Gun-shy originalism: the Second Amendment's original purpose in District of Columbia v. Heller.

• Author: Hatt, Kyle
• Position: The Massachusetts Constitution of 1780

"[I]f circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.

"I hasten to confess that in a crunch I may prove a faint-hearted originalist." (2)

1. INTRODUCTION

   In District of Columbia v. Heller, (3) the Supreme Court held that the Second Amendment protects an individual right to keep and bear arms for self-defense. (4) In doing so, the Court settled the long-debated question of whether the Second Amendment applies outside the context of state-organized military institutions. (5) The National Rifle Association heralded the decision as a major victory for gun owners across America. (6) Others saw Heller differently, with one scholar arguing that the decision likely demands little change to the nation's existing gun laws. (7)

   Despite its landmark decision that the Second Amendment protects an individual right, the Heller Court failed to protect the full scope of that right, as read by the Court itself. A strong theme throughout the decision is that the Second Amendment's original purpose was to protect Americans' ability, if the need arose, to resist the tyranny of their federal government. (8) Heller's holding, however, is limited to the Second Amendment's protection of a right to self-defense, and the Court indicated that it would allow limitations on the types of firearms protected by Amendment, even though such limitations would render its original purpose unachievable. (9) Moreover, the Court avoided setting the standard of review for Second Amendment violations, further allowing for infringement of its original purpose. (10)

   This Note examines the conflict between Heller's reading of the Second Amendment's original purpose, on the one hand, and its holding about self-defense and dicta on the Amendment's limitations, on the other. Part II.A outlines the Supreme Court's pre-Heller Second Amendment cases. (11) Part II.B examines Heller, focusing on its holding, as well as its interpretation of the Second Amendment's purposes and its dicta on the Amendment's limitations. (12) Part II.C introduces the federal machine gun ban, a law that is presumably constitutional under Heller. (13) Part III.A argues that the limitation that Heller allows on the types of firearms that citizens may lawfully possess fundamentally frustrates the Court's own reading of the Second Amendment's original purpose. (14) Part III.B highlights the Court's use of circular reasoning to support this specific restriction on the Second Amendment. (15) Part III.C argues that the Second Amendment, as a fundamental right, should enjoy the protection of strict scrutiny. (16) It then applies this standard to the federal machine gun ban, concluding that the law would be unconstitutional as the Court has previously applied that standard. (17) Part III.D argues that in implementing Heller, federal courts seeking to render a truly originalist interpretation of the Second Amendment would rely on the Heller Court's broad reading of the Amendment's purposes rather than its dicta on the Amendment's limitations. (18)

2. HISTORY

   1. Pre-Heller Second Amendment Cases

      Though the Second Amendment has sparked passionate political debate in recent history, the Supreme Court's Second Amendment jurisprudence was limited to only four cases before Heller. (19) The Court alluded to the Second Amendment in Dred Scott v. Sandford, (20) where it explained that black slaves did not possess the rights of American citizens, such as the right "to keep and carry arms wherever they went" (21) Twenty years later in United States v. Cruikshank, (22) the Court held that the Second Amendment limits only the power of the federal government, and does not protect the right to keep and bear arms against infringement by other citizens. (23) Next, in Presser v. Illinois, (24) the Court examined whether an Illinois law banning armed military parade and drill by civilians was constitutional under the Second Amendment. (25) The Court upheld the law, in part based on its earlier holding that the Second Amendment does not apply to the states, but also because the law did not actually infringe on citizens' ability to exercise their Second Amendment right. (26)

      The Court's most important pre-Heller decision came in United States v. Miller. (27) Miller considered a Second Amendment challenge to a provision of the National Firearms Act banning the transport of an unregistered short-barrel shotgun in interstate commerce. (28) Upholding the law, the Court rejected the argument that short-barreled shotguns were among the types of arms that the Second Amendment protects. (29) As the Miller Court explained:

      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, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. (30) In its review of Second Amendment precedent, the Heller Court read Miller as holding that the Second Amendment does not protect weapons "not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." (31)

      Although Heller considered Second Amendment precedent, the Court noted that its prior cases failed to give a full interpretation of the Amendment. (32) Only Miller undertook a substantive discussion of the Second Amendment, and the Miller Court confined its analysis to an incomplete examination of the types of firearms protected by the Amendment. (33) Questions concerning the basic nature of the Second Amendment right, such as who holds it and for what purposes, were left unanswered before Heller. (34)

   2. District of Columbia v. Heller

      In Heller, the Supreme Court examined whether two District of Columbia gun laws violated the Second Amendment. (35) The first banned the possession of handguns. (36) The second required any lawfully possessed firearm to be kept "unloaded and disassembled or bound by a trigger lock or similar device," unless located in a place of business or when used for lawful recreational purposes. (37) The Court, in an opinion authored by Justice Antonin Scalia, first gave a full interpretation of the Second Amendment rooted in the Amendment's text and history. (38) Starting with a textual analysis, the Court divided the Second Amendment into two parts: the prefatory clause, which states that, "[a] well regulated Militia, being necessary to the security of a free State," and the operative clause, which states that, "the right of the people to keep and bear Arms, shall not be infringed." (39) The Court explained that the prefatory clause neither limits nor expands the scope of the operative clause. (40) Rather, the prefatory clause states the Second Amendment's purpose, while the operative clause contains the substance of its right. (41) As such, the Court concluded that the operative clause controls the Amendment's meaning, which must be interpreted consistently with the prefatory clause. (42)

      Having thus outlined the Second Amendment's structure, the Court then addressed the Amendment's scope as a right of "the people." (43) The Court defined "the people" in light of the phrase's meaning elsewhere in the Constitution. (44) It explained that in the context of the First, Fourth, and Ninth Amendments, "the people" refers to individuals rather than a group, and that in other parts of the Constitution "the term unambiguously refers to all members of the political community, not an unspecified subset." (45) The Court reasoned that the use of "the people" throughout the Constitution created the "strong presumption" that the Amendment protects an individual right held by all Americans, not just the members of a state-organized military body. (46)

      The Court next interpreted the phrase "keep and bear arms." (47) Using definitions from dictionaries contemporaneous with the Second Amendment's drafting, the Court read the words "to keep arms" as synonymous with "to have weapons," explaining that, at the time of the Second Amendment's writing, "[k]eep arms was simply a common way of referring to possessing arms, for militiamen and everyone else." (48) Drawing on similar sources, the Court determined that "bear" in the first instance means "carry," but explained that when used along with "arms," the word means to carry for a particular purpose: armed confrontation with other persons. (49) Based on this textual analysis, the Court confirmed its interpretation that the Second Amendment protects an individual right to own and carry firearms for personal defense. (50)

      The Court, however, did not read self-defense as the Second Amendment's sole purpose. (51) Rather, the Court repeatedly stated or implied that the Second Amendment's original purpose was to enable Americans to resist the potentially tyrannical power of the federal government by armed force. (52) Engaging in a history-driven analysis, the Court explained that political oppression of English Protestants under Catholic monarchs, which included their general disarmament, "caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms." (53) As a result of such suspicions, the Court continued, the right to keep and bear arms "had become [by the time of America's founding] fundamental for English subjects" and was "understood to be an individual right protecting against both public and private violence." (54) The Court emphasized that preventing the then newly formed federal government from taking away Americans' political and civil rights "by taking away their arms was the reason that right--unlike...