The limits of Second Amendment originalism and the constitutional case for gun control.

• Author: Rosenthal, Lawrence
• Position: Introduction through II. The Problematic Efforts to Rescue Second Amendment Originalism, p. 1187-1229

The Second Amendment is the only provision in the Bill of Rights with a preamble: "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." (1) The relationship between the Second Amendment's preamble and its operative clause is far from obvious; yet, it has critical implications for the future of gun control.

For decades, Second Amendment jurisprudence was dominated by United States v. Miller, (2) in which the Court rejected a constitutional attack on a federal statute prohibiting the interstate transportation of a short-barrel shotgun by observing that a short-barrel shotgun has no "relationship to the preservation or efficiency of a well regulated militia." (3) Lower courts generally "invoke[d] Miller with vehemence and regularity in dismissing, out of hand, challenges to the various pieces of gun control legislation." (4)

This changed with the 5-4 decision in District of Columbia v. Heller, (5) Assessing the constitutionality of an ordinance banning the possession of handguns and requiring that firearms remain unloaded and disassembled or locked, the Court began by stating its interpretive methodology:

[W]e 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." 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. (6) Relying on evidence of the meaning of the terms of the Second Amendment in the framing era, the Court concluded that the "right of the people" referred to an individual right, (7) while "Arms" included "all instruments that constitute bearable arms, even those that were not in existence at the time of the founding," (8) but excluded "dangerous and unusual weapons." (9) The right to "keep" arms, the Court concluded, meant the right to possess them, (10) and the right to "bear" arms meant the right to "carry[] for a particular purpose--confrontation." (11) As for the preamble, the Court concluded that it would not have been understood in the framing era to "limit or expand the scope of the operative clause," but instead merely "announce[d] the purpose for which the right was codified: to prevent elimination of the militia." (12) As for Miller, the Court concluded that it should be understood as holding "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." (13) The Court then held that the right to keep and bear arms was infringed by the District's prohibition on the registration and possession of handguns, (14) as well as its requirement that firearms be locked or otherwise stored in an inoperable condition. (15)

At first blush, Heller's originalist methodology appears to embrace a largely unqualified right of every person to possess and carry any firearm in common civilian use. Its practical significance grew when, two years later, a majority of the Court concluded that the Second Amendment's protections are fully applicable to state and local gun-control laws by virtue of the Fourteenth Amendment. (16) Heller's importance was methodological as well. Justice Scalia, the author of Heller, has long been an advocate of originalist approaches to constitutional interpretation. (17) His advocacy of originalism, which "regards the discoverable meaning of the Constitution at the time of its initial adoption as authoritative for purposes of constitutional interpretation in the present," (18) is ultimately premised on his view about the proper way to divine the meaning of a text: "originalism remains the normal, natural approach to understanding anything that has been said or written in the past." (19) Justice Scalia has added that, in his view, treating legal rules as having evolving content to be fleshed out by judicial decision "is preeminently a common-law way of making law, and not the way of construing a democratically adopted text." (20) In this, Justice Scalia is not alone; originalists, whatever their differences, frequently defend their methodology as the proper approach for ascertaining the meaning of a legal text. (21)

Heller has been called "the most explicitly and self-consciously originalist opinion in the history of the Supreme Court." (22) Heller offered Justice Scalia an inviting opportunity to inject originalism into constitutional adjudication. Although Justice Scalia is reluctant to repudiate well-settled nonoriginalist precedent by virtue of his respect for the doctrine of stare decisis, (23) Second Amendment jurisprudence was unencumbered by numerous nonorginalist precedents. By cabining Miller--the only important Second Amendment precedent before Heller--as a case about unusual weapons, Justice Scalia had little difficulty in concluding that "nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment." (24) Accordingly, the path was clear to an originalist Second Amendment jurisprudence.

In Heller, the Court pointedly refused to adopt any standard of judicial scrutiny by which a challenged gun-control law could be tested to determine if it was sufficiently justified, although it did reject the view that a challenged regulation need only to have a rational basis, as well as the interest-balancing test Justice Breyer advocated in dissent. (25) Given Heller's originalism, this should be unsurprising; the advocates of balancing tests and standards of scrutiny do not claim that they have any basis in the original meaning of the Constitution's text. (26) Thus, Heller seemed to promise the dawn of Second Amendment originalism unencumbered by the nonoriginalist balancing tests and standards of scrutiny common in other areas of constitutional law, but lacking any grounding in the original meaning of the Constitution's text.

Commentators have provided many helpful, if often conflicting, assessments of Heller's conclusions regarding the original meaning of the Second Amendment. (27) Much less scholarly attention has been paid to the Second Amendment jurisprudence emerging in Heller's wake. This Article takes Heller's conclusions about the original meaning of the Second Amendment as given and assesses whether they have produced--or even are capable of producing--an authentically originalist Second Amendment jurisprudence. In Heller's wake, the outlines of a new jurisprudence--one that countenances surprisingly robust regulatory authority and in which originalism plays a surprisingly limited role--are starting to become clear. The discussion that follows seeks to explicate and defend this emerging jurisprudence in terms of the relationship between the Second Amendment's preamble and its operative clause. It explores, as well, the constitutional case for a robust regime of gun control.

Part I examines the problems with Heller's effort to ground constitutional adjudication in the original meaning of constitutional text. As Part I explains, nonoriginalism lurks in Heller, which helps to explain why lower courts have increasingly utilized the type of balancing tests and standards of scrutiny seemingly eschewed by Heller. Part II reviews and ultimately dismisses the efforts to salvage an originalist Second Amendment jurisprudence after Heller, casting doubt on the utility of originalism to produce a coherent Second Amendment jurisprudence. Part III then offers an account that accommodates both the right recognized in Heller and comprehensive regulatory power over firearms by focusing on the relationship between the Second Amendment's preamble and its operative clause. It concludes that there is a textual basis in the Second Amendment for both firearms rights and regulation, while acknowledging that there is little in the original meaning of the Second Amendment that helps to identify the boundary between rights and regulatory authority. Instead, Part III argues that common-law methodology--what originalists often call constitutional construction and nonoriginalists celebrate as living constitutionalism--is up to the task. Existing nonorginalist constitutional doctrine supplies the framework for constructing a post-Heller Second Amendment jurisprudence. Part III then applies this framework and demonstrates that the Second Amendment poses little obstacle to comprehensive firearms regulation.

1. THE UNRAVELING OF HELLER'S SECOND AMENDMENT ORIGINALISM

   At first blush, Heller's account of the Second Amendment seems straightforwardly hostile towards firearms regulation. The Court concluded that the right to keep and bear arms was originally understood as an "individual right to possess and carry weapons in case of confrontation." (28) Although the Court offered no account of the original meaning of an "inffinge[ment]" of this right, the first edition of Webster's American Dictionary of the English Language, which Justice Scalia frequently consults to ascertain the original meaning of eighteenth-century constitutional text, (29) including in Heller itself, (30) defined "infringed" as "[b]roken, violated, transgressed." (31) Other framing-era sources are to similar effect. (32) Accordingly, the original meaning of the command in the Second Amendment's operative clause that the right to keep and bear arms "shall not be infringed" suggests that no individual can be denied the right to possess or carry firearms in common civilian use in case of confrontation. Thus, some have argued that the original meaning of the Second Amendment contemplates an expansive right to possess and carry arms. (33)

   Yet, much in Heller actually suggests that the original meaning of the Second Amendment's operative clause tells us little about the scope of permissible firearms regulation. This becomes...