Critical analysis of U.S. Supreme Court policy implications

District of Columbia v. Heller

District of Columbia vs. Heller, 554 U.S. 570 (2008) represents the U.S. Supreme Court's single biggest intervention in Second Amendment jurisprudence. The case was one which had been deliberately manufactured by a small cadre of ideologues: the case was organized and funded from the first by Robert Levy, a Senior Fellow with the libertarian Cato Institute. In 2010, Levy would address his own achievements in getting the Heller case before the supreme court in an article published in the Harvard Journal of Law and Public Policy, calling the Heller decision a "big win for common sense" and a "big win for the Constitution" (Levy 216). Levy cherry-picked a diverse group of defendants in order to argue that a broad spectrum of persons were adversely affected by the Dicstrict of Columbia's handgun band (left without an ability to defend themselves). Levy's plantiffs found their initial suit dismissed by the D.C. District Court, which was then reversed on appeal when the panel of appellate judges found that all of Levy's initial plaintiffs had lacked the standing to bring the suit in the first place, except for Dick Heller (who had applied for a gun license to the District of Columbia and been denied) and found strongly in Heller's favor. The District of Columbia then appealed to the Supreme Court, which agreed to hear the case for the 2007-8 session.

The Court's opinion was issued in 2008, written by Antonin Scalia, with Chief Justice Roberts and Justices Kennedy, Thomas, and Alito joining his opinion. Along recognizable party lines, and continuing with the previous decade of narrow 5-4 decisions in the Sandra Day O'Connor era, a dissent was written by Justice John Paul Stevens and joined by Justices Ginsberg, Breyer, and Souter. Scalia's majority decision held overall that the Second Amendment did guarantee an individual right to keep and bear arms, although it was subject to restriction. Specifically, in keeping with the tone of Levy's plaintiffs, Scalia's decision specifically identifies the Second Amendment's "core right" as the right to possess a handgun in the individual's home for the purpose of self-defense.

Scalia's majority opinion dodges what has generally been considered the central fact of interpretation with the Second Amendment, namely the grammatical relation of the constituent parts of the Amendment and how they are meant to be interpreted together. Scalia, extending his originalism to a conception of the Biblical justice of Solomon perhaps, chops the Second Amendment in half: he calls the first portion "the prefatory clause" ("A well regulated militia, being necessary to the security of a free State") and the second portion the "operative clause" ("the right of the people to keep and bear Arms, shall not be infringed") and then mystically declares that "apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause." No authority is offered whereby Scalia can ignore interpretations of the language of the Amendment which might consider the "prefaratory clause" as intended to govern or color the whole of the "operative clause," thus restricting the core of the right to the possession of firearms within the context of a "well regulated militia." Merkel summarizes the rhetorical maneuver thus:

Justice Scalia begins his analysis of the Second Amendment right in Heller with a pivotal ipse dixit assertion: "The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause." This is a crucial step for Justice Scalia as it allows him to uncouple the right to arms from the militia. (Merkel 365)

I think Merkel is right; in any case, this allows Scalia to declare that the "operative clause" of the Second Amendment must "guarantee the individual right to possess and carry weapons in case of confrontation." He offers three principal rationales for this. First, he compares the phrase "right of the people" as it is used in the Second Amendment with the same or similar phrasings elsewhere in the Bill of Rights or the Constitution, and concludes that it refers to an individual right possessed by all persons "not an unspecified subset." Next, he then offers some linguistic evidence from the late eighteenth century -- a classic hallmark of the "Originalist" school of constitutional interpretation which Scalia has championed-to demonstrate that "to keep and bear Arms" does not entail (as some have argued) some kind of specific militia-related term of art but instead denotes the same basic concept that it does today. And finally he offers a somewhat tendentious view of history trimmed to fit Scalia's own individual rights interpretation of the Second Amendment. "We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right," Scalia argues, and in proof he claims that the inclusion of the words "shall not be infringed" confirm his interpretation. These are the three chief pieces of evidence whereby Scalia leans on the individual right (rather than a militia-related right) to own a handgun. As Lund accurately notes:

