Term Paper: District of Columbia v. Heller

Pages: 15 (4967 words)  ·  Bibliography Sources: 8  ·  Level: College Junior  ·  Topic: Law - Constitutional Law  ·  Buy for $19.77


[. . .] For a start, we must realize that there are competing versions of history (and indeed of the English language) which are at stake behind the differing approaches taken by Scalia and by his many critics. Hardy cites Joyce Lee Malcolm's history to demonstrate that Stevens' claim of "no new scholarship" on the subject was hardly well-informed. Stevens, relying here on Lewis v. United States (1980) as precedent, then claims that "No new evidence has surfaced since 1980 supporting the view that the Amendment was intended to curtail the power of Congress to regulate civilian use or misuse of weapons" (Stevens, Heller Dissent). Hardy responds by noting that "It is difficult to list all the evidence that emerged after that date. A short list would begin with Joyce Lee Malcolm's studies" (Hardy 71). In point of fact, the Heller decision seems to reflect that new originalist approach that readers of Malcolm embraced. Historians of the Second Amendment tend to line up in two basic ideological groupings, one which supports Malcom, and the other which supports Saul Cornell's opposing view (as his title indicates) in A Well-Regulated Militia -- The Founding Fathers and the Origins of Gun Control in America, published in 2006. With regard to the history of Second Amendment jurisprudence, Cornell believes that Supreme Court precedent before Heller solidly maintained that "The purpose of the amendment was to guard the state militias against the danger of federal disarmament." (Cornell 195). Whereas the bloodthirsty Miss Malcolm states unequivocally that

The position of this amendment, second among the ten amendments added to the Constitution as a Bill of Rights, underscored its importance to contemporaries. It was no less than the safety valve of the Constitution. It afforded the means whereby, if parchment barriers proved inadequate, the people could protect their liberties or alter their government. It gave to the people the ultimate power of the sword. (164)

By contrast Cornell in A Well-Regulated Militia records for example that Jefferson had initially suggested that it be couched in terms of individual rights, proposing the language "No freeman shall ever be debarred the use of arms" which he then later retreated from with the addition of the further language "within his own lands or tenaments," which renders Jefferson's final stance, in Cornell's analysis, as "effectively eliminating the right to carry arms." (Cornell 20). Cornell seems overall more in tune with the tenor of law school critics of the Second Amendment in his assessments. Malcolm by contrast writes like a paleoconservative Boadicea, or like a woman constantly on the brink of bursting into her favorite Ethel Merman showtunes from "Annie, Get Your Gun." In defense of what is clearly her favorite right, Malcolm notes in her afterword that:

The right to be armed has not worn well, despite its enshrinement in the English and American bills of rights. It is no longer a right of Englishmen. The curious will still find it in the English Bill of Rights but it has been so gently teased from public use that most Britons have no notion of when or how it came to be withdrawn. The American Second Amendment, on the other hand, is at the center of a noisy and emotional debate….Two recent law review articles characterize it, respectively, as "embarrassing" and "terrifying," adjectives unlikely to be ascribed to any other right. (165)

What Malcolm seems specifically to conceive of herself as defending the Second Amendment from is the leftist critics in the intelligentsia who regard it as "embarrassing" or "terrifying."

And it is, naturally, Malcolm's history that Scalia relies upon in his own accounts. As one of Malcolm's opponents in the leftist law-school intelligentsia, William G. Merkel, states in his 2009 article critiquing Scalie in the Lewis and Clark Law Review:

Relying heavily on Joyce Lee Malcolm's To Keep and Bear Arms: The Origins of an Anglo-American Right, a book endorsed by virtually no commentators holding Ph.D.s in American history, Scalia made numerous historical assertions during oral arguments, all of which turn out to be false, and many of which would be of very dubious relevance even if true. (Merkel 360)

Merkel is noting this irony (as one among many involved in Scalia's opinion in Heller) because Scalia's "Originalist" approach to questions of Constitutional interpretation is one which often makes a specific appeal to history or to historicism. Lund, who is an actual originalist, sums up certain aspects of originalist jurisprudence which we might want to bear in mind while considering Heller:

The serious challenges for originalism involve questions about its limits as a tool for adjudication. Three main difficulties arise. First, it is sometimes hard to find adequate objective evidence of how the Constitution's text would have been understood by the relevant audience at the time of adoption. Second, it is sometimes difficult to know how the commands in the text should be applied, consistent with its original meaning, to particular circum- stances that the enacting public did not consider, and often could not have foreseen. Third, courts will inevitably make some decisions based on mistaken interpretations of the Constitution, and later courts will have to decide how much deference to give these precedents. (Lund, 1346)

Still it is the question of originalism that is legally most important about the Heller decision, although how it relates to questions of policy depends upon which side of a specific ideological divide one is located. From the standpoint of the more extreme forms of libertarianism embraced by Levy and the Cato Institute, the public policy implications of Heller are hardly exciting because they do not believe in public policy.

In any case, from a legal standpoint, the implications of the Heller decision are much larger. As Andrew Gould puts it:

Heller has simultaneously clarified and clouded the constitutional mystery surrounding the Second Amendment. On the one hand, it is clear that the Second Amendment guarantees an individual right to possess a firearm, and the core right encompasses possession of a handgun in one "s home for self-defense. On the other hand, this individual right is not absolute. Yet, at the same time, the Heller Court did not divulge the proper analytical framework for Second Amendment claims.Even if Justice Scalia is correct that the public "should not expect" the Supreme Court "s first decision directly and deeply analyzing the Second Amendment "to clarify the entire field," the Heller Court nonetheless created as many questions as it answered about the Second Amendment. (Gould 1549-50)

But the most obvious place to start with assessing the merits of Scalia's majority opinion -- or perhaps to look for additional questions and answers -- is to look at the dissent, written by Justice John Paul Stevens. David Hardy thinks that because Stevens' "dissent came within one vote of becoming the majority; it clearly merits close examination." (Hardy 61) This is where a key feature of the Heller decision comes into play, which is the absence of significant prior jurisprudence on the question of the Second Amendment -- the Supreme Court itself had not heard a Second Amendment case since 1939's Miller decision, which was in any case an extremely limited scope. Hardy summarizes the prior Supreme Court jurisprudence as follows:

The dispute over the meaning of the Second Amendment was traditionally seen as a conflict between the individual rights and the collective rights viewpoints. The former saw the Amendment as protecting an individual right comparable to other enumerated rights; this would become the position of the Heller majority. (Hardy 62)

Hardy then goes on to give a useful summary of the prior approaches to the question of rights involved in the Second Amendment, which I think it worth quoting in full before I turn to Lund's more intriguing critique of the use and misuse of precedent in Heller: Hardy traces the long legal history as a …"Pure States' Rights" Test: this approach views the Second Amendment, and its State analogs, as protecting a power of the State to form a militia; the individual has no direct interest in, or right to invoke, this guarantee. This view dates to the very invention of the collective rights, in an 1842 concurrence, and to its first judicial acceptance, the 1905 Kansas decision of City of Salina v. Blaksley. There the court reasoned that the State right to arms guarantee "refers to the people as a collective body" and "deals exclusively with the military; [therefore] individual rights are not considered in this section."? In the mid and late twentieth century, many later Federal cases accepted this approach, to the point where the Fourth Circuit could conclude that the lower courts had "uniformly" held that the Second Amendment "preserves a collective, rather than individual, right." (Hardy 63)

This does seem to indicate that the court had never before considered the Second Amendment as enumerating an individual… [END OF PREVIEW]

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