The limits of Second Amendment originalism and the constitutional case for 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.
I. 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 clear through an examination of Heller's discussion of permissible firearms regulation, its precise holding, and its application in the lower courts.
A. Heller's Dicta on Permissible Firearms Regulation
Heller went to some lengths to emphasize that limitations on the right to keep and bear arms--that is, to possess and carry firearms in case of confrontation--are consistent with the Second Amendment. The Court wrote: "Like most rights, the right secured by the Second Amendment is not unlimited." (34) "For example," the Court observed, "the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues." (35) Moreover,
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. (36)
The Court added that it "identified] these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive." (37)
A number of respected commentators have doubted that Heller's list of "presumptively lawful" regulatory measures reflects the original meaning of the Second Amendment. (38) Indeed, the Court's discussion of presumptively lawful gun-control measures is in considerable tension with its conclusions regarding the original meaning of the Second Amendment's operative clause. For example, if the operative clause recognizes an individual right to possess and carry in case of confrontation all firearms in common civilian use, then there would seemingly be no textual basis to deprive some individuals of that right on the basis of a prior conviction or mental illness or to prevent individuals from exercising the right to carry firearms if concealed or in "sensitive places." While there may be good policy reasons for such regulations, Heller states that "[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." (39) In this fashion, Heller's originalism breaks down. There may be some basis on which to sustain the regulations that Heller describes as presumptively lawful, but it cannot be found in Heller's, account of the original meaning of the Second Amendment's operative clause.
Yet, it may be perilous to place too much weight on Heller's discussion of presumptively lawful gun control. This discussion was, after all, only dicta unnecessary to the Court's holding; Heller sought only "to enjoin the city from enforcing the bar on the registration of handguns ... and the trigger-lock requirement insofar as it prohibits the use of 'functional firearms within the home.'" (40) Moreover, in its discussion of presumptively lawful regulations, the Court acknowledged that it "d[id] not undertake an exhaustive historical analysis ... of the full scope of the Second Amendment," and added that "there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us." (41) At most, Heller's dicta erect a presumption that can, presumably, be rebutted. Still, Heller's precise holding, no less than its dicta on permissible firearms regulation, reflects the limits of Second Amendment originalism, as we shall now see.
B. Heller's Holding
Since Heller explained that the Second Amendment's operative clause conferred an individual right to possess and carry in case of confrontation any firearm in common civilian use, it should have been a simple matter to invalidate the District of Columbia's prohibition on the possession of handguns and their use within the home. If one has the right to possess and carry in case of confrontation any firearm in common civilian use, then the invalidity of the challenged regulations should have been plain. The Court's precise holding, however, was not nearly so straightforward. Indeed, the Court's assessment of the constitutionality of the ordinance does not rest on the Court's account of the original meaning of the Second Amendment. Instead, it seems to rest on nonoriginalist considerations.
The Court introduced its discussion of the challenged ordinance by observing that "the inherent right of self-defense has been central to the Second Amendment right," adding that the District of Columbia's "handgun ban amounts to a prohibition on an entire class of 'arms' that is overwhelmingly chosen by American society for that lawful purpose," and that the ban "extends, moreover, to the home, where the need for defense of self, family, and property is most acute." (42) The Court noted that "[f]ew laws in the history of our Nation have come close to the severe restriction of the District's handgun ban. And some of those few have been struck down." (43) Inasmuch as "the American people have considered the handgun to be the quintessential self-defense weapon," it follows, the Court wrote, that "a complete prohibition of their use is invalid." (44) As for the trigger-lock requirement, because it required that "firearms in the home be rendered and kept inoperable at all times," this prohibition "makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional." (45)
Thus, the Court invalidated the District's ordinance not on the ground that the Second Amendment confers an individual right to possess and carry firearms in common civilian use, but because the District's ordinance imposed a particularly severe burden on a right of armed defense. Some commentators have argued that Heller is best read as protecting a core right to possess and use firearms for lawful defense of the home, while leaving open the possibility of greater restrictions on liberty interests at a distance from that core right. (46) Indeed, it is plain that the Court regarded lawful, armed defense as the core of the Second Amendment right; it described lawful self-defense as "the central component of the right itself' and the Amendment's "core lawful purpose," and concluded that the Amendment "surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home." (47) The Court even adverted to the burden imposed by the challenged regulations, contrasting it with the more modest burden imposed by framing-era regulations (48) For present purposes, however, what is most significant is that none of this can be deduced from the Court's explication of the original meaning of the Second Amendment's text, which says not a word about self-defense or the importance of hearth and home. (49) Instead, according to Heller, the original meaning of the right to "keep and bear arms" was to confer an individual right to possess and carry in case of confrontation firearms in common civilian use without apparent qualification. Heller's discussion of the centrality of self-defense and the defense of the home, and the extent to which a challenged regulation impinges on the interest in such defense, has no apparent footing in the original meaning of the Second Amendment's operative clause. (50)
C. Heller in the Lower Courts
Heller's focus on the original meaning of the Second Amendment's operative clause suggests that in applying it, courts need only ask whether a challenged regulation infringes an individual's right to possess and carry firearms in common civilian use. Yet, original meaning has rarely played a decisive role in the Second Amendment jurisprudence that has developed in the lower courts following Heller.
One obstacle to judicial reliance on original meaning when assessing the validity of a challenged regulation is that courts often find the relevant historical evidence to be uncertain or inconclusive. (51) Beyond that, serious difficulties lurk in defining Second Amendment rights by reference to Heller's definition of the right to keep and bear arms.
First, an effort to define the scope of Second Amendment protection in terms of the original meaning of the operative clause could in many cases inappropriately circumscribe constitutional protection. Some regulations, such as laws prohibiting the sale of ammunition, or target practice, do not by their terms infringe the right to "keep" or "bear" "arms" under the original meaning of those terms as defined in Heller, yet they could impose enormous and unjustified burdens on Second Amendment rights. (52)
Indeed, such laws have been invalidated since Heller, (53) Yet, nothing in the original meaning of the Second Amendment's operative clause as articulated in Heller offers a methodology for determining what types of burdens on the right to keep and bear arms are impermissible.
