Supreme Misinterpretation 1
RUNNING HEAD: Supreme Misinterpretation
Supreme Misinterpretation: How the Supreme Court Got Heller Wrong
Alan Roy Gray, Jr.
Harriet L. Wilkes Honors College, Florida Atlantic University
Author Note
B.L.A. candidate and Henry Morrison Flagler Scholar, Harriet L. Wilkes Honors College,
Florida Atlantic University, Jupiter. Extensive thanks are due to Glen Ahlers and Sen. Robert
Colonel for their substantial assistance in preparing this paper, and Drs. Jeffrey Buller, Michael
Harrawood, Mark Tunick, and Martin J. Sweet for their advice, encouragement, and support.
Correspondence concerning this article should be addressed to Alan Gray, 1190 Main
Street, Jupiter, Florida, 33458. Email: agray20@fau.edu
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Abstract
In District of Columbia v. Heller, Associate Justice Antonin Scalia, writing for the Supreme
Court of the United States, held that the Second Amendment to the Constitution confers an
individual right to keep and bear arms. This ruling, which stunned the legal community, flies in
the face of centuries of American firearms jurisprudence. Rather than protecting one‟s right to
keep and bear arms for individual self defense, this paper asserts that the Second Amendment, as
previously defined and interpreted, defends an individual‟s right to participate in a militia, or, at
best, an individual‟s right to keep and bear arms which could be related to militia service. The
holding in Heller is first examined in the context in which the Second Amendment was
originally proposed and ratified. Its development and interpretation is then traced from that time
to the modern day through relevant case law before finally investigating the Heller decision in
the context of this Second Amendment jurisprudence. Ultimately, the audience should gain a
better appreciation for and understanding of what our nation‟s constitutional law really says
about an individual‟s right to keep and bear arms.
(186 words)
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Supreme Misinterpretation: How the Supreme Court Got Heller Wrong
On June 26, 2008, Justice Antonin Scalia, writing for a majority of the United States
Supreme Court, held in District of Columbia v. Heller1 that the Second Amendment to the
United States Constitution confers onto U.S. citizens an individual right to keep and bear arms,
as opposed to a collective right to carry firearms in connection to potential militia service.2 The
decision sparked a wildfire within the legal community, spurning dozens of law review articles3
all asking the same question: where did Justice Scalia find this individual right to bear arms in
the Second Amendment?
I challenge the Heller decision and argue that the correct reading of the Second
Amendment is one which defends an individual‟s right to participate in a militia, or, at best, an
individual‟s right to keep and bear arms which could be related to militia service. The holding in
Heller is first examined in the context in which the Second Amendment was originally proposed
and ratified. Its development and interpretation is then traced from that time to the modern day
1
554 U.S. _____, 128 S.Ct. 2783 (2008).
Id at 2797.
3
See Akhil Reed Amar, Heller, HLR, and Holistic Legal Reasoning, 122 HARV. L. REV. 145 (2008); Philip J. Cook
et al., Gun Control after Heller: Threats and Sideshows from a Social Welfare Perspective, 56 UCLA L. REV. 1041
(2009); Brannon P. Denning, The New Doctrinalism in Constitutional Scholarship and District of Columbia v.
