What's the Matter with Heller?


Ten years ago, the Supreme Court’s District of Columbia v. Heller decision smashed through what Americans thought they knew about the Second Amendment’s right to keep and bear arms. The Court’s action was unusual in several ways, yet, post-Heller, there is now increased understanding how to evaluate the Constitutionality of various gun proposals. In a 5-4 decision written by Justice Antonin Scalia, Heller found for the first time that the Second Amendment provided an individual (rather than collective) right to possess a firearm for “traditionally lawful purposes” such as self-defense within the home.

The Heller decision was limited to a federal enclave such as the District of Columbia, but in 2010 the Supreme Court ruled in McDonald v. Chicago that the decision also applied to the states. For both decisions, the full text of the Second Amendment,

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed

was divided into two parts. The Court ruled that the prefatory clause (“A well regulated militia”) did not limit the operative clause (“the right…to keep and bear arms”).

The Heller decision overturned a ban on handguns in Washington, DC, but it had implications for much more than that. The decision was initially praised by gun rights activists and condemned by those in favor of increased gun regulation. Yet the details of Heller actually provide substantial legal support for additional gun regulation.

At the same time, the decision has been faulted on both sides of the gun debate, with contentions that some of the arguments used to reach the conclusion are suspect. Shortly after the 2008 decision, the online journal Cato Unbound published opinions from leading scholars summarizing issues with the decision, both pro and con. In this article, I look at some of the criticisms and in some cases extend on them, providing an illustration of how the Supreme Court reached its decision. I then describe the import of the Heller decision today.

The details of Heller decision can be questioned in at least five respects

1. Overturning long-held precedent.­ Stare decisis means to have a respect for precedent. It is a long-standing judicial doctrine that provides consistency in court decisions. Prior to the Heller decision, the Second Amendment right was highly limited.

In the 1939 case United States v. Miller, the defendant claimed that he could legally possess a sawed-off shotgun as a right under the Second Amendment. The Court ruled that since possession of the weapon does not have

…reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

Through this and other court cases, the Second Amendment was understood to provide a right of “the people” as a collective to maintain a militia.

The Heller decision turned this understanding on its head, finding an individual right to gun ownership.

To be clear, an individual right to gun ownership was beginning to be accepted by some (by no means all) Constitutional scholars. Yale professor Akhil Reed Amar has argued that the Fourteenth Amendment, adopted in 1868, provides a particularly strong case for an individual right, beyond that indicated by the weaker rationale (in his opinion) within the Second Amendment.

Justice Stevens wrote a dissenting opinion to the Heller decision. He acknowledged the possibility of an individual right, but noted that “a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.” Principally, however, the Stevens dissent held to a traditional interpretation that the Second Amendment should be understood as limited to a militia purpose.

In reaching its decision, the Court majority adjusted the usual method for understanding legal provisions. Interpretations of statutes rely on various rules of interpretation. One of these is the idea that no portion of a law should be rendered redundant or meaningless. A prior Supreme Court case found that “the rule against superfluities instructs courts to interpret a statute to effectuate all its provisions, so that no part is rendered superfluous.”

Yet the Heller majority, in providing less significance to the militia phrasing, rendered that portion of the Second Amendment unnecessary. Even further, it determined that the Second Amendment provided an additional unstated purpose for self-defense, despite prior court cases unable to find that insight.

2. Originalism in name only. Scalia was a highly respected conservative jurist who held to an Originalistic philosophy that the Constitution should be read to closely follow the intentions of the Founders.

Scalia’s brand of Originalism put high emphasis on what the words of the amendment meant at the time of adoption (often also known as Textualism). So a substantial filing in the case, “Brief for Professors of Linguistics and English,” which detailed what the words and phrases meant in the 18th century, would ordinarily be carefully considered. However, that brief was effectively ignored in favor of an interpretation based on providing less import to the prefatory militia phrasing.

