Heller Holding

 1. The Court makes clear that it is interpreting the Constitution based upon its original public meaning and not upon what the Court believes the Constitution ought to mean (p.1): “ The Second Amendment provides: “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.” In interpreting this text, we 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.

2. P. 3-4: “Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment . We look to this because it has always been widely understood that the Second Amendment , like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed....”

     There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment ’s right of free speech was not. Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause."

3. page 4: ”Relationship between Prefatory Clause and Operative Clause

We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights.

    The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric.... It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.

    It is therefore entirely sensible that the Second Amendment ’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution....

 

4. page 6: Right Not Unlimited: “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….Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , 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.”

    We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

5. page 8: Judgment: “ In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment , as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.”

Originalism and the Right to Bear Arms--Antique Muskets Only?

 

                                    Davey Crockett with "Old Betsey"

The edited case omits an important part of the Heller decision, the one in which the Court says:
"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."

Is this a rejection of original understanding by a Court purporting to apply originalism? Consider the quote in context:

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 communication, and the Fourth Amendment applies to modern forms of search, 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.

In other words, originalism discerns the principle that defines the liberty, which then must be applied to modern threats against that liberty.

Does that make more sense? Does it demonstrate how the original understanding of constitutional liberties can be applied in modern cases?

By the way, here is how the Court described its search for original meaning:

The Second Amendment provides: “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.” In interpreting this text, we 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.

Here are some other important passages from Heller:

1. The Prefatory Clause

The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose.

Logic demands that there be a link between the stated purpose and the command.... But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause. “It is nothing unusual in acts … for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.” Therefore, while we will begin our textual analysis with the operative clause, we will return to the prefatory clause to ensure that our reading of the operative clause is consistent with the announced purpose.

Race and the Right to Keep and Bear Arms

                                        

                                              Justice Thomas at Nebraska Law

 Justice Thomas has argued persuasively that one of the purposes of the 14th Amendment was to  provide the protections of the Second Amendment--and the right to possess arms for self-defense--to the newly freed former slaves. This was necessary because, following the end of the Civil war, southern states moved "systematically [to] disarm African American citizens." As Prof. George Mocsary has said, Justice Thomas "knows what it's like to be poor and black in the Jim Crow South." He is an incredible man. When he visited my Property class a few years ago, he insisted on staying after class to take a picture with any student who wanted one. Imagine being a first year lawyer and having a picture on the wall with you and Justice Thomas!

Consider this brief excerpt from an article by historian Professor David Schenk:

Freedmen with Firearms: White Terrorism and
Black Disarmament During Reconstruction

David H. Schenk

Common American History 101 narratives of
post-Civil War Reconstruction have generally included
docile and helpless former slaves, who quietly adjusted to
the oppressive governance and terror of white Southern
peoples for nearly a century. This established narrative,
however, obscures another possible reason why organized
Freedmen gave up their fight for suffrage and basic civil
rights. Congressional records describe the early years of
Reconstruction with armed Freedmen communities
successfully defending their rights against white Southern
authorities and terrorist organizations. At the same time
these records also reveal efforts by these same white
Southern entities to systematically disarm African
American citizens.
African Americans fought hard for their political
and civil rights as new United States citizens, during a time
when they were reasonably well-armed and could
organize a viable resistance. In what could be described as
the disarmament period, these firearms were confiscated
through various means of violence and coercion. As a
result, the political agency of Freedmen was greatly
diminished, and the consequences are clearly represented
by reduced Freedmen poll numbers during the later years
of Reconstruction. Freedmen were largely willing to fight
and die for their rights as new U. S. citizens as long as
defiance remained a course of rational action. Disarmed
and overpowered by the weaponry of their oppressors,
African Americans grudgingly resigned themselves to the
politics of basic survival.

 

Now consider this excerpt from Justice Thomas' concurrence in McDonald (citations omitted):

 

After the Civil War, Southern anxiety about an uprising among the newly freed slaves peaked. As Representative Thaddeus Stevens is reported to have said, “ ‘[w]hen it was first proposed to free the slaves, and arm the blacks, did not half the nation tremble?'"...

