Heller’s Tragic Guesswork

Knowledge is essential to understanding; and understanding
should precede judging. 
(Justice Louis Brandeis)

History must be a part of the study, because without it we cannot
know the precise scope of rules which it is our business to know.

(Justice Oliver Wendell Holmes)

Academic Bafflement over (2/3 of) Second Amendment

Scholars call the Second Amendment “baffling,” as Columbia law professor Michael Dorf puts it, with “no definitive answer to what” it means, as Harvard’s Mark Tushnet writes in “Out of Range.” The “most mysterious provision” colleague Cass Sunstein agrees.

But they go further. Perpetuating conventional wisdom which overlooks the full text and history, they insist that to contend otherwise is “blowing smoke” (Tushnet), and courts should defer to a “deeply felt commitment” to gun rights of some and “reasonable restrictions” sought by others, “without purporting to untangle the Amendment’s deepest mysteries” (Sunstein). Saul Cornell, a Fordham University historian and former Director of a Second Amendment Research Center, cites its “tangled history” as “a cautionary warning,” for if “history seems to provide clear and unambiguous support for one ideological preference in the great American gun debate, then the history is likely to be wrong.”

Judicial Uncertainty over (2/3 of) Second Amendment

Conservative Judge Harvie Wilkinson on the U.S. Court of Appeals for the Fourth Circuit, who assails Heller as “judicial lawmaking” and “activism” that “created a new blockbuster right” complete with “embedded” exceptions “not apparent to the Court for over two centuries,” agrees with its dissents that the Amendment is ambiguous “at best.” Former conservative Judge Richard Posner of the Seventh Circuit likewise derides Heller as “faux originalism” and a “snow job.” Both jurists and others have said judicial restraint dictated that puzzling old passages be construed to uphold established law, absent clear evidence to the contrary. His colleague, then-Chief Judge Frank Easterbrook similarly wrote: “When the original meaning is lost in the passage of time … the justification for judges’ having the last word evaporates.”

Heller Decided (2/3 of) Second Amendment by Guesswork

Conventional wisdom is wrong, as it often is: the founders obviously knew what the Amendment meant and why. Failing to construe its full text is one of many reasons academics and the courts have been unable to unlock its mysteries.

Heller—the most consequential decision for American lives today, saying it took “seriously the concerns” over “handgun violence in this country” in confidently declaring the “enshrinement of constitutional rights” take legislative “policy choices off the table”—simply guessed, like everyone else.

Dissenting Justice John Paul Stevens, not giving Heller or McDonald a pass on worsening violence, later wrote: It is “profoundly important” to know “they curtail the government’s power to regulate the use of handguns that contribute to the roughly 88 firearm-related deaths that occur every day.”

It is just as important for the public to know that Heller purported to “decide” the Amendment by guessing. If that were not concerning enough, Heller guessed only as to the first two-thirds, overlooking the final text, and without knowledge of founding history essential to understanding, or judging. Tragically, Americans are paying the price.

No Sequels Since Heller’s Guesswork

Since Heller (and its extension by McDonald to the states), the Supreme Court has been reluctant to revisit its newly-created right to guns, creating also what the dissents predicted: a litigation explosion and struggle to apply it. In 2015, the Court declined to review an assault-weapons ban and gun-lock law over dissents by Justices Clarence Thomas and Antonin Scalia that one “flouted” and the other was in “serious tension” with Heller. In 2017, the Court denied review of a carry ban over a dissent by Justice Thomas and Scalia’s successor, Justice Neil Gorsuch. In February 2018, the Court passed on a 10-day waiting period over another Thomas dissent, asserting: “Our continued refusal to hear Second Amendment cases … only enables … defiance” by the lower courts.

Many lower courts have resisted expanding the new right. Judge Wilkinson, citing the “dilemma” faced by courts and legislatures whether to ban guns whose dangers “rise exponentially” in public while “shouldering the burdens of litigation,” preferred “to await direction” from the Supreme Court. “This is serious business. We do not wish to be even minutely responsible for some unspeakably tragic act of mayhem because … we miscalculated as to Second Amendment rights.” Judge Posner didn’t wait in striking down a carry ban, while archly noting a Chicagoan “has a stronger self-defense claim to be allowed to carry a gun in public than the resident of a fancy apartment building (complete with doorman) has a claim to sleep with a loaded gun under her mattress.” Judge Easterbrook upheld an assault-weapons ban in the decision that Justices Thomas and Scalia said “flouted” Heller.

But answers have yet to come, a decade later. As Judge Wilkinson said, the “Heller majority 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,” a right that does not exist.