Second, a focus on the original meaning of the operative clause does little to explain Heller's discussion of permissible firearms regulation. Heller's discussion of presumptively valid regulation has no apparent basis in the original meaning of the operative clause, but it does suggest that the Second Amendment preserves considerable regulatory power. Indeed, a number of courts have reasoned that regulations that fall within the categories branded presumptively lawful in Heller should be sustained even when they prevent individuals from possessing or carrying firearms in common civilian use. (54) Still, there are perils in placing too much weight on this dictum, and a number of courts have refused to treat it as dispositive. (55) Yet, Heller's precise holding seems to rest on the extent to which the District of Columbia's ordinance burdened a core constitutional interest in armed defense of the home, even though this approach has no apparent grounding in the original meaning of the Second Amendment's operative clause.
Scholars have wrestled with the complexities lurking in Heller's precise holding. In light of its apparent focus on the extent to which a challenged regulation impairs a core Second Amendment interest in lawful armed defense, a number of scholars have argued that Heller is best understood as requiring inquiry into the extent to which a challenged regulation burdens core Second Amendment rights as compared to its regulatory justification, though none have claimed any basis for this approach in the original meaning of the Second Amendment's operative clause. (56) Others have offered alternate proposals to govern judicial review of challenged gun-control laws, including enhanced rational-basis review, (57) a stringent form of reasonableness review, (58) clear and convincing evidence that a challenged regulation enhances safety, (59) intermediate scrutiny requiring that the government demonstrate the substantial efficacy of a challenged regulation, (60) or strict scrutiny for regulations that implicate core Second Amendment interests and some form of balancing test for other challenged laws. (61) Notably, none of these proposals claim any footing in the original meaning of the Second Amendment as described in Heller.
Indeed, originalism has had a limited role in post-Heller Second Amendment litigation. The emerging consensus in the lower courts uses original meaning only as a threshold test, which screens out some claims, but contemplates that laws--even those limiting the extent to which individuals can exercise the textually recognized right to keep and bear arms--may be sustained upon sufficient justification. The prevailing approach involves a two-pronged inquiry:
The first question is "whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee." This historical inquiry seeks to determine whether the conduct at issue was understood to be within the scope of the right at the time of ratification. If it was not, then the challenged law is valid. If the challenged regulation burdens conduct that was within the scope of the Second Amendment as historically understood, then we move to the second step of applying an appropriate form of means-end scrutiny. (62)
The first prong of this test is ostensibly originalist, although it functions only to weed out claims that are considered outside the scope of constitutional protection. Accordingly, historical evidence is never alone sufficient to sustain a Second Amendment claim. Instead, if the first prong is satisfied, courts proceed to means-end scrutiny. Thus, in actual practice, the first prong, while ostensibly focused on historical evidence of original meaning, operates only to defeat Second Amendment claims. (63)
As for the second prong, there is some diversity of opinion about the appropriate character of means-end scrutiny. The vast majority of appellate decisions to consider the question have rejected the claim that regulations limiting the ability to keep and bear arms in common civilian use are necessarily subject to strict scrutiny, in which a challenged regulation can be sustained only if it is narrowly tailored to achieve a compelling governmental interest. (64) To be sure, Heller suggests that very serious burdens on core Second Amendment rights trigger strict scrutiny, if not per se invalidation. Lower courts have accommodated the point with essentially two approaches. Some have concluded all but the most serious burdens should be evaluated under a form of intermediate scrutiny, in which a challenged regulation is permissible when substantially related to an important governmental objective, and have applied this test in the vast majority of cases to uphold even laws that limit the ability to possess or carry firearms in common civilian use. (65) Others have taken a more flexible approach in which laws imposing more onerous burdens on the right to keep or bear firearms should be subject to concomitantly more demanding scrutiny, but these courts still frequently uphold such laws. (66) In either case, analysis centers on the extent to which a challenged law burdens the core interest in armed defense, without any claim that this type of inquiry is rooted in original meaning. Accordingly, the second prong of this test contains two analytically distinct steps in which, first, the extent of the burden on the right of lawful, armed defense is assessed in order to determine, then, the extent to which the challenged regulation will be regarded as constitutionally suspect.
Yet, before concluding that Second Amendment jurisprudence is premised on an analysis of the extent to which a challenged law burdens the individual right to armed defense described in Heller, it is worth pausing to consider laws that prevent entire classes of individuals from possessing firearms under any circumstance, such as statutory prohibitions on the possession of firearms by convicted felons. Appellate courts have universally upheld such laws under Heller, (67) a perhaps unsurprising result given the Heller dicta seemingly blessing such laws. (68) The same result has been obtained for statutes barring the possession of firearms by convicted domestic violence misdemeanants or those subject to a domestic violence order of protection. (69) At most, some courts have left open the possibility that such laws might be invalidated as applied to particular individuals presenting little risk of misusing firearms, (70) although other courts have concluded that the facial validity of a statutory prohibition on the possession of firearms precludes an as-applied challenge. (71) But, as Eugene Volokh has observed, "[f]elons may need arms for lawful self-defense just as much as the rest of us do." (72) Thus, if Heller prohibits all laws that impose very severe burdens on an individual right of armed self-defense, it is unclear why convicted felons, for example, can be entirely deprived of that right consistent with Heller's account of the Second Amendment's original meaning.
