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\u00a0Rory Little Recurring Columnist<\/p>\nIt’s so nice when they provide such positive identification for future use<\/p>\n
\u00a0Rory Little Recurring Columnist<\/p>\n
The Second Amendment and AR-15s: an unexplained betrayal of originalism?<\/a><\/p>\n Last month, I provided a short discussion<\/a> of the upcoming AR-15 rifle ban case, Viramontes v. Cook County<\/a>,<\/em> noting that the 2008 pathbreaking Second Amendment decision, District of Columbia v. Heller<\/em><\/a>, ended by adding a \u201cPart III\u201d that identified \u201can important limitation on the right to keep and carry arms.\u201d For a 5-4 majority, Justice Antonin Scalia wrote that \u201cthe sorts of weapons protected were those \u2018in common use at the time<\/em> (emphasis added).\u2019\u201d Scalia said that this limitation is \u201cfairly supported by … historical tradition\u201d and he provided a lengthy string of citations to demonstrate that proposition.<\/p>\n The Supreme Court has never examined the meaning of the \u201cin common use at the time of the founding\u201d limitation that the Heller<\/em> majority described and said was supported by history. Instead, as detailed below, federal courts have silently transformed the Second Amendment test to extend it to weapons \u201cin common use today.\u201d<\/a> Under this transformed test, AR-15 semi-automatic rifles might be protected although its advocates<\/a> explain<\/a> that they are a 20th century technological development. Yet if Scalia\u2019s words are given their plain meaning, local governments would seem to have authority to enact bans<\/a> on such weapons.<\/p>\n Given the consequences of which language applies, I continue to wonder why this is not a centerpiece of the Viramontes<\/em> debate. (That said, Cook County\u2019s responsive brief on the merits has not yet been filed \u2013 it\u2019s due Oct. 21<\/a>.) Indeed, a week after my column, Professor Jonathan Turley<\/a> published a short column<\/a> responding to this point, and calling Scalia\u2019s limitation an \u201cerrant qualifier.\u201d<\/p>\n <\/p>\n I think that is incorrect. The justices have never expressly examined the Heller<\/em> limitation I identified (which Scalia wrote), nor has the court ever explained why it does not mean what it appears plainly to say. Transforming a constitutional limitation written as \u201cwere in common use at the time\u201d into a test of \u201care in common use today\u201d is a betrayal not just of words that were essential to the Heller<\/em> result, but of the originalist soul of its author. It replaces an originalist understanding of the limitations of the Second Amendment with a rootless and manipulable contemporary view of it. If decisional text as well as stare decisis values are to have any integrity when our justices change, but law and precedents still govern, a principled rationale for abandoning Scalia and the court\u2019s \u201cimportant limitation\u201d must be offered.<\/p>\n Some brief introductory points. First, I consider myself a flaming moderate<\/a>. I am no firearms expert, but I enjoyed shooting various guns in my rural youth. And on this particular issue, I support reasonable restrictions on modern-day dangerous weapons like AR-15 rifles. I wrote critically<\/a> about Heller<\/em> in 2009 (failing to anticipate personnel changes at the Supreme Court a decade later). Whether these things have relevance for you or not, I urge you to not ignore the legal analyses of scholars who disagree with your policy views. But I hope you will agree that any scholar\u2019s policy views should not negate a respectful discussion of the Constitution\u2019s meaning.<\/p>\n Second, I haven\u2019t had the pleasure of meeting Turley and I respect his scholarship. He is a longtime supporter<\/a> of Second Amendment rights, and I stand in awe of his boundless media energy<\/a>. Short online essays will never resolve complex legal issues or fully reflect the depth of serious Supreme Court analysis. I\u2019d be pleased to further debate him or others on this constitutional issue.<\/p>\n On to the main discussion:<\/p>\n 1. I highly doubt that Scalia\u2019s inclusion of an \u201cimportant limitation\u201d on the Second Amendment right he championed for 63 pages was \u201cerrant.\u201d That is, Scalia did not mean to say \u201cin common use today\u201d but somehow mistakenly wrote \u201cin common use at the time.