The Supreme Court and the Battle for Second Amendment Rights (Washington, D.C.)
Contents:
- Alexander Tabarrok, Director of Research, The Independent Institute
- Stephen P. Halbrook, Research Fellow, The Independent Institute, author of Securing Civil Rights, The Founders’ Second Amendment, and That Every Man Be Armed
- Nelson Lund, Patrick Henry Professor of Constitutional Law and the Second Amendment at George Mason University
Good morning, everyone. I’m Alex Tabarrok, the director of research for the Independent Institute. The Independent Institute is a non-partisan public policy research organization. Every year we put out a number of books on economics, politics, law, history, and other topics. We have a journal, The Independent Review, and we host forums like this one, both here in Washington, D.C., and in Oakland, California, to help the public understand issues of public policy.
In the landmark case, District of Columbia v. Heller, the Supreme Court ruled for the first time that the Second Amendment protects an individual’s right to keep and bear arms for self defense. Now, Washington, D.C., however, is a very peculiar place, as many of you who live here know. Legally, it is a federal enclave, and in the context of that decision, it [D.C. v. Heller] left open how the right to keep and bear arms applies to other areas. In cases like McDonald v. Chicago, the Supreme Court is being asked to rule on whether the Second Amendment limits only the reach of the federal government or whether, like most of the rest of the Bill of Rights, it also applies to state and local governments.
Now, I’m going to leave that discussion to our distinguished speakers, but I did want to comment on one aspect of the case which I think is notable. These cases really indicate the power of ideas [and] the power of scholarship. District of Columbia v. Heller did not come out of the blue. It was preceded by decades of scholarship—not lobbying or political action, though these may sometimes matter as well, but detailed and extensive historical, textual, and legal research into the history and meaning of the Second Amendment—research that has bettered our understanding not just of the Second Amendment but of the entire Constitution.
Without question, this scholarship changed minds. It brought many people who would not naturally favor or would not naturally be inclined to strongly support the Second Amendment, people like Laurence Tribe, for example, to change their minds and recognize what the scholarship implied about what the Second Amendment says and what the Second Amendment means. Two of the scholars who have done the deepest work in the trenches on the Second Amendment are here today. Stephen Halbrook is the author of numerous books and articles on a very wide range of issues. I’m going to mention just two of them today. First, The Founders’ Second Amendment: I’m really a fan of this book because it does what I think no other book does, which is to really put you in the place of the founders and their time to make it clear what the events of the day, events like the Boston Tea Party, like Lexington Common, meant to the people of the time and how the founders wrote the Constitution in light of their experiences. This is not a dry treatise. This is a riveting, popular, and fun book on the Revolution and its meaning. I also like to point to Securing Civil Rights: Freedmen, the Fourteenth Amendment, and the Right to Bear Arms. Now, in my view, this is the book of the moment on the Second Amendment because it concerns the crucial question that is before the Supreme Court today: whether the Second Amendment applies to the states or just to the federal government. It’s also the book that I think forever places the Second Amendment alongside the Fourteenth in the context of civil rights, particularly the civil rights of African Americans. I should also mention that Stephen has three times argued before the Supreme Court and three times won, so he has a pretty good batting average.
Our second scholar is my colleague at George Mason University, Nelson Lund. Nelson is a prolific scholar and expert not just on the Second Amendment but also on federalism, civil rights, and election law. I printed out his CV, his 31-page CV. It really puts a number of us lesser scholars to shame. In addition to being a tremendous scholar, Nelson has clerked for Sandra Day O’Connor and has been an attorney in the Department of Justice and an associate counsel for the President. He has also served with Jimmy Carter and Jim Baker on the Commission on Federal Election Reform. In addition to his scholarly work, he is a frequent commentator on TV and in the popular press. He is also the author of a brilliant brief to the Supreme Court on the Heller case, which I recommend to you all.
So it’s a great pleasure for the Independent Institute to host these two scholars today and to have them speak on the Supreme Court and the battle for Second Amendment rights. We’re going to begin with Stephen Halbrook, followed by Nelson Lund, and then we’ll have plenty of time for questions at the end.
Thank you very much, Alex. It’s a real pleasure to be here to see so many familiar faces, and there are so many topics to talk about that it’s kind of difficult to restrain myself. I want to say something about Elena Kagan to start with. Back in the 1980s she was clerking for Justice Marshall. A case came before the Supreme Court, a petition for certiorari named Sandidge v. District of Columbia, and Elena wrote a very brief analysis of the case. This gentleman had been convicted of carrying a handgun, of possessing an unregistered firearm in the District of Columbia. He asserts his, and she put in quote marks, “right to keep and bear arms,” like that is something that is fake. Then it just says, “I am not sympathetic.” That was her first known commentary on the Second Amendment and the lack of importance thereof.
There are a couple of people I want to just introduce you to if you haven’t met them already. When Sandidge was going up, I assisted the defendant’s lawyer, and Dan Peterson, an old friend, and wrote an amicus brief. This was back in the 1980s, and neither the brief that I helped with nor Dan’s brief could convince Ms. Kagan that certiorari should be granted, nor any of the other justices for that matter. It raises an issue that is being dealt with in D.C. right now. We have a case called Heller. We call it Heller II to distinguish it from the first one, v. District of Columbia, and we are contesting the registration system. After Dick won his case in the Supreme Court, the District’s attitude was, “We’re really going to stick it to gun owners now. We’re going to make it harder than ever for people to own guns.” So they required not only that you register but that your registration expires after three years and you have to re-register. If you don’t re-register, you’re a criminal, and they take your gun.
Just a couple of other things about our latest Supreme Court nominee: Prince v. U.S., a case that I argued, had to do with the Brady Act mandate on the states, that local law enforcement had to do background checks instead of the federal agency doing them. It was basically a Tenth Amendment case, and it was anticipated, especially after the oral argument went poorly for the government, that [the government] would lose. There’s a memorandum in the Clinton archives that was posted as a result of this nomination, [which discusses] different options. There’s a comment by another person that says Elena suggests that we explore the President making it illegal for a federal firearms licensee to transfer a handgun to a person without a background check. Now, remember that the issue was whether background checks being mandated on states and localities was a valid exercise of constitutional power. The suggestion was made by Ms. Kagan that if the Court rules against that and invalidates the mandate, as indeed it did, the President by decree could make it illegal for a federal firearms licensee to transfer a handgun without a background check, a background check of the type that the Supreme Court just said was invalid. Aside from the Second Amendment, can you imagine the idea of a President making something a crime? I thought Congress passed those laws. Think about it. I think this was in The Post a couple of days ago. It first came out and first became public, and I saw it [as I was] going through those archives. It just hit my head like a bolt of lightening that she would suggest that it could be made illegal to do something when Congress had not passed a law saying that, and the Supreme Court was anticipated to invalidate requiring local law enforcement to do background checks.
The third thing that I think is relevant to our topic is that she worked in favor of the Clinton Firearm Import Ban. It started in 1997 and was completed in 1998. Under Bush I, there was an import ban on firearms that were considered sporting, and the decision by ATF was that these guns are no longer sporting even though they have been sporting since 1968. Overnight they became non-sporting, and so the manufacturers and importers changed the designs to comply with what ATF said was sporting. Then suddenly it was discovered in 1997 and 1998 that they were no longer sporting. Talk about health care being decided by bureaucrats because they know so much about it; imagine bureaucrats deciding what is a sporting firearm. Ms. Kagan wrote the memo that Bill Clinton signed banning further importation of firearms that had been considered sporting for many years.
Let’s do two things. Let’s turn the clock back to the period 1866 to 1876 to Reconstruction, the development of the Fourteenth Amendment, and the whole issue of the Black Codes. After the war was concluded, the Southern states reenacted the Slave Codes, which made it illegal for African Americans to possess firearms, and one of the purposes of a couple of statutes that were passed in 1866 and then of the Fourteenth Amendment was to do away with these Black Code provisions and to protect the right of all people to keep and bear arms. That is the history that is currently before the Supreme Court. After the Heller decision came down, Mayor Daley defiantly said that the Second Amendment does not apply in his city, and there were several lawsuits filed. McDonald v. City of Chicago was filed the same day as Heller. The NRA filed several lawsuits: NRA v. Chicago, Oak Park, Morton Grove and a few other Chicago land suburbs. All of those repealed their ordinances, especially the most famous one, Morton Grove. That was the first handgun ban in U.S. history by a locality other than the D.C. one, and it was upheld going through the courts. The courts basically said, well, the Second Amendment doesn’t mean anything. They repealed it rather than litigate it. They looked at the handwriting on the wall, and in fact the Heller case, even though it was about whether the Second Amendment meant an individual right and whether a handgun ban was inconsistent with the Second Amendment, also did a historical analysis that went through the Reconstruction period, when the Fourteenth Amendment was adopted. The Court tipped its hand. The Court began by saying that after the Civil War there was considerable debate about the right to keep and bear arms and the ability and right of former slaves to do that. It cited the book that you can buy here tonight, and I’d be glad to autograph. Securing Civil Rights was cited under the subtitle, which used to be the main title, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms. The Court goes into a nice analysis of the intent to basically incorporate the Second Amendment into the Fourteenth Amendment so as to invalidate those Black Code provisions and make it lawful for all people to keep and bear arms and invalidate gun bans at the local and state levels.
The two cases proceeded. The NRA cases, Chicago and Oak Park, and then McDonald, were consolidated before the U.S. Court of Appeals for the Seventh Circuit. That was the same circuit that upheld the handgun ban of Morton Grove back in the 1980s. The court rendered a decision very quickly, saying this is not a very old right—that federalism has existed for more years than the right to keep and bear arms—which was a phenomenal thing to say, because federalism in the Anglo-American experience was basically invented by the framers of our Constitution. There are no states in England, and the right to keep and bear arms really goes back to ancient times. Wherever there is humanity, they make tools, and they have the opposing movement. Animals have their own weapons, their claws, their teeth, and humans are distinct in tool-making ability. Weapons of defense are some of those tools historically. The Seventh Circuit Court of Appeals even suggested that the right to self-defense in your home could be abolished, and therefore guns could be banned. It’s a really wacky decision.
The NRA litigants filed a petition for cert with the Supreme Court. The McDonald petitioners filed as well, and the Supreme Court ended up granting cert to the McDonald litigants and not to the NRA litigants, though the NRA litigants were still parties known by the weird name, “Respondents in Support of Petitioners.” You would probably love me to talk a long time about those terms because the legalese is so exciting. The bottom line is exciting. The case was argued in March, and I want to say just a little bit about the oral argument. I don’t know whether you read any accounts of it or not. I want to talk about that a little bit and then go into more of the history of the Fourteenth Amendment because it is an exciting history. I am hopeful that the Court will go into that history when it renders its decision in McDonald, most likely right at the end of this month.
There are two clauses in the Fourteenth Amendment that are relevant here. The Fourteenth Amendment says that “no state shall deprive any person of life, liberty or property without due process of law.” That applies to any person, and a person means an individual, [but] it may mean a corporation, like the NAACP, or a commercial entity. There’s another clause that says, “No state shall deprive any citizen of privileges and immunities of citizens of the United States.” That’s a more complex set of phrases. I think we’re all familiar with the concepts of life, liberty, and property, the Declaration of Independence saying that we are endowed by our Creator with life, liberty, and the pursuit of happiness. Life, liberty, and property are part of that. The word “right” doesn’t appear in the Due Process Clause, but it’s presumed. It’s one of the premises of the Due Process Clause that you have a right to life, liberty, and property that they cannot deprive you of without due process.
Early on, the Supreme Court basically rendered the Privileges or Immunities Clause something that doesn’t carry much water, and there again I won’t talk in detail about the Privileges or Immunities Clause because it would be really boring to a non-lawyer audience. The Supreme Court in the Slaughterhouse cases in the 1870s basically read that part of the Constitution to be very narrow. It wasn’t until the end of the nineteenth century that the Court started saying that Bill of Rights guarantees are protected against the states through the Due Process Clause of the Fourteenth Amendment.
So with the Second Amendment being basically discovered by the Court in 2008, it was sort of like the First Amendment was discovered by the Court in the 1920s and 1930s because there was very little case law on the First Amendment. Now it has become the most precious right of all, one would think if one [were to] read the opinions. Gradually, one Bill of Rights guarantee after another has been incorporated and held to apply to the states with a couple of important exceptions: the Grand Jury Clause that there has to be a grand jury to indict a person for a crime, and the clause guaranteeing the right of a jury trial in civil cases if the amount in controversy is over $20. Can you imagine that applying to the states? For every traffic ticket you could get a jury trial, and the whole system would break down. Wouldn’t that be cool? Those are two provisions that the Court has said do not apply to the states. The Court has never ruled on whether the Second Amendment applies to the states, and that’s what we’re looking for.