It is remarkable that an opinion that focused so consciously on the original meaning of the Second Amendment's operative clause, and which abjured any form of interest balancing, has resulted in litigation that pays so little attention to the original meaning of the operative clause, and which seems to utilize interest balancing with abandon. Indeed, one of the few lower courts to reject the prevailing approach characterized the embrace of means-ends scrutiny in post-Heller jurisprudence as "near-identical to the freestanding 'interest-balancing inquiry' that Justice Breyer proposed--and that the majority explicitly rejected--in Heller," (73)
Some commentators believe that interest balancing is inevitable in Second Amendment jurisprudence despite its seeming rejection in Heller. (74) Moreover, Heller can be read narrowly on this point; when discussing interest balancing, the Court referred to Justice Breyer's advocacy of "none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering 'interest-balancing inquiry,'" and responded, "[w]e know of no other enumerated constitutional right whose core protection has been subjected to a freestanding 'interest-balancing' approach." (75) It may be that this passage is best read to reject interest balancing only when not performed as part of one of the previously recognized approaches to means-ends scrutiny. (76) Still, that lower courts seem to have experienced something of a gravitational pull toward common-law methods of adjudication that lack any grounding in original meaning suggests either that Heller's Second Amendment originalism is something of a dead end, or that lower courts have taken a wrong turn. It is to the latter possibility that we next turn.
II. THE PROBLEMATIC EFFORTS TO RESCUE SECOND AMENDMENT ORIGINALISM
Perhaps lower courts have erred in paying so little attention, in Heller's wake, to the original meaning of the Second Amendment's operative clause. Although Heller offered scant guidance as to the original meaning of an "infringe[ment]" on the right to keep and bear arms, it did note that original meaning "may of course include an idiomatic meaning," and that "the Second Amendment ... was widely understood to codify a preexisting right, rather than to fashion a new one." (77) An inquiry into framing-era practices and understandings may shed light on the original meaning of both the right to bear arms and the scope of regulatory authority.
A. Framing-Era Practice
Framing-era practice may shed considerable light on the original meaning of the Second Amendment. For example, in his extrajudicial writing, Justice Scalia, though acknowledging that the Constitution contains much that is "abstract and general rather than specific and concrete," has added, "The context suggests that the abstract and general terms, like the concrete and particular ones, are meant to nail down current rights, rather than aspire after future ones--that they are abstract and general references to extant rights and freedoms possessed under the then-current regime." (78) This observation seems particularly pertinent in light of Heller's conclusion that the Second Amendment codified a preexisting right. (79) On this view, framing-era practice fleshes out the original understanding of the framing-era right codified in the Second Amendment. (80) Chief Justice Roberts may have had something like this in mind at oral argument in Heller when, in response to the Solicitor General's suggestion that the Court adopt a test for assessing the constitutionality of firearms regulation like those utilized in other areas of constitutional law, he observed:
Well, these various phrases under the different standards that are proposed, "compelling interest," "significant interest," "narrowly tailored," none of them appear in the Constitution; and I wonder why in this case we have to articulate an all-encompassing standard. Isn't it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time, including you can't take the gun to the marketplace and all that, and determine how these--how this restriction and the scope of this right looks in relation to those? (81)
In terms of framing-era regulation, Heller tells us that there is little framing-era precedent for anything other than "gunpowder storage laws" and laws "restrict[ing] the firing of guns within the city limits to at least some degree." (82) These laws, of course, did not prohibit anyone from possessing or carrying firearms. On this view, the Heller dicta on permissible firearms regulation, as well as the lower-court decisions upholding a variety of laws without framing-era support, are simply wrong. Yet, there are a number of reasons to resist this conclusion.
1. The Perils of Reliance on Framing-Era Practice
There are considerable perils in relying on framing-era practice when evaluating contemporary regulation. Consider, for example, the framing-era firearm. The most advanced type of bearable firearm in the framing era was the flintlock smoothbore musket, which was difficult to load, could produce at most three shots per minute, and was inaccurate except at close range. (83) Firearms in common civilian use have since evolved to include weapons capable of a far greater accuracy, range, and rate of fire, and they are far more likely to discharge accidentally. (84) Thus, what was regarded as sufficient regulation in the framing era might accordingly be regarded as insufficient today, considering the greater dangers posed by contemporary firearms. As one eminent historian explained:
[B]ecause eighteenth-century firearms were not nearly as threatening or lethal as those available today, we ... cannot expect the discussants of the late 1780s to have cast their comments about keeping and bearing arms in the same terms that we would. Theirs was a rhetoric of public liberty, not public health; of the danger from standing armies, not that of casual strangers, embittered family members, violent youth gangs, freeway snipers, and careless weapons keepers. Guns were so difficult to fire in the eighteenth century that the very idea of being accidentally killed by one was itself hard to conceive. Indeed, anyone wanting either to murder his family or protect his home in the eighteenth century would have been better advised (and much more likely) to grab an axe or knife than to load, prime, and discharge a firearm. (85)
Indeed, constitutional law has already recognized the perils of relying on framing-era practice in light of the increased lethality of firearms. In Tennessee v. Garner, (86) for example, the Court invalidated a statute codifying the framing-era rule of the common law that deadly force could be used to stop a fleeing felon as violative of the Fourth Amendment's prohibition on unreasonable search and seizure, concluding: "Because of sweeping change in the legal and technological context, reliance on the common-law rule in this case would be a mistaken literalism that ignores the purposes of a historical inquiry." (87) The Court elaborated:
[T]he common-law rule developed at a time when weapons were rudimentary. Deadly force could be inflicted almost solely in a hand-to-hand struggle during which, necessarily, the safety of the arresting officer was at risk. Handguns were not carried by police officers until the latter half of the last century. Only then did it become possible to use deadly force from a distance as a means of apprehension. As a practical matter, the use of deadly force under the standard articulation of the common-law rule has an altogether different meaning--and harsher consequences--now than in past centuries. (88)
Accordingly, "though the common-law pedigree of Tennessee's rule is pure on its face, changes in the legal and technological context mean the rule is distorted almost beyond recognition when literally applied." (89)
