The Federalist Society


District of Columbia v. Heller

June 26, 2008


Questions and Answers:

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First let me thank the Federalist Society for hosting this debate and including me.  Today's landmark decision is significant both for what it decides and what it does not.  The decision clearly held that the Second Amendment protects an individual right to bear arms for private purposes, including self defense.  On this basis alone, the decision is worthy of landmark status: the Court has never previously invalidated any law on the basis of the Second Amendment.  What has been a long academic debate about the meaning of the Second Amendment has now been settled, at least for legal purposes.

But the Court also left the most important question unanswered -- and in doing so has likely created confusion rather than clarity.  What exactly does the Second Amendment prohibit?  Other than a complete ban on handguns coupled with an onerous trigger lock requirement, the Court fails to clarify what other laws might run afoul of the amendment.  Significantly, the majority vigorously refuses to adopt a standard of review for adjudicating future disputes, such as strict scrutiny or intermediate scrutiny.  This is unfortunate, because the lower federal courts and the state courts should now see a tidal wave of litigation challenging gun control laws.  These courts are left with little guidance: the government can't ban the most popular weapon or adopt restrictions so onerous as to effectively nullify or destroy the right to self-defense in the home.  How does that apply to discretionary permitting laws?  Bans on guns in the workplace?  Bans on sawed-off shotguns?  Bans on concealed carry?

Heller is not the final word on the Second Amendment.  In light of the ambiguity of the decision, we are likely to see many more challenges in the years to come. Much remains to be decided.

 




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I likewise want to thank the Federalist Society for inviting me to participate in this debate.  I agree with Adam that today's decision is landmark.  After decades of scholarly debate, the Supreme Court has unequivocally held that the Second Amendment protects an individual right to keep and bear arms.  Justice Scalia's opinion for the Court is encyclopedic in its treatment of the issue, and it's notable that the opinion commands a full majority, with no concurrences undermining its force.

As for the unanswered questions, I'm not sure I agree that they're all that important.  Regarding the standard of review, the Court took the easiest and most sensible path -- it observed that, under any plausible standard, the DC ordinances would fail.  That's part of what made this such a good test case:  DC's gun ban was so draconian -- operating in effect to ban all handguns and all operable long guns -- that it made the ultimate question quite simple.  Any individual right that allows government to ban its exercise altogether is no right at all.

But the Court also made clear that many other gun regulations, such as bans on felons possessing firearms or restrictions on the private ownership of machine guns, are "presumptively lawful."  Thus, we are left with the two extremes defined:  total bans, like DC's (and, in all probability, like the City of Chicago's), are unconstitutional; reasonable restrictions, such as prohibitions on felons in possession, are not.  In between is a grey area that, no doubt, subsequent decisions will fill in over time.  But, I suspect, the number of cases in that grey area will not be immense.



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Many thanks to the Federalist Society for hosting this discussion.  I am also contributing to the Heller discussion at SCOTUS.blog; consequently, my comments at both sites will overlap.

Rehashing the debates over whether the Second Amendment should be interpreted as an individual right or a militia-based right is inevitable, yet the paramount question is: What now?

First, Washington, D.C.’s handgun ban is no longer valid.  That’s got considerable ramifications for public safety.  A careful study that compared the nine year period before the ban was enacted with the nine years following enactment, and then compared what happened in D.C. with the immediately surrounding areas in Maryland and Virginia, found that the handgun ban reduced gun-related homicides by 25% and gun-related suicides by 23 percent.  Colin Loftin, Ph.D., et al., “Effects of Restrictive Licensing of Handguns of Homicide and Suicide in the District of Columbia,” 325 New Eng. J. Med. 1615 (Dec. 5, 1991).   The law did not turn Washington into the Garden of Eden, and crime rates fluctuated, particularly during the last few years of the study when the use of “crack” cocaine was increasing and homicides increased dramatically.  Nevertheless, the effect of the law was both immediate and sustained, and things would have been worse without it.  So a dangerous city is likely to get quickly more dangerous.

