A Radical Decision that Created a Middle Path
adapted from Gun Fight: The Battle over the Right to Bear Arms in America
by Adam Winkler (2013)
District of Columbia v. Heller (2008) is the case in which the Supreme Court held for the first time that the Second Amendment protects individual ownership of firearms for self-defense and in which the District of Columbia’s prohibition on private ownership of handguns was struck down as unconstitutional (followed by the striking of Chicago’s handgun ban in the McDonald v. City of Chicago decision of 2010, which extended the earlier decision to the entire nation).
Background in Legal Thought
Before 1959, there were only a handful of articles on the Second Amendment in law reviews, the main forum for legal scholarship. The theory that the amendment was merely about protecting state militias from being disarmed by the federal government was widely accepted. None of the articles argued that it protected an individual right to own guns for personal self-defense.
There was sound reason for this reading of the Second Amendment, as there were two state constitutions at the time which explicitly protected an individual right to firearms for self-defense – Pennsylvania and Vermont – with well-known language that was not copied in the federal document. Additionally, the Pennsylvania Anti-Federalists proposed language specifically protecting self-defense and hunting uses of firearms, which was rejected by James Madison and the First Congress as they revised and then ratified the Bill of Rights.
In the 1960s, at the time the NRA’s American Rifleman magazine began featuring the Second Amendment prominently, legal scholars started to give the individual rights view a bit more attention – but only a bit. Three law review articles supporting the individual right to bear arms were published that decade, still a distinct minority compared with an additional eleven written in support of the militia theory.
Yet a flood of individual-rights scholarship soon followed. Between 1980 and 1999, there appeared 125 law review articles on the Second Amendment, the vast majority of which argued that the amendment was about individual rights. It was this body of scholarship that libertarian attorney Alan Gura would draw upon in his case in the DC Circuit Court of Appeals against the DC Firearms Control Regulations Act of 1975.
The shift was so dramatic that individual-rights scholars started calling theirs the “standard model” of the Second Amendment, though some of the most distinguished historians in the nation still maintained that the Second Amendment was only about protecting state militias from being disarmed by the federal government.
The rise of the new scholarly “consensus” dates back to 1965 when the winning essay in an annual American Bar Association competition on constitutional issues was written by Robert Sprecher, a Chicago lawyer who not long afterward was nominated to the federal bench by Richard Nixon. The Founding Fathers, he claimed, sought to secure “the right to arm a state militia and also the right of the individual to keep and bear arms” for personal protection.
One reason for the increase in individual-rights articles was money from the NRA and other gun rights groups to support academic research favoring the individual-rights theory. Most of the early individual-rights scholarship was written by lawyers employed by gun rights organizations, such as Steve Halbrook, Robert Dowlut and Richard Gardiner – all of whom worked at one time or another as lawyers representing the NRA.
This mirrored the financing of tobacco and asbestos “health” studies by those industries and the later climate change doubt studies financed by the petrochemical industry.
The NRA later helped finance Academics for the Second Amendment, devoted to promoting the individual-rights view through conferences and seminars. Over time, the writing of pro-individual-rights articles would extend well beyond people with financing from gun groups. Even so, seed money from the NRA and others helped transform the once barren field of individual-rights scholarship.
The strategic effort to nurture new ideas about the Second Amendment was part of a larger movement by conservatives to reclaim the Constitution. A vigorous defense of the individual right to bear arms became a central plank in the emerging platform of the New Right.
The new legal movement rejected the older conservative buzzwords of “judicial restraint” and “strict construction”. Think tanks like the Heritage Foundation (1973), the Cato Institute (1977), and, in the context of guns, the Second Amendment Foundation (1974) were formed to help devise strategies to make these counter-rights a reality. These rights were portrayed as part of the “original intent” of the Constitution’s framers, even though self-defense was a distinctly minority view among the framers.
No one was more important to this movement than a young University of Chicago law professor named Antonin Scalia, the most vocal proponent of originalism. Prior to joining the Chicago faculty, Scalia had served in the Ford administration in the Office of Legal Counsel (OLC). Scalia’s first task at OLC was to prepare a legal opinion analyzing whether Nixon was obligated to turn over the Watergate tapes. Scalia concluded that the tapes belonged to Nixon personally and that the former president did not have to turn them over to Congress (it took a Supreme Court ruling to over-ride this claim of “executive privilege”).
As the University of Chicago, Scalia sought to advance the conservative cause by helping a group of his student to form the Federalist Society in 1982. Scalia played a formative role.
To bring their counter-rights to life, conservatives mimicked the left and created public interest law firms like the Institute for Justice and the Pacific Legal Foundation. to try whenever possible to find a plaintiff whose plight outrages the people. It was the Institute for Justice which later turned down the request to take on the fight against the DC gun laws, dreamed up during happy hour by its libertarian attorney Clark Neily, because it did not fit their narrow purview.
In the 1980s, President Reagan’s attorney general Ed Meese brought the new legal conservatives into the highest levels of government. Meese sought out judicial nominees who shared his philosophy of originalism and were committed to the rights that conservatives favored. His effort was coordinated with the conservative think tanks and the Federalist Society. During two terms, President Reagan appointed half of the federal judges in America, along with three Supreme Court justices. The most consequential Reagan appointee was that young University of Chicago law professor, Antonin Scalia. The NRA was also becoming a key player in the conservative coalition.
The individual-rights faction based its historical research on King James II’s abuse of power and his confiscation of firearms from anyone deemed “dangerous to the peace of the Kingdom”. The Catholic James was quickly toppled by the Protestant elites and William and Mary were installed in the throne under the agreement to abide by the laws of Parliament and to respect the individual rights that were codified in the 1689 English Bill of Rights.
A century after this “Glorious Revolution”, Americans ratified their own Bill of Rights as the first ten amendments to the newly adopted Constitution. The Founding Fathers borrowed liberally from the English Bill of Rights. When the English Crown once again sought to disarm political opposition in the 1770s, Paul Revere set out on his famous midnight ride to warn the people of the countryside, and the Redcoats and colonists stood face to face in Lexington Green.
The Radical Left Proposes the Individual-Rights Theory
Nearly 200 years later, on a humid evening in the summer of 1963, Don Kates, with an M1 carbine and a Smith & Wesson Chief’s Special revolver in his hands, stood guard outside the home of a local civil rights activist in eastern North Carolina. This was Ku Klux Klan country and the woman whom Kates was defending, a plaintiff in a civil rights suit, had received a serious death threat.
Born and raised in the San Francisco Bay area, Kates was only twenty-two years old and had just finished his first year as a student at Yale Law School. Even though the night ended without incident, the experience taught Kates a valuable lesson. Kates would go on to become the most influential proponent of the view that the Founding Fathers intended the Second Amendment to guarantee the right of individuals to own guns.
It was the radical in Kates that fed his interest in firearms. Government oppression of the people, he believed, is possible only if government has a monopoly on the use of force. In the late 1970s, Kates, then in private practice, began to represent clients in gun cases, leading him to research the history of the Second Amendment. Eventually, he published a series of articles in legal magazines and journals on gun rights, one of which appeared in the Michigan Law Review. His was the first article to appear in a law review from a top ten law school arguing that the Second Amendment protected an individual right to keep guns for self-defense. It would prove to be a groundbreaking work that revolutionized Second Amendment scholarship.
Madison, who thought the Articles of Confederation failed because the states had too much autonomy, envisioned a more powerful centralized federal government, whose laws would bind all the states. What worried many opponents of ratification, however, was that the federal government could use its newfound power to trample on the rights of individuals that were supposed to be inalienable. Known as Anti-Federalists, the opponents of the Constitution pointed out that this was exactly what happened under English rule when power was centralized in London.
The Constitution’s “militia clauses” were designed to give Congress the power to call up the states’ militias should England, France or any other country try to invade, or to put down internal insurrections. Anti-Federalists, however, worried that the federal government would use the militia clauses to disarm the citizenry.
New Hampshire recommended that a Bill of Rights similar to the one in England be added to the text. It should provide that “Congress shall never disarm any citizen, unless such as are or have been in actual rebellion”. The New York, Virginia, Rhode Island and Massachusetts ratifying conventions agreed. Pennsylvania ratified the Constitution unconditionally, but not without a strong “Minority Report” that suggested additional protections for free speech, due process, and the right to bear arms: “That the people have a right to bear arms for the defense of themselves and their own State of the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals…”
In response to the suggestions by so many states that various protections be added to the proposed Constitution, Madison drafted a Bill of Rights. The Second Amendment reassured wary Americans that Congress would not have the power to destroy state militias by disarming the people. “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.”
Supporters of the militia theory saw the grant to keep and bear arms to “the people” as indicating a collective right. Kates’ Michigan Law Review article offered a rebuttal. The Second Amendment’s preamble – “A well regulated Militia, being necessary to the security of a free State” – was not in tension with the individual-rights reading. “The militia”, Kates argued “was the entire adult male citizenry, who were not simply allowed to keep their own arms, but affirmatively required to do so.”
Kates didn’t deny that the Founding Fathers were concerned primarily with the militia when they adopted the Second Amendment; that much was obvious. Yet this was not contrary to the idea that the provision protected the right of individuals to have guns. The modern day debate over whether the Second Amendment was about militias or individual rights was, in Kates’ view, a distraction. The provision was designed to keep the government from disarming the civilian population.
However, even the Pennsylvania Anti-Federalists, who were the most adamant about protecting the individual right to possess firearms for self-defense (and hunting), were clear about the distinction between “the People” and individual “persons”. They wanted language such as “no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals…” (which clearly differentiates between the collective “the People” and the individual members of that collective who may be disarmed if they pose a danger to the public, thereby asserting the superior rights of society over those of the individual).
