Publisher's note: This begins the third part of this multi-part series by Diane Rufino examining District of Columbia v. Heller (2008). Part I, II, III and all succeeding parts of this mammoth treatise can be found here.
THE HELLER OPINION IS HANDED DOWN
- [District of Columbia v. Heller, 554 U.S. 570 (2008). https://www.supremecourt.gov/opinions/07pdf/07-290.pdf]
The Supreme Court, in Heller, AFFIRMED the DC Circuit Court ruling.
The opinion, written by Justice Scalia, can be summed up by these excerpts:
We turn first to the meaning of the Second Amendment.... In interpreting this text, we are guided by the principle that "the Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning." The two sides in this case have set out very different interpretations of the Amendment. Petitioners and today's dissenting Justices believe that it protects only the right to possess and carry a firearm in connection with militia service. Respondent Heller argues that it protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.
The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, "Because a well-regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed."
Let's first look at the "Operative Clause."
The first salient feature of the operative clause is that it codifies a "right of the people.
" The unamended Constitution and the Bill of Rights use the phrase "right of the people"
two other times, in the First Amendment's Assembly-and-Petition Clause and in the Fourth Amendment's Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"). All three of these instances unambiguously refer to individual rights, not "collective" rights, or rights that may be exercised only through participation in some corporate body. There are three provisions of the Constitution that refer to "the people"
in a context other than "rights"
-the famous preamble ("We the people"), §2 of Article I (providing that "the people"
will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with "the States" or "the people"). Those provisions arguably refer to "the people" acting collectively-but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a "right"
attributed to "the people" refer to anything other than an individual right.
This contrasts markedly with the phrase "the militia" in the prefatory clause. As we will describe below, the "militia" in colonial America consisted of a subset of "the people"
-those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to "keep and bear Arms"
in an organized militia therefore fits poorly with the operative clause's description of the holder of that right as "the people."
We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.
The most natural reading of "keep Arms"
in the Second Amendment is to "have weapons." "Keep arms"
was simply a common way of referring to possessing arms, for militiamen and everyone else. At the time of the founding, as now, to "bear"
meant to "carry."
In 1998, Justice Ginsburg wrote that "surely a most familiar meaning is, as the Constitution's Second Amendment . . . indicates: 'wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.'"
From our review of founding-era sources, we conclude that this natural meaning was also the meaning that "bear arms"
had in the 18th century. In numerous instances, "bear arms"
was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment: Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to "bear arms in defense of themselves and the state"
or "bear arms in defense of himself and the state."
It is clear from those formulations that "bear arms"
did not refer only to carrying a weapon in an organized military unit.
Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background 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. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it "shall not be infringed."
As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), "this is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed . . . ."
Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents. Under the auspices of the 1671 Game Act, for example, the Catholic James II had ordered general disarmaments of regions home to his Protestant enemies. These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed: "That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law."
This right has long been understood to be the predecessor to our Second Amendment. It was clearly an individual right, having nothing whatever to do with service in a militia. To be sure, it was an individual right not available to the whole population, given that it was restricted to Protestants, and like all written English rights it was held only against the Crown, not Parliament. But it was secured to them as individuals. By the time of the founding, the right to have arms had become fundamental for English subjects. According to William Blackstone, whose works ("Commentaries on the Laws of England"), this Court has held, constituted the preeminent authority on English law for the founding generation, cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. [See Blackstone, Volume 1, pp. 136, 139-140]. His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, "the natural right of resistance and self-preservation"
and "the right of having and using arms for self-preservation and defense."
Thus, the right secured in 1689 as a result of the Stuarts' abuses was by the time of the founding understood to be an individual right protecting against both public and private violence. And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760's and 1770's, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that "it is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defense."
They understood the right to enable individuals to defend themselves. As the most important early American edition of Blackstone's Commentaries (by the law professor and former Anti-Federalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the "right of self-preservation" as permitting a citizen to "repel force by force"
when "the intervention of society in his behalf, may be too late to prevent an injury."
[See Blackstone's Commentaries, Vol. 1; pp. 145-146 (1803)]
Thus there seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment's right of free speech was not. Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.
