Heller: Reinterpreting the Second Amendment
The Hidden History of Guns and the 2nd Amendment
Chapter 21
Heller: Reinterpreting the Second Amendment
The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Court’s opinion, I could not possibly conclude that the Framers made such a choice.
—Justice John Paul Stevens’s dissenting opinion in District of Columbia v. Heller
The June 26, 2008, Supreme Court decision in the case of District of Columbia v. Heller was a pivotal turn in America’s understanding of the Second Amendment. But it was also a substantial rewrite of the Second Amendment, both in detail and in its very history.
As the historical record clearly shows, that amendment was created to satisfy two constituencies and had virtually nothing to do with the Heller finding that there was an “individual right” to gun ownership in the United States. So who were the groups who pushed for this particular amendment to the brand-new Constitution?
The first was what would become the anti-Federalist faction, led by Jefferson, which was concerned that if the country maintained a standing army during times of peace, members of that army might conspire to overthrow the new government that the founders had just created (something that has happened frequently in history, around the world, from ancient times to today).
The second constituency was the representatives of the slave states, who were concerned that the Article I, Section 8, authority of the federal government to call up an army might end up freeing slaves in the process, and they wanted to protect their state militias, which were largely then known, in those slave states, as slave patrols.
But in 2008, in a squeaker 5–4 decision, Justice Antonin Scalia stretched logic and fantasy to the breaking point to “discover,” for the first time in nearly 230 years, that there was a secret private right to gun ownership “in defense of hearth and home” buried deep within the Second Amendment.1
Scalia’s first argument was that the Second Amendment’s use of the phrase “right of the people” to keep and bear arms meant to give everybody in the US the largely unlimited right to gun ownership, just as the First and Fourth Amendments, respectively, protect everybody’s right to free speech and privacy.
This was the first time in the nearly 230-year history of the United States that any court—or any branch of government, for that matter—had suggested such a thing. Thus, in the dissent written by Justice Stevens and joined by Justices Breyer, Souter, and Ginsberg, they noted that Scalia’s new theory about the founders’ intent was, essentially, nonsense made up to keep happy the hard right and the gun lobby that so richly supported the GOP.
“The centerpiece of the Court’s textual argument,” Stevens and his colleagues wrote, summarizing Scalia’s argument, “is its insistence that the words ‘the people’ as used in the Second Amendment must have the same meaning, and protect the same class of individuals, as when they are used in the First and Fourth Amendments. According to the Court, in all three provisions—as well as the Constitution’s preamble, section 2 of Article I, and the Tenth Amendment—‘the term unambiguously refers to all members of the political community, not an unspecified subset.’”
Stevens then took apart Scalia’s argument:
But the Court itself reads the Second Amendment to protect a “subset” significantly narrower than the class of persons protected by the First and Fourth Amendments; when it finally drills down on the substantive meaning of the Second Amendment, the Court limits the protected class to “law-abiding, responsible citizens.”
But the class of persons protected by the First and Fourth Amendments is not so limited; for even felons (and presumably irresponsible citizens as well) may invoke the protections of those constitutional provisions. The Court offers no way to harmonize its conflicting pronouncements.
Scalia also argued, in the absence of any evidence whatsoever from the time of the amendment’s ratification, that the Second Amendment was passed to allow individuals to own guns for self-defense (which was the essence of the Heller case, as Washington, DC, had forbidden people from owning guns even for that reason), rather than a purely military/militia context.
Stevens et al., in their dissent (which, but for one Republican-appointed justice, would have been the majority decision), argued back,
The stand-alone phrase “bear arms” most naturally conveys a military meaning unless the addition of a qualifying phrase signals that a different meaning is intended. When, as in this case, there is no such qualifier, the most natural meaning is the military one; and, in the absence of any qualifier, it is all the more appropriate to look to the preamble to confirm the natural meaning of the text.
The Court’s [Scalia’s] objection is particularly puzzling in light of its own contention that the addition of the modifier “against” changes the meaning of “bear arms.”
They added, quoting a previous Supreme Court decision on the topic,
The phrase “bear Arms” also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: to serve as a soldier, do military service, fight or to wage war. But it unequivocally bore that idiomatic meaning only when followed by the preposition “against.” . . .
When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia. So far as appears, no more than that was contemplated by its drafters or is encompassed within its terms. . . .
Indeed, not a word in the constitutional text even arguably supports the Court’s overwrought and novel description of the Second Amendment as “elevat[ing] above all other interests” “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”
Even a previous Supreme Court chief justice, Nixon appointee Warren Berger, called the idea that the Second Amendment conferred an “individual right” to gun ownership a lie. Explicitly, he said the idea being promoted back when he was on the Court was “a fraud on the American public.”
An early draft of the Second Amendment shows this brightly: it included a conscientious-objector provision for Quakers, letting them opt out of the militia. It read, “A well regulated militia composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.”
In fact, through the entirety of James Madison’s notes on the 1787 Constitutional Convention, when military service and gun ownership were extensively discussed and debated, there is not even one single reference to an individual right to own a gun “to defend hearth and home.”2 (It’s interesting how Scalia used language similar to that in common usage in 1787 to invent his version of early American history: no doubt it caused many people to assume that it was a direct quote from one of America’s Founders, when, in fact, no such phrase exists.)
