This is Part One in a two-part series of columns by Professor Dorf. Part Two will appear here on Justia’s Verdict on January 2, 2013. –Ed.
The Newtown, Connecticut massacre of twenty schoolchildren and seven adults may have so changed the political landscape in America that gun-control laws that could not have been enacted just weeks ago are suddenly under discussion. Most of the proposed measures are modest: plugging gaps in the law requiring waiting periods for gun purchases; re-enactment of the “assault weapons” ban; restrictions on very large ammunition magazines; and so forth.
But what about much more serious restrictions? Suppose that the political will developed for a ban on private possession of firearms in all public places? Would such a law—enacted at the federal, state, or local level—contravene the Second Amendment as interpreted by the Supreme Court? The answer is not entirely clear.
The high Court’s two leading Second Amendment cases—District of Columbia v. Heller in 2008, and McDonald v. City of Chicago in 2010—both found a right to possess firearms in the home. Neither case involved a right to carry firearms outside of the home, and the lower federal courts have reached contrary conclusions as to whether there is such a right.
For example, late last month, the U.S. Court of Appeals for the Second Circuit upheld New York’s restrictive scheme for licensing public carriage of guns in Kachalsky v. County of Westchester, but just two weeks later, the U.S. Court of Appeals for the Seventh Circuit invalidated an Illinois law barring most people from publicly carrying loaded guns in Moore v. Madigan. Given the questions left unanswered in the Heller and McDonald cases, respectable arguments can be made either for or against a right to possess firearms in public.
In the balance of this column, I will examine those arguments. In my next column, which will appear on Wednesday, January 2, I will explore a deep irony that is at work in this area of constitutional law: In order to find a right to public carriage, the Court’s most conservative Justices may need to discard the originalist methodology that they purported to embrace in the Heller and McDonald cases, in favor of the sort of “living Constitution” view that they say they deplore.
The Supreme Court’s Second Amendment Cases
Prior to the Supreme Court’s 2008 ruling in the Heller case, it was not clear that the Second Amendment protected any individual right at all. The Amendment’s text is hardly pellucid. It states: “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.” Under the so-called “collective right” view, the Second Amendment only protects the right of the people of the several States to collective defense via their state militias.
In Heller, the Court rejected the collective right view. The main purpose of the Second Amendment may well have been collective defense, the majority said, but the means by which it achieves that purpose is by ensuring that when called to muster, the individuals who together make up the state militia will have weapons. And, the Court went on, when the people are not serving in the militia, they may use their firearms for a variety of purposes—including individual self-defense, a common-law right that late-Eighteenth-Century Americans highly valued.
The Court’s endorsement of the “individual right” view of the Second Amendment in Heller was controversial. The Justices split 5-4 along ideological lines, with the conservatives ruling in favor, and the liberals voting against, the individual right to private possession of firearms. They split the same way two years later in the McDonald case, when the majority ruled that the right that was recognized in Heller also limits state and local efforts to restrict gun possession.
Heller’s Limitations and Exceptions
Justice Antonin Scalia, the author of the majority opinion in Heller, likes to say that he’s an originalist and a textualist, but not a nut. Perhaps for that reason, his Heller opinion includes a number of sensible limitations and exceptions that are nonetheless difficult to square with the language and history of the Second Amendment.
If the purpose of the Second Amendment is to ensure an armed militia, then one might think that it especially protects just those weapons that are most useful in military service. In modern times, that would mean machine guns, rocket-propelled grenades, tanks, and other heavy weaponry. But recognizing the danger that private possession of such weapons would pose, Justice Scalia’s Heller opinion asserts that they fall outside of the Second Amendment.
Heller also mentions, but does not endorse, what is sometimes called the “insurrectionist” view of the Second Amendment—under which patriots maintain their store of arms to prevent the government from becoming tyrannical. One might think that Timothy McVeigh and the “militia movement” of the 1990s would have discredited the insurrectionist view, but it continues to be voiced by mainstream politicians. For example, just two years ago, the Nevada Republican candidate for the U.S. Senate, Sharron Angle, clearly associated the Second Amendment with insurrection. She lost the election, but she did win 45 percent of the vote.
The problem with the insurrectionist view of the Second Amendment is not that it is atextual or ahistorical. James Madison more or less laid out the insurrectionist view in Federalist No. 46—although Madison had in mind that the people of a state would rise up under the auspices of the state militia, not one-by-one or in private armed bands. Still, insurrectionists can rightly point to Madison and other founding fathers in support of their reading of the Second Amendment. But at least since the Civil War—when Confederate rebels attempted to exercise a right of armed rebellion, with disastrous consequences—most thoughtful Americans have come to understand insurrectionism as beyond the pale.
Beyond rejecting a reading of the Second Amendment that would protect private possession of high-powered military weaponry and largely setting aside insurrection, the Heller opinion validates a number of additional limits. The opinion, Justice Scalia said, 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.”
