There are only three opinions in Heller--the majority opinion by Justice Scalia & dissents by Justice Stevens and Breyer. Here are some very preliminary thoughts about the Opinion of the Court.
Original Public Meaning Originalism
Justice Scalia's opinion for the Court unsurprisingly adopts the framework of original public meaning originalism:
In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.
An originalist opinion was widely anticipated, and Scalia is strongly associated with the "public meaning" approach.
Later in the opinion, Scalia reaffirms the plain meaing approach in this passage:
Before proceeding, however, we take issue with JUSTICE STEVENS’ equating of these sources with postenactment legislative history, a comparison that betrays a fundamental misunderstanding of a court’s interpretive task. See post, at 27, n. 28. “Legislative history,” of course, refers to the pre-enactment statements of those who drafted or voted for a law; it is considered persuasive by some, not because they reflect the general understanding of the disputed terms, but because the legislators who heard or read those statements presumably voted with that understanding. Ibid. “Postenactment legislative history,” ibid., a deprecatory contradiction in terms, refers to statements of those who drafted or voted for the law that are made after its enactment and hence could have had no effect on the congressional vote. It most certainly does not refer to the examination of a variety of legal and other sources to determine the public understanding of a legal text in the period after its enactment or ratification. That sort of inquiry is a critical tool of constitutional interpretation. As we will show, virtually all interpreters of the Second Amendment in the century after its enactment interpreted the amendment as we do.
It is difficult to imagine a clearer or more thoroughgoing endorsement of original public meaning originalism.
The Role of the Prefactory Clause Limited to Resolving Ambiguity
The second big move in Scalia's opinion is his handling of prefactory clause, "A well regulated militia being necessary to the security of a free state . . ." Scalia's view is that the clause can be used to clarify ambiguity in the operative clause, but that it otherwise does not affect the semantic content of the operative clause:
Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, “A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.” That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause (“The separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence.” The preface makes clear that the operative clause refers not to canons of interpretation but to clergymen.) But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.
Once this move is made, the strongest argument against the individual rights interpretation is off the table.
"The Right of the People" Refers to an Individual Right
The third big move is Scalia's interpretation of the phrase, "The Right of the People":
The first salient feature of the operative clause is that it codifies a “right of the people.” The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.
Although there are some possible moves that can be made in response to Scalia here, in my opinion this conclusion is irresistable given the textualist, plain meaning framework of the Heller majority. The intratextualist move demonstrates that given the publicly available context of constitutional utterance (the Second Amendment was proposed and ratified in the context of the other 12 proposed and 10 ratified amendments), the natural reading of right of the people is that the right attaches to persons and not to corporate entities (states, militias, or otherwise).
Keep and Bear Arms
Scalia begins with "arms," and argues that the public meaning of arms at the time the Second Amendment was proposed and ratified was "weapons," using both dictionary definitions and usage as evidence. He rejects as "bordering on the frivolous" the contention that arms would be limited to weapon types that existed when the Second Amendment was adopted. The relevant type is "bearable" weapons--and the extension of this type includes subtypes that came into existence after the adoption of the Second Amendment.
The word "keep" means to have in one's power or possession according to contemporary dictionaries and usage, and there is no evidence of an idiomatic meaning of the phrase "keep arms." The word "bear" meant "carry." And Scalia argues that the phrase "bear arms" was used in nonmilitary contexts. Scalia notes that the phrase "bear arms" had an idiomatic meaning that referred to military services, but concludes that the public meaning of the phrase "bear arms" would have been its ordinary usage and not the specialized idiomatic use.
The Meaning of the Operative Phrase
Justice Scalia then offers the following gloss on the meaning of the operative phrase:
Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.
That is, the public meaning of the operative clause is that individuals have a constitutional right to have possessory control of weapons and to carry weapons on their persons.
Prior Decisions of the Supreme Court
Justice Scalia then considered each of the Supreme Court's prior decisions interpreting or construing the Second Amendment. He argues that United States v. Cruikshank assumed an individual rights interpretation in dicta. Presser v. Illinois was distinguished on the ground that it dealt with organized armed groups and not an individual right to bear arms.
United States v. Miller was distinguished on the ground that it held only that short-barrelled shotguns were not shown to have relationship to "the preservation or efficiency of a well-regulated militia." Scalia argued that Miller assumes an individual rights reading of the amendment, and that it suggests that only certain types of weapons are within the scope of the individual right. Scalia then went on (in dicta) to consider the implications of this language in Miller:
Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”
* * *
We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.