There came a time when McDonald was before the Court, and there was a decision made by the McDonald litigants to rely on the Privileges or Immunities Clause. The NRA litigants relied on the Due Process Clause, which was the traditional way the Court had incorporated Bill of Rights guarantees. Now, when you argue a case there or you see a case argued there, you discover very quickly that the justices are making speeches. They’re not just asking questions. They’re setting forth their positions, and they pretend to be asking questions. You can really glean a lot from what a justice might say by the questions they ask. When McDonald’s attorney was arguing, Justice Sotomayor, our new justice, said, well, if I rely on your theory that the Privileges or Immunities Clause applies here and the Second Amendment is incorporated through that, then we’ve got to incorporate grand juries and all of these other things against the states. These are not gun issues, by the way; these are other amendments that would be incorporated if there were Privileges or Immunities Clause incorporation. Justice Ginsberg started asking, well, what are all of these other unenumerated rights that don’t have anything to do with firearms? The Court reacted very quickly against incorporation through the Privileges or Immunities Clause, and in fact, Justice Scalia asked counsel, “What are you bucking for, a position in law school?” This is a favorite topic of academic professors—reinventing or rediscovering the Privileges or Immunities Clause. Justice Breyer’s questions take about five minutes. They really use up a lot of your oral argument time. He wanted to talk, instead of about the Constitution, about statistics and how guns kill people. Justice Scalia said, “Well, this never comes up when you’re talking about the Miranda Warnings, does it,” like if she didn’t have to give those warnings, wouldn’t there be a lot fewer people killed?
The NRA had some argument time, and you could see where Justice Stephens was headed already. He’s wanting to say that even if the Court incorporates the right, and he definitely would not favor that, couldn’t you just incorporate it in a watered down way? For example, there don’t have to be unanimous jury trials even though the right to jury trial applies to states and localities. Where he is headed with that is, yes, the Second Amendment could apply to the states, but the states and localities can still ban all the guns they want to. Justice Scalia came back with, what about all of these other rights that the Court is always recognizing that are not even in the Constitution, like abortion or the rights of homosexuals? They’re not watered down. What is wrong with the Second Amendment? Why would it be a watered down version that would be incorporated?
The lawyer who argued for the District of Columbia did not have a fun day. Jim Feldman is a guy I met back in the early 1990s. I argued my first case against him, and he made statements like, well, England and Japan, they’re democracies. They have fundamental rights that are recognized there, so how could we say that it’s a fundamental right to keep and bear arms? Chief Justice Roberts came back and said, well, we’re talking about our system of fundamental rights, our system of ordered liberty, not Japan’s. As you know, there is this internationalist trend in the Court. Justice Kennedy made a very nice comment about the fundamental nature of the right to keep and bear arms, and the attorney for Chicago squirmed when he was asked by Justice Alito [whether] all guns could be banned. Could Chicago ban all guns? What are you going to say to that if you claim that the Second Amendment doesn’t apply to the states and to the localities? That is basically how it went. You could pretty much figure that the same 5–4 that rendered the Heller decision is going to go the same way. I don’t like to make predictions as a lawyer, but that is kind of the conventional wisdom. It might be that more than five would vote for incorporation now that the right has been determined to be an individual right under the Second Amendment.
That is basically what we are hanging on the edge of our seats to be decided, and I’d like to say a little more about the arguments that Chicago made in the case, particularly their historical arguments. Chicago argues that it’s okay to ban all guns for all people alike. Therefore, there are no equal rights that are violated. They say that the Fourteenth Amendment only protects the equal protection of people. I would say that would be the equal deprivation of rights of people. As long as all people are treated the same way as the slaves were treated, for example, that’s okay. The right to free speech could be banned as long as you ban it for everybody. They don’t say that, but they say it for the right to keep and bear arms, and they say that was the only intended purpose of the Fourteenth Amendment. The fun really begins when we start seeing the members of Congress whom Chicago quotes without telling the Court who they really are. The two leading opponents of the Fourteenth Amendment in the Senate were the two main people that Chicago relied on. One of those was Robert E. Johnson. He was really one of the great constitutional lawyers of the nineteenth century. It just so happened, though, that he had represented the slave owner in the Dred Scott case. Dred Scott held that if you recognized African Americans as citizens, they would have the right to free speech, to hold political meetings, and to keep and bear arms wherever they went, so you can’t recognize them as citizens. This is the shock argument. I think that Robert E. Johnson probably had a good idea of what the Fourteenth Amendment was intended to do because it was intended to overrule that decision for one thing. Among the rights, privileges, and immunities that the Court made clear in that case of citizens at least was the right to keep and bear arms. Chicago cited and quoted Robert E. Johnson without even mentioning that he opposed the Fourteenth Amendment and without telling the Court that he is arguing against its adoption. How could you say he is the one you go to to get your understanding of the Fourteenth Amendment?
Then there was Thomas Hendricks from Indiana, and he argued against the Fourteenth Amendment and against civil rights legislation at that time. He explicitly said, “in my state, we don’t allow African Americans rights, privileges, and immunities.” One of those rights, privileges, and immunities in Indiana was the right to keep and bear arms. Hendricks well knew that because he was a delegate at the Constitution that adopted that provision in the state constitution. He is the other main person that Chicago quotes and relies on for its argument that, well, nobody really understood the Fourteenth Amendment to protect substantive rights. It was only about equality, and as long as everybody is treated equally badly, everything is okay.
One of the most important speeches that Chicago disregards, or actually they try to minimize, was by Jacob Howard when he introduced the Fourteenth Amendment to the Senate. He gave a long, very interesting speech where he talked about the fact that previously, the Supreme Court had said the Bill of Rights does not apply directly to the states. He had talked about the intent of the Fourteenth Amendment to make sure that the Bill of Rights does apply to the states. He goes on to say that there are individual rights, privileges, and immunities that are before the Congress that are at stake in the proposed Fourteenth Amendment. He went ahead and read those that he thought were most important, and guess what? The Second Amendment was one of those. He called these personal rights. Now, this is the guy who introduces the amendment to the Congress. Chicago doesn’t think that is of any relevance, but he goes on to talk about the fundamental rights that exist in every society that is not a slave society or a despotism. By talking about the right to keep and bear arms as a right, he made that discussion in terms of it being a right and not a privilege and immunity of citizens because he said it applied to the people. His speech has been misread by some scholars to rely on the Privileges or Immunities Clause, but in actuality he clearly distinguishes privileges or immunities of citizens from rights of the people. The right to keep and bear arms was a right of the people. When he made that comment about slave societies and despotisms he said, what are those rights? Now, notice he didn’t say that it would be a despotism or a slave society if you don’t have a right to a jury trial in a civil case where it’s more than $20 at stake. He did not cite the Grand Jury Clause, but he did talk about free speech, assembly, and keeping and bearing arms.
This speech, by the way, was published on the front page of the New York Times and reprinted in a lot of newspapers. Chicago said, well, you know, not many people read that. It was a really long speech. How would they understand all that? It was just too complicated. And it’s right there in black and white. He read the provisions of the Bill of Rights that he selected as important, including the right to keep and bear arms, and he said that this amendment is intended to protect these rights from state deprivation.
