Meet Your Second Amendment: D.C. v. Heller Decided (Updated)
posted by Mike O'Shea
It’s a momentous day. With the Supreme Court’s landmark Second Amendment decision this morning in District of Columbia v. Heller, American constitutional law has just gained a newly enforceable, individual liberty. The imposition by the U.S. government of a U.K.-style system of sweeping gun bans and prohibitions on armed self-defense is now off the table. Such laws are a violation of the U.S. Constitution.
In this post, I want to look back at the issues I discussed in my earlier CoOp post, “What to Watch for in D.C. v. Heller,” and offer some brief thoughts about how they featured in Justice Scalia‘s opinion for the Court. Before I begin, let me recommend Larry Solum’s typically thoughtful analysis of many of the interpretive techniques employed in the Heller opinion.
1. Recognition of an Individual Right to Arms: You bet. The right is recognized as squarely individual; the “militia” referred to in the preface was and is a popular militia. The Court rejects any requirement of participation in the National Guard or another organized militia.
2. What Purposes Does the Right Protect? Primarily private purposes. Although the Court acknowledges in passing that an armed populace is “better able to resist tyranny,” Maj. Op. at 25, the great weight of its discussion of the right to arms focuses on “the core lawful purpose of self-defense.” Id. at 58. See also id. at 63 (Second Amendment “elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.“)
3. Whither Miller? This is an extremely interesting discussion. Maj. Op. 49-53, 55-56. The Court does not reject its opaque 1939 precedent in U.S. v. Miller, but dismisses the contention that Miller limited the right to arms solely to “military purposes.” It describes Miller as “stand[ing] only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.” Id. at 50. There is a measured, but distinct rebuke of the decades of lower federal court opinions that “overread Miller,” a “virtually unreasoned case,” to toss aside claims to an enforceable Second Amendment right to arms. But the Court does some interpretive recasting of Miller, as I predicted: Miller’s “in common use” criterion becomes ” ‘in common use at the time’ for lawful purposes like self-defense.” Id. at 52. Thus machineguns can be excluded from constitutional protection, even though they were obviously “useful in warfare in 1939.” Id.
In the same vein, the Court recognizes a historical exception to the right to arms that applies to “dangerous and unusual weapons,” Id. at 55. (That conjunctive form may prove important — dangerous and unusual.) On the other hand, the Court stresses that defensive weapons that did not exist in 1791 may nevertheless be protected today. The basic category of “Arms” appears to be very broad: “[T]he Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Id. at 8. The Court approvingly cites broad founding-era definitions of “Arms” such as Timothy Cunningham’s (1771): “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.”
Notice how powerfully this language suggests a Second Amendment right to possess, not only firearms, but also other common personal defensive weapons such as knives and pepper spray.
4. What Level of Scrutiny Applies? Intermediate or strict scrutiny. They’re not saying which yet. The key passage is Maj. Op. at 56 & n.27. The Court says the D.C. handgun ban violates “any of the standards of scrutiny that we have applied to enumerated constitutional rights.” A footnote cites the classic discussion of heightened scrutiny in U.S. v. Carolene Products Co. (1938). Id. at 56 n.27. This discussion leaves lower courts free to conclude, by analogy to First Amendment case law, that strict scrutiny applies to Second Amendment claims, but they also would not violate the import of the Heller opinion by adopting intermediate scrutiny instead.
5. Will the Court Actually Strike Down the Challenged Provisions of D.C. Law? Yes. The Court struck down the handgun ban; and also the requirement that firearms in the home be kept locked and unloaded/disassembled — to the extent the latter requirement prohibits citizens from “rendering … firearm[s] in the home operable for the purpose of immediate self-defense.” Id. at 64. I predict litigation about the limits of that “immediate self-defense” proviso. I could wish that the Court had simply said, look, Heller can’t realistically expect to defend himself against criminal violence in the home unless he is allowed to have one firearm that is loaded and ready to be used in self-defense, so the Second Amendment protects his right, not merely to regularly carry a handgun in his home, but to regularly carry a loaded handgun in his home. The Court did not squarely say that, so the lower courts may have to piece out what level of readiness and access is realistically required for “immediate self-defense.” In making that judgment, they will need to keep in mind the Supreme Court’s vigorous affirmations of the right to home self-defense throughout the Heller opinion.
