ACSBlog: The Blog of the American Constitution Society

Today’s decision in D.C. v. Heller (opinion) clearly held that the Second Amendment protects an individual right to bear arms for private purposes, including self-defense. On this basis alone, the decision is worthy of landmark status: the Court has never previously invalidated any law on Second Amendment grounds. A long academic debate about the meaning of the Second Amendment has now been settled, at least for legal purposes.

What Heller Decided – And What It Did Not

The Court, however, left the most important question unanswered: what exactly does the Second Amendment prohibit? The majority refused to adopt a standard of review for judging future disputes. This is unfortunate, because lower federal courts and state courts should now see a tidal wave of litigation challenging gun control laws. All they can know for sure is that the government cannot ban the most popular weapon or adopt restrictions so onerous as to effectively nullify or destroy the right to self-defense in the home.

Questions these lower courts will have to face include: How does Heller apply to discretionary permitting laws? Bans on guns in the workplace? Bans on sawed-off shotguns? Bans on concealed carry? The decision’s ambiguity punts the hard questions.

Justice Scalia as a Proponent of “Living Constitutionalism”

One of the most intriguing aspects of Justice Scalia’s Heller opinion was his use of living constitutionalism to justify the invalidation of D.C.’s handgun ban. The opinion appears to be an ode to originalism — page after page of why and how the framers drafted the Second Amendment — but don’t be fooled. When it comes to deciding why the handgun ban is unconstitutional, Scalia argued that handguns are the most popular weapons chosen by Americans for self-defense. Since when does an originalist look to today’s choices to determine the scope of a constitutional right?

A true originalist approach that took the people’s choice seriously would look to the weapons preferred by the founding generation — most likely long guns. (Pistols were terribly inaccurate, explaining why so few people were killed in short-range duels). For Scalia, however, the scope of the Second Amendment is a function of what people today choose for self-defense. Despite vociferous protests, the Constitution is evolving to fit current circumstances after all.

Parallels with Bush v. Gore

There are some striking similarities between the Heller decision and Bush v. Gore. In both cases, the Court articulated a “new” right to be recognized by the courts: a right to bear arms in Heller and a right to have votes tabulated equally in Bush v. Gore. Yet in both decisions, the Court makes clear that this right will not likely invalidate many laws — or perhaps any laws except the ones before the Court that day.

In Bush v. Gore, the Court warned that nothing in the opinion was meant to call into question the many difficult, technical issues of vote tabulation and regulations on counting votes. As a result, the opinion was severely criticized by many for being like a railroad ticket good for this train – and this case – only.

According to an article by law professor Rick Hasen, the Court has not cited Bush v. Gore since it was promulgated. Lower courts have ignored the decision’s implications for vote tabulation laws.

In Heller, the majority said that the decision is not meant “to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” The Court, once again, is trying to avoid the obvious implications of its broad statement of the right to bear arms.

The Court did not provide an indication of what laws might be undermined by the newly recognized right. Don’t be surprised if lower courts refuse to invalidate many other gun laws, citing the court’s caveat regarding not doubting longstanding laws. If so, Heller would constitute the high-water mark for the individual right to bear arms — and we’ll be writing articles years from now about the birth and sudden death of a strong Second Amendment right to bear arms.