The Supreme Court's Blockbuster Second Amendment Ruling: What the Court Resolved and What it Left Open

By MICHAEL C. DORF
Friday, Jun. 27, 2008

Before adjourning for the summer yesterday, the Supreme Court ruled, 5-4, that the Second Amendment protects a personal right to possess firearms for, among other purposes, self-defense. Accordingly, in District of Columbia v. Heller, the Court invalidated a D.C. law that bans private handgun possession and requires long guns (rifles and shotguns) to be stored either disassembled or under trigger lock.

The majority opinion by Justice Scalia—joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Alito—expressed no doubt that the Second Amendment was originally understood to recognize a personal right (that is, not simply a right to use a gun while part of a militia). The opinion finds nothing but confirmation of that reading in the post-enactment history of the Amendment, at least until recent decades. Indeed, Justice Scalia uses variants on the word “clear” over a dozen times to describe the language or public understandings of the Second Amendment.

Meanwhile, in dissent, Justice Stevens—joined by Justices Souter, Ginsburg, and Breyer—also thought the meaning of the Second Amendment was clear, although they thought it clearly did not protect the possession or use of firearms outside the context of military service.

It is thus likely that both the majority and dissent are wrong, at least in one sense: If the Supreme Court divides 5-4, then whatever else one says about the answer to the question it resolved, one can hardly say it was clear.

Equally unclear are the consequences of the decision. In response to a separate dissent by Justice Breyer, Justice Scalia acknowledged that his opinion left unresolved important questions about the circumstances under which the Second Amendment permits firearms restrictions. Indeed, Justice Scalia practically invited new litigation over the scope of the Second Amendment.

After questioning a key premise of Justice Scalia’s opinion, this column addresses two questions left open by the Heller decision: first, its applicability to states and localities; and second, its applicability to handgun possession outside the home.

How the Majority Read the Second Amendment

The Second Amendment provides: “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.” Much of the debate over the meaning of the Amendment has centered on the relation between the prefatory language about the militia and the substantive provision concerning the right to keep and bear arms.

In his majority opinion, Justice Scalia contended that the substantive language most naturally protects a personal right to possess and carry weapons, and that the prefatory language, properly understood, reinforces that conclusion. The Framers, he said, were worried that the federal government might disarm the population, and so they protected the unorganized militia—a term referring, at the time, to able-bodied adult white men—by protecting a right to private possession and ownership of firearms. Although the purpose recited by the Second Amendment had to do with resisting federal encroachments on the militia, Scalia reasoned, the substance of the right was broader, and remains so.

Justice Scalia’s analysis of the relation between the two clauses of the Second Amendment is fundamentally originalist. He wants to know how the relation between the prefatory language and the keep-and-bear-arms language would have been understood by Americans in 1791. Although he does discuss the views of Americans later, in the Nineteenth Century, he does so primarily to show that the original understanding (as he perceives it) did not change.

In a striking passage, Justice Scalia admits that his reading of the Second Amendment may make little sense today. “Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem,” Justice Scalia acknowledges. He continues: “That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.”

Can Constitutional Provisions Become Obsolete?

But why not? Doctors at the time of the Founding believed that bleeding patients was an efficacious treatment for many ailments. Suppose that they had managed to insert into the Constitution the following provision: “The purging of ill humours, being necessary to the health of the human body, the right of the people to be bled by physicians, shall not be infringed.” Today we know that infectious disease is caused by micro-organisms, rather than by an imbalance of humours, and also that, with some notable exceptions, bleeding is generally quite harmful. Would we really want to say that a medical quack has a constitutional right to insist on bleeding her patients?

Indeed, we need not even struggle to concoct hypothetical cases. Article I, Section 8 of the Constitution empowers Congress to “coin money” and “regulate the value thereof,” but does not authorize the printing of money not backed by precious metal, and the Constitution expressly denies that power to the states. One reading of the Constitution thus would make U.S. currency—which is not convertible into gold—invalid. However, in the late Nineteenth Century, in the Legal Tender Cases, the Court upheld the government’s issuance of paper money.

The Court said that the grant to Congress of the power to coin money did not negate an implied power to print paper money, which could be seen as necessary and proper to implementing other expressly granted powers. That is a legitimate argument—in much the same way that the arguments offered by the dissent for a military-focused reading of the Second Amendment are legitimate—but in both circumstances, one senses that something else is driving the conclusion: In the Legal Tender Cases, the majority understood that while the Founders may have thought that the power to print paper money could only lead to runaway inflation, a modern economy can benefit enormously from the government’s responsible exercise of the power to expand the money supply. Likewise, the dissenters in Heller understood that widely available handguns could lead to havoc.

Justice Scalia is technically right: The Court lacks the power to declare a constitutional provision extinct. It does, however, have the power to construe a constitutional provision sensibly in light of modern circumstances. That is exactly what the Court did in the Legal Tender Cases, and what the dissenters believed they were doing in Heller. If Justice Scalia and the other Justices in the majority thought otherwise because they believe that widely available handguns make people safer—a view taken by gun rights groups—then they should have said so forthrightly.

What About the States?

