Interpreting the Second Amendment

Taken from Keeping the Faith with the Constitution by Christopher H. Schroeder, Goodwin Liu, and Pamela S. Karlan, Chapter 2: Judicial Interpretation of the Constitution p30-33

A recent case, District of Columbia v. Heller, illustrates the multifaceted approach to constitutional interpretation that is routinely applied by judges across the ideological spectrum. As Heller shows, it is caricature to say that conservative judges decide cases based only on text and original meaning, without considering social context or practical consequences, or that liberal judges ignore text and history, and instead decide cases based on contemporary values or their own policy preferences. What divided the Court in Heller was not interpretive methodology but rather the substantive accounts of text, history, structure, precedent, contemporary norms, and social consequences that the dueling Justices offered. We do not weigh the merits of the contrasting opinions in Heller here. Instead, we simply describe the opinions in order to elucidate the methodology our courts have commonly used in constitutional interpretation.

Heller involved the Second Amendment, which says: “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.” The issue before the Court was whether the amendment bars the District of Columbia from enforcing its law prohibiting handgun possession against individuals who wish to keep handguns in their homes for self-defense.

All of the Justices—the five in the majority as well as the four dissenters—devoted a great deal of attention to parsing the text of the amendment. Both sides relied on dictionaries, contemporaneous commentaries, and the work of grammarians and linguists to unpack the words of the amendment. The majority read “the right of the people” to refer to a right possessed by individuals acting on their own, akin to the Fourth Amendment “right of the people to be secure . . . against unreasonable searches and seizures.” And it read the phrase “keep and bear Arms” to refer generally to the possession and use of weapons, including for hunting and individual self-defense. The dissenters, by contrast, read “the right of the people” to protect individuals engaged in collective action through participation in the militia, akin to the First Amendment “right of the people peaceably to assemble,” which also protects a collective activity. And it construed “keep and bear Arms” as a reference to military use of weapons.

Each side also defended its reading by invoking historical evidence, including English antecedents of the Second Amendment, the amendment’s draftinghistory, analogous provisions in state constitutions and statutes during the colonial and Founding eras, and post-ratification commentary in case law and other published sources. The majority argued that the amendment’s opening clause simply “announces the purpose for which the right was codified” and “does not suggest that preserving the militia was the only reason Americans valued the ancient right.” Among other sources, it cited contemporaneous state constitutional provisions expressly protecting an individual right to keep and bear arms for self-defense to demonstrate the prevailing understanding of the scope of the right. Meanwhile, the dissenters observed that the Framers considered but rejected more expansive language concerning the right to keep and bear arms, including several proposals from state ratifying conventions that would have clearly protected civilian use and possession of weapons.26 According to the dissenters, the drafting history and the language that was ultimately adopted reflected the Founding generation’s “overriding concern about the potential threat to state sovereignty that a federal standing army would pose, and a desire to protect the States’ militias as the means by which to guard against that danger.”

Both sides also grappled with precedent, especially the 1939 case, United States v. Miller, in which a unanimous Court held that possession of a sawedoff shotgun is not protected by the Second Amendment “[i]n the absence of any evidence tending to show that [its] possession or use . . . at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia.” The dissenters understood Miller to turn “on the basic difference between the military and nonmilitary use and possession of guns,” with the latter falling outside the scope of Second Amendment protection. The majority, by contrast, read Miller to say that the Second Amendment right “extends only to certain types of weapons,” namely, “those weapons . . . typically possessed by law-abiding citizens for lawful purposes.”

Moreover, in applying the Second Amendment to the District of Columbia handgun ban, both sides in Heller demonstrated that the modern-day application of a constitutional principle must take into account contemporary social practices and anticipated social consequences. Despite Justice Scalia’s insistence elsewhere that the Constitution’s meaning is determined by how members of the Founding generation would have applied it, his opinion for the Court in Heller ultimately adopts an interpretation that depends on current social norms and conditions. This is apparent from the Court’s answers to two questions arising under its view that the Second Amendment protectsa right to bear arms for self-defense as well as military purposes: What kinds of “Arms” are covered by the amendment? And what constitutes a forbidden “infringe[ment]”?

As to the first question, the Court squarely rejected the idea that the word “Arms” covers only those weapons that would have been covered in 1791:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U.S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U.S. 27, 35-36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

Why is that so? It is because many words in the Constitution are properly read to stand for broad principles—here, the right to use technology, or “instruments,” for self-protection—whose practical meaning depends on interpretation that is responsive to evolving social conditions, including advances in technology.

At the same time, the Court recognized that not all weapons available today fall within the Second Amendment’s scope. As a historical matter, the Court explained, the amendment accommodated the tradition of prohibiting the carrying of “dangerous and unusual weapons” and covered only arms “of the kind in common use at the time,” since those were the arms that men called for militia service would have brought with them. With this reading, the Court reaffirmed its holding in Miller that the Second Amendment does not protect possession of a sawed-off shotgun. But what distinguishes protected handguns from unprotected sawed-off shotguns? Nothing straightforwardly textual or historical. Instead, the difference lies in contemporary social practice—or, as Justice Scalia put it, the fact that “handguns are the most popular weapon chosen by Americans for self-defense in the home.” By limiting the Second Amendment’s protection to weapons “in common use at the time,” the Court interpreted the constitutional principle to have the “capacity of adaptation to a changing world.” Indeed, just as a sawedoff shotgun is not what “the American people have considered . . . to be the Judicial Interpretation of the Constitution 33 quintessential self-defense weapon,” the American people may some day reach the same conclusion about handguns on the belief that they pose greater risks inside the home than their potential benefits to self-defense. Evolving social norms can change the ambit of the Second Amendment’s protection as interpreted by the Court.

Moreover, even with respect to handguns, the Court in Heller indicated its receptivity to a broad range of government regulation, including “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.” Although the amendment itself gives no indication whether such regulations “infringe” the right to bear arms, their validity does not appear to be in doubt. Why? The most plausible reason is that such regulations reflect an acceptable balance between “the interests protected by the Second Amendment on one side and the governmental public safety concerns on the other.” As the Framers understood, and as the Court has recognized in many areas, no right has absolute applicability regardless of how severely it may clash with other important values. Thus, attention to real-world consequences—or to the reasonableness of legislative judgments concerning real-world consequences—is an ordinary part of constitutional adjudication. The Court’s readiness to uphold various firearms regulations simply illustrates this point, despite Justice Scalia’s purported disavowal of an “interest-balancing” approach. Although the majority and the dissenters ultimately disagree on the validity of the District of Columbia handgun ban, the difference between the two sides is not that one engages in interest balancing while the other does not. It is that one side does so “explicitly” while the other does not.