Years later, the libertarian Clark Neily, who came up with the original idea to bring the lawsuit to reinvigorate the Second Amendment, would call Kates’ Michigan Law Review article the “seminal work” on the individual rights theory.
Kates himself didn’t carry that much weight because he was a gun lawyer, not an academic affiliated with a university. Kates later recognized that “many early (pre-2000) scholarly publications” endorsing the individual-rights reading of the Second Amendment weren’t taken seriously, since they “came from practicing lawyers, some of them gun lobby officers or employees”.
Then, in 1989, a law professor named Sanford Levinson, published an article in the highly esteemed Yale Law Journal endorsing Kates’ view of the Second Amendment. Levinson, one or the foremost liberal constitutional law professors in the country, titled his article “The Embarrassing Second Amendment”.
Levinson’s article drew attention not simply because he was a liberal, although that certainly enhanced the story. Between 1983, when Kates’ article was published, and 1989, when Levinson’s came out, the gun issue had exploded onto the national political scene. In the 1988 presidential election, the NRA actively campaigned against gun control supporter Michael Dukakis, running ads in twenty states featuring Charlton Heston and distributing “Defeat Dukakis” bumper stickers.
Some historians, like Jack Rakove, winner of a Pulitzer Prize, continued to argue that the Second Amendment was only about protecting militias. Others, like Saul Cornell and David Konig, rejected the traditional militia theory and argued that, while the amendment did guarantee an individual right, it was only a right to serve in the militias. These latter scholars likened the right to keep and bear arms to jury service: more a civic duty than a libertarian right rooted in personal self-defense. These accounts emphasized the paucity of explicit discussions in the founding era about the importance of guns for protection against ordinary criminals.
Guns and Gun Control in American History
In the Revolutionary Era, gun laws were strict. With national defense becoming too important to leave to individual choice or the free market, the founders implemented laws that required all free men between the ages of eighteen and forty-five to outfit themselves with a musket, rifle, or other firearm suitable for military service, the founders’ version of an individual mandate, which conservatives decry today. This mandate was enforced at “musters”, public gatherings held several times a year where very person eligible for militia service was required to attend, military gun in hand. At the musters, government officials would inspect people’s guns and account for the firearms on public rolls – an early version of gun registration, which is also condemned by the gun rights community.
In some states, like New Hampshire and Rhode Island, government officials conducted door-to-door surveys of gun ownership in the community. If the government decided that a privately owned gun was needed, the Founding Fathers used a temporary form of gun confiscation known as “impressment” to seize the gun from its owner. Ten of the thirteen colonies impressed privately owned firearms for the war effort against England. Impressed guns were eventually returned to their owners, but the seizure might leave the owner without a firearm to defend against an ordinary criminal attack. To the Founding Fathers, leaving an individual without a gun to defend himself was immaterial in light of the public need for that firearm. Guns were privately owned, but they were considered assets to be used if necessary for the public good.
Although the fact is rarely discussed in the individual-rights literature, the founding generation had many forms of gun control. Government efforts to enhance public safety by regulating guns are as old as guns themselves. Guns began to appear in Europe in the first decades of the 1300s, and laws restricting weapons quickly followed.
Gun safety regulation was commonplace in the American colonies from their earliest days. The right to bear arms in the colonial era was not a libertarian license to do whatever a person wanted with a gun. When public safety demanded that gun owners do something, the government was recognized to have the authority to make them do it.
Selective disarmament was well within that authority in the view of the Founding Fathers. They supported forcible disarmament of slaves, free blacks, and people of mixed race out of fear that these groups would use guns to revolt against slave masters. Even if free blacks and people of mixed race were completely law-abiding, they were prohibited from owning or carrying guns.
White people, too, were the target of gun control. Before the Revolution, at least one colony, Maryland, passed a law barring Catholics from possessing firearms. Other colonial governments prohibited any white person unwilling to affirm his allegiance to the British Crown from collecting firearms. Then, when the political winds shifted, people who didn’t support the Revolution were ordered to turn over their guns.
The number of people eligible for disarmament by founding-era gun control was considerable. In some states, slaves and free blacks far outnumbered the white population. Some historians estimate that Loyalists opposed to the Revolution constituted up to 40% of the white population. Adding these groups together leaves only a small minority of people who fully enjoyed the right to keep and bear arms.
Some cities and states adopted equivalents of today’s “safe storage” laws. In several places, laws required that gunpowder be stored on the top floor of a building. In South Carolina before the Revolution, safe storage requirements were imposed on slave owners, who were required to keep their firearms locked up.
When public safety required it, the Founding Fathers were willing to go even further. In Boston, city leaders determined that all loaded firearms had to be kept out of buildings. “All…fire-arms…of any kind, that shall be found in any dwelling-house…or other building, charged with, or having in them any gunpowder, shall be liable to be seized” and forfeited. Given how time-consuming the loading of a gun was in those days, these provisions imposed a significant burden on one’s ability to have a functional firearm available for self-defense in the home. Yet there is no record of anyone’s complaining that this law infringed the people’s right to keep and bear arms.
Most gun laws were instituted at the state and municipal levels until the Great Depression, when FDR proposed landmark legislation to bring the nation towards economic recovery. One of the obstacles to recovery that was widely perceived at the time was rampant organized crime, much of it the consequence of the 18th Amendment that pushed alcohol sales underground.
The 1929 Valentine’s Day Massacre, on the eve of the stock market crash, gave ample reason to take the infamous Tommy gun and sawed-off shotguns out of the hands of gangsters. Roosevelt said in 1934 that “part of that larger objective is our constant struggle to safeguard ourselves against the attacks of the lawless and criminal elements of our own populations”.
The man Roosevelt tapped to lead the push was attorney general Homer Cummings. His first task was repeal of prohibition, which was almost universally perceived as a failure, even by those who had initially supported it. In March of 1933, legislation was passed to legalize 3.2 beer and wine. The 18th Amendment was passed by Congress on February 20, 1933 and ratified on December 5, 1933.
Cummings, knowing he would need a federal police force to go after organized crime, expanded the Justice Department’s Bureau of Investigation, which was primarily an information-gathering agency, into the FBI with real police power. Prior to that, because it was accepted that policing was a state and local power, federal agents were not even allowed to carry guns or make arrests. Cummings doubled both the budget and the personnel of the Bureau and armed them with the latest technology, including machine guns, and put J. Edgar Hoover in charge. When government agents arrested Machine Gun Kelley, he gave them the name G-men.
FDR had earlier served on the National Crime Commission, formed in 1925 in response to the rise of organized crime, and the group was an early advocate for the creation of a federal police force and the passage of federal gun control laws. Roosevelt’s interest in such laws was only increased when, in February 1933, an anarchist tried to shoot him and instead wounded those around him.
Other than the Militia Acts of the founding era and the War Revenues Act of 1919 which imposed a 10% excise tax on gun makers to fund WWI, and the 1927 banning of the shipment of handguns through the US mail, there was little precedent for federal gun legislation. And, as Cummings knew all too well, there was ample precedent for the Supreme Court invalidating New Deal legislation. So he used the constitutional taxing authority of the government as the basis for the first comprehensive federal gun control law.
By the spring of 1934, even states’ right activists were willing to take on organized crime by taking lethal weapons out of their hands. The National Firearms Act of 1934 imposed an onerous tax on machine guns and short-barreled rifles and shotguns, the favorite weapons of the gangsters. The $200 tax effectively doubled the price of these firearms, and legitimate sales dried up almost immediately. The Act also required that owners of such weapons register with the federal government and submit to fingerprinting within sixty days. While mobsters might be able to afford the tax, they could be arrested for failing to register and put in jail for up to five years.
The subsequent Federal Firearms Act of 1938 required licensing and record-keeping for gun dealers and barred felons from receiving firearms.
In the early twentieth century, state and local governments also turned their attention to gun control, directing their efforts to handguns – what one New York judge called “the greatest nuisance in modern life”. New York was at the forefront, adopting in 1911 one of the strictest gun laws in the nation, the Sullivan Dangerous Weapons Act.
The law took the name of its sponsor, “Big Tim” Sullivan, a Tammany Hall political leader who came from and represented the slums of lower Manhattan. Sullivan, beaten often by his father, was raised in one of the most violent neighborhoods in the country and dipped his fingers into the lucrative vice market. He was no bleeding heart.
The Sullivan Act required a license to posses a handgun, even at home, dealers were prohibited from selling a concealable firearm to anyone without a permit and required to keep records of all sales. The law also made it illegal to give or sell a gun to anyone under the age of sixteen. Sullivan confidently asserted that gun control “will do more to carry out the commandment thou shalt not kill and save more souls than all the talk of al the ministers and priests in the state for the next ten years”.
In 1911, the New York City chief medical examiner reported that gun-related murders had jumped 50% the preceding year and recommended “severe measures for the regulation of the indiscriminate sale and carrying of firearms”. Across the nation, prominent people such as John Wanamaker and John D. Rockefeller began pushing for gun control. A 1925 article in the American Bar Association Journal reported that a “current of public opinion is setting against the right of individuals to possess and carry freely revolvers capable of being concealed, and there is strong police sanction of this opinion”.
The US Revolver Association, a pro-gun organization formed, like the NRA, to promote marksmanship and competitive shooting, proposed in 1923 the Revolver Act for states to adopt, which would require civilians to obtain a permit to carry concealed weapons, and increased penalties for committing a crime while in possession of a handgun. Gun dealers would have to deliver to police their records of all handgun sales, and a one-day waiting period for delivery of guns was included. The Revolver Act was quickly adopted by numerous states, including West Virginia, New Jersey, Michigan, Indiana, Oregon, California, New Hampshire, North Dakota and Connecticut.
