"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."
That's the Second Amendment to the U. S. Constitution. Remarkably, for over two hundred years since the ratification of that amendment in 1791, the U.S. Supreme Court said very little about the interpretation of that amendment. Then, in 2008, the Court issued its landmark decision in District of Columbia v. Heller (2008) interpreting that amendment as protecting the individual's right to keep and bear arms, unconnected to service in a militia.
The District of Columbia had a law banning handgun possession and requiring that lawfully owned rifles and shotguns in homes be kept unloaded and disassembled or bound by a trigger lock. Dick Heller was a D.C. special policeman with a license to carry a handgun during his work, but he was refused a license to keep a handgun at home for self-defense. By a 5 to 4 decision, the Court ruled that this violated Heller's constitutional right to keep and bear arms for self-defense. Justice Antonin Scalia wrote the opinion for the majority, which included Chief Justice John Roberts and Associate Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito. Associate Justices John Paul Stevens and Stephen Breyer wrote dissenting opinions joined by Associate Justices David Souter and Ruth Bader Ginsburg.
The first ten amendments to the Constitution ("The Bill of Rights") have been understood as originally applying only to the national government and not to the states. Since the District of Columbia is a federal enclave under the authority of the U.S. Congress, the Court could apply the Second Amendment to the District. Two years later, however, the Court in McDonald v. City of Chicago (2010) found that the Second Amendment was incorporated by the Due Process Clause of the Fourteenth Amendment against the states.
Interpreting the Heller decision has been a fundamental issue in the current debate over gun laws and gun violence in America. Progressives who want stricter gun control laws criticize the Heller decision for mistakenly asserting an absolute individual right to gun ownership that has promoted horrific gun violence. Conservatives who oppose stricter gun control praise the Heller decision for upholding the constitutional right to own guns.
In my reading of Heller, I will make three points. First, I will argue that Scalia's opinion is a persuasive interpretation of the Second Amendment as protecting gun ownership as part of an individual right of self-defense rooted in Anglo-American legal traditions.
My second point is that the right to keep and bear arms can be understood as a natural right that has emerged from the Darwinian evolution of what John Locke called "the executive power of the law of nature"--the individual's natural right to defend himself against those who use or threaten to use force to deny his life or liberty.
My third point is that the progressives and the conservatives are both mistaken in their reading of Scalia's opinion as declaring that stricter gun control laws would be unconstitutional. This is mistaken because Scalia clearly indicates that the right protected by the Second Amendment is limited in ways that allow legislators to formulate gun control policies to manage the problem of gun violence.
AN INDIVIDUAL RIGHT
According to Justice Stevens, in his dissenting opinion, the meaning of "the right of the people to keep and bear Arms" in the Second Amendment must be interpreted in the light of the opening language of the Amendment--"A well regulated Militia, being necessary to the security of a free State." This must mean that the Amendment "protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature's power to regulate the nonmilitary use and ownership of weapons." Therefore, "there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution" (Stevens, slip opinion, 2).
Against this reading, Scalia argues that while the "prefatory clause" announces a purpose ("a well regulated Militia"), this does not limit the scope of the "operative clause" ("the right of the people to keep and bear Arms"). The terminology of the "right of the people" appears elsewhere in the Bill of Rights (the First, Fourth, and Ninth Amendments), and each time this means individual rights, not rights exercised only in some collective body. The membership of state militias was limited to males of a certain age physically able to fight for the common defense. But "the people" refers to all individuals who are citizens of the community.
Moreover, Scalia notes that nine state constitutional provisions written in the early years of the nation protected a right of citizens to "bear arms in defense of themselves and the state" or to "bear arms in defense of himself and the state" (Scalia, slip opinion, 11, 29-30). Clearly, the right to "bear arms" was independent of military service.
During the constitutional ratification debates, the Antifederalists warned that the Congress's power over the state militias could be used to abolish the militias or to create a "select militia" and a standing army, so that the people could then be disarmed, which had been attempted by the Stuart monarchs in England. The Federalists denied that the Congress had such power, but in the Bill of Rights, they codified the Second Amendment as a way of reassuring the Antifederalists. That explains why they specified a "well regulated Militia" as a purpose for arming the people. But the "right of the people to keep and bear Arms" is not limited to this purpose. It is also necessary for individual self-defense.
