Last of three parts.
Former Chief Justice Warren Burger (who was so devoted to the U.S. Constitution that he retired from the high court in order to lead the national celebration of the Constitution’s bicentennial in 1987) gave an interview on the PBS “Newshour” in 1991 in which he said 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."
Burger believed that the Second Amendment guaranteed the right of states, through their militias, to arm those militias. The “fraud,” in his view, was the National Rifle Association’s campaign to interpret the amendment as a guarantee of each individual citizen’s right to arm himself.
Even if you buy into the idea that the Second Amendment created an individual right to be armed, a host of intermediate questions arise. Does the right to bear arms extend to any weapon or can Congress or a state legislature ban certain types of weapons from private ownership, and if so, which types? Before 2008, only one U.S. Supreme Court case offered a small, confusing stab at how that might work. The language of the amendment offers no guidance.
Can any categories of individuals -- criminals, people with mental health problems -- be barred from possessing weapons? If so, what are the boundaries of those categories of individuals whose Second Amendment rights can be infringed? No one can give a precise answer even though those questions are front and center in this post-Newtown moment.
Through what kind of hoops can a person seeking to buy a gun be constitutionally required to jump? This question is ripped straight from the headlines. The one gun-control idea that seemed to have the most potential of passing in Congress in the post-Newtown moment (although it had a very bad day Wednesday in the Senate) would be a requirement for universal background checks of would-be gun purchasers. A compromise version of that law (which actually isn’t universal but does close the so-called “gun show loophole”) has been worked out by two pro-gun senators across party lines. But the NRA says that law would limit “fundamental Second Amendment freedoms.” Would it? President Obama says that none of gun control measures he supports – including some that go much further than Manchin-Toomey – “would subvert the Second Amendment.” Who is right? No one can say.
Widely held view
Chief Justice Burger was expressing what was then a widely held view (outside of NRA circles), and he stated it with such force that you might have assumed he had some Supreme Court jurisprudence to back him up.
But that was not the case. In fact, no Supreme Court ruling had clearly addressed the key issue of whether the right to keep and bear arms was a right of all individuals, a right tied to service or potential service in a militia members or a collective right of each state to have an armed militia.
Despite the fact that the Second Amendment had been around for two centuries, and the fact that the federal government had indeed banned certain classes of guns (machine guns and sawed-off shotguns, for example, after gangsters started using them), the Second Amendment produced only one significant Supreme Court case (see the Miller case below) and none in which the courts struck down any federal, state or municipal gun control measures. This is at least a little odd, since the language was in the Constitution all along.
The Miller case
The only big case in the amendment’s first 200 years was U.S. vs. Jack Miller (1939), which is a wild, wooly tale that did little to clarify the meaning of the Second Amendment. Miller was a mobster, a killer, and a confessed bank robber who ratted out his fellow gang members in exchange for immunity from bank robbery prosecution and then was charged with illegal possession of a sawed-off shotgun. Miller challenged the charge on grounds it violated his Second Amendment rights. (If you read the Supreme Court ruling, you won’t even find this stuff out, nor the fact that Miller had been murdered, perhaps in retribution for the aforementioned ratting out, before the Supremes ruled on his Second Amendment claim.)
The court unanimously upheld the National Firearms Act, which banned the favorite weapons of gangsters, including machine guns. If the court had ruled that Miller had no right to keep and bear a sawed-off shotgun because he was not a militia member, that would have been a big deal. But instead it ruled that:
In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.
If you read that language, as some have, to mean that the “arms” Americans have a right to “keep and bear” are limited to those that might come in handy to a militia member (whether or not the individual belongs to an actual militia), the court got a big fact wrong. Apparently short-barreled shotguns could be (and have been) useful in some military situations. But, since Miller was dead and had no lawyer arguing for him at the Supreme Court, that point was not made in the briefs or arguments.
Gun-control advocates and gun rights advocates have claimed Miller as a victory. If you are for gun control, what you note is that the Supreme Court had upheld a major federal gun control law. If you are for gun rights, you note that the court implied that, if he had had an appropriate militia-relevant weapon, Miller would (or might) have been constitutionally entitled to keep it. In other words, it suggested that an individual (not just a state and not just a militia member) has a Second Amendment right.