Heller, 75 TENN. L. REV. 789 (2008); Brannon P. Denning & Glenn H. Reynolds, Five Takes on District of
Columbia v. Heller, 69 OHIO ST. L.J. 671 (2008); Alan Gura, Heller and the Triumph of Originalist Judicial
Engagement: A Response to Judge Harvie Wilkinson, 56 UCLA L. REV. 1127 (2009); David Thomas Konig, Why
the Second Amendment Has a Preamble: Original Public Meaning and the Political Culture of Written
Constitutions in Revolutionary America, 56 UCLA L. REV. 1295 (2009); Sanford Levinson, For Whom is the Heller
Decision Important and Why, 13 LEWIS & CLARK L. REV. 315 (2009); Sanford Levinson, Why Didn’t the Supreme
Court Take My Advice in the Heller Case – Some Speculative Responses to an Egocentric Question, 60 HASTINGS
L.J. 1491 (2008-2009); Nelson Lund, D.C. Handgun Ban and the Constitutional Right to Arms: One Hard Question,
18 GEO. MASON U. CIV. RTS. L.J. 229 (2008); Nelson Lund, The Second Amendment, Heller, and Originalist
Jurisprudence, 56 UCLA L. REV. 1343 (2009); Edward L. Rubin, Question Regarding D.C. v. Heller: As a Justice,
Antonin Scalia is (A) Great, (B) Acceptable, (C) Injudicious, 54 WAYNE L. REV. 1105 (2008); Reva B. Siegel, Dead
or Alive: Originalism as Popular Constitutionalism in Heller, 122 HARV. L. REV. 191 (2008); Reva B. Siegel, Heller
& Originalism’s Dead Hand – In Theory and Practice, 56 UCLA L. REV. 1399 (2009); Cass R. Sunstein, Second
Amendment Minimalism: Heller as Griswold, 122 HARV. L. REV. 246 (2008); William Michael Treanor, Taking Text
too Seriously: Modern Textualism, Original Meaning, and the Case of Amar’s Bill of Rights, 106 MICH. L. REV. 487
(2007); Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework
and a Research Agenda, 56 UCLA L. REV. 1443 (2009); J. Harvie Wilkinson III, Of Guns, Abortions, and the
Unraveling Rule of Law, 95 VA. L. REV. 253 (2009); Adam Winkler, Heller’s Catch-22, 56 UCLA L. REV. 1551
(2009).
2
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through relevant case law before finally investigating the Heller decision in the context of this
Second Amendment jurisprudence.
Method of Constitutional Interpretation Defined
It is important first, however, to identify the method I use to interpret the Constitution in
this paper. Generally speaking, paradigms of constitutional interpretation fall into two categories.
The first is called originalism, and seeks to construe the Constitution so as to comport to the
words‟ meaning when they were originally ratified. The staunchest defense of originalism is
enshrined in Justice Scalia‟s book A Matter of Interpretation. Specifically, Scalia says that he
employs a form of originalism called textualism when he interprets law. A textualist, Scalia says,
is not “too dull to perceive the broader social purposes that a statute is designed . . . to serve; or
too hide-bound to realize that new times require new laws;”4 rather, “[o]ne need only hold the
belief that judges have no authority to pursue those broader purposes or write those new laws.”5
Because the Constitution, if it were “to contain an accurate detail of all the subdivisions of which
its great powers will admit . . . would partake of the prolixity of a legal code,”6 Scalia allows
himself to interpret the document expansively, “[al]though not an interpretation that the language
will not bear.”7 The First Amendment, for example, does not explicitly list the means of
communication which it protects, and so Scalia would allow for “reasonable,” “not strict[,]
construction” in determining, e.g., whether handwritten letters may be censored.8
Much of Scalia‟s defense of textualism, and originalism broadly, is valid. A good
constitutional scholar should begin their interpretation by examining the text in question, since
that is what was ratified by the American public; to begin anywhere else would legitimately be
4
ANTONIN SCALIA, A MATTER OF INTERPRETATION 23 (1997)
Id.
6
Id at 37 (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819)).
7
SCALIA, supra note 4, at 37.
8
Id at 38. He concludes that “there is no doubt they cannot be censored.” Id.
5
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unacceptable and unjustifiable. He assumes, however, that the text of the Constitution is always
easily understandable. In certain cases, such as when the Constitution prohibits citizens under the
age of 35 from running for President,9 this is true. In other situations, such as the Eighth
Amendment‟s prohibition against “cruel and unusual punishments,” this is less easy. Even if a
scholar were to accurately define those punishments which were considered “cruel and unusual”
at the time of the Constitution‟s ratification, she would find acceptable a host of punishments that
are no longer viable today; in fact, the Court has already rejected an originalist interpretation of
the Eighth Amendment.10 Originalism alone, therefore, cannot suffice where the meaning of the
Second Amendment is ambiguous.
On the other side of the constitutional interpretation spectrum is Living Constitutionalism,
which holds that the meaning of the Constitution changes and progresses along with society.
Associate Justice Stephen Breyer defends this model of interpretation in his book Active Liberty,
in which he argues that courts should interpret the Constitution in the democratic context in
which it was ratified. “Increased recognition of the Constitution‟s democratic objective – and an
appreciation of the role courts can play in securing that objective,” he says, “can help guide
judges both as actors in the deliberative process and as substantive interpreters of relevant
constitutional and statutory provisions.”11 Thus, Breyer argues that the correct constitutional
interpretation is one which increases democratic participation in government.
