The Second Amendment on Trial

Critical Essays on District of Columbia v. Heller

Saul A. Cornell, Nathan Kozuskanich, Saul A. Cornell, Nathan Kozuskanich

• Publisher: University of Massachusetts Press
• Year: 2013
• ISBN:
  9781613763285
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

On the final day of its 2008 term, a sharply divided U.S. Supreme Court issued a 5-to-4 decision striking down the District of Columbia's stringent gun control laws as a violation of the Second Amendment. Reversing almost seventy years of settled precedent, the high court reinterpreted the meaning of the "right of the people to keep and bear arms" to affirm an individual right to own a gun in the home for purposes of self-defense. The landmark ruling not only opened a new chapter in the contentious history of gun rights and gun control but also revealed both the strengths and problems of originalist constitutional theory and jurisprudence.This volume brings together some of the best scholarship on the Heller case, with essays by legal scholars and historians representing a range of ideological viewpoints and applying different interpretive frameworks. Following the editors' introduction, which describes the issues involved and the arguments on each side, the essays are organized into four sections. The first includes two of the most important historical briefs filed in the case, while the second offers different views of the role of originalist theory. Section three presents opposing interpretations of the ruling and its relationship to modern constitutional doctrine. The final section explores historical research post-Heller, including new findings on patterns of gun ownership in colonial and Revolutionary America.In addition to the editors, contributors include Nelson Lund, Joyce Lee Malcolm, Jack Rakove, Reva B. Siegel, Cass R. Sunstein, Kevin M. Sweeney, and J. Harvie Wilkinson III.

Section II

Heller and Originalism

Dead or Alive

Originalism as Popular Constitutionalism in Heller

Reva B. Siegel

We should find the lost Second Amendment, broaden its scope and determine that it affords the right to arm a state militia and also the right of the individual to keep and bear arms.

—Robert Sprecher, ABA prize winner, 1965¹

[T]he Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. . . . What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change.

—Justice Scalia, Lawrence v. Texas, 2003²

THE COURT’S ANNOUNCEMENT in 2008 that the Second Amendment,³ ratified in 1791, protects an individual’s right to bear arms against federal gun control regulation was long awaited by many, long feared by others. What produced this ruling and what might it reveal about the character of our constitutional order? For many, constitutional law changed because the Court interpreted the Second Amendment in accordance with the understandings of the Americans who ratified it: Heller⁴ marks the “Triumph of Originalism.”⁵ Others saw the case very differently, observing that the Court had interpreted the Second Amendment in accordance with the convictions of the twentieth-­century gun rights movement and so had demonstrated the ascendancy of the living Constitution.⁶ The two accounts of the decision stand in some tension. One views Heller’s authority as emanating from the deliberations of eighteenth-century Americans, while the other views the constitutional debates of twentieth-century Americans as decisive.

What kind of authority did the Court exercise when it struck down the District of Columbia’s handgun ban as violating the Second Amendment? On the originalism view, the Court is merely enforcing the judgments of eighteenth-century Americans who, in an epochal act of constitutional lawmaking, ratified a Bill of Rights that forbids handgun bans such as the District of Columbia’s. On the popular constitutionalism view, the Court itself is deciding whether handgun bans are consistent with the best understanding of our constitutional tradition; the determination is made in the present and responds to the beliefs and values of living Americans who identify with the commitments and traditions of their forebears. In the first case, the Court stands above the fray, disinterested, merely executing the commands of Americans long deceased. In the second case, the Court is normatively engaged in matters about which living Americans passionately disagree, enforcing its own convictions about the best understanding of a living constitutional tradition to which Heller contributes. On this account, Heller, through its originalism, participates in what Justice Scalia refers to in his Lawrence dissent as “the culture war.”⁷

Relating these two competing accounts of the opinion, this comment shows how Heller’s originalism enforces understandings of the Second Amendment that were forged in the late twentieth century through popular constitutionalism. It situates originalism’s claim to ground judicial decision making outside of politics in the constitutional politics of the late twentieth century, and demonstrates how Heller respects claims and compromises forged in social movement conflict over the right to bear arms in the decades after Brown v. Board of Education.⁸

