Second Amendment: Supreme Court Gets it Right in Heller

Introduction

            In District of Columbia et al. v. Heller (hereinafter “Heller”), the United States Supreme Court correctly determined that the Second Amendment creates an individual and personal right to own and possess firearms.  In reaching this decision the justices engaged in a rigorous analysis of the relevant constitutional text as well as an historical analysis to reconcile quite neatly the original meaning of the text within the historical context in which it was originally created, debated, and adopted.  This essay will argue that the Heller decision was correct; it was a correct decision because an analysis limited to the text as it was expressed in a particular historical setting can in no way be interpreted to wholly abrogate the individual’s right to own and possess firearms. Such a constitutional interpretation, denying the individual right, would deny both the structure of the text and the very particular historical circumstances for which it was written.

District of Columbia et al. v. Heller:  Background Facts and Questions Presented

As a preliminary matter, in order to understand why the Heller decision was correct, it is first necessary to analyze the two contrary pieces of law.  In the instant case, the question was whether a Washington D.C. gun law violated the Second Amendment of the United States Constitution.

The Second Amendment simply states that “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 (Heller, 2-3).  There is (1) a prefatory clause and (2) an operative clause.  The main debate, for more than a century, has been whether the prefatory clause limits or expands the scope of the operative clause or whether it merely informs.  The distinction, from a constitutional point of view, is tremendously significant and in Heller it was the dispositive interpretive distinction.  For those whom advocate and subscribe to a non-limiting prefatory clause interpretation the individual right to own and posses arms becomes a natural conclusion; for those whom see the prefatory clause as delimiting in some way the conclusions begin to view the right in terms of a collective militia rather than an individual’s

            It is against this Second Amendment debate that the Washington D.C. gun law was challenged  and ultimately found its way to the United States Supreme Court.  Justice Scalia summarized the essence of the challenged gun law thusly:

The District of Columbia generally prohibits the possession of handguns. It is a crime to carry an unregistered firearm, and the registration of handguns is prohibited. See D. C. Code §§7–2501.01(12), 7–2502.01(a), 7– 2502.02(a)(4) (2001). Wholly apart from that prohibition, no person may carry a handgun without a license, but the chief of police may issue licenses for 1-year periods. See §§22–4504(a), 22–4506. District of Columbia law also requires residents to keep their lawfully owned firearms, such as registered long guns, “unloaded and disassembled or bound by a trigger lock or similar device” unless they are located in a place of business or are being used for lawful recreational activities. See §7–2507.02.1 (Heller, 2)

            The fate of the D.C. gun law, therefore, would be determined by whatever constitutional interpretation prevailed.  For the reasons that follow, the gun law was properly struck down.

Supreme Court’s Rational:  Original Intent

The Supreme Court did not issue a majority decision; quite the contrary, the justices were deeply divided.  This was hardly surprising given the contentious debate surrounding the issue for decades. Indeed,

After centuries of relative obscurity, the Second Amendment has become the center of an intense academic and legal battle during the last twenty years. Although the United States has long regulated firearms, (1) only in the 1980’s did gun control become a prominent political issue. (2) Once gun control entered the nation’s political conscience, there was a surge in academic study of the Second Amendment’s language and the historical sources surrounding its adoption. (3) Countless books and law review articles have been published on these issues, and even noted constitutional theorists such as Laurence Tribe have changed their understanding of the Amendment (Small, 2008).

            Justice Scalia began the majority’s constitutional analysis by referring to two pillars of constitutional interpretation.  First, the Constitution was not written as a puzzle; quite the contrary, the Supreme Court would be guided by the premise that the Constitution was written “so to be understood by the voters” (Heller, 3).  This is the heart of the originalism that the majority relied upon in order to find an individual right.  More precisely, the meaning of the constitutional text, both the prefatory and operative clauses, was intended to be linear and straightforward.  Even the common man, referred to by Scalia as original voters at the time so many years ago, should be able find meaning within the text itself.  The second interpretive guideline was that the “Constitution’s  words and phrases were used in their normal and ordinary as distinguished from technical meaning”  (Heller, 3).  The meaning to be derived from the relevant Second Amendment text, therefore, was to be found solely in the words themselves as they would have been understood at the time of writing by the drafters themselves and by common voters.

