Yesterday the Ninth Circuit gave its opinion in the en banc hearing for a case that’s been moving through the courts since 2011—This is Young v Hawaii.
It’s a case that has been of interest to constitutional lawyers, second amendment advocates, and people with the radical notion that a natural right of armed self-defense requires the ability to have those arms on your person to defend yourself. This has been a fundamental right throughout liberal philosophy, from Aristotle down to Machiavelli Harrington, Locke, Rousseau and Beccaria
We find it in the English Common Law as early as Statute of Northampton 2 Edw. 3, c. 3 (1328). A somewhat limited protection was found in the English Declaration of Rights of 1689 and William Blackstone in his great treatise of the common law:
The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence [sic]… Which is also declared by the same and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.
James Madison viewed his draft of the Second Amendment as securing the English Common Law right from the Bill Of Rights of 1689—and even perfecting the scope of the protection it affords. He did this by removing limitations such as the English Game Laws which Charles II passed on the specious pretext that the open carry of arms was a threat to the vast hunting grounds reserved to the nobility.
Saint George Tucker referred to this individual right to keep and carry arms as “the true palladium of liberty.”
Tench Coxe spoke of private arms as “the second and better right hand of every freeman” and that the Constitution “enshrined the right to keep, carry and use arms and consequently of self-defense and the public militia power.”
The Fourteenth Amendment’s privileges and immunities clause did incorporate the individual right to keep and carry arms. The amendment’s statutory companion, the Civil Rights Act of 1866, explicitly states in section 7 that, “The full and equal benefit of all laws and proceedings for the security of persons and estate, including the Constitutional right of bearing arms for self-defense” would be protected. That particular clause was specifically added as a means of using Justice Taney’s racist dicta in the Dred Scott ruling against itself. At one point Taney wrote, “If free blacks could be citizens that would give them the protection of constitutionally protected right of all free citizens…Such as the right to keep and carry arms wherever they may go…”
So how could the Ninth Circuit possibly conclude:
The en banc court affirmed the district court’s dismissal of an action challenging Hawai‘i’s firearm licensing law, Hawai‘i Revised Statutes § 134-9(a), which requires that residents seeking a license to openly carry a firearm in public must demonstrate “the urgency or the need” to carry a firearm, must be of good moral character, and must be “engaged in the protection of life and property.
We have Justice Scalia to thank for this mess. While the Ninth Circuit’s decision requires a very misleading interpretation of DC v Heller (2008), it is a ruling that can be parsed out from Scalia’s dicta in the case. While the conclusion that the Second Amendment is a dead letter thanks to Heller may be shocking, it’s not a surprising one.
This outcome was almost prophetically predicted by Nelson Lund, Professor of Law at George Mason University. Lund is one of the most eminent constitutional law scholars in the country and perhaps the most prolific modern Second Amendment scholar. In 2008, while most Second Amendment advocates were cheering Scalia’s ruling as his swan song of original public meaning, Lund was virtually alone in voicing his concerns. By 2015, some of the most pessimistic concerns about the way Heller and McDonald would be used, not to secure the right to keep and bear arms but to smother it, became apparent in a dissent from denial of certiorari.
Justice Thomas was absolutely livid. He said:
The Supreme Court is treating the second amendment as a second-class right. The court routinely grants review in every case involving free speech, abortion, Fourth Amendment search and seizure. You name it, they are adjudicating on it. Any and every possible provision of the Constitution you please, they will take a case. But they treated the second amendment like a leper, they don’t even want to touch it.
So, how did the Ninth Circuit possibly come to the following conclusion:
To answer that question, and consistent with the Supreme Court’s decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), the en banc court first considered whether Hawai‘i’s law affects conduct protected by the Second Amendment. After careful review of the history of early English and American regulation of carrying arms openly in the public square, the en banc court concluded that Hawai‘i’s restrictions on the open carrying of firearms reflect longstanding prohibitions, and therefore, the conduct they regulate is outside the historical scope of the Second Amendment. The en banc court held that the Second Amendment does not guarantee an unfettered, general right to openly carry arms in public for individual self-defense.
We need to begin our analysis by briefly talking about the legal system we inherited from Great Britain. During the eighteenth century, the majority of laws came from ancient, unwritten customs. This was known as the English Common Law. Over time judges began to look to the decisions of prior judges to assess what the ancient, unwritten customary law required. They would start to answer new and novel questions by starting with this judicial precedence which was based on analogy, rather than deduction from first principles. The law would change over time as they faced new and novel challenges but these alterations were so subtle as to be virtually imperceptible.