What about the rest of the country?  Other than the section of the D.C. law that requires storing guns dissembled or bound by a trigger lock, no other gun regulations – federal, state, or local – are invalidated, at least for the present.  The Court’s decision leaves open the question of whether the Second Amendment applies only against the federal government or whether it will be deemed to be incorporated against the states by the Fourteenth Amendment.  The Court mentions this question in footnote 23.  Reading that two-sentence note for clues about how the Court will eventually decide that issue is sort of like reading the Second Amendment itself: the first section leans one way and the second section leans the other.  All that can be said with certainty is that the note says that this was “a question not presented by this case.”  This is now the next big constitutional issue concerning the Second Amendment.

On a different topic, I read Justice Scalia’s opinion with both great interest and trepidation to see whether he embraced insurrectionist theory, that is, the argument that the Founders adopted the Second Amendment as a check against governmental tyranny.  What’s more repugnant to constitutional democracy and the rule of law – not to mention traditional conservatism – than the idea that the people should be armed to potentially go to war with their own government?  Nonetheless, this theory has animated much of the individual right literature.  Its popularity has undoubtedly disturbed the sleep of giants on both sides of the Atlantic.  Surely, insurrectionism has had both James Madison and Edmund Burke spinning in their graves.

Clearly, Justice Scalia tried to be careful not to expressly embrace insurrectionist theory.  Yet he alludes to it gingerly – a sort of toe in the water.  He writes that “when able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.”  Call me foolish, but I was hoping that the conservative Court would expressly repudiate insurrectionist theory.  Somewhere, Robespierre is smiling.    

 

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My thanks also to the Federalist Society, and to the other participants in this discussion.

The Supreme Court’s decision striking down the D.C. handgun ban is an important victory for the rights of American citizens who want to own guns for self defense. It is also an important declaration by the Court of its respect for the original meaning of the Constitution. Justice Scalia’s opinion conclusively refutes the mistaken theory that the Second Amendment protects only a right to have weapons for the purpose of serving in a military organization regulated by the government. The Court, moreover, has firmly rejected the theory that courts should uphold almost any regulation that they think might promote public safety. Many questions about the scope of the Second Amendment remain open, but the core right of Americans to keep arms for personal self defense has now been fixed in our constitutional law.

One particularly interesting feature of Justice Scalia’s opinion is its insistence that questions about the scope of Second Amendment rights will be decided on the basis of an historical inquiry. This appears to mean that arguments about the costs and benefits of modern gun control regulations should be almost entirely irrelevant to the constitutional analysis. It is not entirely clear how this historical analysis will be conducted, but Scalia’s opinion suggests that modern gun control statutes will not be upheld unless they have some reasonably close analogue in regulations that were widely accepted in eighteenth century common law or statutory law, or perhaps in regulations that have been widely adopted and accepted in modern times.

Among the most urgent questions left open by the Heller decision is whether the Fourteenth Amendment makes the Second Amendment applicable to state and local governments. Justice Scalia’s opinion contains some language suggesting that the Second Amendment will be “incorporated” under the Fourteenth Amendment, but the question was left open.

Scalia’s opinion also includes dicta indicating that some important forms of gun control will be upheld. Examples include bans on carrying concealed weapons; disarmament of convicted felons; gun free zones in “sensitive places” like schools and government buildings; restrictions on the commercial sale of firearms; and bans on “dangerous and unusual” weapons, apparently including short-barreled shotguns and machine guns.

Some of the examples are problematic.

Is it truly consistent with the original meaning of the Second Amendment to leave an American citizen defenseless for the rest of her life because she was convicted of a non-violent felony like tax evasion or insider trading?

On what basis will courts decide whether particular places are sufficiently “sensitive” to justify disarming citizens who go there? Did New Orleans become a “sensitive” place after Hurricane Katrina, thus allowing the government to confiscate weapons from law abiding citizens whom the government did not and could not protect from roving bands of looters and criminals?

