Welcome to the fourth and final installment of our examination of the history and legal interpretations of the Second Amendment. However you got here, I congratulate you and sympathize you. I hope you’ve found this as interesting to read as I’ve found it to write.
In the previous installment we left off with the prelude leading up to the 2008 District of Columbia v. Heller decision. Now it’s time to look at the case and the rulings itself. This is the most detailed and sweeping Supreme Court Ruling in US History regarding the Second Amendment, as such it deserves more attention than the previous rulings. Perhaps one of the most important insights we take away from this examination is that even if the Supreme Court is wrong, it’s still law.
The case itself is kind of interesting in that it was more a product of right wing think tank activism than an aggrieved citizen. Robert levy, a fellow at the Cato institute basically recruited plaintiffs for the case. Levy ended up with Dick Heller, a DC special police officer who had been denied a hand gun permit. It’s interesting that the courts even took up this case because Heller was not appealing a criminal conviction or penalty of any kind. In fact it’s the only one of our Second Amendment Supreme Court rulings that doesn’t involve a criminal conviction.
Heller complained that he wanted to have a gun at home for personal protection but wasn’t allowed to because DC had denied him a gun permit. Heller’s lawyers argued that his Second Amendment Rights to have a gun for personal defense were being violated by D.C.’s denial of his permit.
The court issued a ruling that is difficult to describe as anything other than incoherent. Here are some excerpts that illustrate my point: (The full text of the Amendment is included at the end of this article).
(1) The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.
“…The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved.”
“(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542 , nor Presser v. Illinois, 116 U. S. 252 , refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.”
This ruling leaves no myth or misconstrued history untouched. After declaring that reference to militias in the Second Amendment is basically irrelevant (A complete departure from precedent as well as common sense), they go on to create another category of “traditionally lawful purposes” out of whole cloth. This creates a bizarre and circular standard whereby the actual existence of a militia is irrelevant but the use of guns for traditional and lawful purposes constitutes militia activity. Then we get a reference to the dubious theory of insurrectionism followed by a reference to the non-existent “ancient” right keep and bear arms. Finally the majority simply declare that their interpretation is based in uncontested historical scholarship and is otherwise unavoidable to the mind of any right thinking person. If it weren’t a Supreme Court ruling this would laughable. As we’ve seen, their history is not only contested, it fails any attempt at honest scrutiny.
The Majorities attempts to clarify their position only makes things worse.
“Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose:”
“Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons”
So the “Ancient” right to keep and bear arms isn’t unlimited and we’re cherry picking Miller by detaching Millers reference to military applications:
“It may be objected that if weapons that are most useful in military service – M16 rifles and the like – may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home.”
This is all rhetorical smoke and mirrors. Basically the problem with the ruling is that it uses Miller as precedent but distorts Miller by deleting the reference to military usefulness. The authors deny that they’ve “detached” the militia clause but in reality they’ve re-defined the concept of a militia in such a way as to make it incoherent. Militias are no longer well regulated military forces, they are ad hoc collections of “able bodied” men. Essentially what the majority is doing is replacing the concept of a well-regulated militia with concept of the universal militia we discussed earlier. With the new definition individuals need not possess military weapons because militias are no longer military entities. We’re no longer concerned with kinds of arms militias keep and bear, we’re concerned about the nature of the people who belong to the militia (Are they able bodied people?), and the weaponry is now an afterthought. In a bizarre way, this ruling not only detaches the Amendment from militias, it almost detaches it from weaponry. Of course this universal militia they refer to never existed in the Unites States, this is myth pretending to be history.
Like a moth to a flame we’re back to the problem of “common use” and common use by whom? The “whom” can’t be the militia because the militia itself is irrelevant, morphed into nothing more than description of able bodied men at large. We are the “people” who ARE the militia, but what are we to be armed with if not military weapons? Our “ancient” rights would seem to render all appropriate weaponry “lawful” so how can uncommon use render any weapon illegal? And still we have no directions as to how to determine whether or not a “use” is common enough? We’re limited to weapons used for lawful purposes but according our “ancient” rights insurrection is a lawful purpose so it’s hard to imagine what kind of limitations the court can apply.
The problem the majority has is that the Second Amendment grants right to states not individuals and it doesn’t say anything about guns, it talks about military arms. The solution in Heller is to redefine “militia” and “arms”. The militias no longer need be well regulated, or even a militia at all. A militia now is just the potential for an armed citizenry to assemble with whatever commonly used arms they have on hand. He term “arms” now refers to “commonly” used privately owned civilian weapons, i.e. guns.
The Courts most dramatic revision of the Second Amendment in Heller is the transformation from collective to personal defense . The Second Amendment says absolutely nothing about personal self-defense, yet the court declares that the amendment is actually anchored by this so–called ancient right. This argument is probably derived from Joyce Lee Malcolm’s musings about the 1689 English Declaration of Rights. As we’ve seen, that declaration has to be severely decontextualized in order to be applied to our Constitution. Furthermore the court appears to be trying to pretend that an un-enumerated right is enumerated in the Second Amendment.