Justice Scalia made a similar point when considering the permissibility of a stop-and-frisk in the absence of probable cause to arrest under the Fourth Amendment. He opined that although a frisk in such circumstances was likely regarded as unlawful in the framing era, it may have become constitutionally reasonable once "concealed weapons capable of harming the interrogator quickly and from beyond arm's reach have become common--which might alter the judgment of what is 'reasonable' under the original standard." (90)
Scholars frequently acknowledge that original meaning can be distorted when framing-era practice is consulted without reference to historical context. (91) Even most originalists draw a distinction between original meaning and original expected applications, and regard only the former as binding. (92) Justice Scalia, too, has acknowledged that constitutional interpretation should be based on "semantic intention" and not "the concrete expectations of lawgivers." (93) Thus, there is reason to doubt the utility of framing-era practice as a means of ascertaining the boundaries of contemporary regulatory authority. Even in terms of original meaning, there is reason to doubt that only those regulations that were common in the framing era should be regarded as constitutionally permissible, for even the framers may have regarded semantic meaning, and not framing-era practice, as the proper measure of constitutionality. (94)
2. The Breadth of Framing-Era Regulatory Authority
Framing-era practice embraces authority to undertake prophylactic regulation. For example, consider that Heller described the Second Amendment as "codif[ying] a right 'inherited from our English ancestors,'" (95) traceable to the English Bill of Rights. (96) The English Bill of Rights, in turn, provided that "the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by law." (97) Note that this right was highly qualified. The limitation of the right to Protestants, and for the entire populace, protecting only arms "suitable to their condition," likely reflects the widespread suspicion of Catholics as well as the lower classes. (98) Moreover, the right was framed to preserve a power to regulate by statute, indicating, as Heller explained, that the right "was held only against the Crown, not Parliament." (99) By the framing era, English law had evolved to remove the religious qualification but continued to recognize a legislative power to regulate; as Blackstone put it, English law protected the people's right "of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which ... is indeed a public allowance, under due restrictions ...." (100) Thus, the preexisting English iteration of the right to keep and bear arms twinned both right and regulatory authority.
To be sure, as Don Kates has argued, the Second Amendment is a constitutional limitation, and, accordingly, reliance on the regulatory power preserved in the English Bill of Rights might be thought to "miss the distinction between the American system of constitutional rights and the non-constitutional English system in which even the most sacrosanct rights guaranteed by one Parliament may be abrogated by its successors." (101) Nevertheless, to the extent that the Second Amendment is thought to have codified a preexisting right derived from English law, the limited character of that right surely is of some importance in ascertaining the original meaning of the right to keep and bear arms. Indeed, American experience with firearms regulation reflects recognition of evolving regulatory power consistent with the character of the preexisting English right.
Although, as Heller noted, framing-era regulation was limited, it was not insignificant. Classes of individuals such as slaves, freed blacks, and people of mixed race were frequently prohibited from owning or carrying guns, and some states extended this bar to Catholics or whites unwilling to swear allegiance to the Revolution. (102) Indeed, it was widely believed that only loyalists possessed a right to bear arms, with others facing sanctions including disarmament. (103) Laws even regulated the manner of owning firearms; such as regulations requiring the safe storage of firearms or gunpowder or barring loaded firearms indoors. (104) Militia laws also frequently required individuals to appear at periodic musters with their firearms and have them registered and inspected. (105)
Subsequently, in the 1820s and '30s, laws prohibiting the carrying of concealed firearms emerged following a surge in violent crime. (106) Although laws prohibiting open-carry were more often than not invalidated, concealed-carry bans were generally upheld against constitutional challenge under the Second Amendment or state-law analogues, (107) as Heller acknowledged. (108)
Later, the same Congress that framed the Fourteenth Amendment--which rendered the Second Amendment applicable to state and local laws (109)--enacted legislation abolishing the militia in most southern states and prohibiting any effort to arm militias in those states. (110) The measure's sponsors dismissed Second Amendment objections, arguing that the prohibition was justified by the prevalence of armed groups in the South, in the wake of the Civil War, "dangerous to the public peace and to the security of Union citizens in those States." (111) This legislation was one in a series of gun-control measures undertaken at the time in an effort to suppress what was seen as unacceptable levels of violence, principally in the South. (112) Also in the nineteenth century, in response to rampant violence, some frontier towns limited or even banned the carrying of firearms, an approach taken in many cities as well. (113)
Regulation continued apace in the twentieth century. Early in the century, a number of state and local governments enacted new restrictions on the sale and carrying of firearms. (114) For example, prohibitions on the possession of firearms by convicted felons emerged early in the twentieth century in response to a crime wave following the First World War. (115) At the federal level, the National Firearms Act of 1934 required manufacturers to obtain a federal license and register machine guns, short-barrel rifles, silencers, and other weapons regarded as dangerous. (116) The Firearms Act of 1938 required a license to ship firearms in interstate commerce and prohibited transfers to specified classes of individuals including certain convicted felons, fugitives from justice, and persons under indictment. (117) The Gun Control Act of 1968 later prohibited the interstate shipment of firearms except to a licensed dealer or collector, required all dealers to obtain federal licenses, placed limitations on the importation of firearms, and prohibited the sale of firearms to, and their possession by, additional classes of disqualified individuals, including convicted felons, those suffering from serious mental illness, substance abusers, and minors. (118) In 1993, Congress required a background check to purchase handguns, and, the following year, it banned the possession of specified assault weapons for the ensuing decade. (119)
In Heller, in order to ascertain the original meaning of the Second Amendment, the Court examined commentary and practice from "after its ratification through the end of the 19th century." (120) It did so to undertake "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," adding that "[t]hat sort of inquiry is a critical tool of constitutional interpretation." (121) There is indeed a convincing case for utilizing post-enactment practice as evidence of original meaning. (122) Yet, this methodology suggests that the Second Amendment did not fix regulatory authority in terms of only those regulations prevalent at the Second Amendment's ratification, but instead was capable of changing to meet felt exigencies. The recognition that regulatory infrastructure does not seem to have been fixed at the framing does not offer a very precise methodology for ascertaining the scope of regulatory power. But it does suggest that, even in terms of original meaning, framing-era regulatory practice is of limited interpretive significance.
