Heller's Fallout The Court's Decision Raises

On June 26, the last day of the 2007-2008 term, the Supreme Court of the United States affirmed a lower-court ruling striking down a 33-year-old handgun ban in the nation's capital. District of Columbia v. Heller was the first Second Amendment case that the court has heard in 70 years and represents the first time the court has ever addressed the question of whether the Second Amendment protects an individual's right to bear arms for private purposes.

In a recent interview with NationalJournal.com's Mary Gilbert, Adam Winkler, professor of law at University of California, Los Angeles, discussed the historical context and the practical and political implications of the Heller decision.

Winkler: The Supreme Court itself had not issued an authoritative ruling on the nature of the Second Amendment in over 70 years. The last Supreme Court case was United States v. Miller, and it was always a questionable decision. The argument for the Second Amendment protecting the individual right to bear arms was never even raised in that case. Nevertheless, the court in that case upheld a federal gun control law and said that the Constitution -- the Second Amendment -- only protected arms that were reasonably related to the maintenance of a state militia.

Since that time, although the Supreme Court has not ruled on a case since the Miller decision, the federal circuit and federal district courts have ruled on dozens and dozens of cases... in which gun control laws were challenged under the Second Amendment. And the courts consistently read the Second Amendment to protect a state's right to preserve a militia, but not an individual right to bear arms for private purposes unrelated to militia services.... So, while the militia theory of the Second Amendment, or collective rights theory of the Second Amendment, had only been vaguely mentioned by the Supreme Court in Miller, it had become the dominant law of the land in the federal courts in the 70 years since in case after case.

Q: The Supreme Court has not ruled on the Second Amendment in decades. Why this case and why now?

Winkler: The court had refused to hear Second Amendment cases for a long time. But... there was a real buildup of historical, academic, scholarly materials that really undermined the argument that the Second Amendment protected only a state's right to preserve a militia and not an individual right to bear arms. Over the last 30 years there has been literally a tidal wave of scholarship looking into the original meaning and purpose of the Second Amendment. And although the... findings have been mixed, the majority of studies have sided with the individual rights view of the Second Amendment -- that the framers intended to protect, at least in part, an individual's right to bear arms for self-defense. So I think in part the court was responding to this buildup of new literature and a new understanding of what the framers' intent was. That said, I think there's also a very practical reason. This was a financed civil rights litigation -- attorney-driven, top-down -- that was begun by Robert Levy of the Cato Institute, a libertarian think tank. And Levy, in an interview just recently, said: "Well, I went out to seek to challenge this law because I thought that President Bush would probably get some more conservative appointments to the Supreme Court." This was prior to Chief Justice [John] Roberts and Justice [Samuel] Alito being appointed. He said that he thought the time was ripe to bring a Second Amendment challenge, that the court would be shifted sufficiently to the right that it would be hospitable to an individual-right-to-bear-arms challenge.

Q: There has been a lot of talk about the particular plaintiffs in the Heller case.

Winkler: Oh, sure. The vast majority of challengers to gun control laws in state courts, where [cases on] the right to bear arms [are] widespread, are criminals, felons, people charged with serious offenses. And they have nothing to lose, so they raise constitutional challenges to every aspect of their conviction. This was an unusual right-to-bear-arms case from the beginning. Not only was it top-down-driven legislation, but also they sought out very sympathetic plaintiffs. Among the original plaintiffs this includes not just Dick Heller, who was a security guard who carried a gun during his day job but wasn't allowed to bring it home with him or protect himself at night with a firearm -- a sympathetic figure, a responsible, law-abiding person. But there were also other sympathetic figures, such as one gay plaintiff who claimed that on a previous night the plaintiff had been surrounded by skinheads and, were it not for brandishing a gun in defense, the skinheads might have done violence to or hurt the plaintiff. So, sympathetic victims, to be sure.... That was a very smart strategy.

Q: Justice Stevens lamented in his dissent that the court's decision overturns a longstanding precedent. Do you think the Heller decision represents a huge departure from previous decisions?