As the Court explains, this fear led to “systematic efforts” in the “old Confederacy” to disarm the more than 180,000 freedmen who had served in the Union Army, as well as other free blacks. Some States formally prohibited blacks from possessing firearms. Others enacted legislation prohibiting blacks from carrying firearms without a license, a restriction not imposed on whites. Additionally, “[t]hroughout the South, armed parties, often consisting of ex-Confederate soldiers serving in the state militias, forcibly took firearms from newly freed slaves.”

As the Court makes crystal clear, if the Fourteenth Amendment “had outlawed only those laws that discriminate on the basis of race or previous condition of servitude, African–Americans in the South would likely have remained vulnerable to attack by many of their worst abusers: the state militia and state peace officers.” In the years following the Civil War, a law banning firearm possession outright “would have been nondiscriminatory only in the formal sense,” for it would have “left firearms in the hands of the militia and local peace officers.” Evidence suggests that the public understood this at the time the Fourteenth Amendment was ratified.

 

Justice Thomas concluded that the 14th Amendment was designed (and should be understood) to protect the Second Amendment right to keep and bear arms for self-defense as a fundamental privilege or immunity of citizenship applicable to the states via the 14th Amendment.

Here is a WaPo column on McDonald, Justice Thomas, Race, and guns

What are your thoughts?

 

Heller Notes and Important Passages

Outline from Oyez:

Facts of the case

Provisions of the District of Columbia Code made it illegal to carry an unregistered firearm and prohibited the registration of handguns, though the chief of police could issue one-year licenses for handguns. The Code also contained provisions that required owners of lawfully registered firearms to keep them unloaded and disassembled or bound by a trigger lock or other similar device unless the firearms were located in a place of business or being used for legal recreational activities.

Dick Anthony Heller was a D.C. special police officer who was authorized to carry a handgun while on duty. He applied for a one-year license for a handgun he wished to keep at home, but his application was denied. Heller sued the District of Columbia. He sought an injunction against the enforcement of the relevant parts of the Code and argued that they violated his Second Amendment right to keep a functional firearm in his home without a license. The district court dismissed the complaint. The U.S. Court of Appeals for the District of Columbia Circuit reversed and held that the Second Amendment protects the right to keep firearms in the home for the purpose of self-defense, and the District of Columbia’s requirement that firearms kept in the home be nonfunctional violated that right.

Question

Do the provisions of the District of Columbia Code that restrict the licensing of handguns and require licensed firearms kept in the home to be kept nonfunctional violate the Second Amendment?

 

Here is how the Court framed the issue:

 

The Second Amendment provides: “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.” In interpreting this text, we 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.    

The two sides in this case have set out very different interpretations of the Amendment. Petitioners and today’s dissenting Justices believe that it protects only the right to possess and carry a firearm in connection with militia service. Respondent argues that it protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

 

And here is how Oyez summarizes the Court's 5 to 4 holding in favor of an individual rigjt to posses firearms in the home:

 

The ban on registering handguns and the requirement to keep guns in the home disassembled or nonfunctional with a trigger lock mechanism violate the Second Amendment. Justice Antonin Scalia delivered the opinion for the 5-4 majority. The Court held that the first clause of the Second Amendment that references a “militia” is a prefatory clause that does not limit the operative clause of the Amendment. Additionally, the term “militia” should not be confined to those serving in the military, because at the time the term referred to all able-bodied men who were capable of being called to such service. To read the Amendment as limiting the right to bear arms only to those in a governed military force would be to create exactly the type of state-sponsored force against which the Amendment was meant to protect people. Because the text of the Amendment should be read in the manner that gives greatest effect to the plain meaning it would have had at the time it was written, the operative clause should be read to “guarantee an individual right to possess and carry weapons in case of confrontation.” This reading is also in line with legal writing of the time and subsequent scholarship. Therefore, banning handguns, an entire class of arms that is commonly used for protection purposes, and prohibiting firearms from being kept functional in the home, the area traditionally in need of protection, violates the Second Amendment.