Un-enumerated rights are those not specifically or explicitly granted by the United States Constitution. We would all agree that such rights exist, but the scope and nature of such rights are not easy to define. For instance most of us would agree that regardless whether it’s in the Constitution or not, procreation, having children, is a basic human right. However in 1927 the Supreme Court ruled that “Three generations of imbeciles is enough” and upheld forced sterilization laws. I happen to agree that whether it’s in the constitution or not, we have a right to defend ourselves from personal assault. Unfortunately that right is difficult to spell out when you wade into the details. What’s an assault? What constitutes “defense”? When and how could we deploy lethal force? Does defense require possession of a gun, and if so what kind of gun? Certainly reasonable people could disagree whether it’s appropriate to require that homeowners confront armed intruders with little more than a baseball bat or a tazer. Nevertheless you turn down the avenue of un-enumerated rights at your own peril. The point is that NONE of this is addressed in the United States Constitution. The Second Amendment simply doesn’t discuss personal self-defense and all the Constitution says about un-enumerated rights is that they are reserved to the states, NOT the individual.
What we have here is a ruling that is contemporary Republican Party ideology pretending to be history. Clearly the majority on this court started with the ruling and worked backwards. In order to make it fit they’ve re-written history and the Second Amendment. There’s nothing conservative about this and many commentators have noted the irony of “Originalists” so whole heartedly ignoring actual history in order to promote historical fantasy.
Heller takes the murky Miller decision and makes it even murkier. Taken literally the logic of Heller may well actually require a poorly armed population of able bodied men who are absurdly viewed as our last bastion against a government armed with nuclear weapons and attack aircraft. After all, such men cannot possess the “unusual” or uncommon military weapons contained in the government arsenals. A militia of such men cannot be an effective and organized military entity that actually exists, it can only be viewed as a “potential” should the need arise, albeit a horribly outgunned and futile potential. Somehow I don’t see the court following this train of logic in the future so something else must be in the offing, but what?
This mumbo jumbo about “common” and “unusual” weapons is no doubt meant to assure us that there will be reasonable limits to the kinds of weapons authorized by the Second Amendment. The problem is that the ruling is so incoherent that no reasonable rulings can flow out of it. For instance we’re assured that regulations on assault rifles are not under threat. However without a coherent statistical formula for defining a “common” weapon we’re forced to rely on the courts dubious judgment. It’s been estimated that over 4 million assault style rifles may be in American hands. You tell me, does that make them common or uncommon? If the court decides they’re common, then what kinds of restrictions can we place on them? As we’ll see later what we need to do is actually decrease the number of these weapons floating around in our population. However wouldn’t a ruling that such weapons are now commonly possessed by the would-be able bodied militiamen of the new Second Amendment render any serious attempt to limit ownership unconstitutional?
As our discussion of the Second Amendment draws to a close we’re faced with some inescapable conclusions. First, the “militia’s” discussed in the Second Amendment simply do not exist, and have not existed in the United States for decades. Slavery and the need to suppress its rebellions no longer exist. State militias are now National Guard units and Army Reserves with arsenals containing everything from bayonets to fighter aircraft. Obviously the vast majority of these weapons have no business in the average home. Second, the Amendment says nothing about personal self-defense. Nor does the amendment say anything about “guns”. Again, here’s the Amendment:
“A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed “
There’s nothing in there about “ancient” rights of self-defense, or “common” or “unusual” weapons, or “able bodied men”. We also know that the “people” is actually a reference to the government or the state, not individuals; as in the government “of the people, by the people, for the people”. Our Constitution is a blue print for our government, not our private lives. This is all indisputable.
Now we can take two distinctly different paths regarding the Second Amendment in contemporary America.
One would be to recognize that the Second Amendment is an historical anachronism that no longer has relevance. State militias no longer exist nor are they even feasible given the current national defense structure. Any notion that civilians with whatever guns they have at home would constitute an effective defense against an invading or domestic army with tanks, artillery, and attack aircraft is simply absurd. Nor would such a group be an effective law enforcement mechanism, more likely it would simply be a vigilante mob. We simply don’t need the Second Amendment. It’s not necessary for national defense, nor is it necessary for personal self-defense. Our rights to personal self-defense are established by multitude of case law, precedent, and state and local laws. No one is challenging our basic right to self-defense, and not all of our rights need to be enumerated in the Constitution in order to be recognized.
There are two ways of declaring the Second Amendment to an Anachronism. One would be judicial, a Supreme Court ruling that the Amendment does NOT confer rights upon individuals would have the practical effect of rendering it irrelevant. Another way would be to repeal the Second Amendment outright.