\u201d Scalia was hardly known as a careless or sloppy writer. He\u2019s been called \u201cthe Supreme Court\u2019s greatest writer<\/a>\u201d by some and is the co-author of a leading treatise<\/a> on writing and interpretation. The phrase \u201cin common use at the time\u201d appears not once but three times in his opinion (\u201cat the time\u201d appears 10 times, and it plainly means \u201cat the time of the founding\u201d (used four times) in 1791 when the Second Amendment was adopted). Heller<\/em> was viewed, in 2008 and today, as the most important Second Amendment precedent in our history. There is no doubt in my mind that Scalia understood that and wrote precisely so as to stand the test of time. He did not include this interpretation of the Second Amendment and its \u201cimportant limitation\u201d by accident.<\/p>\n 2. Further evidence that this limitation was not \u201cerrant\u201d appears in the next sentence of Heller<\/em>, where Scalia wrote that \u201c[w]e think that [this] limitation is fairly supported by the historical tradition of prohibiting the carrying of \u2018dangerous and unusual weapons.\u2019\u201d Scalia then included references to eight treatises and four old cases in support of this. Providing deep historical research that \u201cfairly supported\u201d his reading was no error but was perfectly consistent with the originalist method that Scalia effectively embedded at the court today.<\/p>\n 3. It was a unanimous Supreme Court almost 90 years ago in United States v. Miller<\/em><\/a> that first employed the \u201cin common use at the time\u201d standard. In that case, the court sustained<\/em> the federal ban on possessing short-barreled (\u201csawed off\u201d) shotguns<\/a>, and by authority of the same statute,<\/a> \u201cmachine guns.\u201d How quickly we forget, or ignore, history (and it\u2019s simply mistaken to say, even as one podcast did<\/a>, that there \u201cis no history on what the Second Amendment means\u201d before Heller<\/em>).<\/p>\n Rather than dispute Miller<\/em>, Heller<\/em> endorsed and quoted from Miller<\/em>\u2019s constitutional ruling. According to the Miller <\/em>court, even if viewed as useful (and commonly used by then-new gangsters like \u201cMachine Gun Kelly\u201d<\/a>), such weapons could be banned because they were not \u201cin common use\u201d by the militia when the Second Amendment was ratified. That fact is also undoubtedly true about AR-15 rifles, which, as the solicitor general\u2019s brief<\/a> explains, were not technologically available until the 20th century. Embracing the \u201cin common use at the time\u201d limitation from Miller<\/em> demonstrated the court\u2019s commitment to the oft-repeated idea that, as Scalia explained in this same paragraph, \u201c[l]ike most rights, the right secured by the Second Amendment is not unlimited.\u201d<\/p>\n 4. Turley concluded his essay by saying that \u201can immediate reversal of Heller<\/em>\u201d is \u201cunlikely to turn on the word \u2018were.\u2019\u201d I completely agree: no \u201creversal\u201d of Heller<\/em> is required or even suggested by giving plain meaning to Heller\u2019s<\/em> statement that \u201cthe sorts of weapons protected were those \u2018in common use at the time.\u2019\u201d Heller<\/em> obviously protected<\/em> the use of handguns, which were in common use in revolutionary times, and at the same time it endorsed<\/em> the prohibition of modern machine-gun technology in Miller<\/em>. Thus Heller<\/em>, and Scalia for the court, drew an unsurprising, constitutional line, a \u201climitation [which] is fairly supported by … historical tradition.\u201d Affirming a ban on AR-15 rifles, which as the U.S. solicitor general<\/a> and the Second Amendment Foundation<\/a> acknowledge represent new 20th century technology that explains their now-popular use, would honor Scalia\u2019s memory and his careful constitutional consideration, not \u201creverse\u201d it.<\/p>\n 5. Importantly, it is undisputed, and clear from the structure of the Heller<\/em> opinion, that its Part III, which outlined the \u201cin common use at the time\u201d limitation and other possible restrictions, was included to preserve a shaky five-justice majority. This was explained in detail by a contemporary witness: former Justice John Paul Stevens in 2019<\/a>, and has been endorsed by other<\/a> scholars<\/a>. Now retired Justice Anthony Kennedy was a quiet, but demanding, fifth vote. Without Kennedy\u2019s signing on to this language, Scalia\u2019s opinion might have changed to, at best, a plurality, or a dissent, with Kennedy joining the four Heller<\/em> dissenters and writing or voting for a more restrictive gun-control doctrine than currently exists. (One wonders what Kennedy\u2019s two prior law clerks now sitting as justices, Brett Kavanaugh and Neil Gorsuch, might say about this at oral argument.)