Winkler: Yes and no. It is a huge departure from the over 40 cases of federal court decisions interpreting Miller to protect the state militia and only the state militia and not to have any impact on an individual right to bear arms for private purposes.... On the other hand, the Supreme Court case law was pretty weak. There had only been that Miller case.... One side in the case -- [Jack] Miller, the defendant -- didn't even appear in the Supreme Court, refused to file a brief. All they had was one perspective -- the government's perspective -- on that case.... Prior to Miller there had been several decisions that had not been Second Amendment cases, but the court had referred to the Second Amendment as protecting an individual right to bear arms. So, I think that the Supreme Court precedent was not all that strong. But nonetheless, the legal rule was strongly recognized in the federal courts in general.

Q: Much of the literature on Heller talks about this case being a triumph for "originalism" or an originalist interpretation of the Constitution. Can you talk a little bit about the concept of originalism and how it applies in this case?

Winkler: Well, originalism is basically the idea that you'll define the meaning of a constitutional provision by reference to the original public understanding of the provision -- what the ordinary person would have understood that provision to mean in its time -- in contrast with living constitutionalism, the idea that these provisions evolve and keep up with changes in the underlying society.

Certainly, in one sense this case marks the triumph of originalism. There were over 70 amicus briefs filed in the case. Almost all of them employed originalist methodology to define what the right protected by the Second Amendment was. The Supreme Court goes on for pages and pages and pages parsing the history of the Second Amendment and what the framers and the American people might have understood the provisions to mean at the time. And even the dissent talks in originalist terms about what the intention of the framers was. However, I think that the majority opinion by Justice [Antonin] Scalia departs radically from originalism where it really counts and where it really matters. The real question about the Second Amendment is what laws are prohibited and what laws are allowed under that constitutional provision. That's where the Second Amendment rubber hits the road. And on this question the court eschews originalism and focuses on what seems to me like living constitutionalism. The court says, 'Well, we don't mean to call into question longstanding bans on felons in possession of firearms or bans on guns in sensitive places or restrictions relating to the purchase and sale of weapons.' And the court also refers to an earlier opinion that bans on dangerous and unusual weapons are not barred by the Second Amendment. But all of these things are stuff that comes not from the original public meaning of the Second Amendment but from the traditions of American law since then. These kinds of laws are products of later generations, not of the founding generation.

And the court, even with regards to this handgun ban... says the ban involved in the District of Columbia case was unconstitutional in part because this was a very commonly used weapon, in contrast to, say, a machine gun, which is not commonly used or commonly possessed. But that's completely a function of changes in society, not the original public meaning. Handguns are popular because they've not been banned in very many places. Machine guns have been banned almost everywhere in America, so they are much more unusual. It's the very fact that law has restricted the market for machine guns that makes them so unusual. So, what is common and what is unusual is not a function of the original public meaning for Scalia, but a function of what America has allowed in the years since.

Q: The Heller decision did not strike down bans on all types of weapons or all restrictions on gun ownership. But did it offer any guidelines on what kind of restrictions might be permissible?

Winkler: The court was unclear. The court really failed to articulate a standard of review or a series of categorical rules that would indicate to future plaintiffs and future government officials what is allowed and not allowed by the Second Amendment. I think it's one of the great failings of the Heller decision that it really did not provide much guidance for the future. And to the extent that it did provide guidance, it was somewhat ambiguous and not theoretically justified very well.... So, we don't really have a test to apply to the next gun control laws.

What we do have is a few sentences that seem to suggest, through dicta, what might be allowed and what might not be allowed. The court says, for instance, that the Heller decision does not mean to cast doubt on longstanding bans on felons having possession of firearms, or bans on the mentally incompetent having possession of weapons, bans on weapons in sensitive places and restrictions on the sale and purchase of weapons. But to say you're not casting into doubt those things is not the same thing as to say that those laws are all constitutionally permissible. And indeed, if the court was saying those are all constitutionally permissible laws, there's certainly no argument in the opinion or justification for why those laws are constitutional and the D.C. handgun ban is not constitutional. So, it's pretty ambiguous.