Three important founding-era legal scholars interpreted the Second Amendment in published writings. All three understood it to protect an individual right unconnected with militia service. St. George Tucker's version of Blackstone's Commentaries, as we explained above, conceived of the Blackstonian arms right as necessary for self-defense. He equated that right, absent the religious and class-based restrictions, with the US Bill of Rights' Second Amendment. Tucker elaborated on the Second Amendment: "This may be considered as the true palladium of liberty . . . . The right to self-defense is the first law of nature: in most governments it has been the study of rulers to confine the right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction." He believed that the English game laws had abridged the right by prohibiting "keeping a gun or other engine for the destruction of game."
He later grouped the right with some of the individual rights included in the First Amendment and said that if "a law be passed by congress, prohibiting" any of those rights, it would "be the province of the judiciary to pronounce whether any such act were constitutional, or not; and if not, to acquit the accused . . . ."
It is unlikely that Tucker was referring to a person's being "accused"
of violating a law making it a crime to bear arms in a state militia.
In 1825, William Rawle, a prominent lawyer who had been a member of the Pennsylvania Assembly that ratified the Bill of Rights, published an influential treatise, which analyzed the Second Amendment as follows: "The first principle is a declaration that a well-regulated militia is necessary to the security of a free state; a proposition from which few will dissent. . . . "
The corollary, from the first position is, that the right of the people to keep and bear arms shall not be infringed. "The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both."
Like Tucker, Rawle regarded the English game laws as violating the right codified in the Second Amendment. Rawle clearly differentiated between the people's right to bear arms and their service in a militia: "In a people permitted and accustomed to bear arms, we have the rudiments of a militia, which properly consists of armed citizens, divided into military bands, and instructed at least in part, in the use of arms for the purposes of war."
Rawle further said that the Second Amendment right ought not "be abused to the disturbance of the public peace,"
such as by assembling with other armed individuals "for an unlawful purpose"
-statements that make no sense if the right does not extend to any individual purpose.. Story explained that the English Bill of Rights had also included a "right to bear arms,"
a right that, as we have discussed, had nothing to do with militia service. He then equated the English right with the Second Amendment: "§1891. A similar provision [to the Second Amendment] in favor of protestants (for to them it is confined) is to be found in the bill of rights of 1688, it being declared, 'that the subjects, which are protestants, may have arms for their defense suitable to their condition, and as allowed by law.' But under various pretenses the effect of this provision has been greatly narrowed; and it is at present in England more nominal than real, as a defensive privilege."
This comparison to the Declaration of Right would not make sense if the Second Amendment right was the right to use a gun in a militia, which was plainly not what the English right protected.
As the Tennessee Supreme Court recognized thirty-eight years after Story wrote his Commentaries, "the passage from Story, shows clearly that this right was intended . . . and was guaranteed to, and to be exercised and enjoyed by the citizen as such, and not by him as a soldier, or in defense solely of his political rights."
Story's Commentaries also cite as support Tucker and Rawle, both of whom clearly viewed the right as unconnected to militia service. In addition, in a shorter 1840 work, Story wrote: "One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia."
Antislavery advocates routinely invoked the right to bear arms for self-defense. Joel Tiffany, for example, citing Blackstone's description of the right, wrote that "the right to keep and bear arms, also implies the right to use them if necessary in self-defense; without this right to use the guaranty would have hardly been worth the paper it consumed."
In his famous Senate speech about the 1856 "Bleeding Kansas"
conflict, Charles Sumner proclaimed: "The rifle has ever been the companion of the pioneer and, under God, his tutelary protector against the red man and the beast of the forest. Never was this efficient weapon more needed in just self-defense, than now in Kansas, and at least one article in our National Constitution must be blotted out, before the complete right to it can in any way be impeached. And yet such is the madness of the hour, that, in defiance of the solemn guarantee, embodied in the Amendments to the Constitution, that 'the right of the people to keep and bear arms shall not be infringed,' the people of Kansas have been arraigned for keeping and bearing them, and the Senator from South Carolina has had the face to say openly, on this floor, that they should be disarmed-of course, that the fanatics of Slavery, his allies and constituents, may meet no impediment."
19th-century pre-Civil War cases that interpreted the Second Amendment universally support an individual right unconnected to militia service. In the famous fugitive-slave case of Johnson v. Tompkins, 13 F. Cas. 840, 850, 852 (CC Pa. 1833), Baldwin, sitting as a circuit judge, cited both the Second Amendment and the Pennsylvania analogue for his conclusion that a citizen has "a right to carry arms in defense of his property or person, and to use them, if either were assailed with such force, numbers or violence as made it necessary for the protection or safety of either."
In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the "natural right of self-defense"
and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right: "The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled underfoot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta!"