There was by the eighteenth century another set of laws that were known as statutes that were then enacted by a joint consent of parliament and king. While statutes were capable of overruling common law, in practice these judges tended to apply these statutes in a way that minimized any conflict with the common law. This system remained remarkably stable for centuries, even as great political changes and upheavals were going on. Crucially this happened because as conflicts gradually took away power from the king and parliament, more and more judges began to exercise both the role of legislature and as the highest court in the land.
The king appointed judges, but these judges tended to remain subordinate to the will of parliament with regard to the substance of their decisions. Judges did remain independent, but their authority was not final and they had no power to exercise what we call judicial review, the ability to declare an act unconstitutional. Second, judges remained devoted to the common law and to common law modes of reasoning. This was not inevitable. They understood their duty to be the application of English positive law, even if the results were to their mind unjust, or contrary to a higher law, like natural law. This system is the one we inherited following independence. Judges relied heavily on the common law and from time to time still do.
A key difference was our adoption of written constitutions on first the state and then the national level. This meant the courts were given a new kind of law to apply and it was assumed generally they would interpret these new laws the way their predecessors interpreted ordinary statutes. This is what they did for a long time. One major change was because constitutional law was a law superior to acts of the legislature, that made it possible for courts to directly overrule elected representatives. This is the basis for the process of what we now call judicial review. This provision sparked a lot of controversy between federalists and anti-federalists during the constitutional ratification debated of 1787-1788.
The most well-known, and most expertly argued example was an exchange between the antifederalist Brutus and Alexander Hamilton. In Brutus’ letters 11, 12, and 15, he was rightly concerned with the probability that judicial review would visibly extend the court’s power beyond its constitutional limits. The judicial branch would then become a political body. Hamilton responded directly to Brutus in Federalist 78 and 81, writing that the judiciary was a branch too weak and timid to ever be a threat to the other two political branches through an abuse of judicial review. This largely held true right up to the eve of the Civil War.
Early jurists and scholars alike tried to ease fear by agreeing that this power should be used sparingly and that affirmed judicial review should only be applied in cases with clear constitutional violations. In fact, judicial review was only used once between the Constitution’s adoption and the Civil War. In 1803 it was used to invalidate a minor statute about federal jurisdiction.
By the time Antonin Scalia came to the court in 1986, the judiciary bore little resemblance to Hamilton’s vision of a timid and modest court. Early justices had initially acted as the founding generation predicted in interpreting the Constitution. They used the tools already established under English law for centuries to interpret statutes. They generally aimed to find the intent of the law giver by looking at the text and at other meanings and purposes of the law. They adopted stare decisis which assumes prior judicial decisions were correct. These aspects remained fairly stable until the Warren Court. This was the birth of the “living Constitution,” when the court began an aggressive and expansive adoption of old common law adjudication and less like traditional statutory construction.
This came through three landmark developments. First was Brown v Board of Education, which, despite its noble intention and positive outcome, is a decision that is bereft of any legal analysis whatsoever. It was a politically motivated decision that did not state what the law is but what they wanted the law to be. Brown started out as controversial, particularly in the South, but in the end this was a major political victory for the Supreme Court. Because of this heady success the court grew ever bolder, imposing their own views of justice and salutary social policy onto the nation.
They did this most conspicuously in the field of criminal civil procedure. The court dramatically expanded the rights of a criminal defendant during a period of escalating violent crime, meaning that the justices did not garner the same kind of popularity that came from striking down Plessy.
Finally, the Court found a constitutional right to abortion in Roe v. Wade. Again, we have a case entirely bereft of legal analysis. Unlike Brown, the decision in Roe has remained perpetually controversial and politically poisonous. In the 1960s Congress passed statutes such as the Civil Rights Act of 1964 that affirmed and even expanded Brown’s vision of racial justice. Conversely, following Roe several states repeatedly found ways to express discontent and opposition to abortion rights.
Before Scalia, the preceding conservative justices appointed after the New Deal practiced what could be called judicial restraint to oppose the Warren Court’s constitutional adventurism. Most notable of these was certainly William Rehnquist, who was a solid social conservative in his political views. But in his opposition to the living constitutionalist expansion he adopted something much like the incrementalism of the old Common Law adjudication. Rehnquist generally refined himself to resisting further expansion of the Warren Court’s doctrine and occasionally cutting it back, but only ever really nibbling at the edges.
Scalia was not the first person to advocate for constitutional originalism as a potential solution to the expansive powers claimed by the New Deal era and Warren Courts. I believe the well-known jurist Raoul Berger’s brilliant book Government by Judiciary was the first.