A deep dive into the 1788 Convention in Virginia, where the state’s legislature debated ratification of the Constitution, finds that debate took a huge sideways turn into editing what would be the 1791-ratified Bill of Rights, in part because “father of the Constitution” James Madison was a Virginian and representative of that state to the ratification convention.
The word “nation” was modified to “state” and the religious exemption was deleted, but there was, again, not a single word about a Second Amendment right to individual gun ownership, even to defend a home’s fireplace (hearth) or relatives (home). Instead, Patrick Henry pontificated at length about the importance of protecting state militias, aka slave patrols, to defend his plantation and those of his fellow Virginia slavers from runaways and slave revolts.
Again the next year, in June 1798, when the Bill of Rights was being debated in the US House of Representatives prior to presenting it for final ratification by the states, the members of the House held extensive discussions about the need for each state to raise a militia and fund it themselves, and whether arms should be held at home or in an armory.3
They even debated the Quakers’ religious exemption and finally agreed to include it in the Second Amendment—this was really more a debate about that century’s version of a military draft—but there was not one single word spoken in the entire month of debate about “hearth,” “home,” or anything resembling an “individual right” to own a gun for hunting, sport, or self-defense.
Similarly, throughout the 19th century, gun control was widespread from cities on the East Coast to the Wild West. Tombstone, Arizona, for example, had a strict law that all guns had to be checked with and stored by either the sheriff or the Grand Hotel.4 Wyatt Earp and Doc Holliday were outlaws, not heroes, until the fiction writers got hold of their story; both were charged with murder. The judge even “fined one of the victims $25 earlier that day for packing a pistol.”5
So how did this “fraud on the American public” begin, and end up before the Supreme Court?
The story is, at its core, all about an industry willing to spend millions to protect its profits and a political party willing to frighten American gun owners for purely political purposes.
As Michael Waldman points out in a seminal and detailed 2014 article for Politico, as recently as 1972, Richard Nixon ran for reelection on a popular (90 percent) and Republican position of gun control, particularly over “cheap handguns.”6
In 1980, however, Ronald Reagan was the first presidential candidate to be endorsed in the history of the NRA, in part because of his position that there should be no federal regulation of handguns. As the Republican Party platform said that year, “We believe the right of citizens to keep and bear arms must be preserved. Accordingly, we oppose federal registration of firearms.”
But the NRA, taken over in the early ’70s by hard-right/libertarian ideologues, was just getting started. Seeing the reconsideration of the Second Amendment as their ticket to power and riches, the NRA began funding scholars and think tanks across the nation, looking for the magic bullet (no pun intended) that would give them and their manufacturers the absolute constitutional cudgel to use against the majority of the American public who favored reasonable gun control.
Their first argument was that the Second Amendment was passed, bizarrely, so that the early colonists could wage war against their own government just like they had the British, if that government ever became “destructive,” to use the language of the Declaration of Independence:
That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. . . . [W]hen a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
The only major rebellion against the new United States government happened in 1787, when Daniel Shays led 4,000 armed men to Springfield, Massachusetts, to try to seize the armory to challenge the US government. Shays’ Rebellion was put down by the Massachusetts militia, leading to charges of rebellion against hundreds, a death sentence for 18 men, and the hanging of two.
Nobody—literally not a single member of the founders or framers of the Constitution—suggested that they had a “Second Amendment right” to armed rebellion.
George Washington, who would later lead troops (as a sitting president, no less) to put down the 1794 Whiskey Rebellion, wrote to Henry Lee of Shays’ Rebellion: “You talk, my good sir, of employing influence to appease the present tumults in Massachusetts. I know not where that influence is to be found, or, if attainable, that it would be a proper remedy for the disorders. Influence is not government. Let us have a government by which our lives, liberties, and properties will be secured, or let us know the worst at once.”
Colonial history is littered with stories of smaller rebellions, all led by well-armed citizens wanting to rebel against their new government, and every one of them was successfully put down by members of the founding generation.
Nonetheless, the NRA was committed to promoting the idea that the founders actually wanted Americans to view their government with a jaundiced eye, ever ready to rise up in armed revolt. They advanced the “right of rebellion” as the rationale (with no substantial evidence whatsoever) so effectively that today, whenever I bring up gun control on my nationally syndicated radio show, people call in to promote the idea that they need their guns in case the government ever becomes “oppressive.”
From there, their logic proceeded to the idea that in order to preserve the right to overthrow America’s government (and to protect “hearth and home”), all Americans had an “individual right” to own the gun of their choice.
While there is no such language in the Constitution or Bill of Rights, and none of the founders ever endorsed such an idea at law, between NRA publications, op-eds, well-placed talking heads in the media, and the GOP’s endorsement, the idea of this newly promoted “individual right” (the first time Waldman could find it mentioned was in 1960) in the Second Amendment became so entrenched in public consciousness that the American electorate wasn’t shocked when it was “discovered” there by the Supreme Court in the Heller decision in 2008.
While that’s the bad news of Heller, arguably the good news is that Heller also left intact the government’s right to “reasonable” regulation of firearms.
Reasonable, of course, is determined by the times. While AR-15s, bump stocks, and cop-killing bullets were all deemed “reasonable” from the time of Heller until 2018, the nationwide eruption around the Parkland, Florida, mass murders has galvanized the country—particularly its young people—in a way that the world hasn’t seen since the Port Arthur Massacre transformed Australia’s gun laws.
There’s hope.
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