As you can see, Chicago is really stretching it and really on the lam; they’ve got some really weak arguments. It’s nice to go in Court, even if you have kind of a bad case, if you’ve got some good arguments. This is really unprecedented to go into Court and basically on a Fourteenth Amendment issue rely on the most racist members of the Congress at that time who oppose the amendment, and to act like that’s what the Court should adopt as its understanding. Now, there are just an awful lot of people I could quote about the right to keep and bear arms at that time. Get the book, and I won’t bore you with it now. It’s not boring, but it’s things like the following: you know how they always used to argue the Second Amendment only protects the militia right? Well, right after the Civil War concluded under the Black Codes, the gun seizures against African Americans were carried out by local law enforcement and by militias. Congress responded to that by banning the southern state militias and basically trying to protect the rights of African Americans to keep and bear arms, and after it became clear that the states could not have laws banning gun possession, the Ku Klux Klan came on the scene and deprived African Americans of firearms and basically terrorized them, if they were voting Republican ,and committed various outrages of that type. For the entire period of Reconstruction, this was a central issue, if not the most central issue of all.
The Second Amendment was the only amendment mentioned in one of the civil rights type of statutes that Congress passed in 1866 where the Court referred to the right of personal security, personal liberty, and private property, including the constitutional right to bear arms. They didn’t say that about free speech or any other right.
Now, Chicago is getting really worried about what it’s able to do. They argue for flexibility and the ability to ban guns that are evil in their view. They actually made the argument in their brief that, well, if you say in a categorical manner that rifles, pistols, and shotguns cannot be banned because they’re protected by the Second Amendment, what if Chicago needed to ban these rifles with scopes that, in rural areas, are used for hunting, but become a favorite tool of gang members to assassinate each other? There might come a time when Chicago needs to ban hunting rifles with scopes in an urban area. They try to say you can do things in urban areas that you cannot do constitutionally in rural areas. There we have it. I’m glad they put that in their brief because it shows you what is going on here. We’re in Alice in Wonderland. Language can mean anything you want it to mean. An assault weapon or an assassination tool can be whatever gun you want to assign that term to therefore to justify banning it. Chicago basically argues they can ban any gun they want to ban, and they’re sticking with it. We’ll see how much they’re able to stick with this. After the decision comes down, I would fully expect they are going to try to make things as miserable for gun owners as possible if they do lose the case. We’ll just have to wait and see about that. Keep tuned the first couple days of the last week in June, and we should have a decision.
It’s an honor to be here with Steven Halbrook. I could easily spend all of my allotted time describing Steve’s contributions to the revival of serious interest in the Second Amendment and giving him the praise he deserves, but I’ve been asked to focus on the Supreme Court’s emerging jurisprudence. I will just begin with a couple of brief remarks about the significance of his work. When Steve first began his research more than 30 years ago, he had some handicaps that eventually turned out to be advantages. First, he was a practicing lawyer rather than a legal academic. Second, he thought that the Constitution means what the people who created it thought it meant. Now, they may not sound like handicaps to you, but they were handicaps because the Court at that time had very little interest in the original meaning of the Constitution and the legal academy had virtually no interest in what outsiders like Steve might have had to say. On top of that, the Courts and the professors universally thought that the Second Amendment was a kind of bad joke. Well, they’re not laughing anymore. Eventually, Steve is going to get the credit he deserves for this remarkable reorientation of legal thought. I’m going to talk a little about the progress that has been made and its limits.
Two years ago, as you know, the Supreme Court struck down Washington, D.C.’s handgun ban in the Heller decision. As Alex mentioned, this was the first time in history that the Court has found any law in violation of the Second Amendment. Apart from its significance for the politically contentious issue of gun control, Heller was an important test case for the interpretive theory of originalism. There were virtually no relevant Supreme Court precedents, and certainly none that could be considered dispositive. Heller was also a good test case for originalism because the Second Amendment poses some genuine puzzles. Its text, for example, uniquely combines an explanatory phrase and a command. It says, “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.” Now, what does that preambular reference to the importance of a well-regulated militia have to do with the right of the people to keep and bear arms? One usually thinks of constitutional rights as obstacles, not spurs, to regulation, and it’s not immediately evident, at least to typical twenty-first-century readers, how this right to arms could contribute to the establishment or preservation of a well-regulated militia.
A different kind of puzzle arises from changes in the circumstances to which the constitutional provision must be applied. American society is dramatically different from the world in which the Second Amendment was adopted. The militia organizations extolled by the founding generation have withered away, and advances in the technology of weaponry have produced arms that are far more dangerous than those available in the founding era. That raises a question. Is it even possible, let alone prudent, to apply the Second Amendment’s command to a modern society in which it could have radically different effects than what would have been expected in the 1791? Now, Heller was a good test case for another reason. The opinion was assigned to the Court’s leading exponent of originalist jurisprudence, Anthony Scalia.
Scalia makes a powerful case, based in large part on Steve Halbrook’s work, for two important propositions. First, the right to keep and bear arms is an individual, private right, not a right of the states to organize militias. Second, the purpose of the right is to enable individuals to exercise their inherent right of self-defense, including the right to defend themselves against criminal violence. That is not enough to resolve the initial textual puzzle about the relationship between the prefatory language and the operative clause. Scalia tries to do this by claiming that the right to arms was a pre-existing right and that the preface of the Second Amendment merely tells us why it was codified without changing the content of the pre-existing right. Now, there are two main problems with Scalia’s analysis. First, he says that the constitutional text itself, which refers to the right to keep and bear arms, implies a reference to a pre-existing right, but that is a linguistic fallacy. You could write a law saying that the right to free medical care at government expense shall not be infringed. That would not imply that the right already existed. Of course, there was a pre-existing right to arms, and the Second Amendment could be referring to that right. But then you would have to try to figure out the scope of the right. In practice, the pre-existing right was almost unlimited because there were almost no laws restricting the right in America at that time and none from the federal government at all. That’s clearly not what Scalia means because he later endorses a great many restrictions that did not exist in 1791.
Alternatively, you might try to figure out what kinds of restrictions would have been acceptable if legislators had wanted to impose them, but there was almost no discussion of such questions in the founding period because there was no reason for anybody to have such discussions. Now, the second big problem with Scalia’s effort to deal with the prefatory language involves his claim that it merely explains why the pre-existing right was codified. His explanation of the purpose of the codification makes no sense. Scalia asserts that “the Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia.” Now, what he says here is just false. The text of the Second Amendment refers to a well-regulated militia, not to the militia. They are not synonymous terms, and Scalia himself acknowledges as much when he distinguishes between an organized and an unorganized militia. Building on his fallacious premise, Scalia claims that the Constitution assumes that the militia is already in existence, and that it means all able-bodied men. Now, that is not exactly wrong, but it makes nonsense of Scalia’s claim that the purpose of codifying the right to arms was to prevent the elimination of the militia. The nation’s able-bodied men, which is what Scalia says the militia is, would not be eliminated if they or anyone else were to be disarmed. Scalia’s argument also carries the fallacious implication that Second Amendment rights are limited to able-bodied men, which they’re not.