This method of constitutional scholarship, however, is too unwieldy. Although Breyer
seeks to shield himself from attacks that, under his model, a judge would be able to “enforce
9
See U.S. Const. art. II, §1, cl. 5.
See Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion) (holding that the interpretation of the amendment
should reflect “the evolving standards of decency that mark the progress of a maturing society”).
11
STEPHEN G. BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION 37 (2005).
10
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whatever he thinks best,”12 he is unsuccessful; what comprises this democratic objective of the
Constitution is ultimately in the eye of the beholder. The best method for constitutional
interpretation, therefore, is one that is not as rigid as Scalia‟s originalism, but not as detached
from the text of the Constitution as Breyer‟s Living Constitutionalism.
Possibly the best middle ground between these two poles is Yale Law Professor Akhil
Reed Amar‟s method of holistic interpretation. Generally defined, Amar interprets the
Constitution as an entire document, not line by line. “Both Article IV and the Fourteenth
Amendment,” he says, “speak of „privileges‟ and „immunities‟ of „citizens,‟ though in different
textual formations.”13 “Shouldn‟t these provisions be read in pari material, as having similar
meanings?”14 Amar therefore reads the Constitution in terms of later developments made to the
Constitution itself – thus allowing for change, as Breyer seeks to do, but avoiding the rigidity of
Scalia‟s originalism.
Amar‟s model, however, is still too rigid. In evaluating a constitutional provision, he will
look to the peripheral arguments which justified the provision in question. Oftentimes, and as is
discussed below, these peripheral arguments indicate the social ills which justified the inclusion
of the particular provision. For example, the Third Amendment was included in order to avoid
the quartering of soldiers in the homes of citizens not involved in armed conflict that was
rampant before and during the Revolutionary War. These societal ills, however, change over
time in response to these constitutional protections or later amendments. Thus, there has been no
litigation over the Third Amendment since it was ratified because the provision worked;15 the
12
Id at 18 (internal quotation marks, citation omitted).
Akhil Reed Amar, Foreword: The Document and the Doctrine, 114 HARV. L. REV. 26, 30 (2000) (citation
omitted).
14
Id at 31.
15
Litigants have occasionally attempted to invoke the Third Amendment on other, less literal, grounds, but courts
have not reacted positively. See United States v. Valenzuela, 95 F. Supp. 363 (S.D. Cal. 1951) (deciding whether
federal rent-control violated the Third Amendment); Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982) (deciding
13
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United States government has not quartered soldiers in the dwellings of its citizens. Amar‟s
model, however, does not take into account these changing societal ills and how they affect
disputed constitutional provisions.
My method of interpretation corrects this error by including societal developments when
interpreting a constitutional provision. I am not so Living Constitutionalist as to detach my
analysis from the text of the document or the peripheral arguments of the drafter‟s intentions; but
I do investigate these peripheral arguments in order to determine whether the same ills persist,
and in what form they do so. The justification for my model, and why it improves upon Amar‟s,
becomes clearer as my investigation of the right to bear arms proceeds.
Background of the Second Amendment
Because my purpose is to determine what the Second Amendment‟s “right to keep and
bear arms” means, and the nature of its relationship to a “well regulated militia,” I dispense with
a reading of the text in order to consider the peripheral arguments behind the Amendment: its
history and purpose.
Avoiding a lengthy discussion about the right to bear arms and defend oneself at the
dawn of humankind, the most relevant predecessor of the Second Amendment can be traced to
the English Declaration of Rights of 1688, which commanded that, “The subjects which are
Protestants may have arms for their defence suitable to their conditions and as allowed by law.”16
This provision grew out of Parliament‟s dissatisfaction with King James II‟s “maintenance of a
large private guard which has been described as „the largest concentration of trained full-time
whether the reassignment of housing from New York prison officials to National Guard members qualified as the
quartering of soldiers). See also Tom W. Bell, The Third Amendment: Forgotten but Not Gone, 2 WILLIAM & MARY
BILL RTS. J. 117 (1993).