<\/p>\n 6. Given all this, what should we make of a statement made 45 pages earlier in Heller<\/em> (quoted by Turley without noting that fact), that \u201cthe 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\u201d? This was in a different section of Heller<\/em>, examining what counts as \u201carms\u201d rather than defining the scope of the right. I think the qualifier (not errant) of \u201cprima facie\u201d further indicates<\/a> that this was part of a preliminary, \u201con its face,\u201d discussion of the constitutional text, not (like Part III) a conclusion. Prima facie literally means \u201con first impression,\u201d<\/a> that is, before everything else is considered.<\/p>\n Still, there\u2019s no doubt that this early sentence is in tension with the later Part III limitation. But Part III represents the conclusion of the entire opinion. After 45 further pages of consideration \u2013 it\u2019s the court\u2019s final word. Other aspects of Part III have been accepted as Second Amendment limitations (such as \u201csensitive places\u201d<\/a> and prohibiting possession by dangerous individuals<\/a>) \u2013 so why not this one? If the two statements separated by 45 opinion pages in Heller<\/em> are in tension, the court needs to explain why Part III does not mean what the majority seemed to plainly rule.<\/p>\n 7. If the Part III \u201cin common use at the time\u201d limitation is clear, how then has it been (seemingly successfully) transformed today into a contemporary \u201care in common use today\u201d idea?<\/p>\n As best I can tell, the problem goes back to a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit in a 2011 Heller<\/em> follow-up case.<\/p>\n After Heller<\/em> was decided in 2008, the District of Columbia enacted<\/a> a new ban on assault weapons<\/a> and large-capacity magazines<\/a> (both terms have disparate and disputed<\/a> definitions; interestingly, the Sentencing Commission\u2019s definition of the latter term is the specific issue underlying this term\u2019s first criminal law oral argument, Beaird v. United States<\/em><\/a>). The circuit upheld, 2-1, those bans (while questioning various registration requirements). For the majority, Judge Douglas Ginsburg noted<\/a> the \u201cin common use at the time\u201d limitation, and that Heller<\/em> had stated this was \u201csupported by … historical tradition.\u201d But he then also applied the earlier statement in Heller<\/em> that weapons \u201cnot typically possessed\u201d are unprotected and noted an argument that semiautomatic AR rifles \u201care<\/em> commonly possessed\u201d (my emphasis). Frankly, the panel mushed together \u2013 or as a lawyer might say \u201cconflated\u201d<\/a> \u2013 the past tense of the limitation, with some present-tense ideas. The panel then noted that the record was \u201cuncertain\u201d regarding whether the weapons at issue \u201care commonly used\u201d in a relevant sense and upheld the bans on other grounds.<\/p>\n In dissent, then-Judge Kavanaugh immediately adopted the majority\u2019s conflated test, asserting that weapons that \u201care<\/em> in common use\u201d are protected (my emphasis). Indeed, Kavanaugh\u2019s 52-page dissent repeated the present-day \u201care in common use\u201d test over a dozen times, without explaining why he was altering Scalia\u2019s statement.<\/p>\n After Heller<\/em> (and McDonald<\/em> in 2010, extending it to the states) numerous<\/a> scholars<\/a> have<\/a> noted that there was a long period of strategic caution or avoidance at the court \u2013 effectively 12 years of silence until Kennedy left it. Meanwhile, Scalia\u2019s untimely passing meant he was not around to explain his meaning. (Hats off to Adam Winkler<\/a> for using the phrase \u201cgun shy\u201d<\/a> to describe this period).<\/p>\n It is important to note, as Turley pointed out in an earlier column<\/a>, that the court did file a short unsigned opinion in 2016 on this topic. The Massachusetts Supreme Court had upheld a state ban on stun guns because they \u201cwere not in common use at the time of the Second Amendment\u2019s enactment.\u201d In Caetano v. Massachusetts<\/em><\/a>, the court summarily reversed that decision, without full briefing or oral argument. The eight-justice per curiam opinion (Scalia had died a month earlier<\/a>) said the Massachusetts ruling was \u201cinconsistent with\u00a0Heller<\/em>\u2019s clear statement that the Second Amendment \u201cextends .\u00a0.\u00a0. to .\u00a0.\u00a0. arms .\u00a0.\u00a0. that were not in existence at the time of the founding.\u201d Yet Caetano<\/em> did not mention, let alone address, another obvious inconsistency: that the sentence they quoted appeared to conflict directly with Heller\u2019s<\/em> \u201cimportant limitation\u201d of the right, to weapons that \u201cwere in common use at the time.