What's happened in the courts since Heller -- there's already been a couple of lower-court decisions applying Heller because, as everyone predicted, this is going to lead to a wave of challenges to gun control laws on Second Amendment grounds -- those early cases have all, so far... rejected the challengers' claims and upheld the gun control law. And most of them have just done nothing more than refer to those sentences in Heller that say, "we don't mean to cast into doubt these longstanding laws."

But there's no argument, there's no justification of why those laws are good or bad. So it's a case of the sort of ambiguous dicta of the Supreme Court becoming really the key to a whole future jurisprudence. And it's why the court sorely missed an opportunity to clarify what the law would be here.

Q: The New York Times wrote that with this decision the court "began writing a new chapter of constitutional law." Do you agree?

Winkler: I do, but I don't.... The idea that the right to bear arms is somehow some new right seems to me totally far-fetched. The New York Times is right, there is a new chapter of constitutional law being written -- a Second Amendment chapter. But, that said, the "right to bear arms" chapter has been written over the last 200 years. Almost every state in the union recognizes an individual right to bear arms for private purposes under their state constitutions.... Many states put these provisions in their original founding constitutions; other states have more recently added them. But it's a very well established constitutional right that individuals have under American constitutional law, broadly defined to include the American constitutional tradition at the state level.

There have been hundreds of cases challenging gun control laws at the state level, and it's always been true, despite what all of the extremists say in the gun debate, that we've had an individual right to bear arms and we've had reasonable gun control regulations. And they've coexisted peacefully with occasional controversies over particular kinds of bans. But the truth is that courts are not going to allow guys with bazookas to wander down Pennsylvania Avenue, and they're also not going to allow government to completely disarm the people. Because that right to bear arms is part of the American tradition. So is it a new chapter? Yeah, there's going to be a lot more cases. There's a Second Amendment chapter. But... you might think of this as just one more story in a larger chapter about the right to bear arms in American constitutional law.

Q: What are the immediate consequences of the ruling for the District of Columbia?

Winkler: The immediate consequence is that the law was overturned and they return to the handgun laws that were in effect prior to this law being adopted.... My understanding is that the D.C. City Council has already met to talk about adopting a new set of regulations and restrictions on handguns.

One thing that this decision definitely does not mean is that anybody and everybody can go get a handgun in Washington, D.C. That's not what it means. It just means that a complete ban on everybody getting one -- especially one that's coupled with the requirement that a long gun be kept inoperable -- is unconstitutional. It remains to be seen whether a ban on handguns without the safe storage requirement or disassemblage requirement for long guns... would pass constitutional muster. We don't know. So the D.C. City Council will pass its own law adopting some more serious restrictions on the right to bear arms that one hopes are appropriate for an urban environment. But the immediate consequence is just that they revert to their earlier law.

Q: There are at least five other U.S. cities facing lawsuits challenging their handgun bans. Do you think, as is, that those bans will be ruled unconstitutional?

Winkler: It remains to be seen. I think it's highly likely that they would be held unconstitutional. But we should recognize that there are limitations to the court's ruling in Heller. One thing that the court did not address was whether the Second Amendment applied to the states, under the incorporation doctrine. The suits against the San Francisco restrictions on handguns in public places and the Chicago ban on handguns, whether those will be successful turns on whether the lower courts deem the Second Amendment to be incorporated to apply against the states. The Supreme Court didn't issue any authoritative opinion on that and it remains to be seen. Most commentators are betting that a Supreme Court that's willing to rewrite 70 years of federal court precedent is also willing to reconsider the question of whether the right to bear arms is fundamental enough to be incorporated to apply against the states.

Winkler: The provisions of the Bill of Rights are only designed to protect against federal laws, not state laws. But after the passage of the 14th Amendment, the Supreme Court held that some of those provisions of the Bill of Rights applied as well to the states as an inherent part of the due process of law. So the court has held that most of the provisions of the Bill of Rights, but not all of them, apply to the states.

Q: What are the political implications of the Heller decision, particularly in regards to the presidential election?