16
3 CHITTY‟S ENGLISH STATUTES 659 (6th ed. 1912).
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troops that England had ever seen.‟”17 Although the provision seems to confer upon Protestants
the almost unconditional right to bear arms, it instead protected “the general right, as a populace,
to remain armed in the face of possible military impositions.”18 It was in this context, then, that,
after the British army sought “to seize the supply of militia arms and weapons cached at
Lexington and Concord” during the Revolutionary War,19 the Founders sought to protect the
right of the militia to form, and to negate the possibility of a large standing army:
The over-riding consideration was to establish by constitutional mandate the
status of the militia, the citizen-army, as the proper custodian of the country‟s
liberty, and to eliminate the chance of a recurrence of the „colonial grievances,‟
such as the quartering of troops in private homes, the court-martialing of civilians,
and the seizure of militia arms.20
Although self-defense was presumably a concern for early U.S. citizens, given the
fronteir into which they were venturing, “there is no persuasive indication that these
considerations influenced Congress or the various state ratifying conventions in adopting the
second amendment.”21 Although some states did choose to expressly guarantee the right to bear
arms,22 the right to keep and bear arms, as guaranteed by the Second Amendment, is ultimately
“a political right of the populace generally to maintain a state of military preparedness against
the possibility of domestic or foreign military impositions,”23 and not to individually arm oneself
for the purpose of self-defense.
17
Ralph J. Rohner, The Right to Bear Arms: A Phenomenon of Constitutional History, 16 Cath. U. L. Rev. 53, 58
(1966) (quoting WINSTON CHURCHILL, The New World, 2 HISTORY OF THE ENGLISH SPEAKING PEOPLES 409
(1962)).
18
Rohner, supra note 16, at 59 (citation omitted).
19
Id at 56.
20
Id at 57.
21
Id.
22
See id at n. 83-88.
23
Id at 60.
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Supreme Court Precedent and the Heller Question
Although the Supreme Court has not had many opportunities to review the Second
Amendment, it nevertheless has held that the right to keep and bear arms is related to the militia
mentioned at the beginning of the amendment when it has had a chance to do so – Heller being
the obvious exception.
The Court first discussed the Second Amendment in passing in United States v.
Cruikshank in 1875, where it recognized that the Second Amendment only restricted the federal
government from broadly abridging the right to bear arms.24 Less than a decade later, the Court
affirmed the same principle in Presser v. Illinois,25 where it held that the Second Amendment
only forbade the federal government, specifically Congress, from infringing the right to bear
arms.26
The third opportunity for Supreme Court review was United States v. Miller,27 in which it
upheld a federal law outlawing sawed-off shotguns. “In the absence of any evidence tending to
show that possession or use of a „shotgun having a barrel of less than eighteen inches in length‟
at this time has some reasonable relationship to the preservation or efficiency of a well regulated
militia,” the Court said, “we cannot say that the Second Amendment guarantees the right to keep
and bear such an instrument.”28 Reaching this conclusion, it acknowledged that Congress was
empowered with the responsibility of overseeing the militia and, if necessary, calling it into
service.29 “With obvious purpose to assure the continuation and render possible the effectiveness
24
See 92 U.S. 542.
116 U.S. 252 (1886).
26
Id. at 265.
27
307 U.S. 174 (1939).
28
Id. at 178.
29
See U.S. Const. art. I, §8.
25
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of such forces,” the Court held, “the declaration and guarantee of the Second Amendment were
made.”30
All of these pre-Heller cases, combined with the history preceding the Second
Amendment, make Justice Scalia‟s conclusion in Heller remarkable. In essence, Scalia divides
the Second Amendment into a prefatory clause – “A well regulated militia being necessary for
the security of a free state” – and an operative clause – “the right of the people to keep and bear
arms shall not be infringed.” He begins his analysis with the operative clause, and ultimately
determines that this phrase, by itself, would confer an individual right to bear arms. He then
returns to the prefatory clause, and finds that this phrase, like a „Whereas‟ clause in
congressional legislation, merely demonstrates the intent of the phrase that follows – after all,
how could the militias exist, he asks, if an individual could not carry guns to participate in them?