Since the Newtown massacre, some commentators have pointed to the inclusion of schools in the Court’s list of places that can be made firearms-free. But no one really doubted that government has the power to keep guns out of schools. Perhaps more important than what is on the Court’s list is the question of how Justice Scalia compiled that list—and thus, the further question of what else might be added to it.
The Uncertain Methodology of the Second Amendment Cases
In answering the core question before it in the Heller case, the Supreme Court used a version of originalism. To figure out what the Second Amendment protects today, the Court asked what its words would have been generally understood to protect in 1791, when it was enacted. After concluding that the Second Amendment was originally understood to codify a right to individual armed self-defense, the majority went on to marshal evidence for the proposition that this understanding remained largely unchanged throughout the Nineteenth Century and was consistent with the Court’s sparse Second Amendment precedents.
Notably, the Heller Court made little effort to explain the basis for its conclusion that the particular limitations and exceptions it was validating could also be justified by this methodology. In introducing the somewhat ad hoc list that I quoted above, Justice Scalia simply noted that historically, the right to possess firearms had been subject to regulation, including prohibition of concealed weapons.
What about other regulations? The Court said virtually nothing—in Heller or in the subsequent McDonald case—about what regulations, short of outright bans, would survive or about how such regulations should be evaluated. The Court left such questions for another day.
That day has now arrived—at least in the lower federal courts. New York permits private citizens to carry concealed firearms in public, but only if they can demonstrate a special need for doing so. And New York completely forbids private citizens from openly carrying firearms. Do those restrictions violate the Second Amendment? If not, what about the Illinois law that completely bars public carriage of loaded guns by all persons except for those in a small number of statutorily designated occupations?
To answer such questions, should courts look for precise Eighteenth and Nineteenth Century analogues to the New York and Illinois laws? Or is it enough that these laws fall within a general American tradition of firearms regulation? Until the Supreme Court grants review in another Second Amendment case, the lower courts will continue to struggle with such questions.
Is There Any Right to Carry Firearms in Public?
Might it be possible to bypass these questions for a whole class of firearms restrictions? Suppose that the Second Amendment simply affords no protection at all for possession of firearms outside of the home. Although the text of the Amendment draws no distinction between home possession and public possession of firearms, the Court’s decision in Heller repeatedly emphasizes the special value of firearms as a means of protection in the home.
Moreover, as I tentatively suggested in an essay for a 2008 symposium in the Syracuse Law Review, limiting the Second Amendment right to home possession would parallel the Court’s interpretation of other provisions of the Bill of Rights, including the First Amendment. Although that provision’s text also makes no distinction between the home and other locations, case law has afforded greater protection in the home. In the 1969 case of Stanley v. Georgia, the Supreme Court construed the First Amendment to protect home possession of material that could be proscribed as obscenity outside of the home.
Picking up and running with my suggestion, the next year University of Cincinnati Law Professor Darrell Miller wrote an article in the Columbia Law Review with the provocative title “Guns as Smut: Defending the Home-Bound Second Amendment.” In it, he explained how the individual right view of the Second Amendment depends on the distinction between the general militia—the whole body of the People—and a select militia—an armed subset of the People that may be used by tyrants to threaten the People’s liberties or by a mob to threaten the government itself. Miller tied the fears of a select militia to Seventeenth and Eighteenth Century English concerns about oppression by the Stuart kings as well as mob violence. He argued that the First Amendment right “peaceably to assemble” is best understood as a right to assemble unarmed. An armed assembly is, or has the potential easily to become, an oppressive select militia. Thus, Miller concluded that the Second Amendment would not have been originally understood to empower individuals to go about in public with firearms, except when performing militia service.
The home-bound view of the Second Amendment has not gone unchallenged. For example, UCLA Law Professor Eugene Volokh forcefully contested both the historical and policy grounds for Miller’s argument. Miller, in turn, objected that Volokh’s rebuttal took aim at the analogy between guns and smut, but missed the substance of his argument. As the progenitor of the obscenity analogy, I am not well positioned to referee this debate, even though I made the point more tentatively than Miller.
In any event, it is unlikely that the Supreme Court’s ultimate resolution of the question will turn on a close reading of the historical materials. Judge Richard Posner, who authored the Seventh Circuit opinion in Moore, argued that the opponents of the individual-right view of the Second Amendment lost the historical argument in Heller and McDonald, and so the question is now simply one of implementation. Because guns can be no less—and often can be more—useful for self-defense in public than in the home, public carriage falls within the scope of the Second Amendment right, he concluded.
If and when the Illinois case, the New York case, or some other case presenting strict limits on public carriage reaches the Supreme Court, will the Justices agree? The answer may depend on just how much guidance the Court’s conservative wing seeks from history, and how much they treat the right to self-defense as part of an evolving, living Second Amendment. I shall address that issue in Part Two of this series of columns, appearing here on Justia’s Verdict on January 2, 2013.
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