Editors’ Note, July 8, 2019: The article that follows was originally published 15 months ago. Given that tomorrow will see the start of Governor Northam’s special legislative session on gun safety laws, we thought it an opportune time to revisit the Heller decision.
Any discussion of gun control raises the matter of the Second Amendment right to keep and bear arms. Overturning several hundred years’ of interpretation, the 5-4 majority in Heller employed a theory characterized as originalism. We thought the case should be revisited; readers have the opportunity to consider the originalism theory and compare it with the dissenting opinion.
In 2003, Dick Anthony Heller was a special police officer in Washington, D.C., who carried a handgun. He was recruited and vetted by a member of the Cato Institute, which had been founded and funded in 1974 by the Charles Koch Foundation and dedicated to advocacy of libertarian ideology to be one of a group of plaintiffs. The conscripted group was organized to overturn a D.C. statute that strictly regulated personal firearms, requiring that in the home they were to be “unloaded and disassembled or bound by a trigger lock.” In addition, such firearms were required to be registered.
Five years later, the U.S. Supreme Court was prepared to rule on a central question: whether the Second Amendment stood for the proposition that an individual—as opposed to a state militia—had the right to possess a firearm free of government control. Prior decisions and jurisprudence of the high court interpreted the amendment to apply to state militia, and that line of interpretation held that there existed no limit to the controls on firearms by either federal or state legislation.
On June, 29, 2008, Justice Antonin Scalia, writing for the 5-4 majority, held that such Second Amendment individual right to own and possess a firearm existed distinct from that of the militia [District of Columbia v. Heller, No. 07-290, 478 F. 3d 370]. The majority’s decision is, of course, well-reasoned and densely woven with textual parsing and historical references. Yet despite Scalia’s scholarship, the opinion remains unconvincing as though written to prove the point that the heretofore absent right did exist. Or, in other words, the conclusion was the point and the opinion written to support that objective instead of an evenhanded discourse logically leading to the holding.
For example, writing for the majority, Scalia parses the meaning of the terms “keep” and “bear” arms as though the distinction were crucial to the analysis. There is also a puzzling attempt to distinguish the citizens who would form or be part of a militia from those who are identified as “the people” in the language of the amendment. A substantial portion of the opinion is devoted to historical citations, especially a few indicating that the right to keep and bear arms existed in the constitutions of several states prior to the Second Amendment. While of historical interest, state constitutional provisions were clearly not at all persuasive to the Founding Fathers, since the entire prospect of a national government presumed to vitiate the acknowledged weaknesses of the Articles of Confederation.
One somewhat astonishing impression from reading Scalia’s opinion is how expressly and passionately he attempts to stand in the shoes of individuals in colonial times to present their comprehension of the use of firearms. This is another facet of Scalia’s apologia on his judicial ideology of originalism, or textualism. He cites a tradition in the 18th century to rationalize the infirmity of a contemporary statute in the District of Columbia, saying that a belief to “use that weapon for traditionally lawful purposes, such as self-defense in the home” belies government gun control.
Then, having justified a universal and absolute right of an individual to keep and bear arms, Scalia excepts some from its broad sweep by carving out felons and the mentally ill. That conclusion translates into a bar against a nonviolent felon threatened in his home from benefitting from the very right Scalia seeks to enfranchise. An excerpt from the foreword by Judge Frank Easterbrook in a book Scalia co-authored in 2012 criticizes this reliance upon history and tradition:
[W]ords don’t have intrinsic meanings; the significance of an expression depends on how the interpretive community alive at the time of the text’s adoption understood those words. The older the text, the more distant that interpretive community from our own. At some point the distance becomes so great that the meaning is no longer recoverable reliably. [Courts] should declare that meaning has been lost so that the living political community must choose.
Common sense dictates that this limitation upon the application of interpretation of older texts and historical facts applied to contemporary issue is questionable. No one would deny that the citation of such material may be pertinent but as the excerpt observes, caution is required as to the reliability of such material as well as the recoverability of its meaning.
In dissent, Justice Breyer, writing for himself and Justices Stevens, Souter, and Ginsburg, said:
The majority’s conclusion is wrong for two independent reasons. The first reason is that set forth by Justice Stevens—namely, that the Second Amendment protects militia-related, not self-defense-related, interests. These two interests are sometimes intertwined. To assure 18th-century citizens that they could keep arms for militia purposes would necessarily have allowed them to keep arms that they could have used for self-defense as well. But self-defense alone, detached from any militia-related objective, is not the Amendment’s concern.
Books and a multitude of articles have been written on the Heller decision, but the crucial fact remains that the decision continues to prevail until SCOTUS addresses the issue at another time. One hopes that revisiting the decision is informed by the history of shooting deaths and injuries experienced since 2008.
The decision and dissents can be found at www.law.cornell.edu/supct/html/07-290.ZD.html