The upshot of Scalia's discussion of the precedents is:
We conclude that nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment.
Limitations or Qualifications of the Right
Scalia's opinion for the Court does not offer a general test for what is within and what is outside of the individual right to possess and carry weapons. He did, however, offer some examples of regulations that would be consistent with the right:
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken 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.
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”
This leaves many important questions open, and the lower federal courts will likely face a variety of these issues in short order.
Application to the D.C. Ordinance
Finally, Justice Scalia offered the following analysis of the application of the Court's interpretation and construction of the Second Amend to the D.C. statute (banning handguns, requiring trigger locks, etc.):
The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights,27 banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster.
Footnote 27 addresses the potentially important question of the level of scrutiny, rejecting rational basis scrutiny as the standard under the Second Amendment.
JUSTICE BREYER correctly notes that this law, like almost all laws, would pass rational-basis scrutiny. Post, at 8. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. See, e.g., Engquist v. Oregon Dept. of Agriculture, 553 U. S. ___, ___ (2008) (slip op., at 9–10). In those cases, “rational basis” is not just the standard of scrutiny, but the very substance of the constitutional guarantee. Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. See United States v. Carolene Products Co., 304 U. S. 144, 152, n. 4 (1938) (“There may be narrower scope for operation of the presumption of constitutionality [i.e., narrower than that provided by rational-basis review] when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments. . .”). If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.
And a bit later in the opinion, Scalia offers the following:
JUSTICE BREYER moves on to make a broad jurisprudential point: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering “interestbalancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.” Post, at 10. After an exhaustive discussion of the arguments for and against gun control, JUSTICE BREYER arrives at his interestbalanced answer: because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED.
We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people—which JUSTICE BREYER would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.
This gives a second clue to the ultimate level of scrutiny that the Heller majority might adopt in a future case--it will not be a simple statute-by-statute balancing test & it will therefore be stricter than a balancing test.
What Does the Future Hold?
What are the implications of Heller? Here are some very preliminary and sketchy thoughts:
- Already, the National Rifle Association has announced that it will file suit against restrictive municipal ordinances in Chicago and San Francisco, and it would seem likely that these challenges will be successful unless the ordinances are modified before they come to fruition.
- On the surface, it appears that Heller does not jeopordize statutes that prohibit possession or use of automatic weapons, such as military-style automatic rifles. This issue may be more difficult than it seems on the surface, because the line between single-fire, semi-automatic, and fully-automatic weapons may not be as bright in practice as it seems in principle.
- It seems clear that various restrictions on who may own guns--minors, those with mental disabilities, and convicted felons--will survive Heller.
- Because of a concession made in oral argument, the Court's Opinion in Heller did not address the liscensing and registration requirements. It seems likely that simple registration requirements will survive Heller, but one obvious countermove to Heller would be to establish burdensome registration and liscensing procedures. Whether such provisions would survive Heller is uncertain. One can imagine lower court judges upholding very burdensome requirements, or striking them down. Heller surely implies that extremely burdensome registration or licensing procedures would be struck down, but one can imagine a level of burden that would in practice discourage gun ownership but that might survive post-Heller scrutiny.
- Heller does not deal with the application of the Second Amendment to the states. (Justice Scalia explicitly states that the question is not before the Court, but notes the Cruikshank stated that the Second Amendment did not apply to the states.) The conventional analysis would involve the due process clause of the 14th Amendment as the vehicle for incorporating the Second Amendment and applying it to the states (and subunits such as cities and counties). The originalist route would be the privileges or immunities clause of the 14th Amendment. One possible consequence of Heller is that it would offer the Court a vehicle for revisitng incorporation doctrine in a context where analysis of original meaning is not foreclosed by prior decisions. For analysis of this possibility, see "Second Amendment Incorporation Through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses," at 72 Mo. L. Rev. 1 (available at http://works.bepress.com
/michael_lawrence/12/).
Conclusion
These thoughts were committed to paper within about one hour of the release of the Heller opinion. I'm sure that there is much that I've missed, and my considered opinions may differ from these initial reactions.
My initial impression is that Scalia made a compelling case for striking down the statute within the original public meaning framework. Moreover, he is surely correct that the prior decisions of the Court do not foreclose the result reached in Heller.
Heller is important for many reasons, but one of them is that it offers a rare glimpse of originalist methodology operating outside the constraints of a field impacted by controlling Supreme Court precedent.
