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The Legacy of Heller

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The Legacy of Heller Judicature 9 Stevens, J., Dissenting: The Legacy of Heller Second Amendment focus on his Second Amendment opin- ment of the commas is certain.5 What ions and commentary, which we think is certain, though, is that for 200 years scholars discuss the provide insight not only on the right the vast majority of judges interpreted late Justice John Paul to keep and bear arms, but more gen- it to protect only those arms, people, Stevens’s contributions erally on the late Justice’s approach to and activities having some connection law and judging. to an organized militia. to one of the nation’s During that time, the Supreme Court thorniest debates “A well regulated Militia”: directly addressed the meaning of the The Law Before Heller Second Amendment only once, and BY JOSEPH BLOCHER & DARRELL A.H. MILLER In Heller, the Supreme Court held for the that came in an odd decision involv- first time that the Second Amendment ing the prosecution of a gangster, During his 34 years on the Supreme guarantees a personal right to keep Jack Miller, for transporting a short- Court, Justice John Paul Stevens par- and bear firearms for purposes unre- barreled shotgun in violation of the ticipated in thousands of decisions lated to an organized militia. That 2008 National Firearms Act of 1934 (NFA). that addressed nearly every aspect holding was the culmination of decades The NFA was Congress’s response to of American law. But he had no doubt of effort by gun rights advocates to the gun-fueled gangland violence of which one of those decisions was the transform the personal purposes inter- the 1920s and ’30s that had besieged worst: District of Columbia v. Heller.1 pretation of the Second Amendment the nation — including Stevens’s own He dissented from the opinion at from a “fraud” — in the words of (then home of Chicago. It strictly regulated length, called it “unquestionably the retired) Chief Justice Warren Burger — short-barreled shotguns and other most clearly incorrect decision . into the law of the land.3 weapons, like the Thompson subma- announced during my tenure on the The Second Amendment, which chine gun, that had become popular bench,”2 and continued to criticize it reads “a well regulated Militia, being among mobsters and bootleggers. In up until his death in July of this year. necessary to the security of a free United States v. Miller,6 the Court held Others, closer to the Justice, have writ- State, the right of the people to keep that because a short-barreled shotgun ten and will write about his remarkable and bear Arms shall not be infringed,”4 was not suitable for use in a militia, tenure on the bench. But we want to is a linguistic mess. Not even the place- its possession was not protected by u 10 Vol. 103 No. 3 Justice Stevens dissented, and did the Second Amendment, and Miller’s so on Justice Scalia’s Justice Antonin Scalia, the most vis- indictment was lawful. turf. He looked at ible advocate for this interpretive The NFA, which is still in force, was the same historical method, wrote for the five-justice the first federal attempt to signifi- majority in Heller. In keeping with cantly regulate firearms, and it has record, the same his methodological commitments, he enjoyed some success (for example, linguistic facts, and crafted a thoroughly originalist opin- fully automatic weapons are rarely came to the opposite ion, relying heavily on scholarship and used by criminals today). The NFA, historical sources. According to Scalia, though, was unique only in that it was conclusion. the central question in Heller was sim- a nationwide law. State and local gov- ple and simply stated: How were the ernments had been regulating arms words of the Second Amendment typi- since the Founding era, with laws that cally understood in 1791? ran the gamut from permit require- “Original Public Meaning Scalia held that the two portions ments to prohibitions on particular Originalism”: Heller, McDonald, of the Second Amendment were dis- classes of weapons to bans on posses- and Stevens in Dissent tinct. The “operative” portion was the sion by particular classes of people. Eventually Dick Heller, a special offi- part about the right to keep and bear Indeed, a search of the Repository cer at the Federal Judicial Center, of all arms; the “prefatory” part was about of Historical Gun Laws, a free online places, emerged as an unlikely cham- the militia. Resort to the “prefatory” resource hosted by the Center for pion. Heller wanted to keep a firearm part was only necessary if the “oper- Firearms Law at Duke,7 shows that in his home for self-defense, but the ative” section was ambiguous. But more than 1,000 state and federal laws District of Columbia’s regulations the operative portion was absolutely had been enacted by the time Justice