B. Historical Analogy
Before abandoning framing-era practice as a means to flesh out the original meaning of the Second Amendment, it is worth considering whether framing-era practice, even if not dispositive, can nevertheless provide useful insights to guide constitutional interpretation. Perhaps the leading scholarly advocate of this approach to originalism is Lawrence
Lessig, who contends that the presuppositions underlying framing-era practices and understandings should be identified and then "translated" in light of contemporary understandings and circumstances. (123) Darrell Miller has made a similar suggestion for the Second Amendment, arguing that Second Amendment jurisprudence could be modeled on that of the Seventh Amendment, which evaluates contemporary civil-jury practice through analogical reasoning based on framing-era practice. (124)
1. Historical Analogy's Questionable Originalist Pedigree
At the outset, it is questionable whether Professor Miller's approach is premised on the original meaning of the Second Amendment. The Seventh Amendment provides that "[i]n Suits at common law ... the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law." (125) This formulation expressly embraces extant common-law jury practice, and thus it should come as no surprise that the Supreme Court has looked to framing-era jury practice when interpreting the Seventh Amendment. (126) The Second Amendment, however, employs a different textual formulation; it forbids "infringe[ment]" of the right to keep and bear arms rather than "preserv[ing]" that right.
Professor Miller nevertheless argues that whenever there is a failure to "preserve" the right to keep and bear arms there is necessarily an infringement, suggesting parallelism between the Second and Seventh Amendments. (127) This reading of the Second Amendment, however, treats different textual formulations as if they were identical. It also fails to explain how the Amendment could tolerate any limitations on the right to "keep or bear," that is, to possess or carry firearms, if the text is properly understood to prohibit any infringement on an individual right to possess and carry anything that qualifies as bearable "Arms." Professor Miller acknowledges the problem, writing that the Second Amendment could not possibly "mean what it says," but must tolerate limitations on the right to keep and bear arms by virtue of an "idiomatic meaning." (128) If the term "infringe[d]" in the Second Amendment had this type of an idiomatic meaning in the framing era, however, Professor Miller does not identify any historical evidence that it was understood as a synonym for the term "preserve" in the Seventh Amendment.
2. The Difficulties of Historical Analogy
Even if the Second Amendment's meaning is properly discoverable through analogy to framing-era practice, the process of applying framing-era practice and understandings to contemporary circumstances presents considerable difficulty, as the critics of Professor Lessig's methodology have contended. (129) In the context of the civil jury right, reasoning by historical analogy has often proven difficult; it requires a challenging counterfactual inquiry into whether a civil action unknown in the framing era would have been tried to a jury at the framing, as Professor Miller admits. (130) Indeed, the Court has acknowledged that drawing analogies to framing-era practice does not always supply an adequate basis for assessing whether an action, unknown in the framing era, must be tried to a jury, and it has for that reason concluded the Seventh Amendment inquiry turns primarily on whether the remedy sought in a new form of action resembles a damages remedy at common law. (131) A focus on remedy alone surely simplifies matters, but no comparable metric presents itself for assessing firearms regulation, which involves no single remedy for a legal wrong but rather a complex balance between liberty and the need for prophylactic regulation of weapons posing far greater dangers than were known in the framing era.
As Joseph Blocher has observed, analogical reasoning involves marked difficulty when it comes to the Second Amendment, since there is no agreement on a methodology for determining which similarities between contemporary and framing-era regulations should be regarded as relevant. (132) Beyond that, when the relevant historical context has sufficiently changed, it is doubtful that efforts to analogize to framing-era practice have utility. (133) For example, when a contemporary regulation has no fair framing-era analog, that may not be indication of its invalidity but, rather, merely a reflection of changed circumstances. Although there may have been relatively little gun control in the framing era, firearms were also far less lethal; accordingly, framing-era judgments about the need for regulation were made in a context far different from contemporary circumstances. The absence of an analogous framing-era regulation to a challenged contemporary law may therefore indicate no more than the fact that no fairly analogous regulatory issue arose in the framing era.
Even when analogous framing-era regulations can be identified, many difficulties remain. The prophylactic regulations of the framing era utilized proxies for dangerousness that we would today find wildly inaccurate, if not profoundly offensive, such as religion, race, and political loyalty. Yet, if contemporary regulation based on similarly unreliable proxies were permitted, virtually any regulation might be sustained. For example, such rough proxies for special dangerousness would seemingly provide sufficient support for the District of Columbia's handgun ban, since, as Justice Breyer observed in Heller, there was plenty of evidence that handguns were strongly linked to crime, injuries, and death. (134)
Justice Scalia has himself rejected analogical reasoning as an originalist methodology. In United States v. Jones, (135) he authored the opinion of the Court that invoked framing-era conceptions of trespass to support its holding that the attachment and monitoring of a global positioning device to an automobile in order to determine its location was a "search" within the meaning of the Fourth Amendment. (136) In his separate opinion, however, Justice Alito observed that "it is almost impossible to think of late-18th-century situations that are analogous to what took place in this case," such as "a case in which a constable secreted himself somewhere in a coach and remained there for a period of time in order to monitor the movements of the owner," adding that, even then, "this would have required either a gigantic coach, a very tiny constable, or both." (137) Justice Scalia responded: "[I]t is quite irrelevant whether there was an 18th-century analog.... [O]ur task, at a minimum, is to decide whether the action in question would have constituted a 'search' within the original meaning of the Fourth Amendment." (138) This view plainly rejects the necessity to identify a framing-era analog in order to apply the original meaning of a constitutional provision.