The most difficult textual question, which Scalia never even addresses, is how codifying the right to arms could have been expected to preserve, promote, or prevent the elimination of a well-regulated militia. Now, I believe there is a perfectly good answer to that question, but no answer of any kind will be found in Scalia’s opinion. That is a very, very serious shortcoming in a judicial opinion that purports to rely as heavily as Scalia’s does on textual analysis and Originalist interpretive principles. Scalia’s failure to identify any textual or historical evidence about the scope of the Second Amendment right has spectacular effects when he addresses the principle question at stake in the Heller case itself—namely, whether the D.C. handgun ban was unconstitutional. The Court concludes that it is unconstitutional, but the only reasons that Scalia offers are that handguns are popular weapons for self-defense among Americans today and that he thinks there are good reasons why handguns are popular. That is not a historical or Originalist argument. If it’s any kind of argument at all, it’s probably a disguised and incomplete form of the quasi-legislative, interest-balancing approach that Scalia disdainfully dismisses elsewhere in his opinion. It’s very striking that Scalia abandons any pretense of Originalism when he addresses the issue actually presented in the case. What is even more striking is that he also includes a series of astounding and unnecessary comments endorsing various forms of gun control that were not at issue in the case. First, he says that nothing in our opinion should be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons and the mentally ill. I guess that sounds reasonable, at least at first, but how long-standing have these prohibitions been? Scalia either doesn’t know, or he decided not to tell us. Apparently, however, the first general ban on felons’ possession of firearms was enacted in 1968. That’s right, 1968—long-standing. That was 177 years after the adoption of the Second Amendment and less than a decade before the D.C. handgun ban was adopted.
Aside from the absence of historical support involving the pre-existing right to arms, the conclusion is inconsistent with what Scalia himself calls the core of the right—namely, self-defense. On what understanding of that core right does it make any sense at all to leave American citizens defenseless in their own homes for the rest of their lives on the basis of nothing more than a non-violent felony like tax evasion or insider trading? It would make more sense to say that these felons can be silenced for the rest of their lives. Regulatory crimes, after all, usually involve an abuse of speech, such as making false statements to the government or negotiating contracts that the government doesn’t like. But they don’t have anything at all to do with firearms or violence.
Next, Scalia endorses prohibitions on the carrying of firearms in sensitive places such as schools and government buildings. Scalia provides no evidence that Americans were forbidden to carry firearms in schools and government buildings prior to 1791. Nor does he explain what makes these places sensitive or how courts are supposed to go about determining the scope of this newly announced exception to the right to arms. Is a university campus more sensitive than a shopping mall across the street? Is a government-owned cabinet, a national forest, more sensitive than a privately owned hotel? Did the whole city of New Orleans become a sensitive place after Hurricane Katrina thus justifying the government forcibly disarming law-abiding citizens whom the government was unable to protect from roving bands of criminals? We are never told what limits, if any, there are on the discretion of courts to decide that certain places are so sensitive that Americans may be disarmed when they go there, and we’re certainly not given any historical evidence to support such discretion.
The Heller majority next endorses laws imposing conditions and qualifications on the commercial sale of arms. Once again, Scalia presents no historical evidence about the nature or even existence of pre-1791 commercial regulations. Nor does he suggest any limit on government’s power to impose conditions and qualifications on these commercial transactions. For all we’re told here, Congress could place a prohibitively high tax on the sale of firearms or create burdensome regulatory obstacles that would make it impractical for a commercial market to exist. If the Court means that it would impose only reasonable conditions and qualifications, it failed to say so, and it suggested no criteria based in history or anything else by which reasonable restrictions could be distinguished from unreasonable restrictions.
The Court also endorses bans on the concealed carrying of firearms. Once again, Scalia provides no evidence that such bans existed prior to 1791 and no evidence that anyone thought they would be permissible. Instead, he vaguely relies on some nineteenth-century state cases. None of the cases that he could have cited provides any evidence about the original meaning of the Second Amendment, and every one of them employed interpretive techniques that the Heller Court expressly rejected. What is more, the two state cases that Scalia does cite rely on the proposition that only assassins have a reason to hide their weapons whereas honest men carry their guns out in the open. Now, that may have been true in Georgia in 1846 and in Louisiana in 1850, which is where those cases came from, but it may not have been true throughout America when the Bill of Rights was adopted. It is certainly not true today.
Finally, the Heller Court announces that the Second Amendment “does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes”—and there are a couple of examples—short-barreled shotguns and apparently machine guns as well, which are per se not protected by the Second Amendment according to the Court. Where did that come from? Scalia invokes a 1939 precedent in support of his conclusion, but his interpretation of the case is really completely wacky. He also invokes William Blackstone’s reference to dangerous and unusual weapons, but Blackstone did not say that it was illegal to possess such weapons. He said only that it was illegal to carry them in public when doing so would terrify the good people of the land.
Maybe the Court will someday provide an Originalist rationale for Heller’s holding that a handgun ban is unconstitutional, a rationale that Heller itself promised but did not deliver, and maybe the Court will someday repudiate its unsubstantiated endorsement of some very dubious gun control laws. Meanwhile, I think Heller will stand as a monument to a peculiar kind of jurisprudence, which might charitably be called half-hearted Originalism. In a narrow sense, the Constitution was vindicated in Heller because the Court reached an easily defensible Originalist result, but the Court’s reasoning is at critical points so defective and so transparently non-Originalist that Heller should be seen as an embarrassment for those who join the majority opinion. Now, as Alex and Steve described, immediately after this decision was announced, several Chicago residents filed a federal lawsuit claiming that a similar law in that city violates the Fourteenth Amendment. The plaintiffs relied on both the Privileges or Immunities Clause and the Due Process Clause, which they maintain render the Second Amendment applicable to state and local governments. This is the McDonald case, which the Supreme Court is scheduled to decide in a few weeks.
The Bill of Rights originally applied only to the federal government, and that is what was at issue in Heller. With the adoption of the Fourteenth Amendment in 1868, the Constitution put new restrictions on the states, including the two limitations at issue in McDonald. They are as follows: No state shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States. Nor shall any state deprive any person of life, liberty or property without due process of law. As Steve mentioned, in 1873 the Court read the Privileges or Immunities Clause very narrowly, holding that it protects only those rights that owe their existence to the federal government, its national character, its constitution, or its laws. Three subsequent cases during the nineteenth century applied that holding to the Second Amendment. In all three cases, the Court found that the right to keep and bear arms and other elements of the Bill of Rights as well pre-existed the federal Constitution. Under the 1873 interpretations of the Privileges or Immunities Clause, such pre-existing rights are not protected against state action. Shortly after the last of these three decisions, at the very end of the nineteenth century, the Supreme Court started taking a new approach. Rather than revisit its precedents, however, it started making some of the rights listed in the Bill of Rights, but not others, applicable to the states under the Fourteenth Amendment’s Due Process Clause. The theory underlying this process of selective incorporation is that the Due Process Clause imposes substantive limits on the government’s discretion to interfere with what the Court calls fundamental rights.