made that impossible in practice. After clear to the majority: The right was to Stevens was born in 1920. he lost in the trial court and succeeded keep and bear firearms for personal Despite all this regulation, the Second in the court of appeals, the Supreme purposes unrelated to the organized Amendment did not play a significant Court granted certiorari. The briefing militia. In support, Justice Scalia cited role in firearm policy, because it was was voluminous. Even Vice President evidence from the English Declaration not generally understood to encompass Dick Cheney joined an amicus brief of Right, Blackstone’s Commentaries, private uses of weapons. It certainly did supporting Heller. and several 19th-century cases and not feature prominently in litigation, At the same time gun rights advo- materials that post-dated the ratifying because few regulations interfered cates promoted their vision of the generation. He dismissed Miller as “an directly with state militias. Indeed, Second Amendment to think tanks, uncontested and virtually unreasoned for more than two centuries, no fed- thought leaders, and the public, “orig- case.”8 eral case struck down a law on Second inal public meaning originalism” Justice Stevens dissented, and did so Amendment grounds. emerged as a prominent interpretive on Justice Scalia’s turf.9 He looked at Although the Amendment remained theory among academics and the judi- the same historical record, the same legally inert until 2008, it was polit- ciary. This kind of originalism rejected linguistic facts, and came to the oppo- ically galvanizing. Beginning around both “the living constitution” (the idea site conclusion: A native speaker of the 1960s, gun rights advocates tried that the Constitution should be read English, reading the words of the to use the 27 words of the Amendment as an evolving document) and “origi- Second Amendment in 1791, would to anchor a right to keep and bear nal intent” (the notion that it should have understood them to convey a mil- arms for private purposes like self- be read in accord with the intentions itary meaning. Although Justice Scalia defense. They found allies in advo- of the drafters at the Philadelphia pointed to a few contrary examples, cacy organizations like the National Convention). Instead, original pub- Justice Stevens quoted his own words Rifle Association and in certain (and lic meaning originalism claimed to be back to him: “The Court does not appear sometimes unexpected) quarters of rooted in historical fact: The words to grasp the distinction between how a the academy. But they never had the mean today what a speaker of English word can be used and how it ordinarily right vehicle to advance the issue to in the ratifying generation would have is used.”10 Most linguists and historians the high court. understood then. agreed with Stevens’s interpretation, Judicature 11 emphasizing that the phrase “bear tive right” or an “individual right.” decision in Heller. He was not alone in arms” in 1791 was used most often in a Surely it protects a right that wishing as much. Many scholars, com- collective, military sense. can be enforced by individuals. mentators, advocates, and even some What’s especially notable about But a conclusion that the Second of his fellow justices have called for its Stevens’s dissent in Heller is its good Amendment protects an individ- reconsideration.15 faith. He was not an originalist, but he ual right does not tell us anything We have our doubts about whether addressed originalists on their terms, about the scope of that right.13 this will happen. As we wrote in using their tools. He could have written This is profoundly correct, and deftly our recent book, The Positive Second past the majority opinion and applied sidesteps an unhelpful debate in which Amendment: Rights, Regulation, and an evolving constitutional standard to Second Amendment scholarship had the Future of Heller (2018), the basic resolve the case. But he was convinced been mired for decades. holding of Heller — that the Second of the soundness of his argument and Similarly, in McDonald, the Justice Amendment protects a right to keep the receptiveness of his fellow justices. demolished the misunderstanding that and bear arms for certain private pur- Stevens was apparently so convinced of the gun debate is simply about con- poses, including self-defense — seems the merits of his opinion that he thought stitutional rights on one side of the legally and politically secure. he could persuade the arch-originalist equation and regulatory priorities on But we agree with Justice Stevens Justice Clarence Thomas to join it.11 the other. Too often, that frame leads that the Second Amendment, properly He didn’t, and Heller is now the law. to the conclusion that only gun owners understood, is not a legal impediment Two years later, in McDonald v.
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