The comment offers this reading of the opinion in two steps. Part I begins by examining the temporal locus of authority in the Heller opinion itself. In Heller, the dissenters insist that the Second Amendment is concerned primarily with militia and military matters, whereas the majority reads the amendment as codifying an individual right of self-defense that enables citizens to protect themselves, their families, and their homes against crime. The majority presents this account as the original public meaning of the Second Amendment, yet draws upon evidence that may incorporate understandings that emerged long after the founding. This possibility becomes more pronounced as the Court explains how it will enforce the Second Amendment’s right to bear arms. Heller holds that government cannot deprive citizens of traditional weapons of self-defense, but may ban civilian use of military weapons, even if this means that the right to bear arms may no longer be effectively exercised for the republican purpose of resisting tyranny that the “prefatory clause” discusses.⁹ It is, to say the least, striking that an originalist interpretation of the Second Amendment would treat civic republican understandings of the amendment as antiquated and refuse to protect the arms a militia needs to defend against tyranny. What guides the majority’s judgments about how to enforce the right to bear arms?

To examine more closely the authority Heller exercises in enforcing the right to bear arms, this comment looks beyond the text of the Heller opinion itself to the decades of social movement conflict that preceded the decision. This history illustrates how contest over the Constitution’s meaning can endow courts with authority to change the way they interpret its provisions. The effort to persuade—and to capture institutions that can authoritatively pronounce law—can prompt mobilization, countermobilization, coalition, and compromise, a process that can forge and discipline new understandings that courts engaged in responsive interpretation recognize as the Constitution.¹⁰ These practices of democratic constitutionalism enable mobilized citizens to contest and shape popular beliefs about the Constitution’s original meaning and so confer upon courts the authority to enforce the nation’s foundational commitments in new ways.¹¹

To show how such processes helped shape the right Heller enforces, Part II of this comment examines chapters of American constitutional history not discussed in Heller—debates about the Second Amendment that transpired in the shadow of Brown v. Board of Education. Exploring this social movement history, we learn how, in the wake of Brown, citizens made claims on a Second Amendment concerned with law and order and self-defense; how, during the 1980s, a growing coalition of citizens came to assert their convictions about the Second Amendment as the original understanding; and why, by the 1990s, proponents of this law-and-order Second Amendment came to differentiate their claims from those of the modern militia movement, emphasizing that the Second Amendment entitled the citizen to arms needed to defend his family against crime, not against the government. The Second Amendment’s twentieth-century history shows how political conflict can both motivate and discipline the claims that mobilized citizens make on the text and history of the Constitution. These contemporary struggles help explain the shape of the right Heller enforces. In the process, they illuminate how authority to enforce the original understanding depends on contemporary public convictions.

In analyzing the conflict leading up to Heller, Part III of this comment provides a positive and interpretive account of how the boundary between constitutional law and constitutional politics has been negotiated in recent decades. Heller depicts its authority as forged in one epochal act of eighteenth-century lawmaking. The twentieth-century history considered in this comment suggests that, in important part, Heller’s originalist authority for protecting weaponry popularly used for self-defense, but not for militia purposes, is responsive to contemporary constitutional deliberation—forged in the very culture wars Justice Scalia insists should play no part in constitutional interpretation.

The result is not license of the kind Justice Scalia fears. This comment’s reading of Heller demonstrates that when courts apprehend the history of constitutional lawmaking through constitutional politics, both guide and constrain the ways courts enforce the Constitution. If we analyze the practices of democratic constitutionalism that help make Heller law, we can see forms of discipline and discretion that narratives of originalism occlude.

I. THE TEMPORAL LOCUS OF CONSTITUTIONAL AUTHORITY IN HELLER

[T]he Great Divide with regard to constitutional interpretation is . . . between original meaning (whether derived from Framers’ intent or not) and current meaning. The ascendant school of constitutional interpretation affirms the existence of what is called The Living Constitution, a body of law that . . . changes from age to age, in order to meet the needs of a changing society. And it is the judges who determine those needs and “find” that changing law. Seems familiar, doesn’t it? Yes, it is the common law returned, but infinitely more powerful than what the old common law ever pretended to be, for now it trumps even the statutes of democratic legislatures.

—Justice Scalia, A Matter of Interpretation (1997)¹²

Justice Scalia has long advocated originalism on the grounds that it constrains judicial discretion and...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• Acknowledgments
• Introduction: The D.C. Gun Case
• Section I: Historians Before the Court
• Section II: Heller and Originalism
• Section III: Heller and Constitutional Doctrine
• Section IV: Historical Research After Heller
• Appendix A: The Scholarly Landscape since Heller
• Appendix B: A Summary of the Major Briefs Submitted in Heller
• Appendix C: Articles Cited in Briefs
• Appendix D: Briefs and Articles Cited in Heller
• Index