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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 for purposes unre- barreled shotgun in violation of the ticipated in thousands of decisions lated to an organized militia. That 2008 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 . 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 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 , 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 ”: 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 , 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 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 . 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 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. City of have constitutionally relevant inter- to the kinds of reasonable gun regula- Chicago12 — a case involving gun regu- ests. But as Justice Stevens noted, “Your tions that form the mainstream of the lations in Stevens’s beloved hometown interest in keeping and bearing a cer- U.S. gun debate — things like expanded — the Court had to decide whether tain firearm may diminish my interest background checks, prohibitions on Heller’s right should be incorporated in being and feeling safe from armed unreasonably powerful weapons, and against state and local governments. violence.”14 Increasingly, the hard limits on possession by especially dan- Again, Justice Stevens found himself questions of firearms law are about gerous persons. In keeping with Heller’s dissenting — this time not only about conflicting rights. admonition (echoed in McDonald) that the constitutionality of gun regulation, gun rights are not absolute, the num- but about how incorporation doctrine A “Self-Inflicted Wound”: ber and percentage of successful legal should be understood. And again, Justice Stevens Reflects on Heller challenges claiming a violation of the Scalia took the other side, writing a con- John Paul Stevens lived a very long life, Second Amendment remains quite low. curring opinion specifically to take issue and among the familiar stories he told That low rate of success makes even with Justice Stevens’s approach. was that, as a 12-year-old growing up more sense when one considers that In both Heller and McDonald, Justice in Chicago, he’d watched stringent gun regulations are rare, Stevens authored powerful dissents “call his shot” against the Cubs in 1932. leaving only the most reasonable and rooted in history. Those opinions are Stevens had a similar skill at knowing popular regulations open to challenge. often excerpted in constitutional law where constitutional law would fall This is not a target-rich environment casebooks, and rightly so. But it would during his long tenure on the bench. for gun rights litigators. be a mistake to read Stevens’s opinions His dissent over the constitutionality Of course, all of that could change. as nothing more than a historical mano- of anti-sodomy laws in Bowers v. Hard- Even as we write this, the Supreme a-mano with Justice Scalia. In terms of wick (1986) was vindicated 17 years later Court is due to hear oral argument Second Amendment law and theory, by Lawrence v. Texas (2003). in New York State Rifle and Pistol they are much more than that. With As it happens, the final dissent he Association v. City of New York, a characteristic clarity, the first three ever issued, on the last decision day of potentially major Second Amendment sentences of his opinion in Heller dis- his tenure, was McDonald. It is possi- case. Some voices both on and off solved a decades-old false dichotomy: ble that someday that decision will go the Court have called for an entirely The question presented by this down as Justice Stevens’s called shot new structure for evaluating Second case is not whether the Second on the right to keep and bear arms, Amendment claims — one that would Amendment protects a “collec- and the Supreme Court will revisit its apply across the board, u 12 Vol. 103 No. 3

Most recently, linguistic research or would evaluate gun laws based using vast databases legal scholars, linguists, and histori- solely on a rigid test of text, history, of 18th-century ans have cast serious doubt on Heller’s and tradition. (We have filed an amicus materials and “big basic premises. Most recently, linguis- brief in support of neither side, argu- tic research using vast databases of ing that the Court should not impose data” techniques 18th-century materials and “big data” such a radical change in the law.) unavailable in 2008 techniques unavailable in 2008 have But at least for now, even after have tended to tended to vindicate Justice Stevens. Heller, the primary obstacles to further Linguists like Dennis Baron22 and Neal gun regulation in the United States are vindicate Justice Goldfarb23 and historians like Alison political, not constitutional. The rel- Stevens. . . . The LaCroix24 have looked at the material evant debates are in legislatures, not phrase “bear arms” and have come to a similar conclusion: courts. And, to the extent the Second The phrase “bear arms” was over- Amendment keeps being invoked for was overwhelmingly whelmingly used in a collective, propositions that it doesn’t support, used in a collective, military sense in 1791, just as Justice clarifying the law can help improve the military sense in 1791, Stevens had written. conversation. just as Justice Stevens Whatever its historical or linguis- Perhaps the Justice recognized tic defects, Heller remains the law of this. After all, he published his post- had written. the land. We wrote the Positive Second retirement commentary on the Second Amendment with that assumption at Amendment in the popular press and the book’s core. And, at least for the addressed it to the public, not to legal the N.R.A.’s ability to stymie legisla- foreseeable future, Heller is not going elites. In fact, Heller became something tive debate and block constructive anywhere. But, as we argue in the of a preoccupation for Stevens. It was legislation than any other book, that’s not necessarily bad news the opinion that kept him up at night,16 available option.”18 for the large majority of Americans the one that he kept wanting to talk to Near the end of his life, as the pace of who believe that gun rights and gun people about. mass shootings increased — in schools, regulation can co-exist25 — history and First came his book Six Amendments: churches, concert arenas, and clubs — constitutional law are on their side. Our How and Why We Should Change and as it became apparent the political hope was and is that a proper under- the Constitution (2014), in which branches were incapable of addressing standing of the Second Amendment he proposed to amend the Second the violence, Stevens’s agitation grew, as can tone down the rhetoric and pro- Amendment to read: “A well regu- did his certainty that Heller was wrong. fessionalize the gun debate. We remain lated Militia, being necessary to the “These mass shootings are peculiar to optimistic. security of a free State, the right of America and are peculiar to a country Buoyed by that optimism and the people to keep and bear Arms that has the Second Amendment,” he encouraged by friends and colleagues, when serving in the Militia shall not lamented in one of his last interviews.19 we sent a copy of the book to Justice be infringed.”17 Then, in the wake of “So I think that interpreting the Second Stevens, hoping for a thank-you note the Parkland shooting, where 17 peo- Amendment to protect the individ- at best. What we got back instead was ple were killed by a recently expelled ual right to own firearms is really just some of the verve that must have been student on Valentine’s Day 2018, absurd, and it’s also terribly import- all too familiar to those who clerked Stevens openly called for repeal of ant. It happens over and over and over for the late justice: the Second Amendment in a New again. I think I should have been more Thank you for the copy of your York Times op-ed. Heller, he said, forceful in making that point in my thoughtful book which I have read “has provided the N.R.A. with a pro- Heller dissent.”20 His autobiography, with interest and admiration. I paganda weapon of immense power. published just weeks before his death, remain somewhat puzzled by why Overturning that decision via a con- called Heller “the worst self-inflicted you characterize your views as stitutional amendment to get rid of wound in the Court’s history.”21 “positive” and confess that I regard the Second Amendment would be Others agree. In addition to express- your explanation of reasons why simple and would do more to weaken ing concern about the social costs, the NRA need not fear overrul- Judicature 13

ing Heller as equally explaining ple are reasonable and persuadable, why the Second Amendment is not and that the soundest arguments will needed to protect gun manufac- carry the day in the end. On that, we’re turers from arbitrary regulation. in complete agreement. In my opinion the main purpose JOSEPH of the amendment is to enhance BLOCHER is the the appeal of NRA arguments Lanty L. Smith ’67 against additional regulations. No Professor of Law at other civilized country has such Duke Law School. an amendment or a comparable DARRELL MILLER Proud Sponsor number of gun-related tragedies. is the Melvin G. Shimm I am convinced that the country of Judicature. Professor of Law at would be better off if the Second Duke Law School. Amendment were repealed.26 Blocher and Miller The Justice’s letter, written with co-direct the Center for characteristic force and tact, makes it Firearms Law at Duke Western Alliance Bank specializes clear that we failed to convince him Law School and are co- in banking for law firms and of our “positive” vision for the Second authors of The Positive settlement administrators. We Amendment. But, perhaps more have been providing nationwide Second Amendment: Rights, Regulation, importantly, we take it as evidence of settlement, escrow and distribution and the Future of Heller (Cambridge 2018). his undiminished optimism that peo- services for 15 years.

