Chief Justice Burger and the Second Amendment

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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11 Responses

  1. Joey says:

    Hi Gerard. This is an interesting post, but I’m not sure you quite capture the way modern critics of the current Court’s Second Amendment are using this quote. You frame the quote as being cited to prove the truth of the matter asserted, i.e. the critics are asserting that we ought to agree with what the quote says “because Burger thought so.” In that case, obviously, arguing that Burger is an undistinguished/unreliable authority would be a good response. But I don’t think people are using this quote this way. Rather, they’re using it as an indicator of a zeitgeist. The claim is that basically everyone on the Court, and in the legal culture more generally, thought, for much of the twentieth century, that the new notions of the Second Amendment being offered up by the NRA were a crock. Burger’s quote is cited as an exhibit of this zeitgeist; it illustrates how foreign the NRA’s view seemed to the mainstream of American law up until quite recently. But that’s all it illustrates. It doesn’t prove the truth of the matter asserted, i.e. that the new view is a “fraud” et cetera. If there is a claim about Burger embedded in the use of the quote, it’s not that he’s a great authority on the Constitution. It’s that he’s right there in the mainstream of the Court and American legal culture of the time. And I think that’s fair enough; he was.

  2. Brett Bellmore says:

    “The claim is that basically everyone on the Court, and in the legal culture more generally, thought, for much of the twentieth century, that the new notions of the Second Amendment being offered up by the NRA were a crock.”

    Well, then the claim is wrong. In fact, it wasn’t until 1994, the “Assault weapon ban”, that the federal government enacted a gun control law which wasn’t disguised as a tax, because it was in fact widely understood that the 2nd amendment really did stand as an obstacle to federal gun control, even if the Court hadn’t incorporated it, and it took that long for them to work up the nerve to directly contravene it.

    In fact, the last Supreme court ruling on the subject, prior to Heller, US v Miller, actually ruled that it was a right, and sent the case back for a factual determination as to whether the sawn off shotgun was suitable for militia use, in which case Miller won. And Miller was not a member of any organized militia, just a citizen.

  3. S B Parker says:

    A better response to Burger’s hogwash is Justice Steven’s response that he would AMEND the Constitution to change the meaning of the Second Amendment. Hence, WITHOUT amendment, the 2nd Amendment means what the Court says it means in Heller and McDonald, and which a growing number of Circuit Courts (Peruta in the Ninth – the NINTH! and Moore, et. al v. Madigan in the Seventh) have expanded upon to recognize not just a right to keep in one’s home, but a right to bear outside one’s home as well.

    Those who (still) try to minimize the Second Amendment as only recognizing a “collective” right or only applying to “the militia” are ignorant of the history and context in which the Amendment was written and of what was said about it by its contemporaries (Madison, etc.).

    Although I strongly disagree with Justice Stevens and the others who want to amend or repeal the Second Amendment, I give them credit for at least being intellectually honest, unlike Justice Burger, Justice Breyer, Justice Ginsberg, etc. etc.

  4. Brett Bellmore says:

    I don’t give Stevens any credit at all for being intellectually honest, since he only urged amending the 2nd amendment after failing to abolish it by judicial fiat. Honest was plan B, not plan A.

    And, frankly, the rest of his proposed amendments are, with the exception of the one abolishing the death penalty, either incredibly badly drafted, or deliberately nightmarish in their implications.

  5. Joe says:

    Brett goes beyond disagreeing with Stevens’ constitutional analysis, a dissenting view with broad support however misguided that might be, to some claim of intellectual dishonesty for — after losing fair and square — proposing an amendment. I reckon after Dred Scott came out, someone questioned the intellectual dishonesty of those who felt the dissent correct but felt an amendment was necessary to make that the law of the land.

    How is it “dishonest” to lose and then propose an amendment? Stevens quite honestly continues to argue he thinks Heller is wrong. As to “judicial fiat,” the majority there overruled a democratically passed law. BTW, Congress has express power over D.C. It in effect by inaction accepted the “gun control” there. What is that if not “judicial fiat”? Or, is that term a value judgment and/or a confused way of saying that Brett thinks the USSC was wrong — does that mean it isn’t “fiat” to overturn democratically passed laws … except if it is compelled by the Constitution? That’s a misleading usage. YMMV.