The Revolver Act was the first model gun control law, as at the turn of the century, lawyers and public officials increasingly saw the problem inherent in the patchwork of disparate laws in the states. As early as 1889, the American Bar Association (ABA) resolved to work toward “uniformity of the laws”. In the 1920s, the National Conference of Commissioners on Uniform State Laws, formed within three years of the ABA statement, announced that “the same exigencies which demand the regulation of the sale and use of firearms require that the laws upon the subject be uniform”.
The Commissioners endorsed the model legislation called the Uniform Firearms Act, which borrowed liberally from the Revolver Act. The model law required a state license to have a concealed weapon in public and that a license be issued only to a “suitable person” with a “proper reason for carrying” a firearm. Dealers would be required to maintain records of sales and automatically forward them to law enforcement officials. A one-day waiting period was extended later to two days. Anyone who sold a handgun was to be licensed by the sate and was prohibited from selling to those convicted of a crime of violence, drug addicts, drunkards, and minors. Ownership of rifles and shotguns remained untouched so as not to hamper “the facility of a law-abiding citizen to secure arms for the protection of his home”.
The Uniform Firearms Act was adopted by Alabama, Arkansas, Maryland, Montana, Pennsylvania, South Dakota, Virginia, Washington, and Wisconsin, joining the nine states which had already adopted the Revolver Act. By 1932, an article reviewing the spread of gun control legislation concluded that laws requiring a license to carry a concealed weapon “are in effect in practically every jurisdiction”. Some states adopted only parts of the model law, other states thought the law didn’t go far enough. In Hawaii, Massachusetts, Michigan, West Virginia and New Jersey, laws were passed requiring all purchasers of handguns, not just those who wanted to carry them concealed in public, to obtain a license.
Though the Uniform Firearms Act passed both houses of the New York legislature, it was vetoed by Governor Franklin D. Roosevelt because he thought the Sullivan law was more restrictive and that the new law would make it easier for people to carry guns.
The then-president of the NRA, Karl T. Frederick, a graduate of Princeton University and Harvard Law School and named “the best shot in America” after winning three gold medals for pistol shooting at the 1920 summer Olympic games, was also the vice-president of the US Revolver Association and helped draft the Revolver Act. Frederick was later brought on as special advisor to the National Conference of Commissioners to help draft the Uniform Firearms Act. The NRA, under Frederick’s leadership, sponsored and promoted both acts.
When Frederick testified in congressional hearings over Homer Cumming’s proposed National Firearms Act, he commended the states for the recent wave of restrictive gun laws and said, “I have never believed in the general practice of carrying weapons. I do not believe in the general promiscuous toting of guns. I think it should be sharply restricted and only under licenses.” He did lobby for the repeal of New York’s more stringent gun law because he thought it also disarmed “good” men, but thought that the state should instead adopt his Uniform Firearms Act.
While the NRA lobbied hard, and successfully, to have handguns excluded from the National Firearms Act of 1934, it did not believe that the Second Amendment created an obstacle even to federal gun restrictions. NRA president Frederick believed that protection for guns “lies in an enlightened public sentiment and in intelligent legislative action. It is not to be found in the Constitution”.
Because the Supreme Court had not ruled on gun laws, Cummings needed a test case. In the early 1930s, Jack Miller had been part of a crew of bank robbers called the O’Malley Gang. Like so many other desperados of that time, the gang used machine guns. In April 1938, Miller was found in Arkansas with a sawed-off shotgun and charged under the National Firearms Act.
A trial judge held that the Act violated the Second Amendment by requiring registration of these weapons, and the Department of Justice immediately appealed the decision. Their court-appointed lawyer, who could not locate Miller or get paid, declined to appear before the Supreme Court and suggested that the justices decide the case based only on the government’s brief.
Roosevelt’s solicitor general was Robert H. Jackson, later to gain prominence as a Supreme Court justice and the chief prosecutor at the Nuremberg Tribunals. Jackson emphasized the first clause of the Second Amendment, arguing that the right to bear arms “had its origin in the attachment of the people to the utilization as a protective force of a well-regulated militia as contrasted with a standing army which might possibly be used to oppress them”. That right “is restricted to the keeping and bearing of arms by the people collectively for their common defense and security… Indeed, the very declaration in the Second Amendment that ‘a well-regulated militia, being necessary to the security of a free state’ implies that the right… is not one which may be utilized for private purposes but only one which exists where the arms are borne in the militia or some other military organization provide for by law and intended for the protection of the state”. He concluded by noting that “the firearms referred to in the National Firearms Act, i.e. sawed-off shotguns, sawed-off rifles, and machine guns, clearly have no legitimate use in the hands of private individuals but, on the contrary, frequently constitute the arsenal of the gangster and the desperado”.
In May 1939, two months after Cummings stepped down from his post as attorney general, the Supreme Court unanimously upheld his landmark gun control law. The decision, written by Justice McReynolds, was hardly the epitome of clarity, and didn’t explicitly state that there was no individual right to have guns, but the ruling was interpreted by federal courts to exclude the individual-rights theory of the Second Amendment. As one federal appeals court put it in 1996, in Miller “the Court found that the right to keep and bear arms is meant solely to protect the right of the states to keep and maintain armed militias… Following Miller, it is clear that the Second Amendment guarantees a collective rather than an individual right” (Hickman v. Block, 9th Circuit).
The individual-rights literature that arose in the wake of Don Kates’ article featured countless confident claims that gun control was a modern, twentieth century invention. The facts suggest otherwise. The Founding Fathers had numerous gun control laws that responded to the public safety needs of their era. The basic idea that gun possession must be balanced with gun safety laws was one that the founders endorsed.
Don Kates, for one, recognized that many forms of gun control wouldn’t conflict with the Second Amendment. His article was one of the few endorsing the individual-rights reading that would also discuss permissible forms of gun control. Kates thought that mandatory gun registration, bans on rifles and machine guns, and restrictions on carrying firearms in public were all consistent with the Second Amendment. The true diehards in the gun rights movement didn’t want to hear this part of Kates’ argument. In the American Rifleman, Steve Halbrook, the NRA lawyer who would later try to scuttle Alan Gura’s lawsuit, dismissed Kates’ endorsement of some forms of gun control as “Orwellian Newspeak”.
When Alan Gura was preparing his appeal in the DC gun case, he relied heavily on Don Kates’ Second Amendment scholarship. Gura planned to use the history Kates uncovered as proof that the founding generation intended the Second Amendment to protect the right of ordinary individuals to own guns.
The Luck of the Draw and Bad Timing
Traditionally, judges are chosen at random to hear an appeal. In the DC gun case, the selection process worked in Gura’s favor. The three judges impaneled to hear his case were a Reagan appointee, a Mormon conservative nominated by George W. Bush, and diehard conservative Laurence Silberman, appointed in 1985 as part of President Reagan and Ed Meese’s effort to remake the federal bench.
Silberman had defended Richard Nixon as acting attorney general during Watergate, and later, as a federal judge, voted to void the convictions of Col. Oliver North, the central figure in the notorious Iran-Contra arms-for-hostages controversy. Accused by liberal groups as being “the most partisan and most political federal judge in the country”, the Federalist Society awarded Silberman the group’s “Distinguished Service” and “Lifetime Service” awards. Silberman described himself as “absolutely” an originalist.
Although Gura had never before made an argument in a federal court of appeals, it was Todd Kim, the lawyer for the District of Columbia, who appeared to be outmatched. A graduate of Harvard Law School and a former editor of the prestigious Harvard Law Review, Kim was assigned the case just three days before the hearing when another lawyer came down with appendicitis.
Kim started his presentation to the judges by insisting that none of the plaintiffs had really been hurt by the DC gun laws. Each of them should have sought a license and then, if denied, should have attempted to get a review of that decision through the DC government’s administrative process. Having not done everything possible under DC law to obtain a license to own a gun, they didn’t have standing to complain.
Only moments into Kim’s presentation, Judge Silberman interjected, “Suppose the District of Columbia passed a statute similar to this one but simply stating that no African American may get a license to have a handgun.” Kim hesitated, not wanting to take the bait, but Silberman then made it more personal. What if, he asked the Korean American lawyer, DC barred Asians from having guns. Would an Asian person be able to bring suit?
Kim fell into Silberman’s trap and answered yes, and Silberman jumped back at him that “the injury was the denial of the license” by statute and so anyone who was thus denied would have standing to sue. Kim tried to backtrack, but he had already lost credibility and Silberman peppered him with sarcastic and dismissive remarks, at one point even laughing out loud at Kim.
Three months later, in February 2007, the DC Circuit handed down its decision in Parker v. District of Columbia (the case still had the name of the lead plaintiff, Shelly Parker, who was later removed for lack of standing), and it was 2-1 against the District. The majority opinion, which strongly endorsed the individual-rights theory of the Second Amendment, was written by Silberman, and dismissed important points made by Kim as “frivolous” and “strained”.
Silberman’s opinion hewed closely to the arguments made twenty-five years earlier in Don Kates’ Michigan Law Review article.
For almost seventy years, the federal courts had consistently turned away challenges to gun control on the basis of the militia theory of the Second Amendment. The libertarians, Clark Neily (senior attorney at the Institute for Justice), Robert Levy (a senior fellow at the Cato Institute who financed the case) and Gura, had achieved something that no one thought they could – persuade a federal appeals court to strike down a gun control law on Second Amendment grounds.
While the libertarian lawyers were ecstatic, the ruling applied only in the District of Columbia. From the beginning, their goal was to obtain a definitive ruling in the US Supreme Court. Because the losing party is the one with the legal right to file an appeal, it was up to DC’s lawyers, not Alan Gura, so seek review by the Supreme Court. Although DC officials had vowed to fight until the end, rumors began to circulate that DC might not appeal after all. Gun control advocates were urging the District to drop the case and avoid risking an adverse decision by the Supreme Court.