But if you read the quoted language (above) carefully, it says that the kind of weapon Miller might have had a right to possess is not just something that could be fired in a military confrontation but a weapon that “has some reasonable relationship to the preservation or efficiency of a well regulated militia.” There are about five new terms in that phrase (“preservation,” “efficiency,” “reasonable relationship” and the original “well-regulated militia”) that mean virtually nothing unless the court decides to say what they mean, which the court did not. On its face, it would seem that individual has a greater Second Amendment right to possess a howitzer, a mortar or an AK-47 (since those have obvious military applications) than a handgun or a hunting rifle.
My conclusion: The Miller case took the mess left behind by the Framers of the amendment, added some language that clarified nothing, and left a bigger mess, after which the Second Amendment disappeared again from Supreme jurisprudence for seven more decades, until the case of District of Columbia vs. Heller, which the High Court decided in 2008.
The Heller case
In the Firearms Regulation Control Act of 1975, the Washington D.C. City Council effectively outlawed the possession of handguns in the district. Dick Heller was an actual D.C. special police officer who carried a gun when he was working but was not allowed to have one in his home. (Heller is pictured at the top of this post.) He became the named plaintiff in a 2003 lawsuit challenging the handgun ban. It made it to the Supreme Court in 2008, 219 years after the Second Amendment was written.
A coalition of five justices – the usual four solid conservatives plus swing Justice Anthony Kennedy – struck down the District’s handgun ban as a violation of the Second Amendment. For the first time and only by a bare 5-4 majority, the court said bluntly that individual Americans have a constitutional right to keep and bear arms, whether the citizens were members of any militia or not, and whether the weapon they possessed had any military application.
Writing for the majority, Justice Antonin Scalia was characteristically blunt:
There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.
The Supreme Court had never said anything like that before. It was the opposite of what Chief Justice Burger had thought, but Burger expressed himself in a TV interview and Scalia expressed himself in a ruling that, under our system of “judicial supremacy” on matters constitutional, is now the law of the land.
So does the Scalia doctrine mean that every individual — mental health and/or criminal history notwithstanding — has a right to “keep and bear” any “arms,” from a handgun (which is clearly and explicitly ruled in) to a bazooka? No. Just as the right of free speech is not unlimited, the constitutional right to possess weapons is likewise subject to some limits, Scalia wrote. The trouble is, we don’t know what the limits are. Wrote Scalia:
Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Scalia squared his view with the Miller precedent by adjudicating thus:
We … read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.
Scalia talks a good bit about the 1780s and 1790s, and claims that he is being guided in some sense by what he calls the amendment’s “prefatory clause” about the importance of maintaining a militia. But, in the end, the new Scalia/Heller doctrine turns the militia language on its head. The original purpose was to arm ordinary citizens with the weapons they would need to militarily preserve “the security of a free State.” In today’s environment, that would suggest that an assault weapon or a grenade launcher or an attack helicopter would be more useful than a handgun or a hunting rifle. But, after passing through the Scalia prism, the Second Amendment seems to rule out the right to have the most militarily useful weapons and rule in the least military useful weapons that law-abiding citizens typically use for lawful purposes – like a handgun to defend one’s home or a rifle with which to hunt deer.
I don’t know how many MinnPost readers ever read a full Supreme Court ruling. (If you want to read the Heller ruling, it’s right here.) They can actually be pretty lively, in this case because some members of the ideologically torn court are quite willing to mock one another for alleged idiocy. Scalia, for example, weaves in his plurality opinion a mocking of the minority opinion, written by (now former) Justice John Paul Stevens.
Stevens argued that the Scalia ruling was overturning the Miller doctrine (that the key to the Second Amendment was the right to possess weapons that have “some reasonable relationship to the preservation or efficiency of a well regulated militia,” and that Officer Heller’s desire to keep a handgun in his home doesn’t qualify). Scalia goes right after Stevens’ interpretation:
Justice STEVENS places overwhelming reliance upon this Court's decision in Miller. “Hundreds of judges,” we are told, "have relied on the view of the amendment we endorsed there, and even if the textual and historical arguments on both side of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself ... would prevent most jurists from endorsing such a dramatic upheaval in the law.” And what is, according to Justice STEVENS, the holding of Miller that demands such obeisance? That the Second Amendment "protects the right to keep and bear arms for certain military purposes, but that it does not curtail the legislature's power to regulate the nonmilitary use and ownership of weapons.”