Did short-barreled shotguns, which are very useful for self-defense and in many cases superior to handguns, become “dangerous and unusual” just because Congress decided to restrict them in 1934?

These and many other questions remain to be addressed.

  

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Professor Lund raises an important point when he says that the Court decided that gun regulations will be evaluated on a purely historical basis – that is, whether the regulation in question would have been considered acceptable in 1791 – rather than on an interest-balancing analysis in light of present circumstances.  Under the latter formulation, the benefits of a regulation would be weighed against how much it infringes upon the Second Amendment right.  Justice Breyer argued for the interest-balancing approach; but he was on the losing side.

Is the Court saying that current exigencies are entirely irrelevant?  Will it deem a regulation unconstitutional even if it produces enormous benefits in public safety and infringes the right to keep and bear arms to only the slightest of degrees?  Professor Lund reads the Court’s opinion as saying that a purely historical analysis will control, real world consequences be damned.  Based upon the language of the opinion, I can’t quarrel with him.  Yet I wonder whether the justices realize the implications of such a decision.

The principal argument for originalism is that history provides certainty and objectivity, requiring judges to apply the law without letting their own policy preferences get in the way.  But the Second Amendment, and Heller, belie that argument.  Intelligent people have spent endless hours studying and debating the relevant history without agreeing on the fundamental question of whether the Framers intended the Second Amendment to protect a personal or a militia-based right.  The Justices now have done their own prodigious work, spreading competing analyses of the historical record over more than 150 pages, without agreeing among themselves.  Moreover, they split 5-4 along ideological lines.  If you believe that one group of the justices are dimwitted or consciously dissembling, we have nothing to say to one another.  These are intelligent and conscientious people reading history as best they can.  But if you believe that they split perfectly along ideological lines without being decisively influenced by their own ideological preferences, I have a bridge in Brooklyn to sell you.

Justice Scalia declares that the Second Amendment protects weapons “in common use at the time,” and the government may prohibit “dangerous and unusual weapons.”  Is he speaking about weapons in common use in 1791 or in common use today?  Is he speaking about weapons that were dangerous and unusual in 1791 or that are dangerous and unusual today?  I’m not sure Justice Scalia himself is clear what he means.  At times he focuses on weapons and regulations in 1791.  At times he focuses on the present, as he does, for example, when he says “handguns are the most popular weapons chosen by Americans for self-defense in the home” (emphasis added) and that one of the benefits of the handgun is that “it can be held with one hand while the other hand dials the police.”  What if handguns were not common use in 1791?  What if they were then possessed by only a tiny, wealthy fraction of the population?  And isn’t Justice Scalia doing a contemporary interest-balancing analysis when he talks about how useful handguns are when dialing the phone?

Today handguns may not be unusual, but they are, in terms and deaths and injuries, far and away the most dangerous of all weapons.  Experience and research show that reducing handguns in general circulation is the most effective – and perhaps the only effective – method of gun control.  See Carl T. Bogus, Gun Control and America’s Cities: Public Policy and Politics, 1 Alb. Gov’t L. Rev. 440 (2008).  If the Court believes that it has taken away only one method of gun regulation, leaving available other effective methods of combating gun violence, it is mistaken.    

                                       



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I’m grateful to Professor Bogus for his comments on my previous post. He makes a number of points with which I don’t necessarily agree, but I’d like to comment briefly on just one issue.

Whatever Professor Bogus or I may think about the merits of originalism, all nine members of the Court agreed that this case should be resolved on that interpretive principle. The fact that they disagreed about the original meaning of the Second Amendment does not prove that they were all wrong to think that they should be looking for the original meaning. Nor does the fact that the Court split 5-4 along what are often assumed to be ideological lines prove that all of the Justices were “decisively influenced by their own ideological preferences.” Maybe some of them were. Maybe some of them were not. Professor Bogus has no way of knowing, and neither do I.