Gun control groups had good reason to be worried. Over the preceding two years, the Court had taken a dramatic shift to the right. President George W. Bush had two openings with the retirement of First Justice Sandra Day O’Connor and the death of Chief Justice William Rehnquist. Bush nominated Samuel Alito, who was a near clone of Justice Scalia, and John Roberts, a federal judge known for his conservative rulings. Both of the new appointees were longtime members of the Federalist Society who had worked under Ed Meese in the Reagan administration.
During his confirmation hearings, Roberts stressed that he thought judges should respect precedent and not impose their own views on the nation. “Judges are like umpires” he told the senators. “Umpires don’t make the rules; they apply them.” Soon after joining the court, however, Roberts and Alito voted to break with precedent in several high profile cases – from abortion to affirmative action to workplace discrimination – each time moving the law in the direction favored by political conservatives.
Roberts and Alito formed a reliable bloc of conservative votes with Antonin Scalia and Clarence Thomas. Justice Anthony Kennedy was the swing vote, and he often sided with the conservatives. Court watchers were predicting that if DC appealed the gun case, the justices would rule in favor of a broad reading of the Second Amendment.
To Appeal or Not to Appeal and More Bad Timing
In January 2007, Alan Morrison, who had argued twenty cases before the Supreme Court, many of them landmark victories still studied in first-year law school courses, and head of the litigation arm for Ralph Nader’s Public Citizen, received a call from Linda Singer, the attorney general for the District of Columbia. Singer wanted Morrison to act as legal advisor for the DC gun case and to argue it if it went to the Supreme Court.
Todd Kim argued that DC should just take its losses and revise its gun laws with very restrictive licensing requirements or elimination of the trigger lock requirement for long guns. That would at least buy them some time.
But Alan Morrison thought that DC had to appeal, as an obligation to their residents who supported the gun law, which was one of the first laws passed when the District was granted home rule.
On September 4, 2007, the District of Columbia filed its petition for writ of certeriori, requesting the Supreme Court to review the case. It was Alan Morrison’s first day at work.
Despite the favorable ruling at the appellate level, the NRA still didn’t want to risk an unfavorable one by the Supreme Court. Silberman’s ruling would make it more likely that the Supreme Court would take the case, since federal appellate courts were now split on the issue and the difference was consequential.
The NRA renewed its effort to have Congress pass the District of Columbia Personal Protection Act, which would overturn DC’s gun restrictions. The libertarian lawyers were outraged, and they arranged a meeting with the NRA leadership in March of 2007, including Wayne LaPierre, Chris Cox, the director of the ILA, Robert Dowlut, the general counsel, and others. The NRA tried to assure the lawyers that they would not interfere with their appeal, but within minutes of the meeting word was received that the House of Representatives was moving the Act to the floor for a vote. The NRA leadership denied culpability.
Gura, Levy and Neily went down to Capital Hill to meet with the Republican leadership, including Jim DeMint, Tom Coburn, James Inhofe, and Sam Brownback. Their pitch was that the NRA’s bill was only a short-term fix that could be reversed if Congress changes hand, whereas a ruling by the Supreme Court would be more durable.
Three weeks after their meeting, however, Seung-Hui Cho went on a rampage through the campus of Virginia Tech University with two handguns, killing thirty-two, including a professor who was a holocaust survivor and barricaded a door to allow his students to escape out the windows. The massacre was one of the deadliest peacetime shootings in American history and one casualty was the DC Personal Protection Act, which would have made it easier for people like Cho to acquire handguns.
The NRA’s reluctance to support Gura’s lawsuit was due in part to uncertainty about how the justices of the Supreme Court would vote. The Court had become more conservative but none of the justices had ever decided a Second Amendment case before.
Of the nine justices, only Clarence Thomas, the most conservative justice to sit on the Court since the 1930s, had taken a firm stand in favor of the individual-rights reading of the Second Amendment. Thomas’ view was expressed in a concurring opinion he wrote in Printz v. United States in 1993, in which the majority decision was based on states’ rights, not the Second Amendment.
Arguing that the Court should take a second look at the Second Amendment, Thomas wrote: “Marshalling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the ‘right to keep and bear arms’ is, as the Amendment’s text suggests, a personal right”. It was no small irony that the one justice most likely to vote to overturn the DC gun law was also the lone African American. DC has one of the highest concentrations of blacks in America who comprise nearly all the victims of gun violence within the District. DC’s gun laws were designed by mostly black lawmakers to help out a predominantly black community.
On November 20, 2007, the lawyers in the Office of the Attorney General for the District of Columbia received word that the Supreme Court had agreed to hear their appeal in the DC gun case. But a personal friend of Mayor Adrian Fenty, Peter Nickles, was hired as general counsel and proceeded to override the decisions of DC attorney general Linda Singer, who resigned in protest. Nickles was appointed to replace Singer as attorney general, over the objections of the DC Council. Nickles then fired Alan Morrison on the same day that DC’s brief was due to be filed at the Supreme Court, thereby wasting several months of research and preparation. The libertarian lawyers on the other side of the appeal had been working on the case for five years.
DC Council member Phil Mendelson, who chaired the committee that oversaw the attorney general’s office, said that firing Morrison at that point was “like committing hari-kari”.
Meanwhile Montana lawmakers passed a resolution demanding that the Court hold that the Second Amendment guaranteed an individual right to bear arms. The resolution said that, when Montana joined the Union in 1889, Montanans believed that the Constitution protected the right of individuals to possess guns. A Supreme Court ruling rejecting the individual-rights reading of the Second Amendment would “violate Montana’s Compact with the United States” and Montana “reserves all the usual rights and remedies under historic contract law if its Compact should be violated.” In other words, Montana was threatening to secede from the Union, and a victory by the DC lawyers in the Supreme Court might justify nothing less than another Civil War.
Arguing for Heller and against Walter Dellinger, a former US Solicitor General, and head of the appellate division of one of the nation’s premier law firms, was Alan Gura, a Georgetown Law School graduate in his mid-thirties whose task was to convince the justices that the Second Amendment guaranteed the right of individuals to own guns. He wasn’t a constitutional law expert like Dellinger, however, and practiced out of a small, one-person office in Alexandria, Virginia. He had never before argued a case to the US Supreme Court.
The National Rifle Association wasn’t happy that Alan Gura was carrying that burden. In fact, the NRA never wanted this case to be brought at all. In 2002, when rumors first circulated that a lawsuit might be filed against the DC gun laws, the NRA did everything it could to try to stop it. When Gura refused to quit, the NRA tried to hijack his case and replace him with its own, more experienced lawyers. When that failed, the NRA lobbied Congress to pass a law overturning the DC gun laws, which would have rendered Gura’s case moot. The NRA wasn’t just trying to protect its turf. The nation’s leading gun rights organization was dead set against a Supreme Court ruling on the meaning of the Second Amendment.
The leaders of the NRA thought Gura’s lawsuit was too risky. They dreaded the prospect of losing, of having the Supreme Court declare in no uncertain terms that the Constitution didn’t protect an individual’s right to bear arms. Such a ruling would be especially devastating from this Supreme Court, which was politically conservative and had a strong majority of justices, seven of nine, appointed by Republican presidents.
Emblazoned on the exterior of the former NRA offices at 1600 Rhode Island Avenue in Washington, DC, was a quotation from the Second Amendment: ‘The Right of the People to Keep and Bear Arms, Shall Not be Infringed.’ For years, the gun lobby has used the Second Amendment as a rallying cry in its fight against gun control. They oppose nearly every gun control proposal because any law regulating guns threatens to put us on a slippery slope to involuntary disarmament. Perhaps this explains why the first clause of the Second Amendment, the part that refers to a ‘well regulated Militia’, was omitted from the NRA’s display. To the gun lobby, the Second Amendment is all right, with little or no room for regulation.
The NRA wasn’t always a vigorous opponent of gun control. For most of its history, the organization promoted reasonable gun safety laws. In fact, the Second Amendment historically was of little importance to the NRA; that provision was rarely mentioned in the organization’s official publications before the 1960s. After a group of anti-gun control hard-liners staged a coup at the NRA’s annual meeting in 1977, the NRA was transformed into a political powerhouse devoted to unabridged gun rights and a rigid view of the Second Amendment.
More worrisome still, an absolutist view of the right to bear arms became an organizing principle for fringe paramilitary groups like the Michigan Militia in the 1990s. Opposition to gun control stirred one radical, Timothy McVeigh, to declare war on the federal government, leading to his bombing of the Murrah Federal Building in Oklahoma City – prior to 9/11, the worst act of domestic terrorism in American history. Of course, gun rights groups bore no direct responsibility for his treason. The two are linked, instead, by an unreasonable view of the Second Amendment that casts nearly any gun safety measure as an infringement of the sacred right of individuals.
Oral Arguments – DC First
On March 18, 2008, when oral arguments began in DC v. Heller, the NRA’s Wayne LaPierre was in attendance, even though he had done everything possible to prevent the hearing, as well as a representative of the Brady Center and David Kopel, a leading gun rights expert who sat with the libertarian lawyers.
The man Mayor Nickles chose to replace Morrison, Walter Derringer, a professor at Duke University Law School who had argued twenty cases before the Supreme Court, shook hands with Gura and told him not to worry about arguing his first case before the Supreme Court. Morrison and Dellinger were friends and had argued on opposite sides in this court before, and Morrison did everything he could to help Dellinger prepare. Dellinger was a good choice for the role, though he was scheduled to argue two other major Supreme Court cases in the weeks prior to this one. One of them involved representing Exxon-Mobil’s challenge of $2.5 billion punitive damages arising out of the Exxon Valdez oil spill, and such high stakes left Dellinger with little time to prepare for a third case.