Nothing so clearly demonstrates the weakness of Justice STEVENS' case. Miller did not hold that and cannot possibly be read to have held that…
…This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia”). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen. Justice STEVENS can say again and again that Miller did “not turn on the difference between muskets and sawed-off shotguns, it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns," but the words of the opinion prove otherwise.
Scalia is aware of the possible absurdity of applying a law on weaponry, written in the time of muskets and militiamen, to a world of drones and nukes and a permanent standing army. Here is how he dealt with it (I can’t say it works for me):
It may be objected that if weapons that are most useful in military service -- M-16 rifles and the like -- may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
Finally, Scalia purports to have some sympathy for anyone who might believe that a handgun ban would be of benefit in a 21st-century nation that has more gun violence than other developed nations. But, unfortunately, that’s beyond his humble job description. His job is to say what the Constitution means and most especially what it meant when it was written. And, with some regret, he is compelled to divulge that he has ascertained (through a method that some skeptics have called “historical ventriloquism” in which the members of the founding generation are used as dummies to express the views a justice needs them to express) that the authors and ratifiers of the Second Amendment meant to prohibit the District of Columbia from banning handguns.
In the Heller ruling, here is how Scalia deals with the inconvenience of ruling off the table measures that some jurisdictions might think would help with the problem of gun violence. And also, at the end of the excerpt below, he reaffirmed that there is no such thing as a constitutional provision withering away by reason of obsolescence:
We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici [meaning those who submitted “friend of the court” briefs in the case] who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.
Historian Saul Cornell of Fordham University, a scholar of Second Amendment history, is an outspoken critic of the Scalia style of (what Cornell calls) “new originalism.” Cornell suggests that the new originalists manipulate the history to get the result they want and then claim with great faux modesty that they have no policy-making role, but are mere vessels for enforcing the only legitimate reading of the Constitution, namely the Constitution as it was meant and understood by those who wrote and ratified it. Wrote Cornell:
New originalists somehow always seem to read the Constitution in exactly the same way that a modern right-wing law professor would read the document -- a strange coincidence indeed!
In a 2012 piece reflecting back on Heller, Cornell went even further in accusing Scalia of manipulating 18th century to get his result:
"If the Heller court had simply said, “Look, most Americans think the Amendment is about an individual right, and no one really cares what James Madison or the average man on the street in 1791 thought”—then the case would be pretty uncontroversial. Instead, Scalia produced a pompous, error-filled opinion that has done more to discredit his beloved originalism than a generation of liberal academics ever could."
Stevens strikes back
In case you found yourself worried about poor Justice Stevens, being accused of various forms of numbskullery by Justice Scalia in public, and in ALL CAPS and in a ruling that will be studied for years, worry not. His tone is a tad lighter, but he also can dish it out. (Of course you need to break the fairly weak code to know that whenever Stevens wants to insult Scalia, he calls him “the Court,” since Scalia’s ruling spoke for the court in this matter. Wrote Stevens, for example:
The Court concludes its opinion by declaring that it is not the proper role of this Court to change the meaning of rights “enshrine[d]” in the Constitution [See Scalia’s “enshrinement” passage just above.] But the right the Court announces was not “enshrined” in the Second Amendment by the Framers; it is the product of today's law-changing decision. The majority's exegesis has utterly failed to establish that as a matter of text or history, “the right of law-abiding, responsible citizens to use arms in defense of hearth and home” is “elevate[d] above all other interests” by the Second Amendment…
Stevens (and the three other liberal justices who signed his dissent) subscribes to Warren Burger’s view that the Second Amendment is fundamentally about militia-oriented rights:
The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature's authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution…
The opinion the Court announces today fails to identify any new evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civilian uses of weapons. Unable to point to any such evidence, the Court stakes its holding on a strained and unpersuasive reading of the Amendment's text; significantly different provisions in 1689 English Bill of Rights, and in various 19th-century State Constitutions; post-enactment commentary that was available to the Court when it decided Miller; and, ultimately, a feeble attempt to distinguish Miller that places more emphasis on the Court's decisional process than on the reasoning in the opinion itself.
