Jack Balkin and Sandy Levinson are right to probe with hypothetical the dimensions of the newly-minted, or perhaps ancient, right of self-defense, or right to own handguns, in one's home, or maybe outside it, or maybe also to own other weaponry, or maybe not, so firmly established in District of Columbia v. Heller (2008) per those clarifying originalist sources understood by Justice Scalia 5-4.
The Candidates Debate -- well, maybe not
My question relates to this indeterminacy and the politics of discussing this case, and the ultimate effect on political and human liberty. Specifically, is the manifold uncertainty raised by the opinion (and its consequent unsettling of state and local law and disregard of federalism that we conservative types used to care about) going to be challenged (condemned) by John McCain as an invitation to legislate from the bench? Critiqued by Barack Obama? Or, as is more likely not to be talked about by either since McCain's complaints about judicial activism are as meaninglessly one-sided as most everyone else's, and Obama is just happy to not have the NRA energized in his direction - and who could blame him?
No Originalism Left Behind -- well, maybe not
As an under-interpreted provision in the Constitution, the Second Amendment provided an opportunity to test the integrity and utility of the original understanding method of interpretation. It failed. The language to be construed: "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." Prior to the Heller , many thought that the second half of the text was to be construed in reference to its preamble. Justice Scalia concludes instead that the first 13 words of the amendment are "a purpose," but not the purpose.
It's only Natural (Law) to Disagree
Dean John Eastman (a first-rate originalist scholar and the co-editor of our casebook) and I have been batting about the originalist legitimacy of this move by Justice Scalia. I'm skeptical given how the preoccupation with state and private militia by the founders as a counterpoint to government tyranny had fit both the history and the text. It also fit structure as an answer to the threat of abuse of Congress' Article I militia organizing authority. Dean Eastman believes Justice Scalia is informing the text with an appreciation of a natural law right of self-defense perhaps a la the thoughts of Professor Akhil Amar here on Slate some months back.
As for "the right of the people" language, both majority and dissent agreed that this suggests an individually enforceable right, but that tells us nothing about its scope -- specifically whether that scope must have a militia-nexus. Of course, sometimes text, history, context and structure are contradicted by longstanding precedent which, by reason of reliance, merits adherence. But here the interpretation in U.S. v. Miller in 1939 arguably saw the Second Amendment as militia-related, and it was a precedent followed by virtually every lower federal court since it had been decided. Justice Scalia argues that Miller holds only that a short-barreled shotgun was not "ordinary military equipment" because it was not the type men bearing arms would be expected to bring when called to militia service, but so what? How does that free the "right" from the militia nexus?
The dissent saw the opinion as legislating from the bench. Wrote Justice Stevens for the four dissenters quoting Miller , "the signification attributed to the term Militia appears from the debates in the convention, the history and legislation of colonies and states, and the writings of approved commentators.'" In light of that, Justice Stevens concluded: "Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well regulated militia. The court's announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding, but leaves for future cases the formidable task of defining the scope of permissible regulations."
But can it be plausibly argued, as Dean Eastman and perhaps Akhil Amar suggest, that there is another view of originalism in play as well? One which heretofore has been championed largely by Justice Thomas but to which Justice Scalia's opinion in Heller now appears to give credence. That view holds, with substantial evidentiary basis in the founding-era debates, that the Bill of Rights merely recognizes (rather than creates) pre-existing natural rights. I concede natural law originalism has always been my preferred view, but given Justice Scalia's past denunciations of it, is it plausible to see him now as among the converted? He does make reference to 19 th century case law approving of the perspective. In this regard, the Court makes several references to this "natural law" view of the Second Amendment right, concluding that the Second Amendment necessarily codifies its more expansive right to self-defense, against both private thugs and government tyrants.
But assuming Justice Scalia is in fact now willing to judicially enforce the text of the Constitution only as informed by the natural law, how exactly does he know that the natural law includes a right to possess a handgun for self-defense? As he himself might have been given to point out in other contexts, when the right was linked to "the militia," he could define it in relation to an historical purpose originally understood. If natural law is the new lodestar, then Justice Scalia needs a defensible conception of human nature. And far from the right being new support for abortion as Jack hypothesizes, would not any serious conception of human nature contest, not affirm, that practice? But staying with just born persons, isn't it possible to see more widespread handgun possession as contrary to any natural law basis for the "right" insofar as gun usage has its own inherent dangers or just simply in light of the number of handgun deaths each year in urban areas, including DC?
Go to Hell(er), Federalism!
Does the new gun right apply against the states? Within a week of the ruling in Heller , five lawsuits were filed seeking to apply the newly designed Second Amendment to nullify gun control laws adopted by local governments in California and Illinois. Each of the cases makes the argument that the Second Amendment is applicable to the state and local governments through the Fourteenth Amendment - an issue the Supreme Court has not considered since 1894, when it said the Amendment applied only to the federal government. In note 23 in Heller, the Court declined to reach the incorporation issue.
The Chicago case, NRA, et al., v. City of Chicago, et al . challenges a restriction very much like the DC ban that had been invalidated - namely, a city code provision that requires registration of firearms, but bars registering handguns. Chicago is within the Seventh Circuit which last found that the Second Amendment applied only to the federal government in 1982 relying upon the Presser v. Illinois (1894). The Circuit Court specifically declined to find that Presser had been superseded by the Fourteenth Amendment and its incorporation of most of the Bill of Rights.
Raising the Standard (of Review)
Beyond applicability to the states or not, the standard of review is uncertain for laws that differ from the District of Columbia handgun ban that was nullified. Justice Scalia seems to eliminate rational basis as an insufficient standard, but not much else.
Depending on the standard of review to be named later, it is supposed that we will learn the answers to the questions that bedevil us now, including why carrying a concealed weapon beyond the home and hearth is not protected and also why licensing laws do seem - so long as they are not disguised as prohibitions - not to offend the "right." Similarly, we will know whether switchblades or mace or tazers are beyond "weapons typically possessed by law-abiding citizens for lawful purposes."
Come, Learn from the Master -- or Go Directly to Jail
Finally, the ever dutiful citizenry will be instructed by its judicial masters as to how far, if at all, the right can be taken outside one's home? The front stoop? One's car parked at the curb? The RV parked out back? In the meantime, I suspect it won't be long before a law-abiding Dick Heller-type fella is charged by a local prosecutor for a crime because he used a gun or other weapon beyond the home, in claimed self-defense, only to find upon posting bond that he did not successfully discern the constitutionally acceptable geographic location.
My friend, Bob Levy at CATO brought this case to enhance human liberty. As I see it, only judicial liberty is being advanced. Indeed, to borrow some florid prose from the one-time author of the opinion itself: "The Imperial Judiciary Lives!" Don't expect it to be talked about in those terms by either of the candidates, however, who in one way or the other will have been silenced, well, at the point of a gun.