The Right to Bear Arms and “Sensible” Gun Laws

Justice Stevens’s dissent, like Dennis Henigan’s essay in support of the dissent, does as well as possible with the materials available in support of his position. But the Stevens-Henigan denial of the Standard Model of the Second Amendment founders on the word “the.”

If you read the Scalia majority and the Stevens dissent in parallel, Justice Stevens keeps a serious intellectual contest going for a while. The majority and dissent argue about the rules of construction for preambles: to what extent, if any, does a preamble (in this case, about the importance of the militia) limit the operative clause (the right of the people)? Both the majority and the dissent cite various authorities on statutory construction from around the Founding Era.

The two sides argue about the meaning of “bear arms.” Each side can cite many examples of the term being used in its preferred way — to mean only bearing arms in military service (Stevens) or to mean bearing arms in a variety of ways, including personal defense and hunting (Scalia). Even if the reader believes, as I do, that Scalia wins the argument on points, the fight is hardly a knock-out.

But for the neutral reader, the fight over original meaning has to come to an end when the opinions analyze “the” right to keep and bear arms. The D.C. Circuit opinion pointed out that the phrasing indisputably shows that the right was a pre-existing one. That is, the right to keep and bear arms already existed before the Second Amendment was written. The Second Amendment merely imposed a legal requirement that the right not be infringed by the federal government. The 1875 Supreme Court decision in Cruikshank said the same thing, as both the majority and dissent agree.

So what was “the” right that pre-existed the Constitution? The majority opinion provides an obvious answer. It was the right of having arms for personal defense, as guaranteed by the 1689 English Declaration of Right, and as expounded by Blackstone: “the natural right of resistance and self-preservation,” which was effectuated by “the right of having and using arms for self-preservation and defence.”

If the majority is right on this point, then the Stevens dissent is plainly wrong; the Second Amendment was intended to protect a personal right to arms for self-defense. So Stevens spends a good deal of effort claiming that the 1689 English Declaration of Right and the 1789 Bill of Rights were intended to address different problems. His main support for the argument is that the state ratification debates were replete with anti-Federalist objections about the potential for abuse of the militia powers which are granted to Congress in Article I.

But Stevens’s theory requires that we ignore an obvious source of original meaning: James Madison himself. Madison’s notes for his speech introducing the Bill of Rights into the U.S. House of Representatives indicate that his arms rights amendment was based on the English arms right, and that it was intended to remedy two key defects in the English right. The first was that the English right applied only to Protestants. (Who constituted about 98% of the population.) Second, because any act of Parliament can be negated by a later Parliament, the 1689 Parliament’s adoption of the Declaration of Right would constrain the monarch, but not effectively constrain future Parliaments. According to Madison, “They [the proposed Bill of Rights] relate 1st. to private rights — … fallacy on both sides — espec[iall]y as to English Decln. of Rts — 1. mere act of parl[iamen]t. 2. no freedom of press — Conscience … attainders — arms to Protest[an]ts.”[1]

Suppose that Madison’s notes had been destroyed, and we had no knowledge of them. Would Stevens’s theory still be plausible?

Not really. If the pre-existing right is not the traditional Anglo-American right to have arms for personal defense, then what is “the” pre-existing right? Stevens claims that the pre-existing right was a right to serve in the militia while armed. Yet, as the majority points out, Stevens cannot cite a shred of evidence in support of his assertion of a pre-existing militia right.

Alone among the twenty amicus briefs filed in support of the handgun ban, Dennis Henigan’s well-written brief for the Brady Center recognized the critical importance of “the.” The brief addressed the problem by pointing out that the state militia system long predated the Constitution. Indeed, according to Henigan, it could be traced all the way back to King Henry II’s 1181 Assize of Arms. (The Assize required all free men to have particular types of weapons, depending on their social rank.) The brief should have followed the militia roots even further, back to King Alfred the Great’s (871-901) system of the Saxon fyrd. (Jefferson and other American Founders lauded the rough liberty of the Saxons, and disdained the rigid aristocracy imposed by the Normans.)

But whether one is talking about Massachusetts militia laws from 1775, or their English ancestors, those militia laws never speak of a “right” of serving armed in the militia. Militia service, like paying taxes, was always recognized as a duty. In the Whig tradition, it was an especially honorable one, but a duty nonetheless.

So there was no pre-constitutional militia “right.” There being none, the only possible antecedent for “the” right to keep and bear arms is the explicit English right to personal arms for self-defense, and its antecedent in natural law. That issue settled, Stevens’s claim that Second Amendment was originally intended to be a militia-only right collapses.

I think that Henigan is right that most current gun laws will be constitutional under Heller, even if the Supreme Court incorporates the Second Amendment into the Fourteenth Amendment, which would make the right to arms enforceable against state and local governments. This is a somewhat more sober view than the Brady Campaign’s frantic warning last year: “Sensible gun laws of every kind are put at risk by the ‘individual rights’ theory of the Parker decision.”

What gun laws are “sensible” under Heller? We know that bans on “dangerous and unusual weapons,” that is, “weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns” are valid. We know that “prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose” of “the inherent right of self-defense” is not.

Henigan is very likely right that the 1986 federal ban on new machine guns for people who are not government employees would be upheld by the current Court. Bans on so-called “assault weapons” are more doubtful, because those guns (like all other guns except machine guns) fire only one bullet each time the trigger is pulled. At the least, there may be constitutional problems with defining an illegal “assault weapon” based on the presence of trivial cosmetic features like bayonet lugs.