Some concrete examples illustrate the manifold problems with the use of historical analogy. Consider, for example, laws prohibiting the possession of high-capacity magazines thought by some to facilitate mass shootings by enabling offenders to fire many rounds at a high rate. (139) Framing-era firearms were capable of nothing approximating this rate of fire. Thus, it is doubtful that the framing-era faced any fairly analogous regulatory issue.
Or, consider the surprisingly knotty problem of analogical reasoning presented by laws prohibiting the possession of firearms by convicted felons. Some commentators have argued that because laws prohibiting the possession of firearms by convicted felons appeared only in the twentieth century, they have questionable originalist support. (140) Don Kates responded with an analogy: most felonies in the framing era were punished by death and forfeiture of property, and therefore a framing-era felony conviction effectively extinguished the right to keep and bear arms like contemporary laws barring felons from possessing firearms. (141) But Kevin Marshall observed that the imposition of capital punishment and forfeiture upon a felony conviction was far from universal in the framing era. (142) Thus, it seems that a felony conviction was not universally associated with a loss of firearms rights. Even so, Kates and others have responded, framing-era rhetoric often associated the right to bear arms with the full membership in the polity afforded to law-abiding citizens, which could presumably be forfeited as a consequence of criminal misconduct. (143) Still, the advocates of this view have not identified framing-era precedents to support their speculation. Moreover, Marshall and others have added, although there were some framing-era proposals that would have carved out from the right to bear arms those who had committed crimes or were otherwise dangerous or untrustworthy, the text of the Second Amendment was not framed in those terms. (144) Beyond that, it seems indisputable that a felony conviction has far different significance today than in the framing era. As the Court has explained:
Almost all crimes formerly punishable by death no longer are or can be. And while in earlier times "the gulf between the felonies and the minor offences was broad and deep," today the distinction is minor and often arbitrary. Many crimes classified as misdemeanors, or nonexistent, at common law are now felonies. (145)
Thus, it is doubtful that a framing-era felony conviction is properly analogized to a contemporary felony conviction.
Therefore, it is small wonder that courts considering the historical evidence on felon disqualification often find it inconclusive. (146) Perhaps only those convicted of felonies regarded as dangerous should be barred from possessing firearms, as some commentators have argued. (147) This approach, however, would enmesh courts in the difficult predictive business of judging which felonies present unacceptable risk of future firearms-related misconduct, a type of judgment alien to the framing-era regime. (148) Even worse, many framing-era felonies did not require proof of violence. (149) This proposal might also warrant treating certain violent misdemeanors or other potential indicia of dangerousness as the basis for depriving individuals of their right to keep and bear arms. Whether this new constitutional inquiry has any fair analogy in framing-era practice, however, is highly uncertain.
Finally, consider laws that restrict carrying firearms in public places, whether concealed or openly. Laws prohibiting carrying concealed weapons became common in the nineteenth century. (150) Significantly, as Heller acknowledged, most nineteenth-century courts upheld bans on carrying firearms in public places against challenges under the Second Amendment or its state constitutional analogues. (151) Some commentators locate originalist support for laws limiting the right to carry firearms in the Statute of Northampton, (152) which they believe was understood as a broad prohibition on carrying firearms because of their potential to alarm others. (153) Blackstone's description of the statute seems to characterize it in these terms: "[R]iding or going armed, with dangerous or unusual weapons, is a crime against the public peace, by terrifying the good people of the land." (154) Hawkins provided a potentially narrower description, however, requiring that the firearm be carried in circumstances likely to provoke alarm: "[N]o Wearing of Arms is within the Meaning of this Statute, unless it be accompanied with such Circumstances as are apt to terrify the People." (155) Coke, in contrast, described the statute in broad terms, providing that all but royal officials, those assisting them, and those responding to "a Cry made for armies to keep the peace," are forbidden "to go nor ride armed by night nor by day." (156)
If the Second Amendment codified a preexisting right of English origin, perhaps it incorporated the limitation on that right represented by the Statute of Northampton, although the English sources describe the statute somewhat inconsistently. There is also, however, a line of nineteenth-century American precedent that seemingly recognized a right to carry firearms in public, at least openly, (157) and some commentators believe that the prevailing understanding was that the carrying of weapons could be prohibited only when it was done in a manner that could alarm others, as when they were concealed. (158) Still, the historical evidence is in conflict; there is some historical precedent for prohibitions on carrying firearms in public, whether openly or concealed. (159) Moreover, as Saul Cornell has noted, virtually all the nineteenth-century laws and judicial decisions drawing a distinction between concealed and open carry or embracing a right to carry firearms in public were in the South, where the need to carry arms may have been regarded as greater given the prevalence of slavery, while in the North broader prohibitions on carrying arms in public seem to have been generally regarded as within the scope of the police power. (160) Thus, the probative value of the historical evidence suggesting a right to carry firearms in public, at least openly, is quite unclear.
If one is willing to rely on the historical evidence from the antebellum South, despite its suspect provenance, perhaps there is a case for drawing a distinction between concealed and open carry on the ground. One could argued that laws prohibiting concealed carry are fairly analogous to the Statute of Northampton because of the potential for concealed weapons to alarm others, while open carry was not regarded as alarming. This explanation for the historical evidence, however, is, at best, incomplete. A concealed weapon, precisely because it is hidden from view, cannot alarm others unaware of its presence. Instead, as Professor Volokh has noted, those jurisdictions that drew a distinction between concealed carry and open carry seem to have proceeded on the view that law-abiding persons carried weapons openly, while concealed carry was thought suspicious or threatening. (161) There is ample expression in nineteenth-century decisions to this effect. (162) On this view, however, concealed carry is used as a proxy for dangerousness, a rather different type of regulation than is reflected in the Statute of Northampton, at least in its narrower formulations. Beyond that, Professor Volokh rightly questions the view that the Statute of Northampton can fairly justify prohibitions on carrying concealed firearms under contemporary circumstances, in which many might find open carry far more alarming than a discreetly concealed firearm. (163)
Thus, whether framing-era practice provides fair analogical support for analyzing the contemporary scope of the right to carry weapons in public, whether openly or concealed, is quite unclear. It seems likely that the nineteenth-century approach of forbidding concealed but not open carry--even if that is regarded as the prevailing view of the day despite the evidence of a different approach in the north--is best understood as utilizing concealment as a proxy for identifying individuals likely to be carrying weapons for an improper purpose. We can fairly doubt, however, whether this proxy is fairly rooted in the Statute of Northampton, and whether it has fair application in contemporary conditions.