AN ANGLO-AMERICAN RIGHT
In the English Bill of Rights of 1689, it is declared "That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law." Scalia identifies this as the predecessor to the Second Amendment (19-20). The Catholic King James II had ordered the disarming of his Protestant opponents. When he was overthrown in the Glorious Revolution of 1688, Englishmen obtained an assurance from William and Mary, in the Declaration of Right in February of 1689, which was codified as statute in December of 1689, that Protestants would never be disarmed. (When John Locke published his Two Treatises of Government for the first time in the fall of 1689, one motivation was probably to support the codification of the Bill of Rights.)
Even though this right to be armed is limited to Protestants, it is clearly an individual right that does not depend on serving in a militia. And it was understood to be one of the fundamental rights of Englishmen.
As Scalia indicates, George III had attempted to disarm the most rebellious colonists in the 1760's and 1770's. Scalia quotes from a newspaper article in New York in April of 1769 asserting that "it is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defense" (21).
A NATURAL RIGHT
As in this newspaper article, it was common for the American colonists to assume that the English Bill of Rights was a legal codification of "natural rights" that included the natural right to be armed for self-defense. Such rights existed prior to and independent of any governmental legislation.
Scalia quotes many cases of people identifying the individual right to be armed as a natural right. This is notable because Scalia is a legal positivist who rejects the idea that judges should recognize natural rights or natural law (Scalia, slip opinion, 12, 20, 33, 39, 47).
A typical example of this is William Blackstone's affirmation of "the natural right of resistance and self-preservation," which includes "the right of having and using arms for self-preservation and defence." Similarly, St. George Tucker, in his edition of Blackstone's Commentaries, speaks of the "right of self-preservation" as allowing a citizen to "repel force by force" when "the intervention of society in his behalf, may be too late to prevent an injury."
To explain how this natural right to self-defense and self-preservation might be part of our evolved human nature, we might consider Paul Bingham's theory of human social evolution as driven by the uniquely human capacity for using weapons to kill members of their species from a distance and thus enforce cooperation among non-kin. Every other unique feature of humans--such as language, abstract reasoning, and morality--is simply an effect of this cause, Bingham argues. Moreover, this theory can explain the emergence of modern liberal democracy as arising from the democratization of access to coercive violence that comes from the widespread availability of cheap gunpowder handguns. Previously, I have written a series of posts on this here, here, and here.
Although Bingham says nothing about Locke or Lockean liberalism, I have argued that Bingham's theory of human evolution shows the evolutionary origin of Lockean liberalism: the capacity for killing at a distance allowed our human ancestors to punish other humans who refused to be cooperative by exercising what Locke called "the executive power of the law of nature"--the natural propensity to punish those who attack us with coercive violence or the threat of violence.
A LIMITED RIGHT
This Lockean right to punish is limited, however, in that everyone has an equal right not to be harmed by violence or the threat of violence, unless someone has committed some offense that justifies punishment. For that reason, while people have a natural right to be armed for self-defense or for resistance to tyranny, they do not have a natural right to keep and bear the most dangerous weapons in circumstances that are likely to risk harming innocent people.
Scalia explicitly recognizes these limits:
"Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. . . . 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" (54-55).
Scalia also recognizes "the problem of handgun violence in this country," and he insists that the Constitution leaves governments "a variety of tools for combatting that problem, including some measures regulating handguns," although the Second Amendment "takes certain policy choices off the table," including "the absolute prohibition of handguns held and used for self-defense in the home" (64).
Shortly before he died, John Paul Stevens, in his autobiography, said that he persuaded Anthony Kennedy to insist on inserting this language into Scalia's opinion to clarify the limits of the constitutional right to keep and bear arms.
Scalia's opinion in Heller thus leaves open the possibility that lawmakers could require expanded background checks for the sale of all guns and perhaps prohibit the sale of assault-style weapons. It is not clear how effective such laws would be. There was a federal assault weapons ban for ten years--from 1994 to 2004. Some scholars have said that the rate of mass shootings increased dramatically after the end of this ban. President Biden recently pointed to this as evidence for renewing an assault weapons ban. But some scholars say the evidence is not conclusive.
Sometime before the end of this month, the Supreme Court will issue a new decision in a case about the gun-control laws in New York State, which could either reaffirm or modify the decision in Heller.
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