Heller Sequels And 2nd Amendment, Still Undecided:Part 1

August 26, 2017

Almost a decade has passed since a bare (5-4) conservative majority of the Supreme Court struck down D.C.’s handgun ban and two centuries of law and legislative practice in District of Columbia v. Heller, 554 U.S. 570 (2008), implying in the Second Amendment a self-defense right to “handgun possession” and “to carry it in the home.” As “extraordinary as that phrasing, it further implied, in dicta, a related right to insurrection as a safeguard against tyranny,” and a right to any “lawful weapons that they possessed at home.”

In the first segment of his recently-published article, “Heller Sequels And 2nd Amendment, Still Undecided: Part 1” (Law 360 Jul. 20, 2017), Robert Ludwig offers insight into what little (to no) guidance has been provided by the Court over the past decade on how to interpret the “new right(s)” created by Heller. After a “string of denials of certiorari,” conservative Judge Harvie Wilkinson’s prediction in 2009 remains true today: “the ‘Hellermajority seems to want to have its cake and eat it, too – to recognize a right to bear arms without having to deal with any of the more unpleasant consequences of such a right.’”

“Another unpleasant consequence of Heller,” Mr. Ludwig points out: “what really awaits decision is the full amendment.” As shown in his previous article, “2nd Amendment Still Undecided, Hiding in Plain View” (Law 360 Jan. 11, 2016), “the Court has yet to address much less decide the full text, one of several major oversights, each showing the amendment has nothing to do with an individual right.”

The amendment reads: “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.” Heller“dismissed the preamble about state militias, previously enough for ‘hundreds of judges,’ to focus on the ‘operative’ middle clause ‘to keep and bear Arms,’ and rejecting the military argot of the militia era, found an implied right to self-defense. Heller never addressed the last clause—the actual prohibition and verb on which the amendment rests.

Mr. Ludwig illustrates how the notion of a guarantee espoused by the Heller majority, which conservative Chief Justice Warren Burger had called a “fraud” just the decade before, is unsupported even by the text it addressed, and resulted from “implication and guesswork.” “‘Knowledge is essential to understanding; and understanding should precede judging,’ warned Justice Louis Brandeis.” Yet the Court, “in its most consequential decision for American lives today that took ‘seriously the concerns’ over ‘the problems of handgun violence in this country,’ in finding the ‘enshrinement of constitutional rights’ take ‘certain [legislative] policy choices off the table,’ guessed.”

This conjecture has been branded by Judge Wilkinson as “‘judicial lawmaking’ and ‘activism’ that ‘created a new blockbuster right’ complete with ‘embedded’ exceptions, ‘not apparent to the Court for over two centuries,’” and derided by conservative Judge Richard Posner “as ‘faux originalism’ and ‘law office history.’” The latter went further, “noting the author of Heller, Justice Antonin ‘Scalia and his staff labored mightily to produce a long opinion’ that ‘would convince, or perhaps just overwhelm, doubters. The range of historical references … is breathtaking, but it is not evidence of disinterested historical inquiry; it is evidence of the ability of well-staffed courts to produce snow jobs.’”

The “majority’s conjecture was evident in implying a right. It reasoned: ‘The very text,’” or the two-thirds it addressed, “‘implicitly recognizes the pre-existence of the right,’ which it defined as the ‘individual right to possess and carry weapons in case of confrontation,’ a questionable statement even at common law, and ‘novel’ variant that ‘lacks support in the text’ as Justice Stevens said in dissent. ‘No party or amicus urged this interpretation; the Court appears to have fashioned it out of whole cloth.’” “For the majority to imply a private right ignores not only the warning of Brandeis, but also of Chief Justice John Marshall that if such were the intent, the framers would ‘have expressed’ it, ‘in plain and intelligible language.’ And to imply the unstated disregards his further admonition: when amendments proposed in the states and Congress carried no ‘sentiment … generally expressed, to quiet fears thus extensively entertained,’ as true of the personal use of guns, ‘This court cannot so apply them.’”

The Heller dissents “were also guesswork,” Justice Stevens writing “surely [the amendment] protects a right that can be enforced by individuals,” with Justice Breyer clarifying “it ‘protects militia-related, not self-defense-related, interests,’ to ‘assure 18th-century citizens that they could keep arms for militia purposes,’ not ‘keep arms that they could have used for self-defense as well,’ which ‘is not the Amendment’s concern.’” But, as Mr. Ludwig notes, “‘surely’ is conjecture, and militia service was required by law, not a right.” And, “in positing an individual right,” Mr. Ludwig shows how “the dissents gave the majority carte blanche to find one, too.”

Lacking guidance from legal academics who consider the amendment “baffling,” it remains confounding to “the courts and legislators that rely on them because – like the Hellermajority, dissents, parties and over 60 amici, influenced by two centuries of myopic focus on the prefatory and rights clauses – no one ever considered the significance of the final clause, or other mass oversights.”