The District of Columbia argued to the Court in Heller that even if the Second Amendment protects a personal right of armed self-defense, that right can have no application in the District because, as a federal territory, there is no state militia to be protected there. Because the Court rejected the notion that the militia clause of the Second Amendment limits the substantive clause, it dismissed this argument entirely.

The Court did, however, leave open the question of whether the Second Amendment applies against the states or only against the federal government. As I discussed in an earlier column on the Heller case, two Nineteenth Century cases held that the Second Amendment does not limit the States, but those cases preceded the modern doctrine applying other provisions of the Bill of Rights against the States under the Fourteenth Amendment.

In Justice Scalia’s Heller opinion, he discusses the Nineteenth Century cases—United States v. Cruikshank and Presser v. Illinois—but only for the purpose of arguing that these decisions are consistent with reading the Second Amendment as protecting a private right of armed self-defense. He does not say whether they continue to bar application of the Second Amendment to the States.

Consequently, states and municipalities that have enacted very restrictive gun laws will likely now face challenges under the Second Amendment. The lower courts will be required to reject these challenges, because the Supreme Court has said that only it can officially overrule its prior precedents; even if a lower court is confident the Court is poised to overrule a precedent, that court must still follow the precedent in the case before it, and then let that case or another like it make its way to the high Court so the overruling can occur.

Here, when one of these cases eventually reaches the Supreme Court, it seems likely that the members of the Heller majority would indeed hold that Cruikshank and Presser have been superseded by Heller.

The test the Court applies for determining whether a provision of the Bill of Rights applies against the States via the Fourteenth Amendment has been framed in a variety of ways. In the 1968 case of Duncan v. Louisiana¸ the Court recited the various formulations of the test with respect to rights protected by the Fifth and Sixth Amendments, and then summarized the incorporation issue as turning on whether a procedural protection “is fundamental to the American scheme of justice.” Translating that test into the Second Amendment context, the incorporation question would be whether a right to possess and carry firearms for personal use is fundamental to the American scheme of liberty. Given the Heller majority’s understanding of the relevant history, the answer would likely be yes.

What About Carrying Guns Outside the Home?

In his majority opinion, Justice Scalia went out of his way to state that the Second Amendment right of armed self-defense is not absolute. He provided what he himself termed a non-exhaustive list of permissible regulations: restriction on firearms possession by felons and the mentally ill; restrictions on possession in sensitive places such as schools and government buildings; and conditions on sales. He also indicated that the government may ban categories of weapons, such as machine guns, that are not “in common use,” and suggested that licensing laws may be permissible.

The Heller majority opinion summarized its holding in this way: “the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.” Although this statement of the case’s holding twice refers to the “home,” tellingly, the District laws challenged in the Heller case are not limited to the home. Thus, the opinion leaves open the question of whether a law like the District’s could be applied to those private citizens who seek to carry guns in public.

Justice Scalia’s majority opinion favorably cites cases upholding laws that prohibited carrying a concealed weapon, but does not say whether a state or municipality could ban the carrying of handguns altogether. That issue could well be presented by, for example, a challenge to New York City’s law, which requires a license to carry a handgun. A visitor from New Jersey who brings his handgun into New York City thereby violates the law. Meanwhile, the National Rifle Association has already expressed interest in challenging gun-possession restrictions in Chicago and San Francisco.

Do state and local laws forbidding the carrying of guns violate the Second Amendment? The Heller opinion does not say, but its logic implies a right to carry handguns in public. The majority interprets “bear arms” to mean “carry a weapon,” and nothing in the text of the Second Amendment as thus construed suggests that the right would be limited to the home.

The Policy Issue

Whether it is wise policy to permit law-abiding citizens to possess handguns in their homes or elsewhere is a hotly contested question. Gun control advocates point to statistics showing that guns make the people who possess them less, rather than more, safe. Gun rights groups point to data that, they say, prove the efficacy of armed self-defense.

Our usual method for resolving policy questions based on empirical disagreement is robust debate followed by legislative action. And it is clear from the relatively weak gun control laws in the United States that, in most jurisdictions, the people have concluded that guns should be legal. There are exceptions, however -- notably including some of the urban areas that have experienced the worst gun violence in recent years.

Yesterday’s decision may have the eventual consequence of removing strict gun control laws from the list of options available to local elected officials. If so, and if the gun control advocates turn out to have the better of the empirical argument, then the Court’s decision in Heller “will almost certainly cause more Americans to be killed.”

Those are not my words. That is what Justice Scalia had to say in dissent earlier this month in Boumediene v. Bush. He then added that sacrificing American lives “would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic.” No doubt Justice Scalia believes that a personal right to armed self-defense is such a principle, but then, the majority in Boumediene thought that the availability of habeas corpus is also a time-honored legal principle.


Michael C. Dorf is currently the Isidor & Seville Sulzbacher Professor of Law at Columbia University.  Beginning next month, he will be the Robert S. Stevens Professor of Law at Cornell University.  He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at michaeldorf.org.  In his capacity as Special Counsel at the law firm of Dewey & LeBoeuf, he worked  on one of the amicus briefs in support of the District in the Heller case.



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