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.
Second Amendment to the United States Constitution (Full Text)
The 2008 Supreme Court decision in District of Columbia v. Heller is, was, and will be for the foreseeable future a festering wound in the fabric of the United States. In Heller, the Court held, in a 5–4 decision, that (1) the Second Amendment granted an individual right to keep and bear arms unconnected to service in a militia; (2) the right to keep and bear arms is not unlimited; and (3) handgun bans and trigger lock requirements such as those instituted by the District of Columbia are unconstitutional. The Court’s majority arrived at these findings after an “in-depth examination and historical discussion” of the case.
I’m not going to explain the Court’s findings in Heller, I’m going to explain why Heller is wrong and why anyone with even the most cursory understanding of United States history and its genesis can understand that Heller is wrong.
Let’s look at a couple of historical milestones for the Second Amendment…
The Constitutional Ratification Process
It’s important to consider the historical context in which the Second Amendment was ratified by the original, founding states of the nation, in order to appreciate the intent with which the text was written. For example, the prefatory clause—”A well regulated militia being necessary to the security of a free State”—definitively limits the application of the operative clause—”the right of the People to keep and bear arms shall not be infringed”—and that makes sense given that the amendment was ratified by Southern states, where there was a very real fear of arming freed former-slaves emancipated through military service. This is why the Southern states were able to ratify the Bill of Rights, because, while they were afraid of armed black people, only white people could serve in the militia in the South, so only white people could own guns.
The right to keep and bear arms was deliberately linked to militia service or membership in the text by the drafter of the amendment, and slaveholder, James Madison. Again, in the South, only whites could join the militia.
We have the revision history of the text of the amendment, complete with the dates of the revisions. You can look it up on Wikipedia, even! (Personally, I think the Senate’s decision to strike the definition of “militia” was a mistake, but…)
United States v. Cruikshank
The 1876 decision of the Supreme Court held that “[…] ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. […] (emphasis added)”
What the Court said in Cruikshank is that the Second Amendment does not grant to the people an enumerated right to keep and bear arms, merely that this unenumerated right may not be infringed upon by an act of Congress.
Now, the other merits of Cruikshank aside—it was a wildly racist decision that reversed murder convictions and civil rights violations convictions of anti-Reconstruction mobs—this is kind of a big deal. This is the original precedent set by the Supreme Court as concerns the Second Amendment.
United States v. Miller
The Miller decision, handed down in 1939, held that the measure of a person’s right to keep and bear a weapon hinged on the efficacy of that weapon to a “well regulated militia.” This one, on its face, makes perfect, simple sense after reading the full, 27-word text of the Second Amendment. Basically, if it doesn’t serve a purpose to the military, it’s not Constitutionally protected.
This was also the very first time the Court took up a case in which the Second Amendment was directly implicated, as, while the 1876 Cruikshank decision we previously discussed mentioned the Second Amendment, it was not part of the arguments made before the Court in Cruikshank.
The “States’ Rights” or “Collective Right” Argument
Supporters of States’ Rights should love this one! The “States’ Rights” or “Collective Right” interpretation of the Second Amendment holds that the amendment does not apply to individual citizens, but rather to the citizenry of each state as a collective. Therefore, individuals do not have an express, enumerated, fundamental right to keep and bear arms themselves, but states have the right to have, essentially, a state National Guard.
This theory of interpretation says that the Second Amendment was written to keep Congress and the federal government from disarming the states. And that makes a lot of sense! Jumping ahead in time a bit, conservative, Republican-appointed Supreme Court Chief Justice (1969–1986) Warren E. Burger wrote “… [p]eople of that day were apprehensive about the new ‘monster’ national government presented to them, and this helps explain the language and purpose of the Second Amendment …” Burger’s understanding and interpretation of the Second Amendment was that the new, post-colonial American citizenry, having just overthrown the rule of King George III in North America, was extremely apprehensive of a centralised and powerful government, understandably so, and that the Second Amendment was written in compromise to guarantee the power of the states to arm and defend themselves from the national government. This is a picture-perfect, “originalist” interpretation of the Constitution, Scalia would be proud.
I also want to highlight that 200 years of judicial review by the federal courts unanimously affirmed that the Second Amendment only guaranteed a right to bear arms in connection with state military service, and that it does not grant nor guarantee access to guns for private purposes. It’s only in the 1960s that the counter argument to the States Rights/Collective Right model appears, this “individualist” argument is what we live with today. And, well…
Warren E. Burger
Now, I want to point out that Justice Burger is not someone who I would normally quote or turn to for reasoning! His views on homosexuality alone are enough to disqualify him from civil conversation. However, on this issue, the Second Amendment, he was absolutely correct.
