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.

Positive Liberties at the Point of a Gun or Constitutional Obsolescence?

[Doug Kmiec] 

Oh, Second Amendment, we hardly knew ye. 

The Second Amendment has two main parts: a preamble and an operative provision. The preamble: "a well regulated militia, being necessary to the security of a free state," is a statement of purpose. The operative provision: "the right of the people to keep and bear arms, shall not be infringed” is a provision that employs a collective "the people," and in this, it would not seem well-suited to convey the idea of an individual right.

This was the interpretation more or less given the Second Amendment by the Supreme Court in United States v. Miller in 1939. The court concluded that the possession or use of a short-barreled shotgun had no reasonable relationship to the preservation or efficiency of well-regulated militia, and therefore, the Second Amendment posed no limitation to its federal restriction.

Fast-forward to 2008—does the Miller opinion and the language of the Second Amendment mean that the District of Columbia can preclude the possession of a handgun even within one's home?

The best—but unlikely—answer: This is the District of Columbia and, unlike a state, Congress has plenary authority over it, and an amendment that is a limitation upon congressional power vis a vis the states is of no relevance. End of case, see ya in Salzburg, Tony.   

This is not likely the answer since the justices themselves formulated the question granted cert to directly relate to states. “Does [the D.C. law] violate Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?” If things are going badly for D.C. tomorrow, maybe it might ask politely why the issue as formulated is not an invitation to advisory opinion.

So, what else might the court do? With a total of 69 briefs on file, the court has received plenty of advice with all kind of novel answers. Some fancy footwork from usually reliable originalists would simply disregard the preamble. It adds nothing to the operative provision, they say. Really? What happened to the interpretative admonition to give meaning to every word? 

To see the Second Amendment in this structural way is not to make it an odd duck, but to treat it akin to the establishment clause. The establishment clause as originally understood (and before the invention of judicial incorporation) safeguarded state-established churches. In the case of the Second Amendment, what was safeguarded was the ability of the state to call up its citizens for service in the militia with their own guns at the ready. BYOG—see ya down at the square, Festus.

Since no state today expects individual citizens to bring their own weaponry into militia service, what, exactly, does the Second Amendment safeguard now? 

Miller might be said to protect the right of citizens to access the kinds of weapons usable in today’s state guard units that are within the customary control of individuals—e.g., handguns and rifles, but not missile launchers and M-16s. This is possible, but the right should only apply if the particular state actually runs their militia BYOG, and given the deficit budget of California, are you listening, Arnold? 

Respected Second Amendment scholar and my former OLC colleague Nelson Lund finds a broader right preventing "Congress from using its Article I authorities, including its authority to regulate the militia, to disarm American citizens." Professor Lund reaches this conclusion by conceding that the concern foremost in the minds of the founding generation—fear of a tyrannical federal government—has subsided, and in any case, an armed citizenry would not likely be able to deter a heavily weaponized federal government. There’s no getting around it—there is today a significant gap between civilian and military small arms, whereas in the 18th century, Americans commonly used the same weapons for civilian and military purposes.

Now, constitutional obsolescence is an unusual thing, but as an original matter, it need not be wrong.  We may be used to constitutional rights having expanded application in light of new technology (e.g., the Fourth Amendment implications of electronic wiretapping abandoning the old trespass requirement for an unreasonable search), but there is no reason to believe that modern development might not also mean contracted application.  Such may indeed be the second-best case of restraint—the first, escaping through the D.C.-is- not-a-state escape hatch, now looking ever so more attractive.

Since the Second Amendment is no longer needed or perhaps capable of performing its anti-tyranny function, Professor Lund would have the court substitute a new purpose for the Second Amendment, the right of self-defense—which indeed has a long English common law heritage—it’s just not related to the Second Amendment. Lund’s argument is interestingly premised upon natural law principles (which would immediately prompt me to like them), including the Declaration of Independence, and a liberal reading of William Blackstone who saw no distinction between "a public allowance under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression." Notably, Lund says, Blackstone made no distinction between oppression by the government itself and oppression that the government fails to prevent.

Natural law this may be, but it is not restraint. If the Roberts Court finds a self-defense right based on the government’s failure to act, it will in fairness be obligated to awaken Joshua DeShaney from his coma and bring the Gonzales girls back to life, for in both cases, the court adamantly denied (albeit under the due process clause) that the Constitution was “a guarantee of certain minimal levels of safety and security.” 

It will indeed be interesting to see if the American Constitution is transformed from a protection of negative to affirmative liberty at the point of a gun.