Scalia has been accused more than once for “faux originalism,” namely using that judicial approach when it fits a conservative ruling, but departing from Originalism to support a conservative ruling in other instances. Harvard law professor Laurence Tribe described the Heller decision (applying to the District of Columbia) and subsequent McDonald decision (applying to the states) as “purporting to be guided by the original meaning of the text but in fact being driven by an incoherent mishmash of non-originalist considerations.”

Legal scholar Erwin Chemerinsky explains the use of political reasoning in reaching judicial decisions:

There is often no way for Justices to decide constitutional cases without using their own views and ideology as a basis….The [Heller] case thus powerfully demonstrates that Justice Scalia’s constitutional rulings, despite his professions to the contrary, ultimately are animated by his conservative politics.

Chemerinsky goes on to state:

In fact, had Justice Scalia been true to his own interpretive philosophy, rather than his conservative politics, he would have had to come to the opposite conclusion and find that the Second Amendment protects a right to possess firearms only for purposes of service in the militia.

(For a rebuttal to Chemerinsky’s views, see the article by David Kopel.)

Heller is a premier example of the limits of Originalism. Scalia’s selective history leads to his desired result, while the selective history provided by Justice Stephens in his dissent leads to an opposite conclusion. In both cases, picking and choosing from the information at hand cannot be considered Originalism.

3. Failure to apply any level of Judicial Scrutiny. When determining whether a law is Constitutional, the Court will apply one of three levels of judicial scrutiny—Strict, Intermediate, or Rational Basis. This determines which party has the burden of proof in proving their position and how strong the information must be.

  • For Strict Scrutiny, the government must prove that a law restricting a fundamental right serves a compelling state interest and is narrowly tailored to achieve the intended result.
  • For Intermediate Scrutiny, the government must show that the law serves an important government objective, and that it is substantially related to that objective.
  • For Rational Basis Review, the burden of proof is on the challenger to a law. They must show that the government has no legitimate interest in the law, or that there is no reasonable or rational link between the law and the government’s interest.

A footnote in the Court decision concedes that the DC law would pass a Rational Basis Review, but it fails to articulate which of the other two levels of scrutiny should be applied. This gap leaves the lesser courts without specific guidance as Second Amendment cases come before them.

4. Lack of logical consistency. The Court decision established that a militia rationale for the Second Amendment was one purpose, but not the only purpose, for a right to keep and bear arms. It thus ruled that a ban on handguns could not be supported.

“Judicial dicta” in a court opinion consists of information that is not essential to a decision, but can be closely related to it. The dicta in the Heller decision was substantial and provided several specific restrictions on gun ownership, despite the new individual right now found within the Second Amendment. These restrictions include:

  • “laws relating to the storage of firearms to prevent accidents.”
  • “prohibitions on the possession of firearms by felons and the mentally ill”
  • “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings”
  • “laws imposing conditions and qualifications on the commercial sale of arms.”
  • “[weapons] most useful in military service—M-16 rifles and the like”

The headline for Heller is that it establishes an individual right to bear arms. Yet the fine print appears to be the most important result—the Court decision provides substantial authority for state, federal, and local governments to restrict and even ban a wide variety of weapons.

5. Significant judicial activism. In the unkindest cut of all, the conservative Heller gun decision has been compared to the more liberal Roe v. Wade abortion decision. A law review article by Circuit Court Judge Harvie Wilkinson states:

Both decisions share four major shortcomings: an absence of a commitment to textualism; a willingness to embark on a complex endeavor that will require fine-tuning over many years of litigation; a failure to respect legislative judgments; and a rejection of the principles of federalism.

Similar arguments are made by (now retired) Circuit Court Judge Richard Posner. He notes that:

Heller gives short shrift to the values of federalism, and to the related values of cultural diversity, local preference, and social experimentation.

He continues that this failure to recognize regional and local differences “was the mistake that the Supreme Court made when it nationalized abortion rights in Roe v. Wade.”

Heller is a reasonable decision despite itself

The Supreme Court’s result might have been achieved in a more straightforward manner without the above-described inconsistencies. Yet the final result is defensible. The DC government banned all handguns, which are the most common means for self-protection in the home. This was a bridge too far for the Court majority.