In his dissent, Justice John Paul Stevens wrote that the Second Amendment does not create an unlimited right to possess guns for self-defense purposes. Instead, the most natural reading of the the Amendment is that it protects the right to keep and bear arms for certain military purposes but does not curtail the legislature’s power to regulate nonmilitary use and ownership of weapons. Justice Stevens argued that the Amendment states its purpose specifically in relation to state militias and does not address the right to use firearms in self-defense, which is particularly striking in light of similar state provisions from the same time that do so. Justice Stevens also notes that “the people” does not enlarge the protected group beyond the context of service in a state-regulated militia. This reading is in line with legal writing of the time that contextualizes the Amendment in relation to state militias and post-enactment legislative history. Justices David Souter, Ruth Bader Ginsburg, and Stephen G. Breyer joined in the dissent. Justice Breyer also wrote a separate dissent in which he argued that the Second Amendment protects militia-related, not self-defense-related, interests, and it does not provide absolute protection from government intervention in these interests. Historical evidence from the time of ratification indicates that colonial laws regulated the storage and use of firearms in the home. Justice Breyer argued that the Court should adopt an interest-balancing test to determine when the government interests were sufficiently weighty to justify the proposed regulation. In this case, because the interest-balancing turns on the type of analysis that the legislature, not the court, is best positioned to make, the Court should defer to the legislature and uphold the restrictions. Justices Stevens, Souter, and Ginsburg joined in the dissent.

 

 

McDonald and Incorporation Against State Laws Restricting the Bill of Rights

  1. Notice that the challengers argued that the Court should incorporate the 2d Amendment under the Privileges or Immunities Clause rather than the Due Process Clause. What is this issue all about?

2. Notice that even under the Due Process Clause the Court disagreed as to the appropriate test for incorporation and "fundamentalness."

3. Notice that the City of Chicago argued that the test for a fundamental right should be to whether "it is possible to imagine any civilized legal system that does not recognize a particular right." If this test were applied to all Bill of Rights incorporation cases, how many of the Amendments would not be fundamental? Right to counsel?Establishment Clause? Free Speech Clause? Right of accused not to be compelled to testify in criminal proceeding?

4. The Court instead applied the the governing standard used in other incorporation cases: "whether a particular Bill of Rights guarantee is fundamental to our scheme [i.e. the American scheme] of ordered liberty and system of justice."

 It is not at all clear that incorporation of the Bill of Rights against the States is proper under the Fourteenth Amendment. But the Court has incorporated most of the provisions of the Bill of Rights over a period of the last century or so, and so nearly total incorporation is a fait accompli  and it is not going to be undone.

McDonald is an interesting case because it deals with whether the Second Amendment and the individual right to keep and bear arms applies against state and local laws that prohibit private ownership of guns.

One issue that was discussed at some length in McDonald is which provision of the Fourteenth Amendment is the proper portal of incorporation--the Privileges or Immunities Clause or the Due Process Clause. Here is the actual language of the 14th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law....

Justice Thomas believes that the P or I Clause is the proper vehicle: 

 The Privileges or Immunities Clause of the Fourteenth Amendment declares that "[n]o State ... shall abridge the privileges or immunities of citizens of the United States." In interpreting this language, it is important to recall that constitutional provisions are " 'written to be understood by the voters.' " Thus, the objective of this inquiry is to discern what "ordinary citizens" at the time of ratification would have understood the Privileges or Immunities Clause to mean....  

This evidence plainly shows that the ratifying public understood the Privileges or Immunities Clause to protect constitutionally enumerated rights, including the right to keep and bear arms. As the Court demonstrates, there can be no doubt that §1 was understood to enforce the Second Amendment against the States. In my view, this is because the right to keep and bear arms was understood to be a privilege of American citizenship guaranteed by the Privileges or Immunities Clause....

I agree with the Court that the Second Amendment is fully applicable to the States. I do so because the right to keep and bear arms is guaranteed by the Fourteenth Amendment as a privilege of American citizenship.