I think it is worthwhile, as an academic exercise if nothing else, to continue thinking about the strengths and weaknesses of the arguments that Scalia and Stevens made about the original meaning of the Second Amendment. But now that the Court has finally spoken, attention will naturally shift to the implications of the conclusions reached in the majority opinion. I take it that the thrust of Professor Bogus’ post is to criticize the effects that the decision will have. There will be lots of important debates—in the courts and elsewhere—about the proper interpretation of Justice Scalia’s opinion, and about whether his opinion will have good or bad effects on the law and on our society. But I think it is important to distinguish those debates from two separate questions:  a) whether all nine Justices were right to treat Heller as a case that should be decided on the basis of originalism, and b) whether Scalia or Stevens had better arguments about the original meaning of the Second Amendment.




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Justice Scalia & the “Living” Constitution

In my view, Heller is hardly a triumph of “originalist” interpretation.  One of the most intriguing aspects of Justice Scalia’s opinion is the use of living constitutionalism to justify the decision to invalidate D.C.’s handgun ban.  On first look, the opinion appears to be an ode to originalism: the Court goes on for page after page detailing why and how the framers drafted the Second Amendment to protect an individual right to bear arms.  But when it comes to deciding why the handgun ban is unconstitutional, Scalia argues that handguns are the most popular weapons chosen by Americans for self-defense.  But why should that matter?  Since when does an originalist look to today’s choices – or the choices of recent generations – to determine the scope of a constitutional right?  If people had chosen machine guns as their weapon of choice, presumably they would be protected too.  Sounds like the Constitution is evolving to fit current circumstances after all.

A true originalist approach might look to the weapons preferred by the Founding generation to determine what is protected.  That’s not what the Court did, perhaps fearing the logical consequence that a handgun ban might be permitted in light of the Founding generation’s preference for the more reliable and accurate long gun.

So what is protected and what is not protected?   That is where the Second Amendment rubber hits the road.  The real meaning of the Second Amendment is in what the Court reads that Amendment to prohibit or allow.  But here the opinion does not provide tremendous guidance, failing to articulate a standard of review to help the lower courts soon to face numerous Second Amendment suits.  More importantly, the guidance it does give is not grounded in original meaning at all.

The Court says that it is not calling into question longstanding prohibitions on possession by felons and the mentally incompetent, bans on guns in sensitive places, and restrictions on sales and purchase.  In another passage, the Court suggests that “dangerous and unusual” weapons and concealed weapons can be banned.  Why doesn’t the Second Amendment call those laws into question?  The Court provides no answer other than that they are “longstanding.”  But this is not the same as “part of the original public meaning” of the Second Amendment.  Indeed, many of these types of laws are modern inventions and – while reasonable and appropriate – had no analogy in the Founding era.  Maybe a good originalist argument could be made to support the exceptions recognized in Justice Scalia’s opinion.  But Heller only stated the exceptions and cites no historical evidence that the Framers understood the right to self-defense to be subject to these particular exceptions.

So what explains the reasonable regulations that Scalia’s opinion recognizes?  America’s living tradition of the right to bear arms.  Americans have enjoyed the right to bear arms in most states for most of American history and they have always accepted a wide array of reasonable gun control measures, including the very types of laws Scalia lists.  In the end, the list is a product of that lived experience and development of the right to bear arms, not originalist interpretive method.

 

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Without necessarily endorsing every aspect of Justice Scalia's majority opinion, I have to disagree with Professor Winkler's claim that "[a] true originalist approach might look to the weapons preferred by the Founding generation to determine what is protected."

Some questions about the meaning of the Constitution can be answered (with more or less confidence in different cases) by ascertaining the public meaning of the text that was enacted into law. In Heller, I think that Scalia presented an overwhelmingly powerful case for concluding that the text protects an individual right to have firearms for self defense, and thoroughly refuted Justice Stevens' claim that the text protects only "the right of the people of each of the several States to maintain a well-regulated militia." But whether one thinks that Stevens or Scalia had the better argument, all nine justices agreed that this question can and should be decided on the basis of what Professor Winkler calls "originalist interpretive method."

