Garrett Epps, “Seventh Circuit’s Big Chance to Redeem Itself on Gun Control,” TheAtlantic.com, January 15, 2013, www.theatlantic.com/national/archive/2013/01/the-seventh-circuits-big-chance-to-redeem-itself-on-gun-control/267206/.

  On Father’s Day weekend 2013: Peter Nickeas, David Jackson, Mitch Smith, and Jennifer Delgado, “Weekend Violence Leaves 9 Dead, 47 Shot,” Chicago Tribune, June 17, 2013, http://articles.chicagotribune.com/2013-06-17/news/chi-chicago-crime-shooting-gun-violence-marquette-park_1_weekend-violence-little-village-neighborhood-day-sunday.

  “That’s the difference”: Staff report, “8 Shot in Single West Side Attack Among 67 Shot over Long Weekend,” Chicagotribune.com, July 7, 2013, http://articles.chicagotribune.com/2013-07-07/news/chi-chicago-violence-july-6july-7-20130706_1_west-flournoy
-street-drive-by-shooting-west-side.

  They crafted a bill that allowed Illinois citizens: Ray Long, Monique Garcia, and Rick Pearson, “General Assembly Overrides Governor’s Veto of Concealed Carry Bill,” Chicago Tribune, July 9, 2013, http://articles.chicagotribune.com/2013-07-09/news/chi-illinois-concealed-carry_1_harrisburg-democrat-gun-bill-quinn.

  “The lower courts have essentially made judicial restraint their guiding principle”: Allen Rostron, “Justice Breyer’s Triumph in the Third Battle over the Second Amendment,” George Washington Law Review 80, no.3 (2011–2012): 703.

  “In my view”: Heller v. District of Columbia, 670 F.3rd 1244 (2011) (Kavanaugh, J., dissenting).

  NRA members boycotted its products: Paul M. Barrett, “Why Gun Makers Fear the NRA,” Bloomberg Businessweek, March 14, 2013, www.businessweek.com/articles/2013-03-14/why-gun-makers-fear-the-nra.

  law providing broad immunity from lawsuits: Protection of Lawful Commerce in Arms Act (PLCAA). Public Law 109–92.

  Manufacturers quietly began to provide substantial funding: Barrett, “Why Gun Makers Fear the NRA.”

  Around the country, trends were even more pronounced: Eugene Volokh, “Chicago: From a Handgun Ban to a Right to Carry Concealed Handguns,” The Volokh Conspiracy, July 10, 2013, www.volokh.com/2013/07/10/chicago-from-a-handgun-ban-to-a-right-to-carry-concealed-handguns/.

  Stand Your Ground: Abby Goodnough, “Florida Expands Right to Use Deadly Force in Self-Defense,” New York Times, April 27, 2005; Florida Statutes §776.013, Justifiable Use of Force, www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0776/Sections/0776.013.html.

  NRA focused on judicial nominations: Linda Greenhouse, “The NRA at the Bench,” “The Opinionator” (blog), New York Times, December 26, 2012, http://opinionator.blogs.nytimes.com/2012/12/26/the-n-r-a-at-the-bench/.