Justice Scalia never even addresses the most difficult, and therefore the most important question: How could codifying the right to arms have been expected to preserve, promote, or prevent the elimination of a well regulated militia? ("Originalist" 1351-2)

But with a final feat of prestidigitation that is barely worth serious intellectual consideration, Scalia returns in the final segment of the opinion to the severed and wriggling halves of the Second Amendment's text, and somehow proves that the "well regulated militia" business in the first portion actually manages to confirm the individual rights interpretation that Scalia has advanced.

It is hard to say whether the Heller decision represents a bigger disaster on the legal or the policy standpoint. Robert Levy, who ought to have been positively tumescent over the outcome, still manages to find reason to complain in the article he published two years after the decision. The "Heller Paradox" he refers to in the title of his article is the fact that some commentators have taken Heller to be a potential path forward for the advocates of gun control:

Meanwhile, the antigun community is trying to spin the Heller case as a hidden victory for gun control. The argu? ment, which Dennis Henigan at the Brady Center to Prevent Gun Violence calls the "Heller paradox," takes this essential form: First, the National Rifle Association and others in the "gun lobby" argued that each new gun regulation was a step down the slippery slope toward confiscation. Second, fear of the slippery slope made gun control a "wedge" or "cultural" issue. Third, by erecting a constitutional barrier to a broad gun ban, Heller has taken confiscation off the table. Therefore, the NRA and its allies can no longer invoke the slippery slope argument, and without that wedge issue, ordinary gun own? ers will be more receptive to sensible regulations. (Levy 212-3)

It is of course possible that all Levy is responding to here -- and this is certainly how I interpret his article overall -- is the refusal of those who (for quite sensible reasons) continue to support governmental efforts to curtail or control handgun ownership to suddenly agree with Levy now that the Heller decision has posited gun ownership as a fundamental right. Levy's bigger concern -- as suits the specifically libertarian ideology of the Cato Institute (which one hesitates to term an actual "think" tank) -- is with the government's continued division of rights into those enumerated and unenumerated. It is not so big an accomplishment in his opinion to have demanded rights that were enumerated in the constitution but infringed by later legislation. In any case, Levy does acknowledge -- and no-one who still reads a newspaper can fail to have missed -- that the Heller decision did cause a number of major U.S. cities to revoke previous handgun legislation or to drop attempts for passage of similar legislation like that in the District of Columbia, which had just been declared unconstitutional in Scalia's majority opinion. In testament to this, I conducted an interview with Marian Marracco, a former employee with CeaseFire PA, an advocacy group for victims of gun violence (in many cases, innocent bystanders or children injured by bullet fragments in urban shootouts) whose founder would be elected to Philadelphia's City Council in the wake of the Heller decision, largely (in Marracco's opinion) on the basis of community resolve to reduce gun violence despite Scalia's controversial "individual rights" interpretation of the Second Amendment. Marracco described how she had participated in community discussions and organization with the support of Philadelphia Mayor Michael Nutter, whose high-profile attempt to enact a citywide handgun ban was stopped by the Heller decision, and described as "chilling" the effect Scalia's opinion had on the City of Philadelphia's willingness to entertain legislative solutions to the problem of handgun proliferation (Marracco interview, 2011).