1 District of Columbia v. Heller, 554 U.S. 570 (2008). 13, 2012), http://www.nraila.org/news-issues/ Specializing in: articles/2012/justice-ginsburg-reminds-us- 2 John Paul Stevens, The Supreme Court’s Worst what-is-at-stake-in-november.aspx.). Decision of My Tenure, The Atlantic (May 14, Class Action Settlements 16 2019), https://www.theatlantic.com/ideas/ar- See Kate Shaw, Ask the Author: Interview with chive/2019/05/john-paul-stevens-court-failed- Justice John Paul Stevens, Scotusblog (June 12, Bankruptcy gun-control/587272/. 2009, 10:26 AM), https://www.scotusblog. 3 com/2019/06/ask-the-author-interview-with- Mass Torts Id. justice-john-paul-stevens/. 4 U.S. Const. amend. II. 17 John Paul Stevens, Six Amendments: How and Why Simple to Complex Attorney-Focused 5 Ross E. Davies, Which Is the Constitution?, 11 We Should Change the Constitution 132 (2014). Fiduciary Banking Solutions Green Bag 2d 209 (2008). 18 John Paul Stevens, Repeal the Second Amend- 6 United States v. Miller, 307 U.S. 174 (1939). ment, N.Y. Times, Mar. 27, 2018. 7 Duke Center for Firearms Law, Repository of Histori- 19 See Shaw, supra note 16. cal Gun Laws, https://law.duke.edu/gunlaws/. 20 Id. Connect with your team of settlement 8 Heller, 554 U.S. at 624 n.24. 21 John Paul Stevens, The Making of a Justice 485 services bankers. 9 Justice wrote a separate dissent, (2019). arguing that D.C.’s law was constitutional even 22 , Corpus Evidence Illuminates the Settlement Services Group if the right to keep and bear arms includes Meaning of Bear Arms, 46 Hastings Const. L.Q. Western Alliance Bank private purposes. Heller, 554 U.S. at 681 (Breyer, 509 (2019). (838) 854-2705 J., dissenting). 23 Brief of Neal Goldfarb as Amicus Curiae in [email protected] 10 Heller, 554 U.S. at 649 n.11 (Stevens, J., dissent- Support of Respondents, New York State Pistol & ing) (quoting Smith v. United States, 508 U.S. 223, Rifle Ass’n v. City of New York (No. 18-280), avail- 242 (1993) (Scalia, J., dissenting)). able at https://www.supremecourt.gov/Docket- 11 Remembering Justice John Paul Stevens, Nat’l PDF/18 /1-280/112037/20190812160955077_18- Const. Ctr. (July 19, 2019), https://constitution- 280%20Amicus%20Brief%20of%20Neal%20 center.org/debate/podcasts/remembering-jus- Goldfarb.pdf. tice-john-paul-stevens. 24 Alison LaCroix, Historical Semantics and westernalliancebank.com/settlementservices 12 McDonald v. City of Chicago, 561 U.S. 742 (2010). the Meaning of the Second Amendment, The 13 Heller, 554 U.S. at 636 (Stevens, J., dissenting). Panorama (Aug. 3, 2018), http://thepanorama. 14 McDonald, 561 U.S. at 891 (Stevens, J., dissent- shear.org/2018/08/03/historical-seman- ing). tics-and-the-meaning-of-the-second-amend- 15 See, e.g., id. at 916 (Breyer, J., dissenting); Richard ment/. 25 Aborn & Marlene Koury, Toward a Future, Wiser Joseph Blocher & Darrell A. H. Miller, The Positive Court: A Blueprint for Overturning District of Second Amendment: Rights, Regulation, and the Columbia v. Heller, 39 Fordham Urb. L.J. 1353, Future of Heller 4–5 (2018). 1354 (2012) (citing Chris W. Cox, Justice Ginsburg 26 Letter from Justice John Paul Stevens to Joseph Reminds Us What Is at Stake in November, Blocher (Mar. 14, 2019) (on file with the authors). Nat’l Rifle Ass’n-Inst. for Legislative Action (Feb.