In 1986 Scalia came to the court with his theory to undue the judicial activism of the preceding Warren Court. Of course I mean originalism; specifically a stream of originalism called “original public meaning.” Imagine if you were being asked to adjudicate a dispute over a private contract. How would you go about figuring out the proper meaning of any vague wording with more than one potential definition? You are certainly not going to consult Black’s law dictionary, or the UCC. You are going to ask the two parties to that contract what the word or clause meant, as they understood it when they entered into the contract. Scalia, quite properly, said that the Constitution should be read as a reasonably informed member of the public would have understood it to mean as the time of its drafting and ratification. This squares very well with the view the Father of the Constitution himself, James Madison, who urged later generations to study the public debates that played out in the ratifying conventions of the many states regarding the U.S. Constitution, which is fundamentally a legal instrument and should be treated as such.
However, Scalia’s originalism was an odd compromise. He tried to both give deference to stare decisis and an originalist interpretation. The Heller case was considered by both Scalia himself and the large body of scholars and jurists within his orbit to be the biggest victory for and the ideal culmination of his conception of originalism.
In DC v Heller the holding, in its most basic sense, found that the Second Amendment protected an individual’s right to keep a handgun in the home for the purposes of self-defense. This case relies on an extensive body of legal research that began to gain prominence in the 1980s and Scalia’s opinion makes a compelling argument for two basic conclusions. First, it’s meant to protect the private right of individuals to keep and bear arms, not as a collective right of the state governments to maintain a militia. Second, the purpose of the Second Amendment is to protect a fundamental, inherent right of self-defense against two distinct forms of oppression. First, against a repressive government and second as a defense against criminal violence from which the government either cannot or will not adequately protect individuals from.
Unfortunately, nothing about that answered the question at the heart of this case. Does the Second Amendment specifically protect the ability to have a handgun in your home for the purposes of lawful self-defense? After all, the District of Colombia had banned possession of handguns, but it allowed people to have rifles and shotguns. Why didn’t that satisfy the Second Amendment?
There was obviously no discussion from the eighteenth century that could possibly address that question directly so Scalia had to find some other way to answer it. He said the DC handgun ban was unconstitutional because “It amounts to a ban on an entire class of arms that is chosen by American society for the purpose of lawful self-defense.”
He went on to give a few examples of why that was reasonable and then he said, “Whatever the reason handguns are the most popular weapon chosen for self-defense in the home and a complete prohibition of their use is invalid.”
This is not an originalist analysis. It’s reliance on the popularity of handguns today looks more like the kind of results-oriented, “living constitutional” approach Scalia spent his career denouncing.
Equally spurious is a small but very important addition about banning guns in “sensitive places” or the prohibition against “dangerous and unusual weapons” (Language we later found out was added at the insistence of Chief Justice Roberts). Another example of completely forsaking any commitment to original public meaning.
Then two years later we have McDonald which was a case to decide if the Second Amendment is incorporated through the Fourteenth Amendment against both state and local government. Otis McDonald was an elderly black man who lived in a pretty bad neighborhood of Chicago. He didn’t trust the Chicago police department to protect him in his home (which is a smart move) and McDonald wanted to keep a gun in his house for protection.
McDonald won the case with a five justice majority declaring the Chicago gun law unconstitutional. Interestingly there was no majority opinion in the case. There were four votes to strike down this law through the application of substantive due process, while Clarence Thomas relied on the Privilege and Immunities Clause (an interesting topic in its own right and perhaps worth exploring in a future article). Unfortunately, the court said nothing about the scope of the Amendment and just reaffirmed the Heller decision.
George Mason University’s Nelson Lund quickly caught on to the fact that these cases were not what most Second Amendment advocates assumed they were. He said that even though the holding in the case is consistent with the original meaning of the Second Amendment, the dicta in the case would undermine future cases and make the Second Amendment a dead letter.
It’s now been over a decade since Heller and the court has yet to set a tier of judicial scrutiny. They have not clarified who bears the burden of proof, they have not distinguished what weapons are protected, or where they were protected, and it hasn’t taken long before becoming evident that the most important opinion in Heller was not Scalia’s majority. It wasn’t even Justice Stevens’s dissent. It was Justice Breyer’s dissent that called for an interest balancing approach.
The “protection” of the Second Amendment, if you can even apply the label of a “protection” to this approach, affords the Second Amendment a protection that falls well below even a rational basis scrutiny. This is precisely what began to follow from Heller as the case was taken up again in court of appeals and almost all courts have now begun to follow suit. The standard for review of gun laws in all inferior courts tends to be an interest balancing approach, and this seems to generally hold true for conservative judges as much as liberal judges. Heller’s dicta seems to be doing more damage than the good done by the holding. An example is the prohibitory language in Heller regarding weapons that are “dangerous and unusual.” The most important word there being the conjunctive “and.”