 

Which clause do you think contains language that is best understood as applying provisions of the Bill of Rights against the states.

Prefatory Clauses

The 2d Amendment: "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 prefatory clause is a clause which announces the general purpose of the operative clause. The operative clause is the clause which creates the substance of a fundamental right.

So, imagine a constitutional provision such as this:

Prefatory Clause: "The ability of parents to support their children being necessary to a free society,"

Operative Clause: "the right of the people to own, use, and possess private property shall not be abridged."

How should we interpret the right of private property? As covering only the right to support children? Does it protect a single person's right to own private property? Does it cover only enough property to provide minimal support for children? Does it cover the right to own stocks? Savings accounts? Automobiles? A pension for retirement? Jewelry? Does it cover most lawful kinds of property owned by any American citizen? 

Suppose the government passed a law confiscating all wealth above a certain minimum amount (say, above $25000). If a childless person challenged this law, how should the Court rule?

Does the prefatory clause simply tell us why the Constitution seeks to protect broad private property rights for all? Or does the general purpose define the full scope of the right?

McDonald v. City of Chicago

 

                                                             Otis McDonald

 

Otis McDonald (pictured above) wished to own a handgun to protect himself from threats of violence. As the Court discussed the facts, Mr. McDonald "who is in his late seventies, lives in a high-crime neighborhood. He is a community activist involved with alternative policing strategies, and his efforts to improve his neighborhood have subjected him to violent threats from drug dealers..."

Assignments for First Week of Spring 2022 Semester

                                                How I Spent the Winter Break

 

 I am still making a few changes on the syllabus, but here is what our first few classes will be:

1. Wednesday January 19 (Exam Review-- I will walk you through the exam). You will get a package from the Dean's Office which will include your score on the exam and your personal answer sheet. Make sure you bring the answer sheet with you to class so you can see which questions you answered correctly and which incorrectly.

2.  Thursday January 20: Originalism vs The Living Constitution: Strauss article (link);Sollum Article (link); Duncan Video (from Con Law class): https://use.vg/pWJhoE

3.  Friday January 21:  Second Amendment cases (the right to possess, keep, and bear a particular type of property): Heller and McDonald ; Duncan Video: https://use.vg/C6knim

4. Wednesday January 26: New York State Rifle & Pistol Association Inc. v. Bruen: Oral Argument I would like each of you to identify one or two passages from the oral argument (cited to the relevant page on the oral argument transcript) that you believe are particularly interesting. I will ask many of you to share your passage with the class for discussion.

 Bruen is currently on the docket of SCOTUS, and a decision on the right to carry will be handed down this year (probably in late June or early July). So, our second semester of Property literally takes us right up to the present moment, and the anticipation of a landmark decision to be handed down later this year.

See you soon!

Originalism vs Living Constitution: For Tomorrow

Here is what I would like y'all to do. Some of you probably think Originalism is the proper way for the Court to interpret the Constitution and some of you probably subscribe to Living Constitutionalism. So, tonight just think about this a little bit, and jot done some reasons why you prefer the one or the other. 

This debate has been going on for over 200 years, and I have no doubt that when I teach this 50 years from now--if the Republic survives--there will still be a a great debate in the classroom.

So, be prepared to take a side and defend your position!

Prof. Randy Barnett: The Written Constitution "is the law that governs those who govern us."

 The Constitution is not the law that governs us. It "is the law that governs those who govern us." --Prof. Randy Barnett 

Those who govern us ought to follow the law that governs them. Each and every person who receives power to govern us has taken an oath to abide by the Constitution. There is "100% consent" by those who govern us to abide by the Constitution. Not to abide by the Constitution as they decide to change it, or as they wish it to be. It would be an "oath to nothing" if Justices swore to abide by their own ideological preferences.Or, as Prof. Wurman puts it, the written constitution is "a set of public instructions for a public audience, with the intent of guiding the behavior of those it governs.:"

Please Bookmark This: The Text of the Written Constitution

 Written Constitution Text