6. Are “Keep” and “Bear” Separate Rights? The two verbs receive separate weight in the Court’s analysis. One of the big points of contention between the majority and the dissenters is whether “keep and bear arms” describes “a unitary right to possess arms if needed for military activities and … use them in conjunction with military activities,” Stevens Diss. at 11 (punctuation omitted), or instead a right to “have weapons,” as well as a right to “carry” them for defensive purposes. Justice Scalia (the author of Crawford v. Washington) rather intriguingly phrases this as a right to use arms for “confrontation.” Maj. Op. at 8, 10.
So what is the scope of the right to “bear” arms, above and beyond the right to “keep” them? It clearly includes the right to “use [arms] for the core lawful purpose of self-defense” in the home. Id. at 58. What about carrying them outside of the home? Justice Scalia notes that 19th-century state courts regularly upheld prohibitions on “carrying concealed weapons.” Id. at 54. The opinion does not mention that many state courts hold that the right to bear arms obligates governments to allow some form of weapons carry — if concealed carry is banned, then “open carry” (holstered on the hip) must be allowed, and vice versa.. After Heller, It is open for gun rights proponents to argue that the right to carry either open or concealed (depending on local law) is entitled to constitutional protection – particularly if the Second Amendment gets incorporated against the states.
7. Blocs of Justices. Several surprises here. I expected one or more separate concurrences to the majority opinion, but there were none. It seems the five majority Justices put great store on speaking through a single, clear opinion of the Court. There was also no rank-breaking or diversity of approach among the liberal Justices. All four joined Justice Stevens’s dissent arguing that the Second Amendment does not protect arms possession for private purposes, and Justice Breyer’s dissent arguing that, even if self-defense is a protected interest, the D.C. handgun ban is reasonable and constitutional.
8. Hints About Other Federal Gun Laws? As predicted, the Court expressly distinguished the federal ban on post-1986 machine guns, 18 U.S.C. 922(o), and the federal felon-in-possession ban, 18 U.S.C. 922(g)(1), indicating that both are safe from constitutional challenge. Maj. Op. at 52-55. The Court extended similar reassurances about laws prohibiting “the carrying of firearms in sensitive places such as schools and governments buildings,” id. at 54, and regulations of commercial purchases such as background checks. Id. at 54-55.
9. Hints About Incorporation: Another punt to the lower courts, though the Supreme Court included somewhat more pro-incorporation discussion than I expected. In its historical analysis of evidence of the public understanding of the Second Amendment, the Court discussed at length the legislative treatment of the right to arms in the aftermath of the Civil War. See Maj. Op. at 41-44 (discussing, inter alia, the history of black disarmament in the Reconstruction South, and the references to the right to arms in the Freedmen’s Bureau Act of 1866). This is precisely the sort of historical evidence relied upon by scholars and researchers who argue that the Fourteenth Amendment was intended to incorporate the right to arms against the states. The Court’s one express mention of the incorporation issue comes in an exquisitely ambiguous footnote:
With respect to [the nineteenth-century case of U.S. v.] Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois (1886) and Miller v. Texas (1894) reaffirmed that the Second Amendment applies only to the Federal Government.
Id. at 48 n.23 (emphasis added) (citations omitted). So on the one hand the Court says that the Fourteenth Amendment inquiry is “required” by its later (20th century) incorporation decisions, yet it also noted that post-Cruikshank, 19th-century cases reaffirmed that the Second was not incorporated — but those cases did not perform the “required” inquiry either! I read this as a very comprehensive punt to the lower courts; they can either take up anew the question of Second Amendment incorporation in coming cases — “the Court instructed us that this inquiry is ‘required’!” — or they can defer to Presser et al. and refuse to apply the “selective incorporation” framework to the Second Amendment until the Supremes officially overrule those cases — “the Court noted that later decisions ‘reaffirmed’ Cruikshank!” A district court judge or circuit court panel could choose either path, and still plausibly claim to be following Heller.
10. The companion petition on the issue of standing, Parker v. D.C. Today the Court relisted and distributed for conference the petition in Parker, which relates to the potential standing of the five other plaintiffs (besides Dick Heller) who were originally included in the litigation. I predict some action on Parker tomorrow in the Court’s final round of orders before its summer recess — probably a “GVR” order that will kick the issue of the other plaintiffs’ standing back down to the D.C. federal courts to reconsider in light of the Heller opinion.
MEDIA NOTE: I’ve been interviewed by National Public Radio about the Heller decision; the segment should appear on NPR’s All Things Considered this afternoon or Morning Edition tomorrow a.m. Audio will be available here. I’ll be interviewed tonight on NRA News’s “Cam and Company” at 10:40 p.m. EST. I’ll be discussing how to choose a good car wax.