With a noticeable North Carolina drawl, Dellinger began. “The Second Amendment was a direct response to Article 1, Section 8 of the Constitution, which gave the new national Congress the surprising, perhaps even shocking power to organize, arm, and presumably disarm the state militias.” When the Founding Fathers were debating the Second Amendment, “every person who used the phrase ‘bear arms’ used it to refer to the use of arms in connection with militia service… And even if the language of keeping and bearing arms was ambiguous, the amendment’s first clause confirms that the right is militia-related.”
Justice Kennedy, the swing vote on many cases who often betrayed conservatives by siding with the liberal bloc, had a history of doing so in defending individual rights against infringement by government. Hence court watchers, as well as both Gura and Dellinger, believed his would be the critical vote on this case.
“If you’re right, Mr. Dellinger, it’s certainly an odd way in the Second Amendment to phrase the operative provision”, Chief Justice Roberts interjected. “If it’s limited to state militias, why would they say ‘the right of the people’? In other words, why wouldn’t they say ‘state militias have the right to keep arms’?”
Only a few minutes in, Kennedy tipped his hand. Just as Dellinger began his militia argument, Kennedy interrupted. “The amendment says we reaffirm the right to have a militia, we’ve established it, but in addition, there is a right to bear arms. And in my view, the second clause meant there’s a general right to bear arms quite without reference to the militia.” The swing vote had just swung decisively. But the Western-born Kennedy’s reasoning was surprising. He suggested that the Second Amendment arose out of “the concern of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that”, sounding more like Dorothy in Oz than a jurist.
Before Dellinger could complete his answer, Scalia shot another question at him, and Alito asked him something else before Ginsburg piped in. Dellinger was cut off in mid-sentence more than thirty times. The only justice who didn’t speak was Thomas, who is notorious for his consistent refusal to ask questions from the bench. But his position was already clear.
Chief Justice Roberts, Justice Scalia and Justice Alito had indicated their support for the individual-rights reading of the Second Amendment. Add Justice Thomas and Justice Kennedy, and there were five votes against the militia theory.
Dellinger decided to change tack and focus on a fallback argument that DC’s law could still be upheld as a “sensible regulation of dangerous weapons”, as the right to bear arms was not an absolute right. But the Chief Justice asked, “What is reasonable about a total ban on possession?”
Dellinger tried to argue that the DC government respected the longstanding right of residents to use lethal force in defense of one’s home, but Alito pointed out that the DC law didn’t specify such an exception.
Adrian Fenty, the DC mayor, could have clarified this problem by supporting a redrafting of the law, but as a politician he wasn’t inclined toward such compromise.
Alan Gura remained expressionless, but he knew victory was in his lap, even though Paul Clement, the US Solicitor General, known for his persuasive prowess, had yet to take his fifteen minutes to address the court on behalf of the Bush administration. Though George W. Bush was the most pro-gun president in a generation, and his attorney general John Ashcroft announced his subscription to the individual-rights theory, Clement’s written brief endorsed that perspective but suggested that DC’s law might be a reasonable regulation consistent with the demands of the Second Amendment.
The Third Party – The US Government
Among constitutional lawyers, the Solicitor General is often called “the tenth justice” because of the deference that the Court shows to the representative of a co-equal branch of government. Clement, a longtime member of the Federalist Society, was called a “true believer” in the conservative cause and had clerked both for Laurence Silberman – the federal judge who wrote the lower court ruling on the DC gun law – and for Antonin Scalia.
Clement’s amicus brief was one of seventy filed in this case – by historians, social scientists, gun rights groups, gun control groups, public health officials, prosecutors, police associations, state legislators, the NRA – but his was the one likely to have the most sway.
Clement’s brief, filed two months before the hearing, said that the proper construction of the Second Amendment was as guarantee of an individual’s right to have a gun even outside of service in a state militia. But Clement did not think the DC gun law ran afoul of that right. Clement wrote that the right to keep and bear arms was “subject to reasonable restrictions” and that DC’s gun law might indeed be reasonable. Clement suggested that the lower court judge he had formerly clerked for had interpreted the right to be far stronger than he should have, and that the Court should return the case to Silberman with instructions to reconsider the law with more deference to the DC city council.
Conservatives saw Clement’s position as an abandonment of their cause, and Gura felt that it advocated for a meaningless right if such a strict law could be supported within it. Conservative columnists claimed that the Bush administration was stunned by the brief, but it was more likely stunned by the reaction, since a Solicitor General’s position is the position of the administration and not his own.
In fact, when gun rights supporters were celebrating Ashcroft’s support of the individual-rights theory when it was announced in 2001, they neglected to notice that he also stated that “the existence of this individual right does not mean that reasonable restrictions cannot be imposed”. He also said the Bush administration “will continue to defend vigorously the constitutionality, under the Second Amendment, of all existing federal firearm laws”.
Though Clement’s position certainly represented what the Bush administration had been saying all along, there was not total consensus in the White House. Dick Cheney signed onto a friend of the court brief, written by NRA lawyer Steve Halbrook, that directly challenged Clement’s position. It was also signed by 55 US senators and 250 representatives, and said that the Supreme Court should affirm the lower court’s ruling. Cheney signed on as president of the Senate, but it was the first time a vice president had filed a brief contradicting the official position of his own administration.
Clement argued in his brief that the reasoning used by judge Silberman in the lower court “could cast doubt on the constitutionality of existing federal legislation prohibiting the possession of certain firearms, including machine guns”.
The Solicitor General began his oral argument by reiterating the administration’s position on the individual-rights theory. But before Clement could address the second part of his argument – reasonable restrictions – the liberal justices took issue. John Paul Stevens, the eldest jurist on the Court, asked Clement wasn’t James Madison “guided at all by contemporaneous provisions in State constitutions?” When Clement answered in the affirmative, Stevens asked “And how many of them protected an individual right” Just two, right?” Clements agreed that only Pennsylvania and Vermont expressly supported an individual right.
Justice Ruth Bader Ginsburg asked Clement whether he thought the Second Amendment protected a right to have any type of gun a person wanted, or only particular firearms. Clement reiterated the administration’s position on gun restrictions in the federal firearms laws.
As Clement’s time ran out, he stated that the administration supported an intermediate scrutiny standard of review on this issue rather than the strict scrutiny used by the lower court. The right to keep and bear arms, Clement argued, “always coexisted with reasonable regulations of firearms”.
Justice Ginsburg noted that “there is a whole panoply of federal laws restricting gun possession. Would any of them be jeopardized under your standard?”
“We certainly take the position, as we have consistently since 2001, that the federal firearms statutes can be defended as constitutional. If you apply strict scrutiny, I think that the result would be quite different.”
Clement’s proposal offered a middle ground for the conservative justices who did not want to appear soft on criminals nor give those convicted of gun crimes a way to have their convictions overturned.
Alito thought that the proposed intermediate scrutiny process would still overturn DC’s near-total ban on self-defense firearms as a denial, not a regulation, of the fundamental right. Roberts thought that no new blanket standard of review was necessary if the Court looked back to the scope of gun rights and regulations at the time of the founding.
The Heller Argument
In the months leading up to the oral argument, people in the gun rights community were pressuring Bob Levy, who was financing the case, to replace Gura with a more experienced Supreme Court advocate. They wanted him to hire a heavyweight like Ted Olson, who had won the Bush v. Gore case, or Ken Starr, the former solicitor general and Whitewater prosecutor. Levy refused. When Gura was willing to work on the case for little money, Levy had promised him he could see this case through to the end, and Levy thought Gura knew this case “better than anybody in the world”.
Though Gura, who had made his first appellate argument in this same case, was up against two titans, he was supremely confidant. “I won the case in circuit court. I’ve written the pleadings. I’ve made the arguments before. I’ve devised the strategy” he insisted.
But, when Gura began his presentation before the bench, he spoke so rapidly that his words melted together. “All fifty states allow law-abiding citizens to defend themselves in their homes with ordinary functional firearms including handguns.” Then, barely a sentence in, he suddenly veered from his prepared remarks. “Now, I’d like to respond to one point that was raised lately by the General…”
Justice Scalia stopped the overheated young lawyer and said “Talk a little slower, I’m not following you.” For a moment, the courtroom was completely silent. Gura took a deep breath, nodded and started over.
“I’d like to respond to the point about the District of Columbia’s position over the years with respect to the functional firearms ban.” The District, he said, had conceded in the trial court that gun owners were banned from using “lawfully owned firearms for self-defense within the home, even in instances when self-defense would be lawful by other means”. The District lawyers had always insisted that using guns in self-defense was not permitted. They shouldn’t be allowed to change their story this late in the game.
As each side has only a half hour to make their presentation, much of which is taken up in answering questions, the successful advocate has to be adept at steering the justices to the most persuasive points in his favor. Gura didn’t have to spend time focusing on the history of the Second Amendment, as there seemed to already be five justices willing to accept the individual-rights reading. Gura had to emphasize two other points instead. The first was that the justices shouldn’t accept Dellinger’s reading of the DC law to allow self-defensive uses of long guns. The heart of Gura’s argument was that the DC law was unconstitutional because it didn’t allow self-defense.
Gura’s second objective was to allay the fear raised by Clement about the continuing validity of federal gun control. To win justices over who shared Clement’s concern, Gura had to persuade them that a ruling against DC would not spell the end of gun control in America. “Government can ban arms that are not appropriate for civilian use”, Gura told the justices.
“But why wouldn’t a machine gun quality?”, Ginsburg responded. “General Clement told us that that’s standard issue in the military.”
“But it’s not the type of arm that people might be expected to possess commonly in ordinary use”, explained Gura. The Miller case “spoke very strongly about the fact that people were expected to bring arms supplied by themselves of the kind in common use at that time. So if in this time people do not have, or are not recognized by any court to have, a common application for, say, a machine gun or a rocket launcher”, then those weapons would not be protected by the Second Amendment.