The Court has never even tried to derive this doctrine from the text or history of the Constitution. It’s just something they made up out of thin air. Most of the individual rights listed in the Bill of Rights have now been incorporated through substantive due process, and very few have been held to be insufficiently fundamental. McDonald is the first case in which the justices have agreed to consider whether the Second Amendment’s right to arms is sufficiently fundamental to justify incorporating it under the doctrine of substantive due process.
At the oral argument in March, the plaintiff’s lawyer started out by arguing that Chicago’s law violates the original meaning of the Privileges or Immunities Clause, and who do you think interrupted to ridicule the lawyer for making this argument? None other than Mr. Original Meaning himself, Anthony Scalia. Here is what he said: “Why are you asking us to overrule 150, 140 years of prior law, when you can reach your result under substantive due process unless you’re bucking for a place on some law school faculty?” That provoked some laughter in the courtroom, and Scalia soon followed up with this mocking comment: “Well, I mean, what you argue is the dollar of the professoriate for sure, but it’s also contrary to 140 years of our jurisprudence. Why do you want to take on that burden instead of just arguing substantive due process, which, as much as I think is wrong, even I have acquiesced to it?” More laughter.
Now, judging from the oral argument as a whole, I think there is no chance that the Court will decide this case according to the original meaning of the Fourteenth Amendment, but there are probably at least five votes for striking down Chicago’s law under substantive due process. If that’s what the Court decides to do, the immediate effect of the decision will be to apply Heller’s interpretation of the Second Amendment to the state and local governments. Because Heller approved a broad range of gun control regulations, we should not expect any massive expansion of gun rights at least in the near term, but a great many important questions will probably still be open for resolution in future cases.
I’m going to close with three examples: First, Heller endorsed bans on the carrying of concealed weapons but said nothing about a right to open carry—in other words, carrying weapons openly. Because the Second Amendment expressly protects the right to bear arms as well as the right to keep arms, the text of the Constitution, it seems to me, is simply inconsistent with allowing the government to forbid both open and concealed carrying of weapons. Such a ban also seems inconsistent with Heller’s emphasis on self-defense as the core of the Second Amendment right. Most people are in much more danger of encountering violent criminals outside of their homes than they are within them.
Second, Heller endorsed bans on carrying weapons in sensitive places but articulated no test for identifying such locations. Unless McDonald offers further guidance, the lower courts will apparently have to develop a sensitivity jurisprudence on their own. Who knows where that will lead, but there will be a lot of questions about it. Finally, state and local jurisdictions sometimes place very onerous administrative obstacles in the paths of those who desire to possess or carry firearms. Such obstructionism may become more intense in those jurisdictions that would like to impose outright gun bans that the courts will no longer uphold. The Heller II case is an example that shows that Washington, D.C., has already started down this road. Chicago is likely to do the same. Courts will surely face numerous challenges from citizens who claim that such administrative obstacles impermissibly burden the underlying substantive right. How the courts respond to such challenges may be the most important factor in determining whether the Supreme Court’s budding recognition of the constitutional right to arms will have much practical significance in American life. To whatever degree the courts prove willing to protect our constitutional rights in this area, I think we will all owe Steve Halbrook a large debt of gratitude. Thank you.
Questions and Answers
Participant
One thing I would like to bring up, although we have talked about all of the legal implications, is that legal decisions have practical impacts, and just because you can do something doesn’t mean you necessarily should. The question I have has been a topic of discussion concerning a concealed carry state where people can carry their guns to protect themselves from evildoers. Anyone who has carried weapons and dealt with weapons professionally gets a little nervous about a lot of excitable amateurs carrying guns in a situation that maybe they’re not prepared for, or seeing people carrying battlefield weapons around to rallies, and you have questions about what value that would be. How do you handle some of these practical implications—things like people possibly being a danger to themselves and others even though it’s their right to do that?
Stephen Halbrook
Well, there is no right to go into the public and handle firearms in a reckless way. It’s a crime to brandish or exhibit a firearm in anger or to point a firearm at another person creating a reasonable apprehension of bodily harm. There is a whole array of criminal laws on the books, and if you go into any of the particularly misdemeanor or even felony criminal courts around the country, day in and day out, you’ll see people charged with offenses like that, of brandishing, or pointing, or otherwise creating apprehension of misuse. The majority of states now have what we call Shall Issue permitting systems where a person can get a permit or a license to carry a concealed weapon, but there are qualifications including training. There is a smaller number of states now that have discretionary issuance where it’s up to the police or sheriff whether you get a license, and those can be very unfair because they tend to give licenses to their friends and to deny them to poor people or people they don’t know or care about. The Heller and McDonald set of decisions, if McDonald is resolved favorably, will bring more procedural due process to permitting systems, particularly where there is discretion. It will not do to just say, “I don’t think you have a need for this firearm, and therefore I’m going to turn you down but I’m going to give a license to somebody else.”
As to open carry, keep the following in mind: When this country was founded, when the Constitution was adopted, there were no laws on the books of any kind about carrying firearms, either openly or concealed. The first concealed weapon statutes were passed by Kentucky and Louisiana in about 1813, and it had to do more with the dueling code than with any safety issue. People got along quite well back then without any laws on the books. The only laws on the books required militiamen to have arms, required people in certain areas where there was danger of Indian attacks to carry arms to church, and things seem to have gone quite well in those days. The idea of a permit to carry in any form, openly or concealed, [would lead us to] talk about the Sullivan Law in New York, where they were prejudiced against immigrants coming into the country. I think the bottom line, without extending this overly, is that there are plenty of laws on the books that prohibit misuse or the kind of promiscuous use of firearms that endanger other people. Probably the concealed weapon type system is best for all as opposed to the open carry [system] that was more traditional, because an old lady doesn’t have to see a gun to get scared.
Nelson Lund
If I could just add one small point to what Steve said: The modern trend toward Shall Issue, in other words, very liberalized granting of licenses for concealed carry, began in Florida in 1987, and when that was being considered and shortly after it was adopted, police chiefs and commentators all over the country predicted it was going to be Dodge City. There was going to be blood in the streets. Crime was going to go up. It never happened. We now have, what is it, Steve, 44 states that have these laws? The rate of misuse of firearms by concealed carry is miniscule. It’s probably lower than the rate of misuse by firearms by police officers. It just doesn’t happen that giving people their liberty results in anarchy.
