Today’s Supreme Court opinion in District of Columbia v. Heller is a landmark decision in that it restores the original individual rights interpretation to the Second Amendment. What is frustrating about Heller is what it doesn’t say. Justice Scalia hinted at a standard of review that’s quite probing—but could also be something less than the usual strict scrutiny given to other constitutional rights. Heller leaves the door open for more cases in the future.
For all the commentators calling Heller “judicial activism,” it’s anything but. It restores the original intent of the Framers in drafting the Second Amendment. In fact, even Justice Stevens admits in his dissent that: “The question presented by this case is not whether the Second Amendment protects a ‘collective right’ or an ‘individual right.’ Surely it protects a right that can be enforced by individuals.” What is most intriguing from a lawyering standpoint is that Justice Stevens’ dissent is written on Scalia’s grounds. Only Justice Breyer uses the typical policy-laden arguments of Court liberals. Justice Stevens’ dissent, like Scalia’s majority opinion, is based almost solely on the question of original intent.
Does this suggest that originalism will be the dominant mode of constitutional interpretation used by the Court? It seems doubtful, but the fact that Stevens waged his war on Scalia’s battlefield is interesting.
Stevens’ dissent was quite well done, but ultimately Scalia’s dissent seemed to have a firmer grasp on history. The language of the Second Amendment is less than clear, but the idea that the phrase “keep and bear arms” is confined solely to having weapons to be used for the militia seems historically and linguistically obtuse. Justice Scalia puts it wryly:
In any event, the meaning of â€œbear armsâ€ that petitioners and JUSTICE STEVENS propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby â€œbear armsâ€ connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving â€œbear Armsâ€ its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage warâ€”an absurdity that no commentator has ever endorsed. See L. Levy, Origins of the Bill of Rights 135 (1999). Worse still, the phrase â€œkeep and bear Armsâ€ would be incoherent. The word â€œArmsâ€ would have two different meanings at once: â€œweaponsâ€ (as the object of â€œkeepâ€) and (as the object of â€œbearâ€) one-half of an idiom. It would be rather like saying â€œHe filled and kicked the bucketâ€ to mean â€œHe filled the bucket and died.â€ Grotesque.
Scalia knows how to twist the knife a bit.
The majority opinion hints that the Second Amendment applies to the states as well. What’s odd about Heller is that the Court never discusses the issue of how D.C. should be treated. That issue was a major issue in the D.C. Circuit, but does not get raised by the Court. It is possible that the Court will settle the issue of incorporation in a later case.
And make no mistakes, there will be later cases. The Court has only provided one step, and the various sides will end up hashing out the rest.
Still, this is a good day for our Republic. Once banished, constitutional rights rarely return. To see the Court affirm that the Second Amendment recognizes an individual right to keep and bear arms is to see the Court reaffirm the values of our Founders. They incorporated the common-law right of self defense into the founding of this Nation, and for good reason. The Court has not made law, nor have they violated principles of stare decisis. They have done what the Court should do—”say what the law is.” Marbury v. Madison, 5 US 137, 177 (1803). The law is that individual American citizens have the right to keep and bear arms. That conclusion is not a conclusion of five Justices, but an affirmation of what the Bill of Rights says. Those who take issue with that conclusion should not take umbrage at the Court, but at the Founders who made that decision in 1783.