This methodology has been critiqued “as the Cheshire Cat Rule of Construction – now
you see the preamble, now you don‟t.”31 In his Commentaries, Blacksone argues that the
preamble to legislation, along with the immediate context in which disputed words appear, can
be helpful in establishing the meaning of disputed words.32 If Scalia‟s method of discarding the
prefatory clause only to bring it back at the end in order to confirm his original interpretation
were correct, then it is not only the preamble that must be set aside, but also the
immediate context. This would make Blackstone‟s rule nonsensical . . . . Scalia
effectively rewrites Blackstone‟s rule so that it reads, “One may consult the
context, including the preamble, if and only if there is an ambiguity to be
resolved.” If this were the case, then . . . every other part of the surrounding
30
Miller, supra note 27, at 178.
Saul Cornell, Heller, New Originalism, and Law Office History: “Meet the New Boss, Same as the Old Boss,” 56
UCLA L. REV. 1095, 1107 (2009).
32
1 WILLIAM BLACKSTONE, COMMENTARIES *60.
31
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context would also vanish; there would be nothing left from the Second
Amendment apart from the phrase “bear arms.”33
Holistic Reading of the Second Amendment
This, however, is only the halfway point towards the correct interpretation of the Second
Amendment. Recall that the second portion of my model reads the disputed provision in the
context of the entire document, and, of particular note to the Second Amendment question, is the
“privileges or immunities” clause of the Fourteenth Amendment.34
Once again, Akhil Reed Amar is the expert on the subject. A decade before the
Fourteenth Amendment was ratified, Chief Justice Taney, in Dred Scott v. Sandford, held that if
African-Americans were to be declared citizens according to the Constitution, they would be
entitled to all the “privileges and immunities of citizens,” including the right to “keep and carry
arms wherever they went.”35 For Taney, “this mean that blacks, even if free, could never be
deemed citizens. The Reconstruction Congress obviously disagreed, and said so in the first
sentence of the Fourteenth Amendment . . . . But [they] agreed with Taney on what citizenship
implied: a right to have a gun for self defense.”36 The floor debates in 1866 on the Fourteenth
Amendment echo this sentiment: “[B]lacks and Unionists down South could not always count on
the local police to keep white night-riders at bay.”37 “When guns were outlawed, only outlaw
Klansmen would have guns.”38 Thus, the Fourteenth Amendment “did not itemize the privileges
33
Cornell, supra note 31, at 1108.
The entire clause reads, “No State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States . . . .” U.S. Const. amen. XIV.
35
60 U.S. 393, 416-17.
36
Akhil Reed Amar, The Second Amendment: A Case Study in Constitutional Interpretation, 2001 UTAH L. REV.
889, 900 (2001).
37
Id. at 899.
38
Akhil Reed Amar, Heller, HLR, and Holistic Legal Reasoning, supra note 3, at 176.
34
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and immunities of American citizenship. Instead, [it] invited interpreters to pay close attention to
fundamental rights that Americans had affirmed through their lived experience . . . .”39
Despite these problems in Scalia‟s argumentation, Amar nevertheless believes that Scalia
“reached the right answer. Under proper originalist and textualist ground rules, the Constitution
should indeed be read to protect an individual right to have a gun at home for self-defense.”40
Conclusion
In order to determine the error in Heller‟s – and Amar‟s – conclusion, the final step in my
model comes to be of the utmost importance: evaluating the social ills which warranted the
“privileges or immunities” clause of the Fourteenth Amendment. Amar‟s understanding of the
contemporary justification for the provision is correct: where state militias failed to act, the only
viable means for freed slaves to defend themselves was just that – to bear arms for self-defense.
But rogue Klansmen are a thing of the past. While I am not so naïve as to suggest that „racism is
over,‟ or even that hate crimes do not occur today, the size and scope of the crimes committed in
2010 against African-Americans as a race is indisputably much lower than it was in 1866. The
societal ills which justified an individual right to bear arms in the Fourteenth Amendment have
evaporated – and, with them, the constitutional justification for an individual right to bear arms.
Because the Second Amendment, contrary to Justice Scalia‟s finding, clearly protects a
collective, not individual, right to bear arms, and because the only other justification for such a
right has been pulled out from underneath the “privileges or immunities” clause of the
Fourteenth Amendment given societal progression since its ratification, the Heller decision must
be negated: the Second Amendment does not protect an individual right to keep and bear arms
for self-defense.
39
40
Id. at 175.
Id. at 174.