Dane von Breichenruchardt
Hello, I’m Dane von Breichenruchardt. I’m president of the U.S. Bill of Rights Foundation. My question is to both of you. I would be interested in hearing it. I think I know the answer, but I wanted you to kind of discuss it. In the decision that is going to be made in the case coming up, are the two terms synonymous with each other? You have to have what is called, in a decision-making process, a fundamental right. Is a fundamental right always necessarily held when a case is being heard under strict scrutiny? Do the two go together so that if the Court, for instance, comes back and says, “I’ll tell you what, let’s give them what they want, but let’s not give it to them where they can use strict scrutiny in future cases; some sort of a modified intermediate level of scrutiny can be used.” Does one depend on the other? Can you not do that? If you’re not going to allow us to use strict scrutiny, then it’s not fundamental. That is where my question is on that. Then, very quickly, what is the relationship between the Second Amendment and the two clauses in the Constitution under the militia clauses—that Congress can call for the militia and on and on, and the other one is to provide for organizing, arming and training the militia? What is the relationship today, being that it is still in the books and hasn’t been taken out?
Alexander Tabarrok
You have two questions in, and the first one is on strict scrutiny and fundamental right.
Stephen Halbrook
Why don’t I take that one? Nelson talked a lot about the relation between the clauses. I’ll defer to Nelson on that. Chief Justice Roberts is not a friend of non-textual language, and when the original Heller case was being argued, he asked the question to Walter Dellinger, who was arguing for D.C., why don’t we ask whether a handgun ban infringes on the right? We judges made up these terms, fundamental right, strict scrutiny, rational basis, and all that stuff. Those are judicially created doctrines. What is reasonable about a handgun ban? Why does that not infringe the right? A similar exchange took place in the McDonald argument. Justice Kennedy said, well, it’s a fundamental right, and we must have decided Heller wrong unless this is a fundamental right to keep and bear arms. Roberts again made the comment that in the issue of incorporation and the issue of whether a handgun ban would be invalid if the right were incorporated, he wanted to just get back to the constitutional language of infringement. I wouldn’t be surprised if you see that in the McDonald opinion when it does come down. Maybe the Court will continue what it did in Heller and not say, well, we don’t have to resolve strict scrutiny at this point, although the Court in Heller did say twice that when this country was founded, a fundamental right of Englishmen was the right to keep and bear arms. It’s kind of bizarre to say it’s not fundamental anymore when it was at the founding. We would all like the Court to say that it’s a fundamental right and that strict scrutiny applies because obviously it makes it easier to attack laws on the books that go beyond the strict scrutiny standards. Again, I wouldn’t be surprised to see the Court be somewhat non-committal and say as a categorical matter, as it did in Heller I, that the right to keep and bear arms shall not be infringed, a handgun is an arm period, the case is over.
Nelson Lund
Let me just add one thing to what Steve said about strict scrutiny. This is a legal term. It’s invented by the courts. It doesn’t really mean anything. People pretend that it does, including justices on the Supreme Court, but they’ve developed these tiers of scrutiny, strict scrutiny, intermediate scrutiny, rational basis scrutiny, rational basis with bite, rational basis with two and a half bites, and all this stuff, and it’s all meaningless. Sometimes they don’t talk about what level of scrutiny they’re applying. Sometimes they say they’re applying strict scrutiny, but it’s indistinguishable from the complete opposite rational basis, and these are just labels that the opinion writers on the Court sometimes put on what they’ve decided to do for other reasons. So I don’t think it’s worth getting too worried about the language of strict scrutiny in this case or anywhere else.
Now, the second question has to do with the relationship between the reference to the militia in the Second Amendment and the discussion of the militia in Article One of the Constitution. As you all know, the Bill of Rights was adopted several years after the original Constitution. That’s why they’re called the first ten amendments. The original Constitution gave Congress virtually plenary authority over the militia to regulate the militia. There were a couple of minor exceptions, things they couldn’t do, but they gave them virtually plenary authority. The original Constitution also said that Congress has the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution, the government of the United States, et cetera. So, Congress was given the authority to regulate the militia and then was given this other authority to do things necessary and proper for regulating the militia. Now, one possible effect of those clauses would be that Congress might decide to adopt a militia regulation. Remember, at that time, the militia did basically consist of all able-bodied male adults, and Congress was given the responsibility—the power, at least—to regulate the militia, which they did in 1792, basically requiring people to own guns and requiring them to show up for military training and so on.
Here is something that could happen: Congress could decide one day to regulate the militia by saying that all the guns will be kept in government armories, and the citizens won’t be able to keep guns in their homes. We think that is a necessary and proper regulation for carrying into effect or carrying in to execution our, that is, Congress’s, power to regulate the militia. Until the Second Amendment, that would not have been a clearly illegal thing for Congress to do. The Second Amendment said, Congress, you can’t do that, and here is how it does that. It says the right of the people to keep and bear arms shall not be infringed, and so you can see the purpose of doing that. They included the introductory phrase, “A well-regulated militia being necessary to the security of a free state.” What does that mean? It means that Congress, under its authority to regulate the militia, may not adopt regulations that result in anything other than a well-regulated militia. That’s all they can do is provide for a well-regulated militia. Well, what is the difference between a well-regulated militia and one that is badly regulated? Well, one way would be if it’s not regulated enough. That would be one way in which it could be badly regulated. That’s the way we usually think of things today—we need more regulation. The only kind of bad regulations are the weak ones. That is not the way people would have necessarily thought at the time. One way in which the militia could be badly regulated would be by being overly regulated or inappropriately regulated. What the Second Amendment does is tell Congress and the nation that disarming American citizens is an inappropriate way to regulate the militia, and [that] you can’t do that.
Alexander Tabarrok
One of the examples that Nelson gives, which I like a lot, is, suppose the Dean says that since the professor is sick today, class is canceled. Well, even if the professor is off playing hooky, class is still canceled. As a professor, I kind of like that. I think that is illustrative of the concept.
Jonathan Zimmer
My name is Jonathan Zimmer. I’m a law student at the American University Washington College of Law. So we have Heller, which establishes the Second Amendment right, and we’re probably going to have McDonald, which incorporates that against the state. As Professor Lund pointed out, a lot of these gun regulations are justified on the basis of statistics, if there is a correlation between allowing citizens to have guns and later violence. Isn’t the effect going to be to shift the burden of proof away from people who are supporting more gun rights and putting it on people who are supporting more gun regulations? In other words, doesn’t it become incumbent upon the supporters of gun regulations to justify the regulations with all of this evidence?
