They Pull Me Back In

“Just when I thought I was out, they pull me back in.”  With due apologies to Al Pacino, that’s my reaction when Dennis Henigan and Erwin Chemerinsky persist in rehashing the question whether Second Amendment rights can be exercised only in the context of militia service — a question that has been laid to rest, probably for our lifetime, by the U.S. Supreme Court.

Reluctantly, therefore, I address a couple of Chemerinsky’s arguments.  First, he contends that the Court in Miller “expressly declared that the Second Amendment was limited to safeguarding possession of firearms for militia service.”  (Emphasis added.)  Untrue.  The McReynolds opinion, whatever its other infirmities, was crystal clear in focusing on the weapon, not the person.  Not a single mention was made of Miller’s militia status or service.  The firearm — a sawed off shotgun — was not self-evidently of a type that promoted a well-regulated militia.  But Miller’s use of the weapon — transporting it across state lines — was for private, not militia purposes.

Indeed, if the opinion had hinged on Miller’s militia status, the Court would never have inquired about the utility of a sawed-off shotgun.  McReynolds would have held that Mr. Miller — obviously not engaged in militia service — had no ground to claim Second Amendment protection.  Instead, McReynolds remanded the case for a new trial, presumably to include evidence about the military’s use of sawed-off shotguns.  If Miller could show that his weapon was protected, then his use of the weapon for both militia and non-militia purposes would have been protected as well.

Second, Chemerinsky claims that “both halves of the Second Amendment are ‘operative’ ” and that Justice Scalia treated the Amendment as if the militia clause didn’t exist.  Again, not true.  The militia clause certainly has meaning, as recognized by Scalia, but the clause is explanatory, not operative.

Imagine a modernized version of the ratification debates:  Federalists and anti-federalists express their strongly held views over radio, tv, and in Internet blogs.  Both groups understand that free speech is a natural right of citizens, passed down as part of our common law heritage.  The federalists, however, have concerns about blogs.  The potential for blog abuse is substantial, and the federalists want the new national government to impose meaningful restrictions.  But the anti-federalists resist, and their votes are key to ratifying the Constitution.

As part of a compromise, the federalists promise a Bill of Rights that will include a provision mollifying anti-federalist reservations about national government control over blogs.  The provision would be added to an amendment ensuring free speech.  Here’s the resultant language, as adopted:  “A well-managed blog, being necessary to sustain a free society, the right of the people to express their views on any subject shall not be infringed.”

Chemerinsky and Henigan would have us believe that free speech would thus have been constitutionally protected — but only when expressed on Internet blogs; not radio, tv, or other media.  The flaw in that interpretation can be traced to Chemerinsky’s insistence that the prefatory clause is “operative.”  It is not.  Instead, it sets out one reason, among others, for the existence of a right to free speech.  Analogously, the militia clause sets out one reason, among others, for the right to keep and bear arms.

In reality, the militia clause was a means to encourage ratification by the anti-federalists, who were fearful of both standing armies and an armed subset of the militia, which might have been equivalent to a standing army. By guaranteeing that all individuals, not just those in militia service, would have the right to keep and bear arms, the federalists assuaged that fear.

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.