- roberturquhart37
- Dec 27, 2024
- 4 min read
Updated: Feb 28
I wrote this a while ago and the world has moved on, but I think there’s enough in it still worth reading to keep it on file.
2nd Amendment: Heller, 2008; Gun Control Proposals, June 2022
District of Columbia v. Heller (2008) was an egregiously (to use one of Samuel Alito’s favorite words) bad and corrupt decision. You simply cannot reasonably claim to be a textualist (just read the text) or an originalist (text plus original intent) – as the conservative majority on the Supreme Court always claim to be – and say that these words
“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”
confer a right to the private ownership of Arms for private purposes. The text obviously does not confer any such right. Even the most superficial consideration of the historical context, especially with regard to the phrase “to keep and bear Arms”, is sufficient to make clear that the intent of the Framers in writing these words was the one clearly stated in the words themselves: ensuring the maintenance of a well regulated Militia.
The Militia has always been – and still is, in the National Guard and the Air National Guard – an instrument of the state and of state coercion, as is made clear in the Constitution’s enumeration of the Powers of Congress: “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions” (Article 1, Section 8). But – again, as with the National and Air National Guards – the different units of the Militia have always been under the control of the individual States. Part of the purpose of the Second Amendment was to meet concerns of the Southern (slave-holding) States by ensuring that they had the independent power (through state-controlled Militias) to suppress slave rebellions. That is, the wording of the Second Amendment was an inducement to the Southern States to ratify the Constitution, and this was the intent of the framers. Here, again, that intent has nothing to do with the private ownership of weapons for private purposes. (I didn’t know about this side of things until my friend Christine told me, but see attached article.)
Nonetheless, however egregious, Heller was a deliberately narrow ruling – it would probably be going much too far to say that it was so because of a sense of shame at its corruptness. But the decision itself, written by Antonin Scalia, goes out of its way to emphasize the narrowness:
“Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms” (District of Columbia v. Heller, 2008).
Heller also recognizes the holding in United States v. Miller (1939) prohibiting especially lethal weapons: “Miller’s holding that the sorts of weapons protected are those ‘in common use at the time’ finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.” This recognition is, indeed, part of the tortured attempt to separate the “prefatory clause” of the Second Amendment (“A well regulated militia, being necessary to the security of a free State”) from the “operative clause” (“the right of the people to keep and bear Arms, shall not be infringed”), an attempt that is the formal basis of the decision. Still, Heller does make bans on certain kinds of firearms “presumptively lawful”. These include the rather vague “machine guns”, but also the M16 assault rifle (the variant of the AR-15 first adopted by the US military in 1964). It is of course true that conservative majorities on the Supreme Court have often made such obiter dicta, and then proceeded to reject them in later cases: Anyone who takes seriously the claim in Alito’s leaked draft opinion for Dobbs v. Jackson Women’s Health Organization that it only applies to Roe and abortion, not to anything else – for example, same sex marriage, contraception – would probably be interested in a bridge connecting Manhattan and Brooklyn that’s up for sale (I can provide details of the terms, and I’m sure I could broker a special deal for you, Susan, after Brett treated you so badly).
Heller also claims to be in accord with all previous Supreme Court rulings, so precedents, on the Second Amendment. It is hard even to read this statement with a straight face, and, man!, Scalia must have been some poker player. BUT …
ALL of the proposals for new gun control legislation by the White House and by Congressional Democrats are explicitly recognized as “presumptively lawful” by District of Columbia v. Heller.
So if Ted Cruz, for example, is right that these proposals are crazed “hard-left” attempts to destroy the United States, then Antonin Scalia was a “hard-left” fanatic … not sure I’d say that to his face, Ted.
Chris Murphy (D-CT) is using the Florida “red flag law”, passed by the Republican-controlled State Legislature, and signed by then Governor, now U.S. Senator, Rick Scott – who can give even the looniest of loons a run for their money, only that’s so unfair to loons – in this way, to push the Republicans, and he is absolutely right (and a very cool guy), but I think going back to the Heller decision (and it was a hellerva decision) is important because of the broad range of what it takes to be “presumptively legal”, even with Heller as precedent, and even with the possible (probable) duplicity of the obiter dicta: it does open a range of discourse for truly significant gun control even within the assumption that the Second Amendment confers a right to individuals of private ownership of weapons for private purposes. And Scalia wrote the decision. Ok, do Gaetz, Greene, Boebert, etc. know who Scalia is? Well that’s another question.
Three valuable articles: