David B. Kopel
• Firearms, Inc. •
2010 Cardozo L. Rev. de novo 99
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This Article presents a brief history of the Second Amendment as part of the living Constitution. From the Early Republic through the present, the American public has always understood the Second Amendment as guaranteeing a right to own firearms for self-defense. That view has been in accordance with élite legal opinion, except for a period in part of the twentieth century.
I. WHY LIVING CONSTITUTIONALISM MATTERS
The Supreme Court’s 2008 decision in District of Columbia v. Heller was the epitome of originalist jurisprudence. The argument between Justice Scalia’s opinion and Justice Stevens’ dissent was conducted almost entirely on originalist grounds. Heller delves more deeply and broadly into originalism than any previous Supreme Court opinion.
So why think about living constitutionalism and the Second Amendment? First of all, it may be true that “we are all originalists now” in Second Amendment interpretation—if “we” means the Justices of the Supreme Court and almost all scholars who have written on the [Page100] Second Amendment. But there are still important analysts who reject originalism entirely, and at least one of them, Cass Sunstein, has often been mentioned as a potential nominee for the Court. Sunstein argues that Heller was rightly decided under living constitutionalism—because it respected the moral intuitions of millions of Americans that they have a right to arms for self-defense. Other scholars too, including Jack Balkin and Adam Winkler, have written that Heller was properly decided under living constitutionalism.
Second, there are living Constitution elements in Heller. The Heller list of presumptively constitutional gun controls includes controls that were not practiced in the Founding Era and cannot reasonably be derived from the controls that were practiced. A few other aspects of Heller’s reasoning arguably have a hint of living constitutionalism.
Moreover, in the current Supreme Court, only two of the nine Justices describe themselves as committed originalists. Accordingly, a more precise analysis of the Second Amendment in the living Constitution may provide some background in understanding Heller, and also guidance about the scope of permissible gun control post-Heller.
Before beginning, it would be helpful to define originalism and living constitutionalism in their current stages of development. [Page101]
When serious consideration of originalism returned to the legal academy several decades ago, it went by the name of “original intent.” Modern courts were supposed to figure out what the Framers intended. At the worst, original intent required its players to answer “What Would Madison Do?”—sometimes an impossible question, for the intent of the Founders regarding modern issues was not always discernable.
The return of originalism was intended to stop living constitutionalism, which at the time was often a euphemism for a dead Constitution. Under dead constitutionalism, when a judge decided that part of the Constitution (e.g., the Second Amendment, the Contracts Clause, the Privileges or Immunities Clause) was, in his personal view, no longer useful to society, he could disregard it. Dead-not-living constitutionalism amounted to making the Constitution depend on what the judge had for breakfast. One notorious example was Home Building and Loan Association v. Blaisdell, which violated the plain text and unmistakable original meaning of the Contracts Clause. The Slaughter-House Cases and United States v. Cruikshank, in which the Court declared that the Privileges or Immunities Clause of the Fourteenth Amendment does not require states to obey the Bill of Rights, were also examples of dead constitutionalism, willfully disregarding the oft-stated intent of the authors of the Amendment, the Congress that passed it, and widespread public understanding. [Page102]
Similarly, while there arguably might have been ways to write an abortion rights decision based on constitutional law, Roe v. Wade as it actually was written was a raw judicial fiat, an expression of dead constitutionalism.
In the twenty-first century, both sides have moderated. Most originalists now look to original public meaning, rather than original intent. The former has many more surviving written sources, and does not require mental guessing games.
Perhaps more importantly, mainstream originalism—thanks to the distinction between “constitutional interpretation” and “constitutional construction,”—now allows for constitutional development beyond 1800. “Constitutional interpretation” is based purely on original public meaning, and is used to decide the meaning of words in the Constitution. For example, does “Congress shall make no law . . . abridging the freedom of speech” mean that Congress can [Page103] never punish anyone for saying anything? The originalist looks to sources of original public meaning, finds that “the freedom of speech” was a term of art, and that some forms of speech (e.g., libel, criminal conspiracies, treason, obscenity) were considered outside the scope of that freedom; therefore some forms of speech are not protected from congressional interference.
“Constitutional construction” allows courts to fill in gaps, and formulate rules and doctrines. Examples include the First Amendment’s “time, place, and manner” rules, or the Fourth Amendment’s exclusionary rule. Under “constitutional construction,” these rules are legitimate, even if those rules were not practiced in the Founding Era.
Living constitutionalism has also moderated. Instead of being a dead-constitution pretext for judicial willfulness, living constitutionalism today tends to be more bounded to identifiable, stable sources of meaning—such as state constitutions.
Jack Balkin takes the position that originalism and living constitutionalism are not opposites, but are instead opposite sides of the same coin. Originalism provides the framework of our constitutional structure, but everything within that frame is the result of continuing, always-changing public and political dialogue over the Constitution, in which interest groups such as the NAACP or NRA play an especially prominent role. Even if one does not agree with Balkin’s hybrid theory, his careful examination of how living constitutionalism works provides a useful framework for a close study of the Second Amendment in the living Constitution, particularly in the twentieth and twenty-first centuries.
In this Article, I take no position on whether originalism, living constitutionalism, or a hybrid is the correct theory for courts to use in deciding cases. Living constitution advocates can consider this Article as a detailed explanation of why Heller was rightly decided; pure originalists can take the Article as a “judicial behaviorism” explanation of how living constitutionalism helped save the original Second Amendment from being destroyed by dead constitutionalism. [Page104]
II. NINETEENTH CENTURY
A. Commentators
The preeminent legal treatise of the Early Republic was St. George’s Tucker’s 1803 American edition of William Blackstone’s Commentaries. Tucker described the Second Amendment right to arms as an expansion of the arms right from the 1689 English Declaration of Right, and as including the right to arms for self-defense and for hunting. The book was based on Tucker’s unpublished William & Mary law lecture notes from 1791-1792. So Tucker is close enough to the Founding (Madison appointed him a federal judge, and he knew many of the Founders well) to be an important originalist source, but the leading role of his book in the early decades of the nineteenth century also makes him an early source for living constitutionalism. [Page105]
Tucker’s Blackstone was replaced as the leading constitutional treatise by William Rawle’s 1825 A View of the Constitution of the United States of America, which explained that the Second Amendment right belonged to “the people” and not just “the militia,” for “the prohibition is general.”
Supreme Court Justice Joseph Story was also a Harvard Law professor and a prolific author of treatises. Explaining the Second Amendment, he observed that “One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms.”
Many other legal treatise authors in the nineteenth century likewise described the Second Amendment as an important right, which belonged to the people, not just to militiamen. These authors include Justice Thomas Cooley (the preeminent legal scholar of the latter part of the century, Michigan Supreme Court Justice, and second Dean of the University of Michigan law school), Oliver Wendell Holmes, Jr. (future U.S. Supreme Court Justice), Henry St. George Tucker (President of the Virginia Supreme Court, and University of Virginia [Page106] law professor), Francis Lieber (very influential writer on the laws of war, and Columbia law professor), Timothy Farrar (law partner of Daniel Webster, and later a widely-respected judge), Joel Bishop (leading criminal treatise author), John Pomeroy (NYU law professor and one of the top ten law professors of the latter nineteenth century), further American editions of Blackstone, H. Von Holst (member of the German Privy Council, and author of scholarly series on American history), John Ordonaux (Columbia law professor), and James Schouler (a law lecturer at Johns Hopkins University, and founder of the legal field of domestic relations). The story remains the same all the way through the century, to the 1897 second edition of Henry Campbell Black’s Handbook of American Constitutional Law. (Black is best-known as the author of Black’s Law Dictionary.)
One of the very few contrary voices was the obscure writer [Page107] Benjamin Oliver, who wrote in 1832 that the Second Amendment was intended to be a militia-only right, but that it was now understood to be much broader. From the standpoint of living constitutionalism, Oliver’s book supports the Heller decision.
The legal treatises were consistent with the general public’s understanding of the Second Amendment: it guaranteed an individual right which included the right to personal defensive arms.
B. Courts
Likewise, court cases, to the extent that they mentioned the Second Amendment (usually while construing a right to arms provision in a state constitution), agreed that the Second Amendment protected a right to own and carry firearms for all lawful purposes, including self-defense. The legal disputes were not whether the right was only for the militia. Whether the right to carry included the right to carry concealed was often litigated, and usually courts held that the legislature could regulate the manner of carrying.
There were also cases testing what “arms” were protected by the [Page108] Second Amendment. The dominant line of cases held that militia-suitable arms (e.g., firearms, swords) were protected, but weapons that were supposedly useful only for brawling (e.g., the Bowie knife, the Arkansas toothpick) were not. The right to arms was for all “the people,” but the type of arms protected was governed by the introductory clause about the militia.
Deviation from nineteenth century consensus was rare. A concurring opinion by one judge in Arkansas in 1842 said that the Second Amendment right to arms was militia-only, but this theory was never followed in Arkansas in future cases.
One important case, Aymette v. State, upheld a ban on concealed carrying of Bowie knives and Arkansas toothpicks because, as the Tennessee Supreme Court read the state’s constitution and the Second Amendment, the right to “bear” arms related only to bearing while in militia service. However, even Aymette affirmed an “unqualified” right of citizens to possess militia-suitable arms.
In contrast to Arkansas toothpicks, handguns were considered respectable. So the Georgia Supreme Court in 1846 used the Second Amendment to overturn the only antebellum law which attempted to disarm citizens—a state ban on the ownership or carrying of most handguns. The Supreme Court in Dred Scott recognized the right “to keep and carry arms wherever they went” as among the rights of citizens of the United States.
Meanwhile, the idea that the Second Amendment limited federal interference with state militias was conspicuously absent from the many cases in which the boundaries between state and federal militia powers were litigated. The one notable exception was an 1863 Pennsylvania case in which the Pennsylvania Supreme Court ruled federal military conscription unconstitutional; a concurring opinion said that a federal [Page109] draft would violate the Second Amendment because it would allow Congress to destroy the state militia “by absorbing the militia into the army . . . calling them out individually without requisition on the states.” Nine weeks later, the Pennsylvania Supreme Court reversed itself.
C. The Civil War and its Aftermath
Before the Civil War, abolitionists such as Lysander Spooner and Joel Tiffany creatively argued that slavery was unconstitutional because slaves were prevented from exercising their right to own firearms for personal use. Whether or not the abolitionist argument was right in its bold claim about slavery, the use of the Second Amendment in the argument reflected the public understanding of the Second Amendment as a personal right of all Americans to own guns.
During Bleeding Kansas, Republicans complained that the pro-slavery territorial government installed by the Lecompton Convention had violated the Second Amendment by confiscating firearms from anti-slavery Kansans. Massachusetts Representative Charles Sumner—one of the most eminent anti-slavery congressmen—furiously denounced the Second Amendment violations as “The crime against Kansas.” During the war, Democrats complained that the Lincoln [Page110] administration was confiscating guns from people suspected of disloyalty in Missouri, which had not seceded.
After General Lee’s surrender, several southern states passed Black Codes which restricted or eliminated firearms possession and carrying by the freedmen. Whenever the Ku Klux Klan attempted to impose its reign of terror in an area, the first step was the confiscation of firearm from the freedmen.
Congress reacted by passing the Freedmen’s Bureau Act, the Civil Rights Act, and the Fourteenth Amendment. The two statutes had specific language protecting the freedmen’s Second Amendment right to self-defense arms. Congress voted for the Fourteenth Amendment with the specific, oft-expressed intent of the Amendment’s framers and supporters (and with corresponding complaints from opponents of the Amendment) that the Privileges or Immunities Clause would force states to respect the Second Amendment right of freedmen to possess personal defensive arms. This understanding was widely reported in the press.
Once the Fourteenth Amendment was ratified, Congress used its new powers under Section Five to enact the Enforcement Act of 1870 (making it a felony to conspire to injure a person in order to prevent his exercise of constitutional rights), and the Civil Rights Act of 1871 (allowing civil suits by persons whose constitutional rights had been violated). Congressional advocates of those laws stated their objective of stopping interference with freedmen’s Second Amendment right to own arms for self-defense.
Starting with the 1798 Sedition Act, and continuing into the late nineteenth century, Congress enacted laws which, at least arguably, [Page111] infringed First Amendment rights. In contrast, Congress enacted no laws which restricted Second Amendment rights; all the congressional legislation regarding the right was to protect it from state or private infringement.
In the latter nineteenth century, the Supreme Court nullified the Privileges or Immunities Clause of the Fourteenth Amendment, and in doing so, refused to apply the Second Amendment to the states. The Court also overturned the Enforcement Act, by which Congress had criminalized private conspiracies to violate the Second Amendment rights of American citizens. Yet the Second Amendment right itself remained unquestioned.
The Equal Protection Clause of the Fourteenth Amendment did prevent states from explicitly using race in gun control laws. So as Jim Crow intensified in the South, several states enacted handgun licensing or registration laws. One Florida judge frankly explained the racist purpose:
The original Act of 1893 was passed when there was a great influx of negro laborers in this State drawn here for the purpose of working in turpentine and lumber camps. . . . [T]he Act was passed for the purpose of disarming the negro laborers and to thereby reduce the unlawful homicides that were prevalent in turpentine and saw-mill camps and to give the white citizens in sparsely settled areas a better feeling of security. The statute was never intended to be applied to the white population . . . . [I]t is a safe guess to assume that more than 80% of the white men living in the rural sections of Florida have violated this statute. . . . [T]here has never been, within my knowledge, any effort to enforce the provisions of this statute as to [Page112] white people, because it has been generally conceded to be in contravention of the Constitution and non-enforceable if contested.
In our living Constitution, it is these racist laws which are the starting point for what Heller called “laws imposing conditions and qualifications on the commercial sale of arms.” These laws spread to other states in the early decades of the twentieth century, being aimed primarily at immigrant populations (e.g., Italians and Jews in New York City) or at labor agitators (California), or in response to blacks having defended themselves against race riots (Missouri and Michigan).
By the end of the century, the popular militias favored by the Founders had withered. They had been replaced by the bane of the Founders: a “select militia” comprising only a tiny, uniformed fraction of the population. These select militias were no check at all on the abuses of power, but tended instead to be used as government goon squads for strike-breaking, in the service of state governors beholden to large corporations.
In a living constitution sense, the first clause of the Second Amendment had become dormant. However “necessary” a “well-regulated militia” may have been considered by the Founders, the American people after the Civil War did almost nothing to organize or maintain a Second Amendment militia. The main clause of the Amendment, though, had grown ever more vital.
In sum, the living Constitution history of the Second Amendment in the nineteenth century shows overwhelming evidence for an unquestioned right of all Americans, not just the militia, to own and (usually) carry unconcealed firearms for personal defense. The consistent, oft-repeated understanding from St. George Tucker’s 1803 treatise all the way through to Jonathan Bingham’s 1866 Fourteenth Amendment does, as Heller recognized, provide some inferential evidence regarding original meaning in the late eighteenth century. [Page113] Moreover, whatever the Founders thought, the living Constitution of the nineteenth century guaranteed a right of all Americans to own and carry firearms for personal defense. The right was important enough to merit four congressional statutes, plus a constitutional amendment, designed to protect that right.
Although not everyone agreed, the dominant line of legal authority in the century held that the Second Amendment was not absolute. Concealed carrying could be prohibited, as could arms which were, as Heller later put it, “not typically possessed by law-abiding citizens for lawful purposes.”
II. TWENTIETH CENTURY
Legal élite and popular opinion about the Second Amendment had been mutually consistent in the nineteenth century. For a period in the latter twentieth century, they diverged. During the nineteenth century, the only sustained threats to the exercise of Second Amendment rights had been aimed at blacks in the South; but in the twentieth century, the Second Amendment rights of all citizens faced serious national threats. Yet the Second Amendment ended the century stronger than ever.
A. Courts
Early in the new century, in Salina, Kansas, a man was prosecuted for carrying a gun in public without a license. He argued that the city ordinance restricting gun carrying violated the right to arms provision in the Bill of Rights of the Kansas Constitution. The prosecution contended that the licensing law was a permissible regulation under the right. Sua sponte, the Kansas Supreme Court in Salina v. Blakesly in 1905, nullified the right. According to the court, the state constitutional right to arm was merely an affirmation of the right of the state government of Kansas to direct the Kansas militia. The opinion was absurd; the right to arms clause was part of the “Bill of Rights”—not part of the separate article (Article VIII) in the Kansas Constitution which specifies the state government’s militia powers. Not one source [Page114] cited by the court in Salina supported the court’s claim about the meaning of the right to arms. In dicta, the Salina court said that the Second Amendment had the same (null) meaning as the Kansas provision.
Salina was later abandoned, although not formally over-ruled, by the Kansas Supreme Court in Junction City v. Mevis. The 2010 election in Kansas will have a vote on a Kansas constitutional amendment which will almost certainly finish the job of overturning Salina.
But Salina did unleash the meme. Unlike in the nineteenth century (when the meme had been raised by an Arkansas judge), the meme found some eager carriers. A federal district court picked up the meme in 1935. By 1970, there were plenty of people who were sure that the Second Amendment only guaranteed a “state’s right” or a “collective right,” rather than an individual right. The idea was usually presented as being based on originalism, although there was and is no known writing or speech by any Founder that says so. The true source of the idea is not the Founding Era, but the 1905 Kansas Supreme Court.
Still, under some theories of living constitutionalism, if the meme triumphed, then the resulting nullification of the Second Amendment would be constitutionally legitimate—even if the meme itself had been invented without support in precedent, tradition, or original meaning. [Page115]
The meme’s spread was assisted by the Supreme Court’s cryptic decision in United States v. Miller in 1939. Miller was the result of a collusive prosecution involving a United States Attorney, a federal district judge who was a strong supporter of gun control, and a defense attorney who, in effect, willingly became an instrument for the U.S. Attorney. The result was to bring the weakest possible case to the Supreme Court, in order to uphold the validity of the National Firearms Act of 1934. (That Act required payment of a tax, and registration for the tax payment, for possession of short shotguns and machine guns.) The district judge wrote a one-sentence opinion, with no analysis, saying that the NFA was a violation of the Second Amendment; the case involved the worst possible Second Amendment claimants (career criminals with sawed-off shotguns). The “defense” attorney filed no brief and told the Court to rely on the government’s brief.
The government brief in the Supreme Court argued in the alternative: either there was no individual right to arms (per Salina) or the tax was permissible because it applied only to arms which were not protected by the individual right. The Supreme Court ruled that whether a short-barreled shotgun was a militia-type weapon (and therefore protected by the Second Amendment) was not within judicial notice. So the one-sentence district court opinion declaring the NFA facially unconstitutional was reversed, and the case was remanded.
Miller was cryptically written. Before Heller definitively construed the case (as standing for the principle that short shotguns and machine guns are not within the Second Amendment), many articles and judicial opinions argued about what the case meant. Nothing in the case said that the Second Amendment was a “state’s right” or a “collective right.” But there was language which, particularly when read in isolation from the case as a whole, could be quoted to support the theory that only [Page116] militiamen have Second Amendment rights.
As Heller would later observe, in the following decades many lower federal courts overread Miller. Most of the federal cases arose after Congress passed the Gun Control Act of 1968, which barred convicted felons from possessing firearms. The Second Amendment issue was often a desperate and thinly-reasoned argument made by a public defender whose client was obviously guilty.
Many of the lower court cases asserted that the Second Amendment was solely a collective right or a state’s right. Others said that Miller meant the Second Amendment was militia-only. The collective/state reading was plainly contrary to Miller, and the militia-only reading was much less obvious than many lower courts asserted.
The Court, however, remained silent. Certiorari was never granted. One may reasonably draw two conclusions from the inaction. First, in that “Qui tacet consentit,” a majority of the Court was probably content with allowing the lower courts to do the work of eliminating the Second Amendment as a meaningful part of the American Constitution.
Second, the Court was unwilling to do the job itself. There were cert. petitions from the convicted felons and other losers in the lower courts. There were high-profile cases like the Morton Grove, Illinois, [Page117] handgun ban, for which cert. petitions were filed in 1983.
The claim of the gun control lobbies was that certiorari was never granted because the Second Amendment was so well-settled. But the Second Amendment was obviously not well-settled, because it remained a huge and highly-contested issue in public debate. Because the very large majority of the American public believed that the Second Amendment guaranteed an individual right, the Second Amendment remained a powerful political impediment to gun control.
Yet the Court declined the repeated opportunity to clarify the question. It is reasonable to infer that the Court was well aware that a [Page118] decision explicitly denying the Second Amendment right would spark an enormous public reaction which would make the backlash against Roe v. Wade or Miranda look tiny. So why spend an enormous amount of the Court’s finite political capital, especially when the lower courts were taking care of things satisfactorily?
The Court’s timidity about issuing a holding which limited the Second Amendment solely to the militia is a good example of Balkin’s theory of how the public as a whole, not just the courts, participate in our living constitutionalism. The reason that that Court never formally killed the Second Amendment was that the Second Amendment was alive and well in the hearts and minds of the American people, and the Supreme Court knew it. The public operated as a check on the Court, and thereby kept the Second Amendment alive—even though lower federal courts prevented the Amendment from being legally enforceable.
B. Congress
Balkin writes that “the political branches actually produce most living constitutionalism,” and that “[m]ost of what courts do in constitutional development responds to these political constitutional constructions.”
Congress continued to view the Second Amendment as an important individual right. In 1941, Congress looked with horror at what gun confiscation had led to in Nazi-occupied Europe and in the Soviet Union. When Congress passed the Property Requisition Act to [Page119] allow the federal government to take property needed for national defense against tyranny, Congress made sure that the American people would retain their ability to resist tyranny. The Act forbade the federal government “to authorize the requisitioning or require the registration of any firearms possessed by any individual for his personal protection or sport (and the possession of which is not prohibited or the registration of which is not required by existing law),” or “to impair or infringe in any manner the right of any individual to keep and bear arms.”
Later, the Firearms Owners’ Protection Act of 1986 affirmed the individual Second Amendment right, and enacted reforms to stop various abuses of that right by federal, state, or local officials.
To be sure, there were plenty of gun control laws enacted during the twentieth century. Unlike in the nineteenth century, today we live in an administrative state. In every state, there is an “instant” background check (based on a telephone or computer database query to state or federal law enforcement) which is conducted before a gun is sold by a firearms dealer. A minority of states have licensing, registration, or waiting period laws for handguns; a few also have such laws for long guns. More recently, though, some of these laws have been eliminated, now that the instant check is operational.
Significantly, at the federal level, the prohibition of common firearms never went anywhere. The conspicuous exception was the [Page120] 1994 ban on so-called “assault weapons.” (Guns which function like other ordinary guns, but which have frightening, cosmetically-incorrect features, such as bayonet lugs, or stocks make from black plastic.) That ban produced a tremendous counter-response from the public, as Democrats lost control of the House of Representatives for the first time in nearly half a century, and the Senate too changed hands. That December, President Clinton acknowledged that “The NRA is the reason the Republicans control the House.” The ban sunset by its own terms in 2004.
The history of congressional action raises serious doubts about the legality of gun registration, under a living constitution theory. The Property Requisition Act of 1941, the Firearms Owners’ Protection Act of 1986, and the Brady Act (1994) all forbid the creation of a federal gun registration database. The most concerted push for national gun registration came in the push for what became the Gun Control Act of 1968. Congress rejected central registration, and instead created a system of decentralized record-keeping; records of gun sales are retained by licensed firearms dealers, and are available for law enforcement inspection when such inspection is part of a bona fide criminal investigation. The compromise allows for the law enforcement benefits of record-keeping, while reducing the potential for misuse of registration in order to facilitate gun confiscation.
In 1978, the Jimmy Carter administration proposed that dealer records be used to create a limited federal gun registration database. [Page121] The administration said that no additional funds would be needed, since the federal Bureau of Alcohol, Tobacco and Firearms could implement the five million dollar project from existing appropriations. The House of Representatives voted 314-80 to prohibit the expenditure of any federal funds on gun registration. For good measure, the House also cut BATF’s appropriation by five million dollars.
In the states, gun registration is the minority position. Of the states with registration, most register only handguns. Registration of all guns is the policy in a few jurisdictions, including California, New York City, New Jersey. In each of those jurisdictions, registration records have been used to confiscate long guns.
Accordingly, under living constitutionalism, the legality of centralized gun registration appears doubtful. Federally, the political branches have expressed continued, strong aversion to registration; at the state level, the jurisdictions with most extensive registration are also the places which have witnessed the very abuses which registration facilitates.
And of course there is nothing in the original meaning of the Constitution which would support the legitimacy of comprehensive gun registration; in the Founding Era and Early Republic, some jurisdictions required militia members (i.e. most all adult males) to prove that they had a firearm suitable for militia use. If this counts as “registration,” then it is registration narrowly tailored to the citizens’ militia duty.
C. The States
State Constitutions are “by far the best expression of the constitutional commitments of We the People,” writes Adam Winkler, in support of his claim that “[t]he living Constitution strongly supports the Heller majority’s recognition of an individufal right to keep and bear arms.”
Nicholas Johnson ably traces the growth of state constitution right to arms provisions, from Pennsylvania in 1776 to Wisconsin in 1988. [Page123] Today 44 states have a constitutional right to arms. In every state where the people have had the opportunity to vote directly, they have endorsed the right to arms by landslide margins. Most recently, in 1998 Wisconsin adopted an arms right guarantee by a vote of 1,205,873 to 425,052. Since 1963, the people of twenty states have chosen, either through their legislature or through a direct vote, to add a right to arms to their state constitution, to re-adopt the right to arms, or to strengthen an existing right.
In addition, thirty-seven state constitutions specifically protect the right of self-defense—sometimes as part of the arms right, and sometimes stated separately.
Under the state constitutions, courts have found some gun control laws to be unconstitutional, while upholding many others.
“The Supreme Court often looks to the direction of change in state practices,” observes Balkin. The last quarter-century’s changes in state practices are useful guideposts of contemporary interpretation of the Second Amendment in a living constitution.
First of all, Heller’s determination that handgun prohibition is per se unconstitutional fits with what the American voters have said. The 1975 handgun ban enacted by the District of Columbia’s City Council was supposed to start the dominos falling for a national handgun ban. But every time voters were given a chance to ban handguns, they voted “no”—in Massachusetts in 1976 (69%), California in 1982 (63%), and in three Wisconsin towns: Milwaukee (67%), Kenosha (73%), and very left-leaning Madison (51%) in 1993-1994.
In the early 1980s, city councils in Chicago and Morton Grove, Illinois, did ban handguns, and four other Chicago suburbs later followed suit. In response, legislatures in almost every other state enacted preemption laws to forbid local handgun bans or other local gun controls. Forty-six states now have limited or complete preemption of local firearms laws. Many commentators have noted that the Court is more willing to find a particular practice to be unconstitutional if that practice (e.g., the criminalization of sodomy) only exists in a few states. Because of the American people’s use of the political process to express their constitutional values, the D.C. ban was never a trend-setter, but always remained an extremist outlier, enjoying the company of only one large city and a few of that city’s many suburbs.
In many American states, the last several decades have seen a litany of statewide legislation designed to protect the right to arms, such as:
- A preemption law which wiped out some or all local gun control;
- Range protection, so that shooting ranges are not shut down by [Page124] people who built a house near a range, and then complain about the noise;
- Product liability reform, to protect the makers of firearms which function properly from a type of lawsuit that was pushed in the 1970s and 1980s;
- Additional tort reform, to preempt municipal governments from suing firearms manufacturers;
- A Shall Issue law for licensed defensive handgun carrying; and
- Changes in self-defense law to expand the circumstances under which firearms may lawfully be used against criminal attackers.
The average state in this period also enacted a “gun-free school zone law,” and some other laws restricting gun possession by juveniles not under adult supervision. These are fairly small potatoes compared to overall broadening of arms rights protections.
To be sure, a few states have moved in other direction; gun rights are much more restricted in California and Massachusetts than they were in 1975, and the already restrictive situation in New Jersey has gotten somewhat tighter. Living constitutionalism, however, tends to favor the dominant national trend; for example, when legal discrimination against black people were being repealed or weakened in most states, the Court followed the national trend, regardless of [Page125] whether race restrictions were being intensified in a few states.
D. Everyday Micropractices
Another aspect of living constitutionalism is “everyday micropractices.” When it became common to see women at work, public attitudes (and, in the long run, judicial constitutional attitudes) about women’s equality changed. Likewise, when homosexuals started coming out of the closet, public attitudes began to change, as many heterosexual citizens realized that their friends, neighbors, and co-workers who happened to be homosexual were generally pretty “normal.”
During the late 1960s, it was common to assert that changing micropractices had made the Second Amendment obsolete. Hunting was declining, and a once-rural nation was now mostly urban. But “the Second Amendment isn’t about duck hunting.” More precisely, it is not only about hunting. Americans continued their micropractices of arming themselves more heavily than the people of any other nation in the world. As of 1948, Americans owned guns at a per capita rate about equal to what the French and Norwegians do now. By 2004, per capita gun ownership had risen by 158%, so that there now almost as many American guns as there are Americans.
As of the early 1970s, the legal carrying of handguns for protection in public places was suppressed in most states. They typical system was that carrying required a permit, the permit required “good cause” in the view of police administrator, and ordinary citizens who just wanted to protect themselves were almost never considered to have “good cause.” Only a few states were exceptions to the general rule.
But starting in Florida in 1987, state after state enacted “shall [Page126]issue” licensing laws. These laws use an objective standard. If an adult passes a fingerprint-based background check, and (in most states) a safety class, then she “shall” be issued a concealed handgun carry permit. Today, in forty states a law-abiding, competent adult has a clear path to a concealed carry permit. The living constitutionalism importance of this is twofold:
First, we see how changing social attitudes have altered the preferred mode of exercising constitutional rights. In the nineteenth century, concealed carry was often considered outside the scope of the right to bear arms. Today, it is the most common way in which people exercise their right to bear arms.
Perhaps even more importantly, the proliferation of concealed carry laws means that most Americans now live in places where, every time they go to a shopping mall, a fast food restaurant, a park, or almost any other public place, they are in a location where there is a good chance that some people are lawfully carrying firearms. Whether concealed carry causes a statistically significant decline in violent crime is the subject of scholarly debate, but the evidence is indisputable that there is no statistically significant increase in crime. In every state where Shall Issue has become the law, it has disappeared from the gun control debate within a few years. Most of the American public has acclimated to an environment in which public carrying of defensive handguns is common, safe, and unremarkable. This surely is having a long-term effect in shaping public attitudes.
The gun prohibition movement sought to make guns into cigarettes—pushed out of public spaces, and confined in an ever-smaller physical zone where permission was granted. Turning smokers into [Page127] literal outcasts has had the effect of further delegitimizing smoking, thus reducing its public support, and making even further restrictions possible. America’s evolution into a Shall Issue nation is having precisely the opposite effect for firearms.
The Shall Issue laws also have a more immediate legal lesson. From the late 1960s until Florida’s 1987 legislation, most Americans (for the first time in history) lived in states where carrying a gun in the ordinary course of life (e.g., while walking in one’s neighborhood) was unlawful in practice, requiring a permit that would rarely be issued. The carry restrictions of the late 1960s and early 1970s were, like many of the gun control laws from that period, a reaction against urban riots and other racial unrest.
As of 1975, a living constitutionalist might have been able to argue that the right to bear arms is satisfied if people can carry guns while hunting, and can transport guns to and from gun stores and gun repair shops. Today, the right to bear arms, as it actually exists under our living state constitutions, clearly includes the right to carry handguns for lawful protection. At the same time, the right to bear arms may be regulated by objective, fair laws for background checks, licensing, and training.
E. The Second Amendment’s Constitutional Moments
Bruce Ackerman’s theory of “constitutional moments” points to the Civil War and Reconstruction, plus the Franklin Roosevelt administration, as times of crisis when our Constitution was changed without going through for the formal amendment process. During those momentous times, the living Second Amendment was plainly applied in its modern sense, as an individual right to own unregistered guns for self-defense.
Constitutional moments do not have to be defined as rigidly as in [Page128] Ackerman’s five-step recipe. For example, in Origins of the Bill of Rights, Leonard Levy detailed how the election of 1800 changed the First Amendment. The Sedition Act of 1798 may well have been consistent with the original First Amendment, in that there was no prior restraint, and truth was a defense to a prosecution for seditious libel.
However, as Levy shows, many Americans considered the Sedition Act to be an outrage. And they took out their anger in the election of 1800, in which Thomas Jefferson defeated John Adams, even though Adams had beaten Jefferson in 1796. From then onward, Levy writes, the First Amendment was understood to prohibit even post-publication punishment for writings which criticized the government.
Like the First Amendment in 1800, the Second Amendment was put to the test in elections. In May 2000, the Fifth Circuit Court of Appeal heard oral argument in United States v. Emerson, to decide whether the Second Amendment guaranteed an individual right. The Clinton administration told the judges that the Second Amendment allowed for unlimited gun confiscation. A few weeks later, Solicitor General Seth Waxman answered a citizen’s letter about Emerson by declaring, as the citizen had asked, that the Clinton administration really did believe that it could “‘take guns away from the public,’ and ‘restrict ownership of rifles, pistols and shotguns from all people.’”
The NRA put those words on billboards where voters could see them, and in the 2000 election, the Second Amendment issue cost Al Gore at least five swing states: West Virginia, Missouri, Florida, Clinton’s Arkansas, and Gore’s own Tennessee. President Clinton [Page129] stated that Gore had lost the election because of the NRA.
Like the election of 1800, the election of 2000 was very close, and went into “overtime.” In both elections, an expansive view of a contested constitutional freedom finally won the day.
III. THE TWENTY-FIRST CENTURY
Restoring the Department of Justice’s traditional position that the Second Amendment is an individual right, new Attorney General John Ashcroft reversed a contrary position which had been articulated by the Nixon and Clinton DOJs.
Congress passed more laws to protect Second Amendment rights. The Protection of Lawful Commerce in Arms Act ended a coordinated series of lawsuits against handgun manufacturers which had been directed by the Brady Campaign. Thirty-three states had already enacted similar laws to protect arms rights from what the legislators considered to be lawsuit abuse.
After Hurricane Katrina, civil society collapsed in New Orleans, and many citizens formed voluntary neighborhood associations to use their personal firearms to protect their communities from roving bands of murderers and looters. Yet New Orleans police superintendant Eddie Compass ordered officers to confiscate all the firearms belonging to all the people of New Orleans. Compass’s order was a flagrant [Page130] violation of Louisiana state law, and it was speedily enjoined on, inter alia, Second Amendment grounds a few days after it was issued. Congress and twenty-six states passed legislation to specifically forbid gun confiscation during natural disasters or other emergencies.
In 2004, John Kerry came closer to defeating an incumbent President in wartime than had any candidate since DeWitt Clinton in 1812. As with Gore, Kerry’s Second Amendment record cost him the Presidency. The result was that by the time Heller reached the Supreme Court, there were two new Justices, appointed by George W. Bush, and those Justices made the difference in a 5-4 decision.
The Democrats in 2006 and 2008 reversed the curse of 1994, taking back control of Congress, thanks to the dozens of pro-Second Amendment candidates whom they put forward.
As Balkin notes, “the Supreme Court often takes direction about how to construct doctrine from contemporaneous expressions of constitutional values by political majorities.” The importance of the living, vital, Second Amendment was expressed not only in election results which the Supreme Court read about, but in briefs filed by Congress.
In Heller, 55 Senators and 250 Representatives joined an amicus brief urging the Court to hold the D.C. handgun ban [Page131] unconstitutional. This was the largest number of Congresspersons who had ever joined in a Supreme Court amicus brief. The amicus brief of Congresspersons on the pro-prohibition side of the case had zero signers from the Senate, and 18 from the House.
The congressional amicus brief in McDonald v. Chicago, urging the Court to strike the Chicago handgun ban, garnered 57 Senators and 251 Representatives.
In Heller, 31 elected state Attorneys General filed an amicus against the D.C. ban; the brief even urged that the Second Amendment be incorporated against the states. In McDonald, with incorporation squarely before the Court, 38 states filed an amicus in favor of incorporation. The Heller/McDonald briefs represent one of the very largest, bi-partisan, expressions of the views of the political branches ever presented in Supreme Court briefing.
The political branches are accurately representing the constitutional values of the American people. Even before the Heller decision was announced, the Gallup Poll found that 73% of Americans believed that the Constitution guaranteed an individual, non-militia right to arms. [Page132]
“When courts exercise judicial review to strike down laws, they often work in cooperation with the dominant national political coalition,” says Balkin. Thus, Brown v. Board came only after most states had already abolished de jure racial segregation in schools, and Lawrence v. Texas only after most states had repealed criminal laws against sodomy. Similarly, the fact that handgun prohibition in the United States was very rare (only D.C., Chicago, and five Chicago suburbs) is a crucial fact in understanding Heller via living constitutionalism.
IV. POST-HELLER
“Constitutional constructions become durable,” says Balkin, “when people stop fighting about them and accept them in practice.” With Heller, the fighting never even began. Presidential candidates Barack Obama and John McCain rushed to announce their agreement with the decision. During the election campaign, there was no controversy at all about Heller, except that McCain’s side accused Obama of being insufficiently devoted to the decision, and Obama’s side retorted that Obama was a firm supporter of Heller; quite a contrast to cases such as Miranda or Roe v. Wade, which instantly became hot political issues, with many candidates building political capital by denouncing the Court’s decision.
On the academic front, only a single post-Heller law review article by a leading scholar has argued that the case was wrongly decided. [Page133]
Heller resulted in an eight point increase in the percentage of the public who thought the Supreme Court was doing a good or excellent job. Of respondents who knew about the Heller decision, 63% agreed and 25% disagreed. Of course a Court which takes its job seriously will sometimes displease political majorities, because the protection of constitutional rights and constitutional structure must sometimes be countermajoritarian. In Heller, though, protection of the textual right meshed with public views.
Significantly, Heller appears to have become, like Griswold, a litmus test for Supreme Court nominees. During the confirmation hearings of Sonia Sotomayor, she was questioned extensively by both Democrats and Republicans about her record on Second Amendment issues—testing whether she was “pro-gun” enough to serve on the Court. She responded affirmatively, and even talked about her friends who hunt, and her godchild who belongs to the National Rifle Association. Whether Justice Sotomayor in her heart is as pro-Second Amendment as she claimed during her confirmation hearings can be debated. [Page134] From the standpoint of living constitutionalism, the key fact is that to be confirmed to the Court, she had to affirm her allegiance to Heller, and to promise to respect the individual right to arms.
A 2009 Gallup Poll found that support for banning handguns had dropped to only 28%—the lowest level since Gallup began polling the issue half a century ago. The long-term trend of the Gallup question (as of 2008) is presented in this graph:
Finally, if there were no National Rifle Association, the story of the last hundred years would have ended very differently, with the Second Amendment lying is the graveyard of the dead Constitution, along with the Contracts Clause and the Privileges or Immunities [Page135] Clause. The modern, living right to arms would not exist if not for the NRA, just as without the American Civil Liberties Union we would not have the robust First Amendment of today, and without the NAACP, the Equal Protection clause would have remained constitutionally near-dead.
As Balkin observes, the ability of groups such as the NRA, ACLU, and NAACP to mobilize constituencies, persuasively communicate their constitutional vision to the public, and influence the political process in favor of the appointment of sympathetic judges is a major force which shapes our living constitution.
For the Second Amendment, the NRA was important not only for its direct role in law and policy, but also for its role in what Balkin calls “micropractices.” Ever since the NRA was founded by Union army officers in 1871, the association has worked on many fronts to teach and encourage Americans how to use firearms responsibly. The NRA is by far the leading national organization which trains and certifies firearms safety instructors; millions of Americans have learned firearms safety from NRA instructors. The NRA has been the governing body for many of the shooting sports in America, and was the primary creator [Page136] of formal, national target-shooting championships in the United States. Thousands of shooting ranges and gun clubs in the United States have used NRA expertise to operate safely, to manage sporting events, and to introduce newcomers to the sport.
The parallel would be if the American Civil Liberties Union, which defends the right to read, were also the main U.S. organization teaching people how to read, providing operating advice to libraries, giving out the annual awards to the best authors, and so on.
In short, the NRA for 128 years has diligently and successfully worked to increase the number of Americans who own guns, who know how to use them safely, and who engage in sport activities to increase their expertise. The result is a much larger social base of gun owners, some of whom agree with the NRA’s core principle that responsible gun ownership is an embodiment of American civic virtue and constitutional freedom. The more gun owners, the more pro-gun voters, and the stronger the living constitutional right to arms. The more people that exercise a right, the better that it may be protected.
CONCLUSION
From an originalist standpoint, the living constitutionalism of the Second Amendment had a positive influence, in that the social and political forces which living constitutionalism celebrates finally convinced the Supreme Court to stop ignoring the Second Amendment. The Second Amendment’s living constitutionalism was founded on originalism, in that activists who supported the individual right to keep and bear arms for lawful self-defense believed that they were supporting the original meaning. Living constitutionalism does not always lead back to enforcement of original meaning, but in District of Columbia v. Heller, it did.
The Founding Father of living constitutionalism was Oliver Wendell Holmes, Jr. As he wrote in Gompers v. United States:
[T]he provisions of the Constitution are not mathematical formulas [Page137] having their essence in their form; they are organic, living institutions transplanted from English soil. Their significance is vital, not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.
Likewise in Missouri v. Holland, Holmes declared that the words of the Constitution
have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.
Holmes’s words are the living Constitution’s answer to those who would claim that the Second Amendment is militia-only. The militia-only interpretation is a “mathematical” and “formal” theory which says: “Bear arms” is an exclusively a military term of art. “Keep” gets turned into a military-only word by being used in the phrase “keep and bear arms.” The only form of arms-bearing which is explicitly mentioned in the Second Amendment is militia. Therefore, the Second Amendment right protects only the militia.
Each of the above formulaic steps can be refuted by looking at the historical evidence of original meaning in the Founding Era. But even if the militia-only formal argument were correct, Justice Holmes and the living Constitution would tell us to consider how those words have been used after the Founding, and over the course of our nation’s development.
As our nation has grown and evolved, through periods of crisis and [Page138] periods of calm, the people and their elected officials have affirmed and defended the personal right of all law-abiding Americans, not just the militia, to keep and bear arms for self-defense, hunting, and other legitimate purposes. The Second Amendment is, and always has been, alive and well in the hearts and minds of the American people.
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