    Anyway, I agree that few should rest on the laurels of CJ Burger, especially many who otherwise have taste for the guy. There is a majority view in this country — if not quite the Heller way (see, e.g., the thoughts of Prof. Sandy Levinson, a left leaning law professor) — that there is a constitutional right to own firearms. So, liberals and conservatives. Likewise, there is a minority view on both sides against it in various respects. A conservative leaning federal judge, e.g., has criticized Scalia’s opinion in Heller.

    Resting on Burger here is misguided special pleading.

  6. Brett Bellmore says:

    “to some claim of intellectual dishonesty for — after losing fair and square — proposing an amendment. ”

    To be clear, I don’t regard proposing an amendment as intellectually dishonest. I’m simply unimpressed with somebody who does the honest thing only after the dishonest thing failed to work. And, no, I don’t think that Stevens’ dissenting opinion was all that honest, unless he was honestly delusional. The historical evidence from the founding era is amazingly one sided. Could any sane person have thought the Stevens dissent was honestly portraying the meaning of the 2nd amendment?

    Not that the majority decision in Heller was a triumph of historical analysis. Bye, bye, every terrible implement of the soldier. Hello, Elmer Fudd gets to have his wabbit gun.

    • Joe says:

      Heller has been subject to LOTS of analysis and criticism came at it from all sides. Experts and laypersons have found BOTH the majority and primary dissent dead wrong in various ways, though there is a lot of disagreement on how to apply the blame. Stevens voiced a fairly common view. Calling it “delusional” is a crude thing to say, but fine enough — still doesn’t make him “dishonest.” Yes, lots of “sane” people agree with him.

      Also, since lots of “terrible” things are allowed by the majority, not sure how only Elmer Fudd guns are allowed — handguns are quite more lethal that that. Finally, individual citizens owning weapons to make up the militia is at issue here, however that might be. A “solider” suggests something different.

      I appreciate the first qualification.

  7. Michael Mannheimer says:

    Brett, you say that “it wasn’t until 1994, the `Assault weapon ban’, that the federal government enacted a gun control law which wasn’t disguised as a tax, because it was in fact widely understood that the 2nd amendment really did stand as an obstacle to federal gun control.” Why is the caveat “which wasn’t disguised as a tax” relevant? I understand you need the caveat to get around the National Firearms Act of 1934, but that Act was part and parcel of the crime control agenda of the New Deal, the “twelve-point program” that Attorney General Homer Cummings proposed to Congress. That it was fashioned as a tax was purely for enforcement purposes. It does not appear that Cummings or Roosevelt even considered the Second Amendment a potential obstacle. There may have been some in Congress who did — I have not looked at the discussion in Congress over the NFA. Which is not to say that Cummings and FDR and their allies in Congress were correct, but as far as I know, there was little opposition to the NFA on Second Amendment grounds. Am I wrong about that?

    • Joe says:

      Seems to me that the tax workaround just is a lesser problem — taxes on the press or ministers, e.g., were struck down by the USSC during the 1930s and 1940s.

      Also, guns were regulated in territories or D.C. in the 19th Century to some extent, surely. States regulated guns in various ways and general police power understandings would apply to federal areas like that too.

      Anyway, the 2A was a concern though (given times — the USSC struck down a few key New Deal programs on 10A grounds) infringement of local discretion over crime control seems to have been the bigger concern:

      http://www.keepandbeararms.com/nra/nfa.htm

  8. Brett Bellmore says:

    “It does not appear that Cummings or Roosevelt even considered the Second Amendment a potential obstacle.”

    Sure did. See, for instance, Amicus brief

    “Indeed, when specifically asked how the proposed legislation “escaped” the “provision in our Constitution denying the privilege to the legislature
    to take away the right to carry arms,” General Cummings responded:

    Oh, we do not attempt to escape it. We are dealing with another power, namely the power of taxation and of regulation under the interstate commerce clause. You see, if we made a statute absolutely forbidding any human being to have a machine gun, you might say there is some constitutional question involved. But when you say “We will tax the machine gun” and when you say that the absence of a license showing payment of the tax has been made indicates that a crime has been perpetrated” you are easily within the law.”

    Indeed, you have to explain why, in US. v Miller, the US was appealing their appeals court loss, if the idea that the 2nd amendment secured an individual right was so widely rejected.

    They designed it as a tax, because they didn’t think they could get away with it constitutionally otherwise.