In fact, Gura argued, DC could require safe storage of guns, a license to possess a firearm conditioned on “demonstrated competency” with the weapon, and could also require background checks or prohibit minors from possessing guns. Indeed, Gura counseled, DC should have “a great deal of leeway in regulating firearms”.
These concessions led to an avalanche of criticism of Gura by the gun rights extremists after the oral arguments. He was called “a stooge for the gun controllers” and helping “the gun-grabbers”. Some, it seemed were particularly upset at his refusal to defend the “God-given right” to own machine guns.
Both Larry Pratt, head of the extreme Gun Owners of America, and the NRA voiced its opposition to the idea that machine guns could be banned. The pro-gun zealot, NRA board member and former rock star, Ted Nugent, insisted that all safe storage requirements were unconstitutional.
But Gura wasn’t about to appease the radicals in the modern gun rights movement. He knew that you “win constitutional litigation by framing issues in as narrow a manner as possible. He was trying to win his case by any means necessary.
Several of the justices who looked down upon Alan Gura from the raised bench were appointed by Republican presidents elected on a platform of cutting back on the liberal “excesses” of the 1960s. Few had endorsed that conservative backlash more heartily than Justice Antonin Scalia. Gura’s case had special interest to him and he too was willing to do whatever was necessary to ensure that his view won out in the DC gun case.
Scalia uses oral argument not to elicit information from the lawyers so much as to express his own views and try to persuade the other justices. It was in this spirit that he asked Gura to slow down. He was honestly trying to help the young lawyer make his case.
Justice Stephen Breyer was a professor at Harvard Law School before he joined the bench and his long, detailed questions tend to be academic. He asked Gura:
“Assume two things with me, which you probably don’t agree with, and I may not agree with them either. But I just want you to assume them for the purpose of the question. All right, assume that there is an individual right, but the purpose of that right is to maintain a citizen army; call it a militia; that’s the basic purpose. So it informs what’s reasonable and what isn’t reasonable… In the District, there are somewhere around 200 to 300 dead and maybe 1500 to 2,000 wounded by guns each year. Now in light of that, why isn’t a ban on handguns, while allowing the use of rifles and muskets, a reasonable and proportionate response on behalf of the District of Columbia?”
Gura was prepared and answered Breyer that a handgun ban hurt military preparedness, citing some briefs by military officers. When Breyer responded that the use of rifles would offer sufficient preparedness for military service and asked whether it would be then unreasonable for a city with a high crime rate to say ‘no handguns here’, Justice Scalia interjected “You want to say yes. That’s your answer”.
Justice John Paul Stevens asked Gura whether, in light of his concessions about machine guns and safe storage, “we can simply read the Second Amendment to say ‘shall not be unreasonably infringed’?” When Gura began to say yes, Scalia again stepped in to feed words to Gura and said “You wouldn’t put it that way. You would just say it is not being infringed” when certain kinds of limitations are enacted.
At another point in the argument, Gura and Justice Ruth Bader Ginsburg were discussing how the first clause of the Second Amendment informed the second clause. Gura agreed with Ginsburg that the first clause was, in his words, “a limitation” on the second clause: only weapons useful for the militia were protected. Scalia corrected him: “The principal purpose here is the militia, but the second clause goes beyond the militia and says the right of the people to keep and bear arms. So why not acknowledge that [the right] is broader than the first clause?” Gura backtracked and signaled his agreement once more with Scalia, who was acting almost as puppet master.
Justice David Souter asked Gura whether legislatures should be able to look at modern-day statistics, such as crime and murder rates, in devising gun safely laws. Gura replied that “the object of the Bill of Rights is to remove certain judgement from the legislature… You have to go to Article V [the amendment clause] if you think that the Constitution is impractical.”
A Brief Rebuttal
Walter Dellinger, counsel for the District of Columbia, was allowed a few minutes for rebuttal. He skipped right over the already settled question of individual rights and addressed the extent of government’s power to enact gun control assuming an individual right to bear arms.
Once again, he argued that reasonable regulations should be permitted and that DC’s law was reasonable, given the city’s murder rate. Maybe he could sway Justice Kennedy and pull off a victory for the District. But the Chief Justice soon cut him off and said “The case is submitted.”
By Any Means Necessary
The hard-liners in the modern gun rights movement can trace their roots to the Black Panthers. If it hadn’t been for that militant group of Marxist black nationalists committed to “Black Power”, there might never have been a modern gun rights movement. The Black Panthers and other 1960s militants inspired some of the strictest gun control laws in American history. These laws, aimed largely at disarming urban black leftist radicals, led to a backlash by rural white conservatives.
The Black Panther Party for Self Defense, as it was officially called, was formed in October 1966 by two African Americans in their twenties: Huey Newton and Bobby Seale. The two had met a few years earlier as students at Merritt College, a community college in the hills of Oakland, California. They were part of a group of politically active students who pushed the school’s administration to add its first course on black studies.
Both Newton and Seale were born in the South and brought to Oakland by their parents in the 1940s to escape discrimination. What their parents found instead was that racism, poverty and unemployment followed them west.
By 1966, many in the black community had grown frustrated with the failed promise of the civil rights movement. Peaceful protest and Supreme Court victories had done little to improve the economic condition of blacks, or relieve their suffering at the hands of police. These conditions combusted in August 1965 when a six-day riot broke out in Watts, a minority neighborhood in Los Angeles. Thirty-four people were killed and more than a thousand injured, with hundreds of buildings damaged or destroyed.
In Oakland, Huey Newton and Bobby Seale committed themselves to fighting back against the racist police. Inspired by the teachings of Malcolm X, “Huey was already on a level where he was ready to organize the black brothers for a righteous revolutionary struggle with guns and force”, recalled Seale.
Before he was assassinated in 1965, Malcolm X preached that the nonviolence of Martin Luther King had failed. Because the government was “either unable or unwilling to protect the lives and property” of blacks, they had to defend themselves “by any means necessary”.
The phrase was borrowed from the French existential philosopher Jean-Paul Satre, who used it in his 1948 play Les Mains Sales (“Dirty Hands”), about the assassination of a political leader.
Like their hero, Malcolm X, the Panthers characterized their right to use guns in self-defense in constitutional terms. Twenty years before Kates’ individual-rights article was published, Malcolm X had argued that “Article number two of the constitutional amendments provides you and me the right to own a rifle or shotgun.”
Newton and Seale borrowed the name Black Panther from the logo of Stokely Carmichael’s Lowndes County Freedom Organization in Alabama, which was a pouncing black jungle cat with sharp teeth and outstretched claws. “The panther is a fierce animal but he will not attack until he is backed into a corner”, Newton explained. “Then he will strike out.” Carmichael also coined the term “Black Power”.
The Panthers taught recruits that “the gun is the only thing that will free us – gain us our liberation”. In time, the Panther’s arsenal included machine guns, rifles, handguns, explosives, grenade launchers, and boxes and boxes of ammunition. Some of it came from contacts at Camp Pendleton, courtesy of Uncle Sam.
The Panthers knew that California law allowed the open carry of firearms and they took advantage of that. And they began to police the police, to offer support and advice to blacks who were stopped. They found that having guns changed their relationship with the police, making them equal
On May 2, 1967, a group of twenty-four black men took their firearms and marched up the steps of the state Capital Building to change their relationship with the legislators. One of their first demands was that lawmakers respect their right to keep and bear arms.
Don Mulford, a conservative Republican state assemblyman, had introduced legislation to stop the armed Panther police patrols, and Newton wanted to make a show of strength to attract public attention. To avoid putting Newton, the Panther’s Minister of Defense, in jeopardy, Bobby Seale led the group to the Capital. Though they deliberately carried their weapons in a non-threatening manner, whites who witnessed the spectacle were shocked, and the press followed in hot pursuit.
Though Newton had instructed the men to shoot back if fired upon, they were also planning to cooperate with any arrest. The event ended peaceably when the Capital Police unloaded and returned the Panther’s guns. At a gas station later, however, twenty-six of the Panthers were arrested for disorder conduct and six of them, including Bobby Seale, were convicted and forced to serve short sentences.
The protest was the success that Newton had anticipated, turning a local self-defense group into a national movement almost overnight. But it also expedited the passage of an even stricter Mulford Act which the lawmaker acknowledged was aimed directly at the Black Panthers, and he had opposed previous such legislation until blacks began to show arms in public.
Governor Ronald Reagan supported the Mulford Act, saying “there’s no reason why on the street today a citizen should be carrying loaded weapons”. On July 28, 1967, three months after the surprise Panther visit to the Capital Building, Reagan signed the Mulford Act, with NRA approval, which was written to go into effect immediately upon signing.
The law only served to push the Panthers underground and resulted in several shootouts with the police. In late 1967, with Newton and Seale in jail, Eldrdige Cleaver took control of the Black Panthers and began to promote the offensive use of firearms against the police, dropping the “for Self-Defense” from their name. Newton later said that Cleaver’s “forceful personality was the rock on which the movement foundered”.
As the Black Panthers went national, the FBI, created in the 1930s to fight interstate crime, sought to disarm them, with Hoover calling the Panthers “the greatest threat to the internal security of the country”. Their secret COINTELPRO infiltrated the Panthers and other New Left groups, planting false information, fomenting dissention and rivalries, conducting warrantless searches, and even engaging in murder. Hoover also subscribed to Malcolm X’s motto: by any means necessary.
While the Mulford Act was one of the strictest gun control laws in the nation, equally important to the rise of the gun rights movement was the federal Gun Control Act of 1968 and its companion bill, the Omnibus Crime Control and Safe Streets Act. These were Congress’ first attempts at serious gun control since the 1930s.