            The majority, using this framework for constitutional analysis, rejected the proposition that the right to possess arms is dependent upon an association with a militia;  they rejected this proposition because the prefatory clause in which the reference to a militia was made was determined to do nothing more than announce a purpose.  In the case of the Second Amendment this purpose was to ensure freedom from oppression and tyranny.  This purpose, in turn, was to be attained in some measure through the language contained in the operative clause.  Because the prefatory clause did nothing more than state a goal the majority rejected it as a basis for qualifying in any way the language set forth in the operative clause.  The majority’s primary concern was whether the operative clause was consistent with the purpose announced in the prefatory clause.

            The court was most influenced by the references to the people and individuals, at one point declaring that when compared with similar interpretative issues raised in First Amendment and Fourth Amendment cases that these types of references “unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body” (Heller, 5).  In other words, one method for ensuring the continued freedom of individuals (the purpose stated in the prefatory clause) would be the grant of a constitutional right to bear arms.  Individuals with guns, when threatened by tyranny either domestic or foreign, could if they chose defend themselves individually in their homes or form militias.  Having a militia in the first instance was never intended and, if it had been, would have defeated the purpose of allowing the people to defend themselves against unjust domestic governments and laws.

            In short, Heller clearly established an individual right to own and possess arms for lawful purposes subject to reasonable restrictions.

Minority Approach:

            In one of the strongest arguments against the type of constitutional analysis that was employed by the majority in the Heller case Erwin Griswold, a former dean of Harvard Law School and a former Solicitor General, remarked “that the Second Amendment poses no barrier to strong gun laws is perhaps the most well-settled proposition in American constitutional law.” (Powe, 1312).  Obviously, Justice Scalia and the majority were not of the same mind; on the other hand, there is Supreme Court case law before the Heller case that some have suggested was unfairly overturned or modified.  Relying on older cases[1] there exist many scholars and practitioners whom have long believed and argued that the Second Amendment guarantees absolutely no individual rights at all, zero, despite  “A small but growing, yet increasingly frustrated, group of constitutional scholars is arguing that the Second Amendment offers strong protection for an individual right to possess guns. Wishing parity with the First Amendment, they often place a nice wistful sentence or two about the First Amendment in their articles”(Powe, 1313). The clear suggestion is that the Supreme Court has made a mistake; nothing could be further from the truth.

            In order for the Heller decision to be incorrect, one would have to violate a number of well-established constitutional principles.  First, one would have to ignore the original intent to make the text understandable for the common voter.  The critics of Heller, for instance, argue that a reference to people or individuals in the Second Amendment cannot be considered consistent with similar references in the First Amendment.  The consequence is disastrous as it assigns different meanings to the same or similar words in a constitutional text.  Second, by using an awkward grammatical construction as a basis to deny an individual right the Heller critics are engaging in the type of over-technical analysis that Scalia and the majority rejected.  True and normal meaning should form the basis of constitutional interpretation rather than grammatical debates.  Finally, the Constitution was designed to safeguard individuals and the states against tyranny and oppression.  To guarantee an organized militia the right to bear arms but not individuals themselves defeats the essential function of the purpose stated in the Second Amendment’s prefatory clause.

Conclusion

            In the final analysis, whether one is concerned with individual rights or with the integrity of sound constitutional interpretation, the United States Supreme Court rendered one of its boldest and wisest Second Amendment decisions in Heller.  It resisted external political desires to regulate guns more completely, it stuck to the original intent of the relevant constitutional text, and it gave renewed relevance to the Second Amendment.  Attempts to deny the individual the right to own and possess arms for lawful purposes and subject to reasonable restrictions is also much more moderate a view than simply allowing states and municipalities to outlaw them completely.  Heller was a wise decision both logically and pragmatically.

Works Cited

Cornell, Saul. “St. George Tucker and the Second Amendment: Original Understandings and Modern Misunderstandings.” William and Mary Law Review 47.4 (2006).

“District of Columbia et al. v. Heller.”  544 U.S. 3. United States Supreme Court 3 Apr. 2009 < http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf>

Powe, L.A. “Guns, Words and Constitutional Interpretation.” William and Mary Law Review 38.4 (1997): 1311-1403.

Shalhope, Robert E. “To Keep and Bear Arms in the Early Republic.” Constitutional Commentary 16.2 (1999): 269.

Small, Adam. “Reviving “Law Office History”: How Academic and Historical Sources Influence Second Amendment Jurisprudence.” American Criminal Law Review 45.3 (2008): 1213.

[1] See United States v. Cruikshank (1875), Presser v. Illinois (1886), and United States v. Miller (1939).