But from a jurisprudential standpoint, there was always a tension between the libertarian lobby which brought the lawsuit for reasons, if Levy's account is to be credited, that had more to do with Jacobin ideological purity than with the right of Dick Heller to keep a gun under his pillow because his neighborhood had gone downhill. For a start, we must realize that there are competing versions of history (and indeed of the English language) which are at stake behind the differing approaches taken by Scalia and by his many critics. Hardy cites Joyce Lee Malcolm's history to demonstrate that Stevens' claim of "no new scholarship" on the subject was hardly well-informed. Stevens, relying here on Lewis v. United States (1980) as precedent, then claims that "No new evidence has surfaced since 1980 supporting the view that the Amendment was intended to curtail the power of Congress to regulate civilian use or misuse of weapons" (Stevens, Heller Dissent). Hardy responds by noting that "It is difficult to list all the evidence that emerged after that date. A short list would begin with Joyce Lee Malcolm's studies" (Hardy 71). In point of fact, the Heller decision seems to reflect that new originalist approach that readers of Malcolm embraced. Historians of the Second Amendment tend to line up in two basic ideological groupings, one which supports Malcom, and the other which supports Saul Cornell's opposing view (as his title indicates) in A Well-Regulated Militia -- The Founding Fathers and the Origins of Gun Control in America, published in 2006. With regard to the history of Second Amendment jurisprudence, Cornell believes that Supreme Court precedent before Heller solidly maintained that "The purpose of the amendment was to guard the state militias against the danger of federal disarmament." (Cornell 195). Whereas the bloodthirsty Miss Malcolm states unequivocally that

The position of this amendment, second among the ten amendments added to the Constitution as a Bill of Rights, underscored its importance to contemporaries. It was no less than the safety valve of the Constitution. It afforded the means whereby, if parchment barriers proved inadequate, the people could protect their liberties or alter their government. It gave to the people the ultimate power of the sword. (164)

By contrast Cornell in A Well-Regulated Militia records for example that Jefferson had initially suggested that it be couched in terms of individual rights, proposing the language "No freeman shall ever be debarred the use of arms" which he then later retreated from with the addition of the further language "within his own lands or tenaments," which renders Jefferson's final stance, in Cornell's analysis, as "effectively eliminating the right to carry arms." (Cornell 20). Cornell seems overall more in tune with the tenor of law school critics of the Second Amendment in his assessments. Malcolm by contrast writes like a paleoconservative Boadicea, or like a woman constantly on the brink of bursting into her favorite Ethel Merman showtunes from "Annie, Get Your Gun." In defense of what is clearly her favorite right, Malcolm notes in her afterword that:

The right to be armed has not worn well, despite its enshrinement in the English and American bills of rights. It is no longer a right of Englishmen. The curious will still find it in the English Bill of Rights but it has been so gently teased from public use that most Britons have no notion of when or how it came to be withdrawn. The American Second Amendment, on the other hand, is at the center of a noisy and emotional debate….Two recent law review articles characterize it, respectively, as "embarrassing" and "terrifying," adjectives unlikely to be ascribed to any other right. (165)

What Malcolm seems specifically to conceive of herself as defending the Second Amendment from is the leftist critics in the intelligentsia who regard it as "embarrassing" or "terrifying."

And it is, naturally, Malcolm's history that Scalia relies upon in his own accounts. As one of Malcolm's opponents in the leftist law-school intelligentsia, William G. Merkel, states in his 2009 article critiquing Scalie in the Lewis and Clark Law Review:

Relying heavily on Joyce Lee Malcolm's To Keep and Bear Arms: The Origins of an Anglo-American Right, a book endorsed by virtually no commentators holding Ph.D.s in American history, Scalia made numerous historical assertions during oral arguments, all of which turn out to be false, and many of which would be of very dubious relevance even if true. (Merkel 360)

Merkel is noting this irony (as one among many involved in Scalia's opinion in Heller) because Scalia's "Originalist" approach to questions of Constitutional interpretation is one which often makes a specific appeal to history or to historicism. Lund, who is an actual originalist, sums up certain aspects of originalist jurisprudence which we might want to bear in mind while considering Heller:

The serious challenges for originalism involve questions about its limits as a tool for adjudication. Three main difficulties arise. First, it is sometimes hard to find adequate objective evidence of how the Constitution's text would have been understood by the relevant audience at the time of adoption. Second, it is sometimes difficult to know how the commands in the text should be applied, consistent with its original meaning, to particular circum- stances that the enacting public did not consider, and often could not have foreseen. Third, courts will inevitably make some decisions based on mistaken interpretations of the Constitution, and later courts will have to decide how much deference to give these precedents. (Lund, 1346)

Still it is the question of originalism that is legally most important about the Heller decision, although how it relates to questions of policy depends upon which side of a specific ideological divide one is located. From the standpoint of the more extreme forms of libertarianism embraced by Levy and the Cato Institute, the public policy implications of Heller are hardly exciting because they do not believe in public policy.

In any case, from a legal standpoint, the implications of the Heller decision are much larger. As Andrew Gould puts it:

Heller has simultaneously clarified and clouded the constitutional mystery surrounding the Second Amendment. On the one hand, it is clear that the Second Amendment guarantees an individual right to possess a firearm, and the core right encompasses possession of a handgun in one "s home for self-defense. On the other hand, this individual right is not absolute. Yet, at the same time, the Heller Court did not divulge the proper analytical framework for Second Amendment claims.Even if Justice Scalia is correct that the public "should not expect" the Supreme Court "s first decision directly and deeply analyzing the Second Amendment "to clarify the entire field," the Heller Court nonetheless created as many questions as it answered about the Second Amendment. (Gould 1549-50)

But the most obvious place to start with assessing the merits of Scalia's majority opinion -- or perhaps to look for additional questions and answers -- is to look at the dissent, written by Justice John Paul Stevens. David Hardy thinks that because Stevens' "dissent came within one vote of becoming the majority; it clearly merits close examination." (Hardy 61) This is where a key feature of the Heller decision comes into play, which is the absence of significant prior jurisprudence on the question of the Second Amendment -- the Supreme Court itself had not heard a Second Amendment case since 1939's Miller decision, which was in any case an extremely limited scope. Hardy summarizes the prior Supreme Court jurisprudence as follows:

The dispute over the meaning of the Second Amendment was traditionally seen as a conflict between the individual rights and the collective rights viewpoints. The former saw the Amendment as protecting an individual right comparable to other enumerated rights; this would become the position of the Heller majority. (Hardy 62)

Hardy then goes on to give a useful summary of the prior approaches to the question of rights involved in the Second Amendment, which I think it worth quoting in full before I turn to Lund's more intriguing critique of the use and misuse of precedent in Heller: Hardy traces the long legal history as a …"Pure States' Rights" Test: this approach views the Second Amendment, and its State analogs, as protecting a power of the State to form a militia; the individual has no direct interest in, or right to invoke, this guarantee. This view dates to the very invention of the collective rights, in an 1842 concurrence, and to its first judicial acceptance, the 1905 Kansas decision of City of Salina v. Blaksley. There the court reasoned that the State right to arms guarantee "refers to the people as a collective body" and "deals exclusively with the military; [therefore] individual rights are not considered in this section."? In the mid and late twentieth century, many later Federal cases accepted this approach, to the point where the Fourth Circuit could conclude that the lower courts had "uniformly" held that the Second Amendment "preserves a collective, rather than individual, right." (Hardy 63)

This does seem to indicate that the court had never before considered the Second Amendment as enumerating an individual right. But it is at this point that one of Heller's more provocative critics becomes a useful addition to the debate. Nelson Lund approaches Heller from the standpoint of one who is more "originalist" in his ideological purity than Scalia himself. He therefore considers Scalia's conclusion to be valid -- that it is an individual rather than a collective right -- but at the same time he thinks Scalia's actual jurisprudence is deeply flawed, beginning with its misuse of prcedent. Lund writes of Heller:

In this case, the Justices were confronted with only one significant Supreme Court precedent, an eight page opinion in United States v. Miller.2 Surprisingly, in light of the nature of modern constitutional law, it is not clear that any of the nine Justices, or their hordes of highly-credentialed law clerks, actually read the very short Miller opinion. How else to explain Heller's embarrassingly and pointlessly fictional statement of the procedural facts of the Miller case? More importantly, the Court does quote from Miller, and the Court does interpret the Miller opinion, but in doing so it distorts the holding beyond all recognition. (Lund 2).