The other option we have with the second amendment would be to re-interpret it in a contemporary context, essentially re-writing it without re-writing it. This would give new meaning to an irrelevant Amendment. Basically the court could just say: Look, the militias don’t exist anymore, and common sense dictates that we don’t want military arsenals in civilian homes. Why not just make the Second Amendment about guns and personal defense? We’ve wanted the Second Amendment to be about guns for decades anyways why not just go ahead and make it so? This is exactly what the majority did in District of Columbia v. Heller. It’s called Judicial Activism by the way. As far as I know, it’s perfectly legal and constitutional. I don’t think it’s a good idea but I’m saying at least be honest about it. Don’t give me this hooey about “ancient” rights, and 1689, and common and unusual weapons. Don’t tell me the function of militias is to overthrow the government, and don’t tell me this is an “Originalists” interpretation. Just be honest about what you’re doing. Why not? We have to live with these rulings anyways.
Immediately after District of Columbia v. Heller many observers suggested that it was a narrow ruling with limited over-all consequences. It’s true that technically the ruling merely asked D.C. to issue a gun permit to Heller so he could bring his gun home with him. Furthermore, the Heller decision only applied to the District of Columbia at the time. However the sweeping consequences of this ruling are undeniable. In 2010 the Supreme Court, using its own previous ruling as a precedent, overturned parts of Chicago’s hand gun ban in McDonald v. Chicago . Basically the Supreme Court has now decided that its new interpretation of the Second Amendment applies to everyone. While this is technically a Fourteenth Amendment ruling, the effect is a dramatic and historical expansion of the courts ability to limit gun regulation. A more cynical person might suspect that there is an agenda here to re-write the Second Amendment via incremental limited rulings that will eventually constitute an unassailable pro-gun rights body of Supreme Court rulings.
The 2008 Heller ruling may be a product of strained logic, manufactured history, and (as Warren Burger might say) “intellectual fraud”, but its law. The majority seems to be saying in the text of the ruling: “don’t worry, trust us”. I don’t think it would be wise to trust a bunch of intellectual frauds. This whole enterprise strikes me as fundamentally dishonest both legally and academically and that makes it kind of spooky.
The future can be hard to predict. Both of these rulings were made before the Newtown massacre and even Supreme Court Justices are not immune to public outrage. It could well be that previously confident judges will actually be personally shocked enough by this tragedy to reconsider the direction they were going with the Second Amendment. Undoubtedly there’s a range of enthusiasm within the court for re-writing the Second Amendment along NRA guidelines and minds can be changed. I doubt that any judge wants to be alienated as an intellectual fraud responsible for massacres. I think for instance some those judges are smarting from the Citizens United ruling and may not want to add another fiasco to their tally of rulings. It could well be that new proposed gun restrictions will be upheld although it appears at this point that a majority on the court would have to decide that weapons owned by millions of Americans are uncommon or unusual. Fortunately Heller is vague enough that the court could decide pretty much whatever it wants… but can they be trusted to make the right decision?
So what’s the point of this long and detailed examination? If the court has ruled what difference does it make? After all, no matter what we all think, or whether we’re right or wrong about the Second Amendment, aren’t we bound by the court rulings? Is there any point to knowing what the Second Amendment is really about if the law says it’s about something else?
Here’s the value of our discussion. First, it never hurts to be properly informed. If the majority Americans understood the actual history and nature of the Second Amendment they wouldn’t feel trapped by it. People like Minnesota’s Governor Dayton think our hands are tied by the Second Amendment, that’s not true, and people like Dayton need to know that. The only real question is whether or not our hands can be tied by bad Supreme Court rulings? Once you understand the Amendment for what it is you can start thinking more clearly about the gun culture in America. History is made by the people who show up, people who understand the nature of the Second Amendment need to start showing up, and our numbers need to grow. Beyond that, there’s still law to be made and a shift in the popular understanding of the Second Amendment can dramatically affect the laws, even if the NRA has a bunch of ringers sitting on the courts. If push comes to shove we could repeal the Second Amendment, but winning that argument requires an understanding that the Second Amendment has become irrelevant and unnecessary. I hope this series contributes to that understanding along side the work that others have already done.
Now that we’ve explored the nature of the second amendment the preliminary work is finished. It’s time to turn our attention to the contemporary problems that guns and the gun culture are creating our country. Next week we’ll examine the nature of the problems and discover that mass shooting with military style guns are the primary legacy of our misreading of the Second Amendment.
District of Columbia v. Heller Decision Full Text
(1) The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.
(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.
(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.
(c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28–30.
(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.
(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.
(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542 , nor Presser v. Illinois, 116 U. S. 252 , refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.
(2) Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.
(3) The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition – in the place where the importance of the lawful defense of self, family, and property is most acute – would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.