Winkler: I think the implications are less than they would have been had the Supreme Court ruled against the individual right to bear arms. I think had the court ruled in a different way than it did, it might well have stirred up a lot of anger in the gun rights community. Those are a very intense set of voters. There are a lot of single-issue voters in the gun community.... And that could have had an effect on the election by bringing out gun rights supporters, had the Second Amendment been interpreted otherwise. I think the effect is less now.... There are some questions about the position of Sen. [Barack] Obama on gun control issues, and this makes that issue all the more salient by reminding people that gun rights are a big issue in every election. But it's certainly diminished from what it would have been.

Q: Some have argued that the NRA won the battle but lost the larger war in terms of political implications. Do you agree? If the Supreme Court has guaranteed an individual's right to own a gun, can the NRA still legitimately claim that Democrats are coming to take everyone's guns away?

Winkler: Well it's a nice effort to make lemonade out of lemons. And it's true in part. It's certainly true to the extent that one of the powerful arguments the gun rights community has used against gun control is that every gun control law is just a step toward total disarmament of the people. The court has made clear now that total disarmament of the people is not going to be allowed, is not constitutionally permissible, is not an option for legislatures.

But I still think that much of the opposition to gun control comes from sort of a larger sense of gun culture, of opposition to government, of a sense that this is a natural right that is being interfered with by regulation. And I would not expect, all of a sudden, [for] a very strong, powerful anti-gun-control movement to simply fade away because one of their arguments has been taken away from them. They still have other powerful arguments. And they're dealing with a moral question of right.

Think of it in the abortion context. The Supreme Court has repeatedly said that women have the right to choose abortion and, while the court has allowed more and more regulation of the right, the court has continued to insist that the basic right is protected. Do people in the pro-choice community feel that that's a great security to them? No, they feel themselves under attack and feel that that kind of constitutional rule is not necessarily one that can be counted on to last forever. So, I don't think this [the Heller decision] strengthens the gun community a lot.

Winkler: There are always six or seven more justices rumored to retire than will retire in the next term, as evidenced by the fact that the turnover has been so minimal in the last 15 years. So, it is true that Justice [John Paul] Stevens is 88 years old and is likely to retire under the next administration simply because of age. My understanding is that Justice [Ruth Bader] Ginsburg has battled cancer and may retire in the next term. And then I think there are a bunch of rumors about some others, which I just don't give much credence to -- that [Justice David] Souter has had enough of Washington and that Justice Scalia is bored on the Supreme Court. I don't buy that those two people are leaving or going anywhere.

So, there's probably going to be some appointments. They wouldn't necessarily affect Second Amendment questions in light of the fact that the two people likely to be replaced were dissenters in the Heller case. No matter who gets to pick their replacements, it doesn't alter the five-person majority. It might add to it. But it's not going to subtract from it. So, in that sense it won't have a huge impact on the Second Amendment. But that said, there are a lot of Second Amendment controversies that are going to come up now. What laws are allowed, what laws are not? What standard of review applies, whether it's incorporated -- these are questions that ultimately are going to have to be answered by the Supreme Court and they'll be answered over the next 10 or 15 years, presumably. I think the appointments to the court, by whoever gets to be president in this next term, has a lasting effect because those people are going to be on the court for many years to come and will probably rule on a number of Second Amendment issues.... And there are always long-term effects, too.... With a 5-4 majority this is clearly still an issue and there are questions that need to be resolved. This is still an issue for which appointments to the Supreme Court clearly matter in the long term.

“This was a financed civil rights litigation — attorney-driven, top-down — that was begun by Robert Levy of the Cato Institute, a libertarian think tank.”

Oh, those evil crazy Libertarians. All Libertarians are dangerous lunatics. I’ve learned this on the FR. It’s pounded in constantly by keyboard patriots. Everyone knows the Republicans would eventually taken this 2nd Amendment issue on..... that is after they were done pork barrelling.