\u201d Because the Caetano<\/em> opinion identified two other reasons for reversing, the force of its per curiam summary reversal is open to debate. But one thing is clear: the Caetano<\/em> court did not \u2013 and the court still never has \u2013 discussed or explored the meaning of Heller\u2019s<\/em> \u201cimportant limitation\u201d of the Second Amendment to weapons \u201cin common use at the time.\u201d<\/p>\n Finally, in 2022 with a newly constituted court, Justice Clarence Thomas fully adopted (in New York State Rifle & Pistol Association v. Bruen<\/em><\/a>) the contemporary \u201care<\/em> in common use\u201d idea that Kavanaugh had used in 2011, omitting \u201cwere\u201d and \u201cat the time.\u201d His opinion presented this idea, without further explanation, as a \u201cholding\u201d of Heller<\/em>. This is, frankly, pick-and-choose selective editing. I am unaware of any further discussion among the justices of the limitation as written by Scalia, its plain meaning, or its semantic transfiguration. Poof \u2013 it is as if that paragraph of Heller\u2019s<\/em> Part III had never been written.<\/p>\n 8. There are only three justices left on the court who were there when Heller<\/em> was written: Chief Justice John Roberts, and Justices Thomas and Samuel Alito. They know the internal history. (Justice Kennedy, now retired, is still with us but remains characteristically circumspect.<\/a>) Significantly, Thomas and Alito seemed to agree with a statement by Kavanaugh<\/a> last year questioning a Maryland AR-15 ban and adopting, without explanation, an \u201care in common use today\u201d test. But Roberts stayed silent, and certiorari was denied in that case. I think Roberts remains an important wild card<\/a> here.<\/p>\n 9. \u201cWisdom too often never comes<\/a>, and so one ought not reject it merely because it comes late.\u201d Multiple justices<\/a> have used variations on this candid mea culpa<\/em> of Justice Felix Frankfurter, including Scalia<\/a> himself. Frankfurter further explained that he \u201cwould not compound error by pushing [an erroneous decision] further.\u201d Maybe it is \u201ctoo late\u201d<\/a> to apply what was a clear majority limitation in Heller<\/em>. Or perhaps a majority in Viramontes<\/em> will find wisdom in its later semantic transfiguration. But simply ignoring what the Heller<\/em> majority found to be an \u201cimportant limitation,\u201d and failing to engage with Scalia\u2019s historical project, is an application of power rather than judicial integrity.<\/p>\n 10. I am unaware of any authority permitting the abandonment of an undisputed textual limitation in a Supreme Court opinion based on the untimely death of its author. \u201cNarrowing\u201d<\/a> a precedent is one thing \u2013 but ignoring its text without analysis seems, to me, to be quite another.<\/p>\n I think the rule of law requires more. The public, at least 50%<\/a> of which supports<\/a> modern AR-15 bans, needs to hear why this selective editing, to produce a contemporary rather than originalist test, is consistent with the history-and-tradition approach of Heller<\/em> and Bruen<\/em>. Law professor Michael Dorf has written<\/a> about \u201ca belief in the independent integrity of law\u201d in the context of \u201cpredictive\u201d court evaluation. I share that belief (and without, I hope, too much partisan bias). If a historic precedent\u2019s text as well as stare decisis values are to have any real meaning when justices change on the court, a principled rationale for abandoning Heller\u2019s<\/em> critical language must be offered.<\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":" It’s so nice when they provide such positive identification for future use \u00a0Rory Little Recurring Columnist The Second Amendment and AR-15s: an unexplained betrayal of originalism? Last month, I provided a short discussion of the upcoming AR-15 rifle ban case, Viramontes v. Cook County, noting that the 2008 pathbreaking Second Amendment decision, District of Columbia … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-119269","post","type-post","status-publish","format-standard","hentry","category-enemies-foreign-domestic","category-rkba"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/119269","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=119269"}],"version-history":[{"count":2,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/119269\/revisions"}],"predecessor-version":[{"id":119274,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/119269\/revisions\/119274"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=119269"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=119269"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=119269"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}\n