Convictions: Slate's blog on legal issues

As originally understood, the Second Amendment has nothing to say about the DC City Council's handgun ban

The oral argument, which of course is not a sure guide, suggests that a majority of the Court may be contemplating a ruling that will be incapable of withstanding examination under originalist methodology, and once again, expose the Court to the claim that it is a political body robed in law's clothing.  The Court should avoid this, especially in a political season.

An originalist interpretation, at a minimum, must give respect to the meaning of every word of the Second Amendment, including its preamble.  Second, the interpretation must situate the Second Amendment intra-textually within the context of the entire Constitution.  Third, an originalist interpretation must be honest about the possibility of obsolescence -- namely, that something is in the Constitution which may have no modern analog.  Fourth, to the extent it is consistent with the original understanding, precedent must be respected.

What do these principles suggest is the meaning of the Second Amendment?  Just this:

The Second Amendment reflects the concerns of the founders that the federal government might exercise its Article I militia power to subjugate the people by disarming local militias in the several states.  The Second Amendment was drafted to combat this particular fear, and therefore, the Second Amendment is no limitation whatsoever upon the authority of the people within the several states, by the power reserved to them under the 10th amendment, either to broadly protect individual rights of gun ownership or the opposite.

It may be interesting to speculate how the Second Amendment in its protection of the states limits the authority of the federal government under either Article I or the commerce power, but since there is no state in the litigation, as a matter of prudence and restraint, the Court should refrain from such speculation.  Since I'm not a court, however, and the Court may disregard the above understanding of the Second Amendment, let me briefly speculate for academic purposes on what Congress' authority is vis-à-vis the states. 

Were D.C. a state, which is not, Congress's ability to encroach upon the right of individuals to keep and bear arms for militia related purposes would necessarily be limited by the Second Amendment.  However, contrary to some of the speculation at the oral argument, there is no free standing right of self-defense codified in the Second Amendment, even as that may well have existed as a common law right at the time the Second Amendment was drafted and ratified.  However, insofar as those serving in a local militia within a state at the time of ratification would ordinarily be expected to possess weapons that could also be employed in self-defense, the interpretation of the words "keep and bear arms" would modernly support that right as well. 

This interpretation would be entirely consistent with the Supreme Court's prior ruling in Miller and the abundant circuit court precedent applying Miller that, with two recent exceptions, overwhelmingly construed the Second Amendment as protecting only militia-related arms as they might be employed by someone eligible for militia-related status.  Giving the broadest gloss on history, militia-related status at the time of the Second Amendment could have theoretically included all able-bodied men and women.

So what would that mean in this case for the DC handgun law, were that law enacted by Congress to restrict a state? First, it might be plausible to find this particular case to be non-justiciable if Mr. Heller is not militia eligible.  Assuming there is someone with standing in the case, a congressional ban on handguns, a commonly used weapon for militia service at the time of the Second Amendment, would be unconstitutional.   While such a handgun ban by Congress against the states might be argued to be within Congress' Article I militia authority as an aspect of "organizing, arming, and disciplining, the militia," which is a power expressly given to Congress limited only in the un-amended text by the power of the states to make the appointment of officers and the states' authority to follow the training regimen for the militia as prescribed by Congress, that argument would leave the Second Amendment without meaning.  It is here where the amendment was intended to be a limitation upon congressional power.  

So let me be clear: had the DC law been enacted by Congress and applied to a militia eligible individual within the several states, it would be unconstitutional.  But there is one further complication, and it cannot be overlooked.  Modernly, the Second Amendment may be no limitation upon federal authority so long as there is no analog to the founding generation militia in the several states (the National Guard not operating on a bring your own weapons basis).  The problem of constitutional obsolescence here is real and in an appropriate case could not be avoided. 

It is interesting to speculate about all this, but again, since none of it is before the Court in Heller -- Congress not having chosen to regulate individual rights within the states -- there is absolutely no reason for the Court to give an answer as to the constitutionality of the DC handgun ban had it been enacted by Congress as against the states.  Likewise, Solicitor General Clement will have to wait for another day to have the definitive assessment of what standard of review should apply to federal gun regulation as applied to the states. 

As to the authority of the Congress of the United States, including the derivative authority of the City Council of Washington, DC, to ban handguns or do something less, the Second Amendment is no limitation.  Congress is free to empower or revoke the DC City Council's authority as it sees fit on this subject.  Since Congress has not revoked the power of the DC City Council to legislate upon this issue, Washington, DC is free to ban handguns generally. 

Given the vibrant empirical debate over whether the possession of handguns within the home deters violent crime, this fortuitously allows Washington, DC to be a genuine case study, thereby contributing in its own way, to the laboratory value of federalism.  

By the way, two of the nation's most preeminent champions of both federalism and individual liberty, Bob Levy and Chip Mellor, have contributed a different individual rights view of the Second Amendment at least as it applies to the District of Columbia in their new book, The Dirty Dozen, which I recommend not just for an opposing point of view, but also for its splendid writing including the untold back story of how the Miller case was argued only by one side.

Heller's opportunity to put Law over Politics

 Stopping the Justices from voting before they know the answer –

Douglas W. Kmiec

Heller has already been identified as a test of the fidelity to precedent and restraint of the Roberts Court.  That following oral argument, it seems possible if not likely that the Justices will disregard or minimize the significance of the militia clause of the Second Amendment and decide that there is a right of self defense that nowhere exists in the present text of the Constitution presents a unique challenge to that reputation. Putting aside whether that is or is not a defensible constitutional outcome, it is institutionally important for the outcome to be arrived at by means other than mere assertion.

When the Justices assemble around the table in the Chief’s outer office to decide D.C. v. Heller, they will follow the usual practice of voting on the outcome first and only then researching to justify and explain the outcome.  With due respect to the Court’s tradition, that methodology is backwards. It is also subversive of public confidence in the Court.  In a difficult case, like Heller, where the historical materials, linguistic analysis, and constitutional considerations are plentiful and largely being examined conscientiously for the first time, it is all the more important for the Court to follow the scientific method of doing the research and writing first before deliberation and vote.  Reversing the process would have the benefit of: avoiding the appearance of elevating politics over law by actually avoiding the temptation to substitute politics for law.  By engaging in the difficult work of legal research and analysis of existing text, history, and precedent before any of the members of the Court are asked to reach an ultimate determination, the Court can increase the odds of writing coherently and with greater unity.  Those witnessing this morning's oral argument know that task will be difficult.  The analytical strands and possibilities from the meaning of the English Bill of Rights of 1689 to Mr. Madison's expectations of draftsmanship to the deficiency (or not) of precedent, to the nature of trigger locks require Herculean effort to assemble into a proper answer.  If they were fully candid, I venture the Justices would concede that at this moment they possess at best a tentative conclusion.  Why vote before a fulsome examination of the law by reference to a complete exposition of what one member of the Court would offer as the most honest and defensible constitutional judgment.  No one would buy a common appliance not knowing if it could be constructed to perform its intended task.  Why ask Justices to accept opinions that have yet to be fully formed?

Who would write the opinion if a preliminary vote were not taken first for purposes of assignment?  Quite simply, the Justice next in line for a writing assignment who is fully up to date with his or her work.   Once and for all, the residual politics of confirmation would be set aside and only Court administration would govern.  Yes, this would deprive either the Chief Justice or the senior associate justice, most often, John Paul Stevens, of the right of assignment, but that deprivation would be in pursuit of a higher order good to which I venture both the Chief Justice and Justice Stevens would subscribe: the elevation of the rule of law and the strengthening of the respect for the Court as an institution.