In fact, since the decision ten years ago, the initial criticisms in the legal reasoning have become more muted, with a greater acknowledgement that, despite imperfections, Heller and a series of subsequent lower court decisions have provided much-needed clarity.

The true heart of the Heller decision is not obvious to the casual observer. The rationale for the decision rests not merely on the Second Amendment, but on English common law, meaning law that does not come from legislatures but from long-held custom and judicial decisions. Heller stated:

[I]t has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. (Emphasis in the original)

Under this rationale, American citizens have a common law right to gun ownership regardless of whether the Second Amendment exists. As well, long-established restrictions, such as outright prohibitions against dangerous or unusual weapons, can be understood under this common law standard. Through this nuance, one can reconcile the apparent discrepancy between an individual gun right and significant government restrictions on that right.

If gun ownership is a pre-existing common law right, then what is the reason for the Second Amendment? Heller explains the original purpose by first noting that most Colonists likely felt the ancient right was “even more important for self-defense and hunting.” However:

The threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution.

Read closely, this argument undermines the conclusion reached. It may appear to describe “the” ancient right of gun ownership for the purpose of self-defense and hunting, and then contend “that” was the right codified in the Constitution. This is not quite correct. Scalia’s phrasing is merely stating that the militia purpose was codified in the Constitution. The right for self-defense and hunting is cited as an important common law right only.

Nonetheless, gun ownership for self-defense is a Constitutional right. The reason? A 5-4 Court decision.

Court’s have upheld gun restrictions in a post-Heller world

Since Heller, lesser Courts have attempted to implement the new rationale under the criteria of an individual right and the statements in the opinion about how those rights can be restricted.

The District of Columbia and six states ban assault weapons and large capacity magazines. The laws have withstood court challenges, and the Supreme Court thus far has declined to review those decisions. (See for example Kolbe V. Hogan, a decision by the U.S. Court of Appeals for the Fourth Circuit, finding the Maryland assault weapons ban to be Constitutional. The Supreme Court decided it would not review this decision.) This leaves individual legislative bodies able to pass laws, and lesser courts to review those laws, that are thought to be relevant and appropriate for each geographic area.

The lower court decisions have tended to adopt a two-part analysis to sustain assault weapons restrictions. First, using determinations in Heller such as “the right secured by the Second Amendment is not unlimited,” courts evaluate whether the laws impact the core Constitutional right. Some weapons are simply beyond what the Second Amendment was ever intended to protect.

Second, if the Second Amendment is found to be applicable, Courts have evaluated whether the restrictions are substantially related to an important government objective, and have concluded in the affirmative. Though the Supreme Court failed to provide guidance as to the level of scrutiny required, the lower courts have evaluated relevant precedent and concluded that intermediate scrutiny is appropriate.

Heller specifically cited “M-16 rifles and the like” as weapons that may be banned. The M-16 is a fully automatic firearm, whereas assault weapons are a particular type of semi-automatic gun. Court cases so far have found that the similarities outweigh the differences. This is perhaps because an M-16 is not very accurate in automatic mode (which has been called “spray and pray”) and therefore is often used by the military in its semi-automatic function.

What’s the matter with Heller?

Heller was greeted with applause by gun rights activists and condemnation by those favoring gun restrictions. Yet the decision has not fundamentally changed the debate on what are and are not legal requirements for gun ownership and use.

A full ban on all handguns has been found to be unconstitutional, but, thus far, that appears to be the practical extent of Heller’s reach. Gun regulations can be put in place, as before, and this now has the additional authority of a 2008 Supreme Court ruling.

As outlined here, certain aspects of the Heller decision can be criticized. Yet Heller is the law of the land and has provided useful guidance. This is a most unusual aspect of the Court’s decision—the paradox of a decision flawed in some of its reasoning, yet providing important clarity to the line between protected gun rights and potential and actual gun regulation.