It is implausible to claim that air guns (which fire BBs or tiny pellets) are “dangerous and unusual” or “not typically possessed by law-abiding citizens for lawful purposes.” Thus, New York City’s complete ban on air guns, and New Jersey’s definition of some air guns as “assault weapons” may be constitutionally problematic. So too for D.C.’s ban on all self-loading guns. These guns (e.g., the Colt .45 pistol, or the .22-caliber rifles from Winchester or Ruger) constitute over half of all handguns sold in the U.S., and a very large fraction of rifles and shotguns.

The most commonly sold rifles in the United States today are self-loading AR-15 variants, made by a wide variety of companies. These guns are not machine guns, but they are black, and they do look like machine guns. These “sport-utility guns” are widely used in formal target competition. As best-selling guns, they are far from “unusual,” and their very prevalence is evidence that they are “typically possessed by law-abiding citizens for lawful purposes.” At the least, the constitutionality of bans on such guns is questionable under Heller.

Regarding gun storage laws, Heller struck down an ordinance that made it impossible for citizens to use a gun in the home for lawful self-defense. What about laws that merely make such usage extremely difficult? Oral argument may be instructive:

Justice Scalia: What would that [a self-defense exception to the D.C. ordinance required guns in the home be locked and disassembled at all times] — that you can, if you have time, when you hear somebody crawling in your — your bedroom window, you can run to your gun, unlock it, load it and then fire? Is that going to be the exception?

Solicitor General Clement: If that’s going to be the exception, it could clearly be inadequate….

During Walter Dellinger’s rebuttal argument for the District, Chief Justice Roberts provoked laughter from his colleagues by questioning the idea of unlocking a gun when a home invasion is in progress: “So then you turn on the lamp, you pick up your reading glasses…”

With the current Court, there would probably not be a constitutional problem with a locking law (similar to that in many states) which applied to homes where children were present, and which did not apply when the gun was under the person’s direct control (e.g., when the owner was in bed, and the gun was on top of a nightstand).

In contrast, D.C.’s new gun storage law forbids functional firearms except in response to an “immediate” threat. My prediction is that the new law will be declared void by the D.C. Circuit Court of Appeals, and that the Supreme Court will deny cert.


[1] James Madison, “Notes for Speech in Congress Supporting Amendments” (June 8, 1789), in 12 The Papers of James Madison 193-94 (Charles F. Hobson et. al. eds., 1979).

Also from this issue

Lead Essay

  • Robert A. Levy, Cato Institute senior fellow in constitutional studies, was co-counsel to Mr. Heller in District of Columbia v. Heller, last month’s controversial Supreme Court case in which Washington, D.C.’s ban on gun ownership was ruled unconstitutional on the basis of a Second Amendment individual right to possess firearms. But what does Heller really imply for the future of gun rights and gun control in America? In this month’s lead essay, Levy asks and gives his answers to the questions on the minds of gun lovers and gun controllers alike. What gun regulations will now be permissible? Will the Second Amendment be “incorporated”? Did the court engage in “judicial activism”? And what’s next for the on-the-ground politics of gun control in Washington, D.C. and beyond? Levy’s tightly reasoned essay marks the beginning of the new American debate about guns after Heller.

  • In his vigorous reply to Levy’s lead essay, Dennis A. Henigan, Vice President for Law and Policy at the Brady Center to Prevent Gun Violence, argues that Heller was “a prototypical misuse of judicial power to advance an ideological agenda” based on Justice Scalia’s “transparently inconsistent and manipulative” reading of historical texts. Nevertheless, Henigan argues that “the Heller decision should prove to be a sharp disappointment to the gun lobby and other Second Amendment extremists” because “the lower courts are likely to interpret Heller as giving a constitutional green light to virtually every gun control law short of a handgun ban.” Moreover, Henigan argues, by decisively forbidding outright bans, Heller has defused the argument that gun control regulation sets us on a slippery slope to a society in which private citizens are not allowed to own guns. And therein lies the Heller paradox. By making Second Amendment rights clearer, the Court has made gun control easier.

  • In his reply, Second Amendment scholar David Kopel argues that the Constitution’s mention of “the” right to bear arms implies the right pre-existed the government, and that the point of the Second Amendment was to rule out its infringement. That pre-existing right, Kopel maintains, was “the right of having arms for personal defense,” and there is little evidence for a pre-existing militia right. Kopel agrees with Dennis Henigan that “the Heller decision … will probably not affect most gun laws in the United States, even assuming incorporation in the 14th Amendment,” but differs on the nature of “sensible” gun control, and offers a useful and informed discussion of current regulations. Regarding Washington, D.C.’s newly minted regulations, Kopel predicts that “the new law will be declared void by the D.C. Circuit Court of Appeals, and that the Supreme Court will deny cert.”

  • In his reply to Robert Levy’s lead essay, constitutional scholar Erwin Chemerinsky argues that Scalia’s majority opinion in Heller was based on a shoddy application of Scalia’s own judicial principles and “powerfully demonstrates that Justice Scalia’s constitutional rulings … ultimately are animated by his conservative politics.” According to Chemerinsky, by ignoring a long history of precedent and throwing into question “countless other statutes and ordinances,” the decision “showed that conservative rhetoric about judicial restraint is a guise that is used to oppose rights [the conservatives on the Supreme Court] don’t like.” Chemerinsky further criticizes the court for failing to clarify the level of scrutiny to be applied to gun regulation, and suggests that it should be the “reasonableness” test. Heller will be incorporated, Chemerinsky predicts, but will unlikely affect the coming elections.