After the Kennedy assassination, Connecticut Senator Thomas Dodd proposed legislation to restrict mail-order sales of shotguns and rifles. Though he represented the home state of Colt, Winchester and Mossberg, Dodd was a fierce anti-communist, fervent supporter of the Vietnam War, a good friend of Hoover and a law-and-order man who thought crime was out of control. He had also been an FBI agent in the 1930s with the unit charged with bringing in John Dillinger, served as an assistant to Attorney General Homer Cummings, the father of modern gun control laws, as well as helping prosecute the war crimes at Nuremberg with Robert Jackson, who successfully argued the Miller case at the Supreme Court.
Even with such credentials and gravitas, both Dodd and LBJ were unsuccessful in moving gun control bills forward. The momentum didn’t begin to shift until the race riots and Black Panther prominence. Starting in July of 1967, there were eight major urban riots and thirty-three other serious incidents of civil unrest. The Detroit riots were the worst civil disorder of the twentieth century, featured on nightly news as forty-one people were killed and two hundred square blocks destroyed. This was the “summer of love” in San Francisco, but a hate-filled and violent time in most other places.
A federal report on the riots put at least part of the blame on the easy availability of guns, and concluded that the spike in firearm sales and permits “directly related to the actuality and prospect of civil disorders”, and that “firearms controls are an essential contribution to domestic peace and tranquility”.
In Senate hearings, Dodd emphasized the dramatic increase in the number of guns in America. Between 1958 and 1968, more than 30 million firearms were added to the civilian stockpile. Though handguns constituted only 30% of the guns, they were linked to 75% of the gun homicides. FBI statistics showed, in the previous three years, a 51% increase in gun murders, an 84% increase in aggravated assaults with guns, and a 57% increase in armed robbery. Imports of handguns had grown from a trickle of 67,000 in 1955 to a torrent of more than 1 million in 1968.
But, though Dodd was gaining support, his efforts still fell short. It didn’t help that he became the first Senator to be censured by the Senate Ethics Committee for improper use of campaign funds. But events of the following spring reinvigorated the gun control effort. In April of 1968, as Congress was pondering the causes of the 1967 riots, another wave of urban violence broke out after James Earl Ray was charged with killing Martin Luther King in Memphis. Two months later, Robert Kennedy was assassinated in Los Angeles.
The political will to enact gun control shifted overnight. The day after RFK’s killing, Congress passed the Omnibus Crime Control and Safe Streets Act of 1968, the first federal gun law in thirty years. That law was amended and added to a few months later by the Gun Control Act of 1968. Together, they banned gun shipments across state lines to anyone other than federally-licensed dealers and collectors, and prohibited all gun sales to convicted felons, the mentally ill, substance abusers and minors. They also expanded the federal licensing system first implemented in the Federal Firearms Act of 1938.
The laws fell far short of the ambitious registration and licensing proposals of LBJ, as pro-gun legislators argued that such laws would lead to confiscation, much as had occurred with the Nazi gun laws. In an era that became known for its aggressive, bold federal legislation – from the Civil Rights Act to Medicare – the gun control laws of 1968 were notable for their timidity. According to the political scientist Robert Spitzer, “the Gun Control Act was the most sweeping federal gun regulation enacted up to that time, yet its scope was modest and, as a consequence, its impact was minimal”.
Yet these new laws gave the gun rights community the catalyst it needed to crystallize, paving the way for the NRA to become the political powerhouse it is today. The NRA was an early supporter of Senator Dodd’s push for new federal laws. Executive vice president Frankin Orth testified to Congress in favor of banning mail-order sales of rifles, and Orth stood behind the final version of the Gun Control Act.
Some rank-and-file members of the NRA, however, vigorously opposed the new laws, not so much as for what they did but out of a principled opposition to the very idea of gun control. The NRA, they thought, “needed to spend less time and energy on paper targets and ducks and more time blasting away at gun control legislation”. There was an unsuccessful attempt to have Orth fired, but the controversy was “just the opening volley in what was to become an all-out war, one that would split the gun group wide open over the next decade”.
The Alcohol and Tobacco Division of the Treasury Department, established by Alexander Hamilton to collect import taxes to pay off the new country’s war debt, became the Bureau of Alcohol, Tobacco and Firearms (ATF) after the passage of the National Firearms Act of 1934. But both its bureaucratic clumsiness and the ambiguity and unequal prosecution of the new gun laws resulted in it gaining a reputation, as NRA board member and publisher William Loeb put it, as the “Treasury Gestapo”.
By the mid-1970s, the NRA leadership was openly calling for the repeal of the Gun Control Act of 1968. Michigan Congressman John Dingell fatefully advised the NRA to set up a full-time professional lobbying arm to fight off new regulation and to roll back existing ones. The conservative gun rights movement adopted the rhetoric of the Black Panthers, insisting that guns were about personal self-defense and gun control laws were just a way for the elites to harass and oppress, and law enforcement was demonized as the enemy.
Prompted by the NRA, rural states that lacked explicit constitutional protections for the right to bear arms in self-defense began to add them: Nevada and New Hampshire in 1982, North Dakota and Utah in 1984, West Virginia in 1986, Nebraska in 1988, Alaska in 1994, Delaware in 1977, and Wisconsin in 1998. Fully half of the state constitutional guarantees of guns for self-defense are from the 20th century, with all but one of those from the late 20th century.
With the NRA constantly vigilant to prevent any new incursions into gun rights, the next federal gun legislation to be enacted was the Firearm Owners Protection Act of 1986, which, as its name implies, expanded the rights of gun owners and watered down the Gun Control Act of 1968.
Supreme Court deliberations occur in an oak-paneled room in which only the Justices are allowed. Not even their clerks or secretaries can attend. They begin with a ritualistic handshake, and then speak in order of seniority without interruption. They do not disclose how they vote in conference, and votes may change while opinion drafts are circulated, until the written opinions are complete. Votes may be withheld until acceptable revisions are made to the written opinions. For each sitting of the Court, majority opinions are rotated until each justice has been given an assignment. For the March session of the Court, the only justice not yet assigned a writing was Atonin Scalia, exactly the person Gura had hoped would draft the majority statement.
Scalia grew up in a working-class neighborhood in Queens, New York, and has been a rough-and-tumble hero to conservatives since his appointment by Reagan. Railing against the judicial activism he saw in the Warren Court, which followed the “living Constitution” principle of judicial review. Justice William Brennan, who died in 1997, was the strongest proponent of this approach. “The genius of the Constitution”, Brennan said, “rest not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.”
At a November 1997 gathering of the Manhattan Institute, a right-leaning public policy think tank, featured speaker Antonin Scalia addressed the crowd in the Waldorf-Astoria Hotel with his usual sarcastic wit.
“What I want to talk about tonight… is what in the world we think we’re doing when we interpret the Constitution. The argument is something like this. The Constitution, after all, is two hundred years old. That’s verrrrrry old. It is an organic document. It needs room to grow and develop with the society it governs. And if it could not grow and develop it would become brittle and snap.”
The Constitution is not really at risk of dying because of old age, Scalia went on. It’s at risk of dying because living constitutionalists treat it like “an empty bottle which we feel free to fill up with whatever liquid” today’s society desires.
Justice Scalia championed a very different approach to constitutional interpretation: “originalism”. “What was that language understood to mean when it was adopted?” The Constitution does not evolve. It bears a static meaning that doesn’t change. “You either take the original meaning as it was understood then or there is no criterion by which the judge may judge, except his own prejudices”, Scalia intoned.
But Scalia admitted that his approach was out of step with mainstream legal thinkers. Legal scholars have rejected originalism because they believe it’s too difficult to determine what the Founding Fathers through about many provisions of the Constitution and how those provisions ought to answer to today’s controversies. Others were suspicious of it because it rose in tandem with the conservative movement of the 1970s and 1980s, and believed it was promoted in order to turn back many of the liberal decisions of the Court.
But Scalia has brought originalism more into the mainstream and it’s even invoked by liberal justices to try to explain the text’s ambiguous terms. Polls show that a majority of Americans believe it’s the most appropriate way to read the Constitution. Scalia’s influence, however, has been greater outside the court than in its secret chambers, because he laces his opinions with caustic and disrespectful references to the opinions of the other justices.
Scalia’s sway is also undermined by his unwillingness to compromise. For years, Chief Justice William Rehnquist assigned contentious cases to other justices so that Scalia didn’t torpedo the majority. That Roberts assigned the DC decision to Scalia, Gura knew, meant that there was a clear majority on his side that the Chief Justice wasn’t concerned about losing votes.
And Scalia was an avid hunter who was fond of guns and thought the American people should become less hostile towards, and more comfortable with, them. As a teenager in New York, he was on the shooting team at Xavier High School, a Jesuit military academy in Manhattan. He would ride to school on the subway with a .22 carbine in his lap.
The Supreme Court doesn’t announce when decisions will be issued, but the session ends the last week in June and that’s typically when a flurry of decisions are released. On the very last day of the session, June 26, Gura, Neily and Levy were joined by Dick Heller as Justice Scalia read his majority opinion in DC v. Heller. For the first time in American history, the Court ruled that a gun control law violated the Second Amendment of the Constitution.
Like so many decisions of this ideologically-divided court, the split was 5-4. Joining Scalia in the majority were John Roberts, Clarence Thomas, Sam Alito, and Anthony Kennedy. The liberal members of the Court – John Paul Stevens, Stephen Breyer, David Souter and Ruth Bader Ginsburg – dissented.
In his dissenting opinion, Breyer argued that even if the Second Amendment did guarantee an individual right to bear arms, the Court should uphold the DC law as a reasonable balancing of individual rights with the government’s interest in public safety.
Scalia scoffed at this balancing act, writing “The very enumeration of the right takes out of the hand of government – even the third branch of government – the power to decide on a case-by-case basis whether the right is really worth insisting upon.” Scalia also brushed aside all the arguments about the appropriate standard of review for gun laws, and so did not offer guidance for future decisions. But Scalia’s opinion did indicate that the justices deemed many forms of gun control to be constitutional. “Like most rights, the right secured by the Second Amendment is not unlimited”, and the opinion included a laundry list of currently accepted exceptions which would not be overturned.
