Amy Coney Barrett, AR-15, gun buybacks, Heller majority opinion, individual right, militia, operative clause, packing the Supreme Court, prefatory clause, Right to keep and bear arms, second amendment, Strict Scrutiny
Most Americans interested in the Constitution in general, and the Second Amendment in particular, have heard of District of Columbia Et Al. v. Heller, the first, and to date, only Supreme Court decision that actually pronounces on the Second Amendment, answering the question: is the right to keep and bear arms an unalienable, individual right, or a “right” which would actually be a power of the government to confine gun ownership and bearing to some subset of “the people,” such as a militia? The case was not decided until June 26, 2008, 217 years after the Bill of Rights was ratified in 1791. Knowing the text of that decision and what it portends? Not so much. Beginning today, the text of the 5/4 majority decision, and within the next five days, an analysis of the minority opinion, which could portend the future of the Second Amendment, and with it, the future of the nation.
The Second Amendment 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….
Note the relatively narrow scope of the finding. This is common in Supreme Court decisions: they often limit the scope to the specific question before the Court. Some courts and blue cities and states have taken this to mean Heller refers only to self-defense within the home with handguns, but note the qualifier “such as.”
The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms….
Quite so. In grammar, we’d call the prefatory clause a “dependent” clause, and the operative clause an “independent” clause. Independent clauses carry the meaning of the sentence; they stand alone as a complete unit. Dependent clauses do not and cannot. Example: “Because nature provides, mankind has the right to exist.” The dependent clause—“because nature provides”—is not a complete sentence. By itself, it means essentially nothing. However, the independent clause “mankind has a right to exist” is a complete sentence, expressing a complete message.
(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The ‘militia’ comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved….
(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes….
So much for claiming Miller has any meaning in defining the Second Amendment.
Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those ‘in common use at the time’ finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons….
While some argue “shall not be infringed” means no regulation of arms is legitimate, that’s not a figurative hill anyone should be willing to die on. “In common use at the time” will, theoretically, preserve arms such as the AR-15 against D/S/C attack.
The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbi- trarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.
478 F. 3d 370, affirmed.
SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.
The preceding paragraph suggests bans on an entire class of arms, such as AR-15 type rifles, is unconstitutional. Notice too the classification of the Second Amendment as an “enumerated” right—an important distinction. As for trigger lock mandates, they’re, as the British would say, right out. As to the 5/4 nature of the decision, it is not unreasonable to suspect Chief Justice Roberts is no longer a vote for the Second Amendment or for recognizing the precedence of Heller. However, justices Gorsuch, Kavanaugh and Barrett will likely maintain the 5/4 balance on this issue. What remains unknown is whether there will be a 4 vote bloc willing to grant cert to further define important and unanswered Second Amendment questions such as concealed and open carry, the role of edged weapons in the constitutional scheme, various limitations on concealed carry, magazine capacity issues, and more. More from the decision:
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, see, e.g., United States v. Williams, 553 U. S. ___ (2008). 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.
Again, one may argue that the language of the Second Amendment prohibits any infringement whatsoever, but the reality of our law and its application makes plain that’s not going to be the case. Particularly when we might face mandatory “buybacks” of common arms and magazines—a euphemism for confiscation—arguing for possession of actual military-grade arms is not going to win many hearts or minds. One thing at a time. Should the Harris/Biden ticket prevail on November 3—or sometime thereafter—Americans concerned with the Constitution will have bigger and more immediate problems.
We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right…
Again, this is an affirmation that Americans may possess common, usual arms, such as semiautomatic handguns, AR-15 type rifles, etc. There is a good argument to be made that an AR with a 14” rather than a 16” barrel is within this protection, and the usual, common magazines—maliciously mislabeled as “high capacity”–for such weapons are as well. I suggest only that securing, with clear boundaries the Second Amendment must be our first priority. Expanding it can come later.
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose…. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues…. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Considering this, remember the states may not allot fewer constitutional protections than the federal constitution, but they may provide more. A number of states are allowing concealed carry on school grounds, and as with concealed carry in general, predictions of streets and school hallways knee deep in the blood of innocents have proved hysterical and false.