… without identifying any language in the text that even mentions civilian uses of firearms, the Court proceeds to “find” its preferred reading in what is at best an ambiguous text, and then concludes that its reading is not foreclosed by the preamble. Perhaps the Court's approach to the text is acceptable advocacy, but it is surely an unusual approach for judges to follow.
In case Stevens’ indirect tone caused you to miss it, in that that last bit — acceptable advocacy, but surely an unusual approach for judges to follow — Stevens is accusing Scalia of abandoning judicial neutrality and writing as if he was Heller’s lawyer.
Stevens also made a dire, but obvious, prediction that, as a result of the Heller ruling, the court would have to make more rulings to establish the precise boundaries what level of gun regulation is permissible. The doctrine that “law-abiding” citizens can possess the kinds of weapons that they typically possess for “lawful purposes” raises far more questions than it answers. For example, to lift an obvious question from the gun control debates of the moment, would a ban on high-capacity magazines that allow a hunter (or a mass murderer) to fire 50 rounds without reloading be constitutional? Could the federal government ban assault weapons (such weapons were banned in the 1990s, but that law expired in 2004 and its constitutionality was never tested)?
Scalia went out of his way to say that the Heller ruling should not “be taken to cast doubt” on longstanding elements of the current weak and porous gun-control regime. But won’t the elements have to be tested, one by one, until the new (or, Scalia would say, the old, originally intended) individual right has been refined? Here is how Stevens described the new reality:
Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia. The Court's announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding, but leaves for future cases the formidable task of defining the scope of permissible regulations. Today judicial craftsmen have confidently asserted that a policy choice that denies a “law-abiding, responsible citize[n]” the right to keep and use weapons in the home for self-defense is “off the table.” Given the presumption that most citizens are law abiding, and the reality that the need to defend oneself may suddenly arise in a host of locations outside the home, I fear that the District's policy choice may well be just the first of an unknown number of dominoes to be knocked off the table.
In the 2010, the same five conservative justices took the next step, in the case of McDonald vs. Chicago, and ruled that the Second Amendment right, as described in Heller, applies not only to the federal government (and the federal enclave of Washington D.C. counts, for this purpose, as part of the federal government) but also to states and municipalities.
The Bill of Rights, when it was adopted, limited only federal action. But since the 1920s, the Supreme Court has gradually, right by right, required that states also respect the rights that were deemed to be fundamental and "of the very essence of a scheme of ordered liberty." Most of the Bill of Rights was gradually incorporated to the states but the right to bear arms was one of the few that never had been ruled so fundamental. In 2010, it was so ruled.
The power of the gun lobby over Congress seems to be so great at the moment that the NRA doesn't real need the Supreme Court as a final backstop against any congressional gun control measures. But that's not true of some relatively blue states that have been passing some laws restricting the absolute right of individuals to have and to conceal/carry around certain catgegories of weapons.
The combination of Heller and McDonald makes the Scalia "law abiding citizens for lawful purposes" doctrine apply to the states as well as the federal government. So the current state of play is something like this. The Supreme Court is now available as a Legislature of last resort for the gun lobby. Five justices (all of them nominees of Republican presidents) can for the foreseeable future decide what weapons are covered by the Second Amendment right, what restrictions of categories of individuals are constitutional and what requirements for background checks are permissible. Four justicves (all nominees of Democratic presidents) take a narrower view of the Second Amendment and presumably would be more sympathetic to state or federal regulation. In my previous Constitution series ("Imperfect Union") I argued that the appointment of Supreme Court justices has become subject to certain partisan/ideological litmus tests, most expecially on the Roe v. Wade abortion case. It seems reasonable to wonder whether future nominees view of the Second Amendment will be added to the list of litmus tests for future nominees.