Of course, one could reject the historical basis for distinguishing between concealed carry and open carry. A divided panel of the Ninth Circuit did just that by holding that the Second Amendment permits a prohibition on either concealed or open carry, but not both, and for that reason invalidating a restrictive permitting policy for carrying concealed firearms in light of a concurrent statutory ban on open carry. (164) Again, however, it is debatable whether this approach represents a fair analogy to framing-era practice, which recognized regulatory power to restrict the carrying of firearms under what were regarded as suspicious or alarming circumstances. The Ninth Circuit panel, in contrast, appeared indifferent to whether either concealed or open carry is properly regarded as potentially dangerous or alarming. In any event, although the panel purported to ground its invalidation in a limitation on the ability to carry concealed firearms in the original understanding of the Second Amendment, (165) it is hard to miss the ahistorical character of this holding. As the dissenting judge noted, there is ample historical evidence indicating that prohibitions on concealed carry have long been regarded as consistent with the Second Amendment, yet the majority invalidated a law restricting concealed and not open carry. (166) A Second Amendment jurisprudence that is indifferent to whether concealed or open carry represents a threat to the public safety--instead leaving the legislature entirely free to decide which to ban--seems to offer little in the way of fair analogy to the framing-era understanding, which permitted regulation under circumstances regarded as suspicious or alarming. The Ninth Circuit's decision, rather than reflecting an authentic Second Amendment originalism, more likely demonstrates the limitations of that approach. (167)
Professor Miller has acknowledged that adjudication by historical analogy is, at best, "a partial solution," (168) and admits that it supplies no clear answer even for the two regulatory issues he discusses in his own article: whether the Second Amendment permits prohibitions on carrying firearms in public and large-capacity magazines. (169) A methodology this imprecise hardly seems a satisfactory basis for constitutional adjudication. Indeed, plausible analogical arguments frequently can be deployed to attack or defend challenged regulations, yet no methodology presents itself, originalist or otherwise, for selecting the appropriate analogy. Like all counterfactual historical inquiries, an effort to determine how the framers would have assessed regulatory issues alien to their world is fraught with peril. Second Amendment originalism will need something more than analogical reasoning to produce a workable jurisprudence.
C. Longstanding Regulations
Another effort to develop an authentically originalist approach in contrast to that taken by lower courts in Heller's wake would insist that a regulation have a substantial historical pedigree, even if lacking in framing era support. (170) This approach finds support in Heller's dicta declining "to cast doubt on longstanding prohibitions." (171) Along these lines, Professor Blocher has argued that the Second Amendment should be understood to permit some local variability in the scope of firearms regulation in light of the longstanding record of relatively more intensive firearms regulation in cities when compared to rural areas. (172)
It is difficult, however, to reconcile this approach with Heller's originalism. Nothing in the original meaning of the Second Amendment's operative clause, as explicated in Heller, explains why longstanding regulations, especially when they lack a framing-era pedigree, deserve deference. Indeed, Heller tells us that the original meaning of the Second Amendment's operative clause conferred an individual right to possess or carry any firearms in common civilian use, with no exception for "longstanding" infringements on this right. To be sure, that a particular regulation managed to avoid invalidation for some substantial time might be some evidence that it is consistent with original meaning. There are also sound arguments for deference to longstanding practice, understandings, and traditions. (173) Nevertheless, treating regulations that lack a substantial historical pedigree as invalid for that reason alone is deeply problematic. Not only does this view have no footing in Heller's account of the original meaning the operative clause, but it regards all novel regulations as invalid unless and until they somehow survive some type of incubation period. Yet, every regulation now regarded as longstanding went through such an incubation period. As Judge Easterbrook put it when discussing the constitutionality of section 922(g)(9) of Title 18 of the United States Code, which prohibits the possession of firearms by anyone "who has been convicted in any court of a misdemeanor crime of domestic violence" (174):
The first federal statute disqualifying felons from possessing firearms was not enacted until 1938; it also disqualified misdemeanants who had been convicted of violent offenses. A 1938 law may be "longstanding" from the perspective of 2008, when Heller was decided, but 1938 is 147 years after the states ratified the Second Amendment. The Federal Firearms Act covered only a few violent offenses; the ban on possession by all felons was not enacted until 1961. In 1968 Congress changed the "receipt" element of the 1938 law to "possession," giving 18 U.S.C. [section] 922(g)(1) its current form. If such a recent extension of the disqualification to non-violent felons (embezzlers and tax evaders, for example) is presumptively constitutional, as Heller said in note 26, it is difficult to condemn [section] 922(g)(9), which like the 1938 Act is limited to violent crimes. It would be weird to say that [section] 922(g)(9) is unconstitutional in 2010 but will become constitutional by 2043, when it will be as "longstanding" as [section] 922(g)(1) was when the Court decided Heller, (175)
Indeed, as the discussion in Part II.A above makes plain, the Second Amendment seems to have long been understood to permit novel regulations, despite the fact that those regulations were not "longstanding" for some period of time after they first appeared. A methodology that regards regulations as unconstitutional only during the period before they become "longstanding" is rooted in neither originalism nor any coherent program of constitutional interpretation.