Burger, appointed to the Court by Nixon in 1969 as Chief Justice and serving in the role from June 1969 to September 1986, said—unfortunately after he retired—that the idea that the Second Amendment granted any individual right to gun ownership “has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups.” This took place on an 1991 episode of the The MacNeil/Lehrer NewsHour on PBS, not in some obscure opinion paper or dusty, back-page article in a small-town newspaper.
Are you going to be surprised at all to find that the Heller decision was written by Justice Antonin Scalia, famed “originalist” interpreter of the Constitution?
To recap… In Heller, the Supreme Court held, in a 5–4 decision, that (1) the Second Amendment granted an individual right to keep and bear arms unconnected to service in a militia; (2) the right to keep and bear arms is not unlimited; and (3) handgun bans and trigger lock requirements such as those instituted by the District of Columbia are unconstitutional.
This decision was a gross, expansive re- and misinterpretation of the Second Amendment, which reimagined how the text of the Bill of Rights should be read with a laser-like focus on a single issue.
Originalism’s doctrine is that “all statements in the constitution must be interpreted based on the original understanding ‘at the time it was adopted.'” Now, that means that, given the drafting of the text of the Second Amendment, the people involved in the ratification being the same as those who drafted it, the correspondence between those who drafted and ratified it, and the oratory of the time surrounding the Constitution—including things like the Federalist Papers—we can understand the text of the Second Amendment to mean that the right to own a gun is connected to military service within the states. That’s what originalism, Antonin Scalia’s precious concept of Constitutional Interpretation and school of thought, says.
So, would it surprise you to find that in the Heller decision, Scalia not only throws away 200 years of stare decisis, overrules Cruikshank and Miller, and ignores the principles of a limited government checked by the states as theorised in the “States Rights”/”Collective Right” Model, but expands the Second Amendment to be a Fundamental Right of the individual?
The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State.
District of Columbia v. Heller, 2008
It’s interesting that he included the “well-regulated militia” language at this point in the opinion, because there’s no real appeal to that regulation anywhere else and he has, immediately previously, disconnected the right to bear arms from militia service.
Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, reestablished by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta [sic]! And Lexington, Concord, Camden, River Raisin, Sandusky, and the laurel-crowned field of New Orleans, plead eloquently for this interpretation! And the acquisition of Texas may be considered the full fruits of this great constitutional right.
District of Columbia v. Heller, 2008
And so, in the majority opinion of the Court, Scalia expands the right to bear arms beyond either “State or Federal” regulation.
This is wild, unmitigated “judicial activism.”
Dissents to Heller
Authored by Justice John Paul Stevens and joined by Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer, the principal dissent to Heller is far more well reasoned, historically accurate and grounded, and rational.
Stevens’ dissent holds that (1) the Founders would have made any individual right explicit; (2) the prefatory clause demands that the Second Amendment be attached to militia service; (3) lower-court rulings constitute stare decisis for over 200 years; and (4) the Court had not considered unconstitutional any previously enacted gun-control laws, such as the National Firearms Act.
Justice Stevens concludes his dissent saying, “The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons…. I could not possibly conclude that the Framers made such a choice.”
In a separate dissenting opinion, Authored by Justice Breyer and joined by Justices Stevens, Souter, and Ginsburg, Breyer concludes that, “there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas.” He bases this conclusion on early fire-safety laws that banned storage of gunpowder in Boston and the idea that, from an individual-rights perspective, DC’s handgun ban and trigger-lock requirements would be permissible.
The Breyer dissent also objects to the majority’s “common use” distinction used to separate handguns from machine guns:
But what sense does this approach make? According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machine-gun…There is no basis for believing that the Framers intended such circular reasoning.
Justice Stephen Breyer, 2008, District of Columbia v. Heller Dissent
Over the last several decades, we’ve heard a lot from the Right about “judicial activism” from the Left on the Supreme Court, even though the liberal Justices have never controlled by a voting majority the Court in the last 50 years. But if you want an example of what “judicial activism” is, look no further than Heller. When you can’t put a sound, historically coherent, and internally consistent argument together, but the outcome is the result of ideological preference none-the-less, that’s “judicial activism.”
Until we, as a nation, rest control of our institutions, from the state legislatures to the chambers of the Supreme Court, away from these right-wing nut jobs and restore a moderate-left position which represents the majority will throughout the nation, and until we can pass common-sense gun reforms like universal background check requirements, waiting periods, purchase limit windows, restrictions on magazine capacity, and bans of high velocity ammunition and firearms which serve no other purpose than to maim and kill, we will be doomed to repeat the horrendous tragedy of Uvalde and New Town.