A federal ban on an entire class of guns in ordinary use for self‐defense — such as the handgun ban adopted by the District of Columbia — is now off the table. Every gun controller’s fondest desire has become a constitutional pipe dream.
Two important practical issues remain. First, will this ruling also apply to states and municipalities? That will depend on whether the Supreme Court decides to “incorporate” the right to keep and bear arms into the 14th Amendment. But in the middle of his opinion Justice Scalia acknowledges that the 39th Congress that enacted the 14th Amendment did so, in part, to protect the individual right to arms of freedmen and Southern Republicans so they might defend themselves from violence.
My prediction: This ruling will eventually be extended to the states.
Second, how will the court deal with firearms regulations that fall short of a ban? The majority opinion strongly suggests that such regulations must now be subjected to meaningful judicial scrutiny. The exact nature of this scrutiny is not clear, but Justice Scalia explicitly rejects the extremely deferential “rationality” review advocated by Justice Stephen Breyer.
Most likely, gun laws will receive the same sort of judicial scrutiny that is now used to evaluate “time, place and manner” regulations of speech and assembly. Such regulations of First Amendment freedoms are today upheld if they are narrowly tailored to achieve a truly important government purpose, but not if they are really a pretext for undermining protected liberties.
My prediction? Because gun‐rights groups like the NRA have so successfully prevented enactment of unreasonable gun laws, most existing gun regulations falling short of a ban will eventually be upheld. But more extreme or merely symbolic laws that are sometimes proposed — whose aim is to impose an “undue burden” by raising the cost of gun production, ownership and sale — would likely be found unconstitutional. All gun regulations — for example, safe storage laws and licensing — will have to be shown to be consistent with an effective right of self‐defense by law‐abiding citizens.
Justice Scalia’s opinion is exemplary for the way it was reasoned. It will be studied by law professors and students for years to come. It is the clearest, most careful interpretation of the meaning of the Constitution ever to be adopted by a majority of the Supreme Court. Justice Scalia begins with the text, and carefully parses the grammatical relationship of the “operative clause” identifying “the right to keep and bear arms” to the “prefatory clause” about the importance of a “well‐regulated militia.” Only then does he consider the extensive evidence of original meaning that has been uncovered by scholars over the past 20 years — evidence that was presented to the Court in numerous “friends of the court” briefs.
Justice Scalia’s opinion is the finest example of what is now called “original public meaning” jurisprudence ever adopted by the Supreme Court. This approach stands in sharp contrast to Justice John Paul Stevens’s dissenting opinion that largely focused on “original intent” — the method that many historians employ to explain away the text of the Second Amendment by placing its words in what they call a “larger context.” Although original‐intent jurisprudence was discredited years ago among constitutional law professors, that has not stopped nonoriginalists from using “original intent” — or the original principles “underlying” the text — to negate its original public meaning.
Of course, the originalism of both Justices Scalia’s and Stevens’s opinions are in stark contrast with Justice Breyer’s dissenting opinion, in which he advocates balancing an enumerated constitutional right against what some consider a pressing need to prohibit its exercise. Guess which wins out in the balancing? As Justice Scalia notes, this is not how we normally protect individual rights, and was certainly not how Justice Breyer protected the individual right of habeas corpus in the military tribunals case decided just two weeks ago.
So what larger lessons does Heller teach? First, the differing methods of interpretation employed by the majority and the dissent demonstrate why appointments to the Supreme Court are so important. In the future, we should be vetting Supreme Court nominees to see if they understand how Justice Scalia reasoned in Heller and if they are committed to doing the same.
We should also seek to get a majority of the Supreme Court to reconsider its previous decisions or “precedents” that are inconsistent with the original public meaning of the text. This shows why elections matter — especially presidential elections — and why we should vet our politicians to see if they appreciate how the Constitution ought to be interpreted.
Good legal scholarship was absolutely crucial to this outcome. No justice is capable of producing the historical research and analysis upon which Justice Scalia relied. Brilliant as it was in its execution, his opinion rested on the work of many scholars of the Second Amendment, as I am sure he would be the first to acknowledge. (Disclosure: I joined a brief by Academics for the Second Amendment supporting the individual rights interpretation; one of my articles was cited by Justice Scalia and another by Justice Breyer in his dissent.)
Due to the political orthodoxy among most constitutional law professors, some of the most important and earliest of this scholarship was produced by nonacademics like Don Kates, Stephen Halbrook, David Kopel, Clayton Cramer and others. Believe it or not, Heller was a case of nearly first impression, uninhibited by any prior decisions misinterpreting the Second Amendment.
Last but not least, tribute must be paid to the plaintiffs — Shelly Parker, Dick Anthony Heller, Tom Palmer, Gillian St. Lawrence, Tracey Ambeau, and George Lyon — who went where the National Rifle Association feared to tread, and to their lawyers Robert Levy, Clark Neily, and lead counsel Alan Gura. I was privileged to witness Mr. Gura argue the case — his first Supreme Court argument ever — and he was outstanding. Heller provides yet another reminder of the crucial role that private lawyers play in the preservation of our liberties.