Some questions about the meaning of the text cannot be answered in this fashion.  It is a mistake to claim that originalists like Scalia are untrue to their professed principles unless they try to carry out the impossible task of determining how the founding generation would have answered all the many specific questions which are not answered by the text and which were never asked by those who adopted the text. Assuming that Professor Winkler is right to assert that the founding generation preferred long guns to handguns because they were more accurate and reliable, he cannot be right to suppose that an originalist is required to infer from this that the term "arms" in the Second Amendment does not refer to handguns, or that handguns may be banned.

Some ways of addressing questions that are unanswered by the original public meaning of the text are surely more faithful to that meaning than others, and there can be important debates about this issue, both in general and as applied to specific cases. Much of the dispute about the handgun ban in Heller between Scalia and Breyer (who assumes arguendo that Scalia rather than Stevens is right about the original public meaning of the text) is an example. Someone might argue that neither of them is sufficiently faithful to the original meaning, and propose yet a different analysis. But whatever one concludes about this question, originalism does not require its adherents to answer every legal question by asking what specific policies or practices most people in the founding generation preferred, or would have preferred if they had been asked.



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I think the foregoing is a serious and worthwhile discussion.  I have a number of responses.

First, the most compelling argument for the majority is not an originalist argument, it is a textualist argument.  The operative clause of the Second Amendment provides that the "right of the people to keep and bear Arms shall not be infringed."  That language is clear and explicit, at least insofar as that it is protecting an individual right.  Every time "the people" is used in the Bill of Rights, it is used as a term of art, to mean individual American citizens.  That's how it's used in the First Amendment ("the right of the people peaceably to assemble and to petition the Government"), and that's how it's used in the Fourth Amendment ("the right of the people to be secure . . . against unreasonable searches and seizures").  Justice Stevens' response to the plain import of the operative clause is altogether unpersuasive.

Second, a fair reading of the originalist texts yields, in my judgment, a clear answer.  It is, in part, for that reason that respected scholars on the left - - from Sanford Levinson to Larry Tribe to Akhil Amar - - have all felt compelled to acknowledge the individual right nature of the Amendment, despite the fact that they would not otherwise be inclined to favor gun ownership.  The dissents focus on the prefatory clause's reference to the militia, without ever fully confronting (1) the impropriety of reading a prefatory clause to contradict an operative clause and (2) the consistency between the two, especially when one recognizes that the militia at the time consisted of all able-bodied males.  As George Mason observed, "Who are the Militia? They consist now of the whole people."  It is only based on the anachronistic view from today that the dissent can focus on the "select militia," an organized professional subset of the militia at the time of the Founding (the people as a whole).

Third, although it is somewhat comforting to see all the Justices at least addressing the understanding of the Framers, the different outcomes reached between the majority and the dissent, reflect, I believe, an altogether different jurisprudential approach.  The majority fairly addresses the text and original understanding, and gives it effect.  Many of the Justices in the majority, especially Justice Scalia, have shown an equal willingness to give the text and original understanding effect even when they find the policy outcome unpalatable.  Hence, for example, Justice Scalia has voted to uphold flag burning, a robust reading of the Confrontation Clause, and a strict requirement that every element of a crime be proven to a jury - - not because he has an affinity for long-haired hippies who burn flags or for criminals whose convictions are upset by Crawford and Apprendi, but because that's what he believes the Constitution requires.  Many of the dissenters, on the other hand, follow a jurisprudential approach that openly embraces a judge's ability to "do justice" and to read that result into the Constitution.  Thus, their discussions of the debates of the Framers read much like that of the proverbial guest a cocktail party who looks through the crowd and picks out only his friends.  Their reading of the original debates is, at best, selective.