D. Doctrinal Borrowing
A final possibility for developing an originalist Second Amendment jurisprudence would be to borrow doctrine from parallel constitutional text. If the Second Amendment bears textual similarities to other constitutional provisions, one plausible approach would be to interpret the Second Amendment in a similar fashion to those parallel provisions. (176) For example, Part II.B considered the proposal to utilize the analogical approach of Seventh Amendment jurisprudence to assess the propriety of contemporary firearms legislation. Yet, as that example demonstrates, there are formidable textual and practical obstacles to utilizing analogical reasoning in the Second Amendment context.
Another approach to doctrinal borrowing invokes the jurisprudence developed under the First Amendment's prohibition on laws "abridging the freedom of speech, or of the press." (177) Heller invoked the First Amendment at several points in the opinion as an example of an analogous individual right. (178) Since the First Amendment confers an individual right in a seemingly unambiguous fashion, but has been interpreted to permit some forms of regulation under various formulations, perhaps Second Amendment jurisprudence should be constructed in a parallel fashion. (179)
Some commentators have argued that First Amendment doctrine should be used as a model for Second Amendment jurisprudence. (180) Some courts have embraced that view. (181) Others have been more skeptical. (182)
At the outset, there is little reason to believe that a Second Amendment jurisprudence constructed to mirror free-speech doctrine would qualify as originalist. The original meaning of the First Amendment is itself unclear; there is something verging on consensus among scholars that no coherent account emerges from the historical evidence, and certainly no account that explains contemporary doctrine. (183) Indeed, no one contends that contemporary doctrine is premised on the original meaning of the First Amendment; to the contrary, as Chief Justice Roberts put it during the Heller argument, "[T]hese standards that apply in the First Amendment just kind of developed over the years as sort of baggage that the First Amendment picked up." (184) Nor is there historical evidence that the First and Second Amendments were understood to have parallel original meanings. (185) Thus, in terms of original meaning, there is slight support that borrowing First Amendment jurisprudence would supply a basis for an authentically originalist Second Amendment jurisprudence.
In any event, the similarities between the First and Second Amendment are more apparent than real. The First Amendment does not identify a purpose for which speech and the press receive protection; it instead seems to offer protection for written and oral expression without any particular instrumental objective in mind. Indeed, the Court has resolutely rejected linking First Amendment protection to any discrete instrumental objective. Instead, the Court tells us that anything conveying some sort of idea is eligible for First Amendment protection, (186) and that the First Amendment protects not only "discussion of governmental affairs" but also "expression about philosophical, social, artistic, economic, literary, or ethical matters." (187) Even "a narrow, succinctly articulable message is not a condition of constitutional protection," since the First Amendment embraces "the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll." (188) As a consequence, any governmental interest in suppressing expression is considered impermissible: "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." (189)
Second Amendment rights have a far different character. Gregory Magarian has argued that it is difficult to analogize between expression and the right to keep and bear arms, since speech serves a far broader set of purposes and has a far more tenuous relation to concrete harms inflicted on others than the right to keep and bear arms. (190) He and Mark Tushnet have also observed that First Amendment jurisprudence cannot easily be applied to firearms regulation because firearms regulation can never be firearms-neutral in the way that speech regulation can be content-neutral; any regulation triggered by the content of speech or expression is considered suspect under the First Amendment, while gun-control laws--even those characterized as presumptively lawful in Heller--necessarily focus on the manner in which firearms are possessed or carried. (191) Yet, even these criticisms understate the problems with constructing Second Amendment jurisprudence by borrowing First Amendment doctrine.
Heller concluded that the individual right to keep and bear arms was codified to protect the interest in lawful armed defense and that regulations that impermissibly impinge on that interest are invalid. Indeed, Heller cautioned that the Second Amendment right "[i]s not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose" and invalidated the challenged ordinance because it "makes it impossible for citizens to use [firearms] for the core lawful purpose of self-defense." (192) Consequently, as we have seen, lower courts have applied
Heller in a fashion that assesses the extent to which a challenged regulation burdens the core interest in lawful defense. Accordingly, it would be anomalous to borrow a free-speech and free-press jurisprudence developed with no discrete instrumental objective in mind and apply it to a Second Amendment right formulated with reference to precisely such an objective. First Amendment protection, in other words, is not consequentialist, but Second Amendment protection, Heller tells us, is, and deeply so.
Two examples illustrate the point. First, consider again laws that prohibit the possession of firearms by convicted felons. Heller treats these regulations as presumptively lawful, and there are serious arguments for sustaining such laws, which have been consistently upheld by appellate courts since Heller. (193) In the First Amendment context, however, the Court long ago held that the right to speak or publish cannot be denied as a result of past misconduct, such as the publication of false and defamatory material, under the framing-era rule against prior restraints on publication. (194) It has also held that convicted felons retain First Amendment rights, even when writing about the crime for which they were convicted. (195) If the Second Amendment is properly understood to permit prohibitions on possessing firearms by convicted felons, there must be some fundamental difference between First Amendment and Second Amendment rights.
Second, consider laws that provide for enhanced penalties when a firearm is used or carried during the commission of a substantive crime. Since Heller, these laws have also been routinely upheld against Second Amendment attack. (196) In light of Heller's admonition that the Second Amendment is directed at protection of an interest in lawful armed defense, this result seems correct. Conversely, First Amendment doctrine insists that all speech receive equal treatment regardless of its communicative effects. (197) Thus, while all expression within the scope of the First Amendment's protection is normally afforded protection, Heller appears to condition constitutional protection on the purpose for which individuals keep and bear arms. (198) This similarly suggests a fundamental difference between First and Second Amendment rights.
In short, any effort to construct a Second Amendment jurisprudence using First Amendment principles is deeply problematic. The character of these constitutional protections seems far too disparate to give rise to fruitful doctrinal borrowing.
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|Title Annotation:||Introduction through II. The Problematic Efforts to Rescue Second Amendment Originalism, p. 1187-1229|
|Publication:||Washington University Law Review|
|Date:||Jul 1, 2015|
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