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’… We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’
Again, this is not a hill those seeking to strengthen the Second Amendment should hope to die on. Changes in this area of law are surely going to be incremental—unless enacted by D/S/Cs, which I’ll somewhat address in this article, but more specifically in the next.
We turn finally to the law at issue here. As we have said, the law totally bans handgun possession in the home. It also requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable.
As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of ‘arms’ that is overwhelm- ingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home ‘the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,’ … would fail constitutional muster.
A number of federal courts have carried this language to its logical application. What good is a right to self-defense if it applies only within the home? Is one’s right to preserve their life and the lives of those they love applicable only within narrow property boundaries, or does it attach wherever one might be? Some federal courts have held it logically does, others that it does not. This remains an area of law the Supreme Court has, post-Heller—refused to address.
It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon.
Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.
Again, note the narrow scope. Handguns are “the quintessential self-defense weapon,” primarily because of their size and convenience, but that does not mean various long guns are not common, usual, and preferred arms as well, nor does it obviate their usefulness, and protection under the Second Amendment. Various D/S/C judges and politicians have argued just that, however, taking liberties with the Court’s language.
We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all
But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.
This section speaks to the level of scrutiny courts must apply to constitutional issues. The Supreme Court seems to be arguing for the highest level—strict scrutiny—rather than any lower level. The Court’s frequent references to self-defense in the home have led lower Courts, and D/S/C politicians, to argue self-defense, and keeping and bearing arms elsewhere is not protected. Circa 2020, when blue states and cities are seeking to abolish the police, the legitimacy of that argument is all but defunct.
Heller makes plain the Government may not ban handguns, nor render their ready use impossible, in the home. It implies, and if one properly understands language, preserves much more. However, the Harris-Biden ticket’s anti-liberty/gun intentions would do just that. Among their intentions is to require rendering arms impossible to access or use in the home under the cynical ploy of protecting “the children.” There is no “the children” exception to constitutional liberties.
Very important is the Court’s acknowledgement that it is not its role to declare any portion of the Constitution unconstitutional. As you’ll see in the next article, the minority of the Court sought—and seeks—to do just that, and not only with the Second Amendment.
The greatest lesson of Heller remains the affirmation of the Second Amendment as securing an individual—not a collective—right to keep and bear arms, but that still leaves wide latitude for tyrannical mischief. Many D/S/Cs still argue the opposite, and more argue that it does not confer the right to open or concealed carry, or that if it does, the number of places where such carry may be restricted makes it a right without any real application in the lives of Americans. They argue against concealed carry reciprocity among the states, and want to keep suppressors—which are very much a public health benefit—so tightly restricted as to make them almost impossible to own.
The logical implication of Heller is Americans have a right to keep and bear arms for self-defense and all other lawful purposes wherever they might be. Arguing this right applies only to their home or property, that when one backs out of their driveway onto a public street their right to self-defense ends, is untenable. The right to self-defense is important for every American, but even more so for women. It is really the ultimate women’s issue, for no class of citizens is made more equal by the right to keep and bear appropriate arms than women. In those cities and states where D/S/C politicians have emasculated or abolished the police, and where they have refused to maintain law and order, the right to keep and bear arms wherever one might be is taking on even greater importance, and Americans are arming themselves in ever increasing numbers.
Circa 2020, the most common and usual arms chosen by Americans are semiautomatic handguns, and revolvers to a lesser extent. The most popular rifles in America are AR-15 variants, but a wide variety of other long guns, including shotguns, bolt and lever action rifles, are also common and usual. Also common are the standard magazines used in those popular weapons, ranging from 13-20 rounds for handguns and 30 rounds for ARs.In the next article, we’ll analyze the intentions of the minority in Heller. They would not necessarily abolish the Second Amendment outright, but they would render its application meaningless. With D/S/Cs promising to pack the Supreme Court when they are next able to do so—a promise they can be counted on to keep–this is an issue of immense importance to Americans determined to remain free. I hope to see you again in a few days.