Fourth, the claim that the majority's test or remedy embraced a "modern, living Constitution" doesn't bear scrutiny.  The majority didn't adopt a test, precisely because the DC ban was so extreme that, under any plausible test, it would fail.  Unsurprisingly, the Court took a more minimalist approach and left for another day the precise contours of the test (to be elucidated in a case or controversy that  required a precise test to be resolved).  And, the dicta about what is "presumptively lawful" was surely dicta, but it was also consistent with the Court's First Amendment jurisprudence, which likewise allows some forms of reasonable restrictions.  Both the Supreme Court and the DC Circuit drew the closest analogies between the First and Second Amendments, leaving to another day precisely what "time, place, and manner" restriction remain permissible concerning firearms.

And no originalist would hold that the Second Amendment protects only flint-muskets because Colt 45s didn't exist in the Founding era - - any more than a faithful originalist would strike down the Air Force because planes didn't yet exist or would hold that the First Amendment doesn't apply on the Internet.  What Justice Scalia explained was that, at the time of the Founding, the right to keep and bear arms was understood to mean that individuals had a right to possess the arms in common possession at the time, which they could be expected to provide if and when they found themselves called up to the militia.  Thus, at the Founding, cannons were not deemed protected Arms, and, today, rocket launchers are not either.  That's not a "living Constitution"; that's applying the Constitution as written to the world we live in today.

Finally, Professor Bogus's proffered data re the "success" of the DC gun laws are, to say the least, subject to dispute.  There is a wealth of academic research on the other side, and, at a minimum, the horrific crime and murder rates in DC over the past several decades (all with the ban in effect) surely do not inspire confidence.  Every other State and every other large city in the country (except perhaps Chicago) allows considerably more freedom for its citizens to own guns, and yet Washington is sadly among the most dangerous cities in America.

Of course, even if Professor Bogus were correct as a policy matter, that still would not entitle DC to altogether prohibit its residents from exercising a right expressly protected in the Bill of Rights.



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For our discussion about originalism, it’s important to draw a distinction between the initial attempt to discern the essence of the right, in this instance whether the right to keep and bear arms is a private or militia-based right, and then once having done that, applying the right to particular circumstances, for example whether the right protects semi-automatic handguns or handguns with large-capacity magazines.  I question Justice Scalia’s originalist approach only with respect to the second step.

In Maryland v. Craig, 497 U.S. 836 (1990), Justice Scalia said he does not believe in “abstracting from [a] right to its purposes,” and finding that a right has been preserved if its purposes are fulfilled.  That case involved whether a six-year-old child could testify in a criminal trial by one-way closed circuit television.  The majority held that this did not violate the Sixth Amendment right to confrontation as long as the purposes of the right – cross-examination, the ability of the jury to observe the demeanor of the witness, and the like – were preserved.  Justice Scalia rejected that approach.  He argued that the Sixth Amendment guaranteed face-to-face confrontation, and thus face-to-face confrontation was required even if all of the inferred purposes of the right were met.

I think Justice Scalia has tried to follow the same approach in Heller.  The Court has determined that the Second Amendment grants a private right.  Now to apply that right, Justice Scalia wants to determine whether a weapon was “in common use at the time,” by which I think he means in 1791.  If a weapon was in common use then, then the descendents or modern analogs of that weapon would be protected, plain and simple.  A legislature may not decide that because the purpose of the right is self-defense, handguns may be prohibited because people may adequately defend themselves with mace, pepper spray, and baseball bats.  Thus, a legislature may not engage in an interest-balancing analysis, evaluating whether the purposes of the right have been substantially preserved and weighing any infringement, no matter how small, against countervailing interests, no matter how compelling.  Yet Justice Scalia himself slips in doing exactly that when he discusses how useful handguns are for self-defense, implying other alternatives will not do.  He does this, quite simply, because it is impossible not to when trying to apply the right in some sensible fashion.  But if someone is to do an interest-balancing analysis, even Justice Scalia would agree that prerogative belongs to legislatures, not courts.            



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