While there was a right to bear arms for individual self-defense, the right was not “a right to keep and carry any weapon whatsoever in any way whatsoever and for whatever purpose”. Scalia even implied that the right recognized by the Court might be restricted to the home.
The ever-confidant Gura was not surprised that he had won the case that even the NRA did not believe he could, but only that the majority was so narrow. As he was walking out of the courtroom, Gura spotted Steve Halbrook, the lawyer first approached by Levy to take the case and who then went to represent the NRA. As the leading gun rights lawyer, Halbrook must have felt that he deserved to have been the one to win the case. He smiled at Gura, but said nothing as they passed.
In many ways, the Heller decision was the crowning achievement of Antonin Scalia. It was called a “triumph of orginialism” and his opinion included 45 pages examining the historical evidence, much of which was provided by the amicus briefs. His originalist approach was used in both the majority opinion and by the dissenters, who came to an opposite conclusion about the framers’ intent in the language of the Second Amendment.
Not surprisingly, liberals criticized Scalia’s opinion, but unexpectedly, so did several noted conservatives. Appellate judges J. Harvie Wilkinson III and Richard Posner, two of the leading conservative legal thinkers and both appointed by Reagan, were critical of the Scalia opinion. Wilkerson was on Bush’s short list to replace Chief Justice Rehnquist and Posner was considered the greatest legal mind never to serve on the Supreme Court, probably because of his prolific writings on many topics. A former professor at the University of Chicago Law School, where he was a colleague of Scalia, Posner was a founder of the field of law and economics.
Posner wrote that Scalia’s opinion employed “faux originalism” and that, when it came to the original meaning of the Second Amendment, Justice Steven’s dissent had the better argument. The “motivation for the Second Amendment” was only to protect state militias from being disarmed by the federal government, according to Posner. “The text of the amendment, whether viewed alone or in light of the concerns that actuated its adoption, creates no right to the private possession of guns for hunting or other sport, or for the defense of person or property.”
Not only did the majority err in its historical inquiry, Posner said, but originalism itself was contrary to the original intent of the framers, who favored instead what he called “loose construction” of legal texts that sought to uphold the “spirit” of the law in changing circumstances rather than calcify the text’s meaning in a given era. Originalism was just an ideological gloss to a politically motivated decision. Heller is “not evidence of a disinterested historical inquiry”, wrote Posner. “It is evidence of the ability of well-staffed courts to produce snow jobs.”
Similarly, in 1991, Warren E. Burger, the conservative Chief Justice of the Supreme Court, was interviewed on the MacNeil/Lehrer NewsHour about the meaning of the Second Amendment’s “right to keep and bear arms.” Burger answered that the Second Amendment “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 that I have ever seen in my lifetime.” In a speech in 1992, Burger declared that “the Second Amendment doesn’t guarantee the right to have firearms at all”. In his view, the purpose of the Second Amendment was “to ensure that the ‘state armies’ – ‘the militia’ – would be maintained for the defense of the state.”
Posner and Wilkinson both condemned Heller as a right-wing version of Roe v. Wade, the bête noire of conservatives for more than thirty years. Wilkinson wrote a widely-circulated article that accused the Court of undermining states’ rights and legislating from the bench, imposing the majority’s values on the text. “Heller encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts.”
In November 2008, the conservative law professor Nelson Lund – one of the people who tried to persuade the libertarian lawyers to drop the lawsuit – gave a speech on the Heller decision at the annual convention of the Federalist Society at the Mayflower Hotel in DC. Lund is one of the nation’s experts on the history and meaning of the Second Amendment and a devout originalist. Lund had written numerous articles arguing that the Founding Fathers intended the Second Amendment to protect an individual right to bear arms.
Lund began his speech with assurances that, as a proponent of originalism, he agreed with both the majority’s methodology and its basic interpretation of the text as protecting an individual right. But he then launched into a lengthy and harsh condemnation of Scalia’s opinion. “Unfortunately, the Court’s performance is so transparently defective that it’s quite possible that this decision will become Exhibit A when people seek to discredit originalism as an interpretive method.”
Lund accused Scalia of ignoring original meaning. “What does history tell us about handgun bans? Oddly, Scalia has nothing to say about that at all.” The reason that DC shouldn’t ban handguns, Scalia’s opinion said, was that this type of weapon was “in common use. Handguns are the most popular weapon chosen by Americans for self-defense in the home and a complete prohibition of their use is invalid.”
Lund responded that this argument “doesn’t have much basis in the history of the eighteenth century” when the Second Amendment was adopted. A true originalist wouldn’t care why people today like handguns, but would ask whether Americans in the late 1700s thought that the Second Amendment prohibited a ban on handguns. Scalia’s argument “is not an originalist or historical argument. If it’s any kind of an argument at all, it’s probably a disguised and incomplete form of the Beyer interest-balancing approach that Scalia disdainfully dismissed.”
Lund was equally dismissive of the list of approved exceptions to the Second Amendment right. “Little analysis of any kind is provided… with regard to these exceptions to the right to arms. We seem to have a case of verdict first and trial later, if at all.” If “Scalia couldn’t provide an historical justification for striking down the DC handgun ban at issue in this case, it’s not very likely that he really has historical justification to back up” the listed exceptions.
The Founding Fathers certainly accepted gun control, so there are historical precedents. These included requiring inspections and registration at musters, safe gunpowder storage, and severe limitations or total bans on guns for large segments of the population. What the Founding Fathers did not have were any of the exceptions identified by Scalia, such as restrictions on commercial sales of firearms, licensing of gun dealers, mandatory background checks or waiting periods. Nor did they have any laws banning guns in “sensitive places”, or even restrictions on felons or those with mental illness. Laws prohibiting ex-felons from possessing firearms have long standing, but date back to the 1920s and 1930s, more than a century after the founding.
The irony of Scalia’s opinion is that it was heralded as “the triumph of originalism”, but reflected a thoroughly modern understanding of gun rights. The primary reason cited by Scalia was defense of the home. At the time of the founding, however, the primary justifications were to preserve the right of the people to throw off tyranny, to serve in a militia for national defense, and to hunt. The right envisioned by the founders was anything but homebound.
The living constitutionalism underlying the decision was further illustrated in the explanation offered by the Court for why the government could ban machine guns but not handguns. The former can be restricted, Scalia wrote, because they are “dangerous and unusual weapons” not “in common use”. But civilian ownership of machine guns has been curtailed by federal law, not market forces or personal choice, just as handguns have been readily available because of law and market forces.
In other words, the scope of Second Amendment protections was not defined by the original meaning of the Constitution, but by marketplace choices of twentieth century consumers within the confines of contemporary government regulation.
Scalia’s opinion makes “orginalism look as lawless and result-oriented as the living constitutionalism that Scalia and many of us in the Federalist Society have been denouncing for years”, said Lund, finishing his speech with “What a pity.”
Ironically, the name of this case, Heller, is the same as the name of the author of that iconic book, Catch-22, by Joseph Heller. Catch-22 has come to define a no-win situation built on illogic and circular reasoning. The Heller decision, ostensibly steeped in originalism, relied largely on modern conceptions of gun rights and limitations. Apparently, orginalism is required for legitimacy except when it’s not.
There were other ironic effects. For a decision celebrated by the gun rights community, it did little to reverse gun regulations. While Heller sparked more than 150 lawsuits challenging every form of gun control, very few of those laws were invalidated. It was primarily only the DC and almost equally severe Chicago handgun bans that were overturned.
The day the Heller decision was announced, Gura filed a lawsuit challenging the Chicago ban. In 2010, the Supreme Court, in McDonald v. City of Chicago, held that the Second Amendment, like nearly all the provisions in the Bill of Rights, applied with equal force to federal, state and local laws, on the basis of the incorporation clause of the 14th Amendment. That decision was similarly split 5-4, with the same justices on each side of the issue.
The Heller decision, in fact, proved to be more of an obstacle to the expansion of gun rights than it might have appeared. The most important issue for many gun rights advocates is concealed carry. While most states now allow it with permits, the discretion for granting permits varies considerable from state to state. As Scalia’s opinion recognized, the “majority of 19th century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” The laws he was referring to were complete bans on concealed weapons – a greater burden than today’s laws, which only require a permit.
It was for these reasons that gun control advocates, like Dennis Henigan of the Brady Center to Prevent Gun Violence, called Scalia’s opinion a “pleasant surprise”. Though he disagreed with the individual-rights reading, Henigan insisted that Heller‘s list of exceptions “encompassed our entire agenda”.
Further, the “slippery slope” to civilian disarmament argument of the NRA and other gun rights groups is hard to justify now that the individual-rights theory has been affirmed and total gun bans are considered unconstitutional.
Whereas, in Roe v. Wade in 1973, the Court was in the vanguard of social change, much like it had been in Brown v. Board of Education in 1954, in Heller it was merely following the majority sentiment of Americans. Polls consistently showed that three-quarters of Americans accepted the individual-rights reading of the Second Amendment (in large measure due to the NRA’s extensive propagation of this view), and the tide had already strongly turned among the states toward the legitimization of the possession and use of firearms in self-defense, both inside the home and in public places.
What the Court did accomplish in Heller was defining a sensible middle ground to take some of the heat out of both sides of the gun control debate. By making disarmament impermissible, the Court’s decision has the potential to restore some measure of reason to the gun debate. Paradoxically, by establishing a firmer foundation for gun rights, the Supreme Court could make it easier for Americans to enact effective gun control laws without the fear of total disarmament which has been the rallying point for the gun rights extremists.
by Robert Riversong: may be reproduced only with attribution for non-commercial purposes