Here's my position: If the right gun for a SWAT team member to go walking around in someone's house because they have reason to believe a bad guy might be there is a short-barreled, select fire, suppressed M16, then that's what is "reasonable" and also what is "in common use." They also carry handguns, and .308 suppressed rifles with night vision scopes. Similarly, what soldiers today carry - M16s, semiauto handguns, the occasional .50 - those too are "in common use" and therefore absolutely protected by the Second Amendment. Whatever The State thinks is right for police or soldiers to carry, that's what government should never be able to take away from the law-abiding citizens. And if the police get new toys, so should the citizens - because, after all, citizens face bad guys much more often than police do, owing to their greater number.

When I was 22 I was given a “state of the art” machine gun by the army and required to have it with me at all times. After the army, I could purchase said machine gun as long as I made the appropriate tax payments. When I was 42, the government took away even that right, and I began to seriously wonder what in the hell I had been fighting for when I was in the army. This decision represents a tiny step in the direction of re-establishing our Constitutionally protected rights. Its going to be a long fight to get them fully re-established, if they can be.

The right to own an infantry-style rifle with a selector is reasonable to me. We can work on grenades later

May the ability to obtain such rifles NIB or by modifying existing semi-autos without risking jail time be restored soon. I don't even care much (right now) about paying the $200 tax for each rifle or conversion - just let me do it without worrying about the JBTs coming to burn me out of my house. I'll gladly pay about $250 for the hardware and gunsmithing, and another $200 for the tax stamp, to convert my AR to full auto. Gladly. Gleefully, even. I'd also love to see import bans be struck down - because somebody will bring in shiploads of REAL AK-47s to sell at about $500 a piece.

I want to see 5 or 10 million full autos in this country - because then no invader and no dictator will DARE to mess with the American people.

Actually, the gov't only took away your ability to purchase said machine gun without worrying about ending up in jail (or in a pool of your own blood next to your beaten pregnant wife and dead cat) - we still have the right, as a right is forever - it can never be extinguished.

OTOH, I know what you're saying and I agree. I was a mere 25 when William Hughes (Scumbag, PRNJ) did his evil deed. I was still in school, and didn't have the means to purchase any guns, let alone those with a Happy Switch. MF'er. My father had the right, now he and I don't.

My grandfathers could've walked into a Sears, Roebuck or many hardware stores and bought a Tommy Gun off the shelf with no tax, no background check, no CLEO signoff and no other restrictions other than paying for the thing - and they lost that ability, while my father and I never had it.

I simply cannot believe that an HONEST Supreme Court can look at the 2nd and NOT see a right to purchase such firearms, just as we have a right to purchase handguns for self-defense. It is, after all, still legal to purchase and own full autos - so the restriction on newly-manufactured versions of the same defies all rationality.

A right is a right is a right - across all boundaries of time and place. If DC cannot ban the ownership of handguns registered after X date, then the feds can't ban the ownership of full autos registered after X date (or even ban the registration, which is worse).

From the decision:

“It may be objected that if weapons that are most useful in military service - M-16 rifles and the like - may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.” (55)

What would you want your neighbor to bring to the fight, his .410 shotgun or his M-16? Great post coloradan!

Nevertheless, the court in that case upheld a federal gun control law and said that the Constitution -- the Second Amendment -- only protected arms that were reasonably related to the maintenance of a state militia.

Almost right. The Court in UNITED STATES v. MILLER, 307 U.S. 174 (1939) actually said:

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

IOW, nothing about a "State" militia", just "a well-regulated militia". They also said:

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense.

What the Constitution says about the militia:

Congress shall have the power to
...
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.

Other than the second amendment itself, that's it.

“the court in that case upheld a federal gun control law and said that the Constitution — the Second Amendment — only protected arms that were reasonably related to the maintenance of a state militia.”

Wrong, wrong, wrong, wrong, wrong, wrong. The Miller case said absolutely NOTHING about “state militias”. The ruling ACTUALLY said that only arms that could reasonably be expected to be used by THE militia (this is the same militia that the Constitution gives Congress the authority to call up for service) that is composed of all the able bodied people of the several States.

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