Stephen Halbrook
Dred Scott said that African Americans have no rights that the white man is bound to respect, and up until Heller was decided, gun owners had no rights that any governmental body was bound to respect because of the way the Courts were construing the Second Amendment, with the exception of the fact that in the states there are state constitutional rights to keep and bear arms. In those states, there were rights that had to be respected, but in California, New Jersey, New York state, and places like that that have no state guarantee, it was like gun owners had no rights whatsoever. Your comment is correct that it does shift the burden. Now, will courts implement that in a legitimate way? That’s a problem because even where it’s clear under the state constitutional guarantees, they go back to the founding in some cases—the right of the citizen to keep and bear arms for defense of self and state. If you had language like that, it was clearly an individual right, and yet you have a state like Ohio where the Supreme Court said that Cleveland could ban assault weapons. These were nothing but ordinary rifles that were in common usage. The Heller common usage standard (the Court does use the term; Nelson criticized it, but it can be useful), [referring to] the kinds of commonly used firearms that are kept by law-abiding people for lawful purposes traditionally—and there are other courts that preceded Heller in saying that—can be a useful test because what we would today refer to as normal rifles, pistols and shotguns clearly come under that test. We’ll see how much [the] lower courts rebel at Supreme Court decisions. They try to nullify them in many cases, and it’s going to be a pendulum. The Heller decision and the McDonald decision will be a shield and a sword for many decades to come. By the way, consider yourself privileged to be in law school now when the Second Amendment would even be mentioned because when I was in law school in the seventies, it would not be mentioned. If you asked a question about it in a common law class, it would be, “Is there something wrong with you?” You’re lucky.
Participant
Assuming a decision that is favorable for McDonald, I’m wondering how you think that may affect local ordinances. For example, in Maryland, in the city of Baltimore, when they have gone to the state and the state said, no, that really would not be constitutional to pass that for you, they go back and they pass ordinances. It appears that their reasoning is that the people aren’t going to be able to afford to fight it. They’ve got to go to work and don’t have the money. They pass ordinances that the state has already declared unconstitutional, and I’m wondering how that might play out with a winning, however narrowly, by McDonald.
Nelson Lund
First of all, there are many states, and I’m not sure Maryland is one of them, that have state preemption laws. As a statutory matter, if the state legislature declares something beyond the purview of a locality, the locality can’t do it even aside from the constitutional issue, but I can tell you that if McDonald is resolved in a way that the right is incorporated, the citizens will have the opportunity to raise that depending on the type of regulation at the local level. In other words, is it something very onerous? Is it a large, high fee merely to possess a firearm, equivalent to a poll tax, or do you have to take some kind of literacy test equivalent to a literacy test in the old days in the South, for example, to vote? What is the burden? I think the courts are going to uphold some burdens, and they’re going to invalidate other ones. It just depends on the specific content of the ordinance.
William Worley
I’m wondering why the Supreme Court, since the Bill of Rights guarantees fundamental rights, would incorporate the First Amendment and some of the other amendments but not the Second Amendment?
Nelson Lund
If they do that, it would be because they like the First Amendment, and they don’t like the Second Amendment. That would be the only possible explanation in my view and also because they like obscenity but they don’t like guns. They like accused criminals to have lots of rights. They like pornography. They don’t like guns. That would be the only explanation.
Alexander Tabarrok
How do you see our evolved understanding of the Second Amendment as affecting the rest of the Constitution, terms like “the people,” for example?
Stephen Halbrook
That was always a danger with the way some courts went when they basically nullified the Second Amendment. What does it do to other rights? How does it degrade them? If you say “the people” is not really “the people” but it’s only such persons that the government chooses to possess arms, and they can only do it when they’re on some kind of National Guard duty, that totally degrades the rest of the Constitution. The Bill of Rights is something that is attacked on all sides. Despite this preference for First Amendment rights, we have the incredibly shrinking Fourth Amendment. We have all of the exceptions that have been read into these rights, and even the First Amendment starts out by saying Congress shall make no law—hello, no law, and they make laws as to the rights that are listed thereafter. I totally agree with Nelson that they haven’t incorporated the Second Amendment yet because they don’t really care about that right historically. Before now the Court has not. Why did they wait until 2008 to say that “the people” means “the people”? All of these doctrines that basically treat any one of the Bill of Rights guarantees as somehow not worthy of respect degrades other ones, and it leads to these doctrines that [say] there are exceptions to all of the rights. How far can the exceptions go? There is no limit.
Richard Youngflesh
Hi, I’m Richard Youngflesh from the Northern Virginia Community College. I’m not a lawyer. I know you plowed this ground before, but it seemed to me the Second Amendment is in the context of a common defense, not individual defense. I never knew how you got off that argument.
Nelson Lund
Does it say anything about the common defense?
Richard Youngflesh
It talks about the militia. The militia is a common defense.
Nelson Lund
It says something very specific. It doesn’t vaguely talk about the militia. It says, “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.” In an answer to a previous question I explained the relationship between those two clauses, but let me go back to the point that Alex made. It says the right of the people to keep and bear arms shall not be infringed. The prefatory language of the Second Amendment doesn’t create any exceptions to that, and it doesn’t say that the people means the militia. It doesn’t say any such thing. It doesn’t say the right of the government to keep up a militia shall not be infringed. It says the right of the people to keep and bear arms shall not be infringed, and that command is not modified in any way by the prefatory language that explains the purpose for which that command was given.
Participant
Based upon what you’re saying, then what about the argument that people say, then, doesn’t that take us back to Miller? In the Miller case it was decided on the fact that the sawed-off shotgun was not the type of firearm that would be used by soldiers in the trenches. They got it wrong, we know, because the other side didn’t show up and argue the point, but if we’re going to go by what you’re saying, then doesn’t that naturally invite the argument, oh, well now we’re talking about the types of guns that are suitable for militia of service?
Nelson Lund
Well, virtually any gun can be suitable for militia service in certain circumstances, but the Miller decision in 1939 was not only confused but also extremely narrow. It said two things. It said the right has to be connected in some way with the preservation or maintenance of a well-regulated militia, and as I explained in my answer to your earlier question, that can be done without compromising the individual nature of the right or disclaiming the proposition that we have a right to keep firearms for protection against violent criminals. The Court then said that it couldn’t take judicial notice of the proposition that a sawed-off shotgun or short-barrelled shotgun would meet that criterion and remanded to the lower court for that factual issue to be explored, which it never was in the lower courts. Judicial notice, for those of you who aren’t lawyers, means something that doesn’t have to be proved with evidence. We can’t assume without evidence that a short-barrelled shotgun meets this criterion. Sent it back to the lower courts. Nothing ever happened there because the defendants had disappeared so there was never a trial to gather evidence. That is all that Miller stands for. Even if it stood for more, the opinion is so confused and has language pointing in so many different directions that it couldn’t possibly be framed with sufficient precision to be binding on future courts. In any case, that is all irrelevant because the Heller court just pretended that Miller said the opposite of what it said and moved along. They’ve overruled it in effect by mischaracterizing it so badly.
Alex Tabarrok
On behalf of the Independent Institute, thank you for coming, and please, won’t you join me in thanking our speakers.