But when a Second Amendment case was referred back down to the lower courts, people like Judge Easterbrook in the seventh circuit changed it around, claiming no, it’s dangerous or unusual. The decision in Heller and the court’s refusal to entertain any new cert petition about gun rights for the decade since Heller has meant this kind of judicial malpractice by the seventh circuit goes unchallenged. They proclaim even if something is very common, if you call it dangerous it can now be banned. Look at standard capacity magazines that hold more than 10 rounds. Who knows how many millions upon millions of magazines have a standard capacity of more than 10 rounds. There’s no way you can say those standard capacity magazines are unusual, but it doesn’t take a very creative mind to understand that one can claim they are dangerous because more than 10 rounds can hurt more people than less than 10 rounds.
After McDonald in 2010 we didn’t hear anything in the docket for their next session. As 2011 became 2012 and 2013, we were constantly reassured that we just need to be patient. Give it time and the court will clarify the doctrine. However the Supreme Court had nothing more to say about this issue. Every cert petition was denied. Year after year, and denial after denial on all new Second Amendment cases.
The right to keep and bear arms has been trapped somewhere between legal limbo and constitutional purgatory. The lower courts continue to whittle away the Supreme Court’s rulings in District of Columbia v. Heller and McDonald v. Chicago, while seven justices stand by quietly, refusing to intervene.
Twice in 2015, Justices Thomas and Scalia called out their colleagues for abdicating the judiciary’s safeguard of the Second Amendment. First, the justices sat idly by as San Francisco rendered it impossible for law-abiding citizens to keep a handgun for self-defense. Second, the Supreme Court looked the other way as Highland Park, Ill., criminalized an entire class of rifles owned by millions of Americans.
It took until 2019 to finally see the court grant cert on a Second Smendment related case. What kind of case did they choose to review?
Was it looking at right to carry? No
The protection of AR style semi-auto rifles and carbines? No
Safe storage laws? No
It didn’t address magazine capacity, or restoring gun rights to people who had previously been charged with some non-violent crime. They took up the most narrow, insignificant, obscure case they possibly could have.
New York Rifle and Pistol Association v City of New York. For those who may not be familiar with this case, New York City had an absurd law that said if you own gun and live in the city and want to take that gun with you to a shooting range, or if you have a second residence outside the city and you want to bring your gun with you there, you need to have the gun disassembled, locked inside a proper secure lock box, and only in your trunk. God help you if you are so reckless enough to have that unloaded, disassembled, securely locked up gun on the back seat—100% non-functional and 100% inaccessible. That is downright criminal, says New York.
Thus Scalia’s greatest victory for originalism turned out not to be a truly originalist decision and it may have little lasting impact.
The court’s boldest innovations in recent decades have no doubt, in my view, been perversions of the common law approach. But they have generally employed what looks like more and more common law reasoning.
Heller‘s conclusion may be entirely consistent with the original meaning of the Second Amendment (and I do believe that it is). But Scalia’s failure to provide a genuinely originalist rationale for that precise result brings the entire jurisprudential project into question. Besides being untethered to originalism, the holding in Heller was limited. Only a handful of jurisdictions had adopted handgun bans so the decision had little immediate effect.
And we now see an even more damning opinion from the Ninth Circuit that says Heller holds that citizens do not have a right to carry a gun on their person for lawful self-defense.
Was that the outcome Scalia would have intended? Certainly not. When he applied a reasonable, textualist construction to the operative clause’s use of bear arms he properly points to that language’s most natural interpretation as “to carry arms” for private self-defense. He made its meaning irrefutably clear. But as with just about every other proper interpretation of the text he provides, all his careful interpretation came to mean little to nothing when his dicta created multiple misinterpretations of the entire Amendment.
In the end, his opinion was even less than unhelpful. A careful read of the opinion’s fifty pages dedicated to two clauses, with multiple asides that confuse the plain meaning and his addition of wholly unoriginal and unsupported assertions of “dangerous weapons” and “sensitive places,” have unfortunately provided the ammunition for gun grabbers to shoot down an originalist interpretation. Scalia’s ‘biggest victory’ may very well be the best friend of those who want to see the Second Amendment dead and buried.
Bob Fiedler is a constitutinoal law scholar and legal commentator from the Twin Cities and AM host of the “Categorical Imperatives Podcast” where he discuss current events in law, politics & culture from the perspective of a constitutional lawyer and a libertarian moral philosophy.