Lund then goes on to accuse Scalia of "misstating the facts about Miller's procedural posture is related to the Heller majority's bizarre, unsuccessful, and legally unnecessary effort to reconcile Miller's interpretation of the Second Amendment with the one adopted in Heller." (Lund 3) It is hard to tell whether Lund is concerned that Scalia has left the door open for judicial challenge in some way on a decision whose ends he is fully in agreement with, but whose means he considers sloppy and ill-argued, but he clearly thinks that Scalia should have held forth first principles and dodged the issue of Miller as precedent altogether:

Miller's holding, from which Justice Scalia selectively quotes, clearly indicates that military utility is a necessary condition of Second Amendment protection, but Miller nowhere says or implies that the government is forbidden to place any restrictions at all on protected weapons. Nor does it say what restrictions might be permissible. Nor does it foreclose the possibility that the government might be permitted to put more restrictions on some protected weapons than it may place on others. Miller did not address any of these issues one way or another. Rather than focusing on the obvious narrowness of the Miller holding, however, Justice Scalia argues that Miller says "only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." Miller neither says nor implies any such thing. (Lund 10-11)

If this analysis of Miller is indeed accurate, then I think Lund's conclusion is warranted, where he states that "by reading Miller for far more than it said or implied, and by twisting the meaning of what Miller actually said beyond recognition, it is Heller that violates and disrespects precedent." (Lund 15). Yet it is the direction from which Lund's criticism comes -- to Scalia's right, as it were -- that is even more shocking than the conclusions that Lund advances. Andrew Gould is a bit more positive about the Heller opinion itself. He rather charmingly assumes that Scalia has offered a preliminary framework for addressing the issues of how Second Amendment cases should be adjudicated in the future. Gould thinks that the policy implications are clear, which will entail keeping in the framework which he identifies as a "two-pronged test":

In sum, the Second Amendment framework, as determined through the textual clues of Heller, can be stated briefly in the following two-part test. First, does the challenged regulation fall within the scope of the protected Second Amendment right? To satisfy this prong, the party must show both that the challenged regulation implicates a lawful purpose for which firearms are typically used and that the regulation involves a class of firearms that is "in common use at the time." Second, assuming that these prerequisites are satisfied, does the challenged regulation satisfy deferential strict scrutiny? For this prong, a reviewing court would be willing to show a limited amount of deference to the government in both the compelling-interest and narrow-tailoring requirements -- but only to a certain point (e.g., it would not accept a blanket prohibition like the one in Heller). (Gould 1573)

Gould sees the import of Heller as being forefold: he thinks that Scalia's opinion protects the individual right of gun ownership, identifies the core of the right as self-defense in the home (not militia service), but also holds that the right does not extend to all purposes, or to all weapons. He concedes that Heller lacks a coherent standard of review: it rules out certain tests, and offers some suggestions, but overall he can find nothing beyond the two-pronged test he proposes to sum up Scalia's actual argumentation.

But overall it is fascinating to see Lund's critique of the Heller decision if only because it corresponds interestingly with the more standard critiques made from the left. Merkel finds Scalia's originalism "perverse" (while Lund finds it merely insufficiently ferocious) but I suspect Lund would agree with Merkel's conclusion that the "decision's historically unsupportable appeal to interpretive fidelity marks a significant victory for results-oriented jurisprudence even as it points to the shallowness of originalist claims to neutrality. (Merkel 354). Lund actually says something quite similar in his UCLA Law Review article situating Heller within the overall notion of originalist jurisprudence; there he writes