DC v. Heller Revisited

Although most Americans were probably oblivious to the fact that yesterday was Constitution Day, a packed auditorium of Brown University students was not as they listened to the opposing sides rehash DC v. Heller, the landmark 2008 Supreme Court case that confirmed that bearing arms is an individual right protected by the Second Amendment. For those who missed this event, which was hosted by the Janus Forum at the Salomon Center, we offer a brief synopsis below.

For quick reference, we reproduce the text of the Second Amendment here:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Dissenting from Heller

Joseph Blocher, an assistant law professor at Duke University, presented the dissenting side. There have been three phases in the interpretation of the Second Amendment, according to Blocher. 1. It was seen as a provision for state militias as a check on federal aggression. 2. Its meaning was expanded to encompass all militia efforts to resist governmental tyranny and 3. It was re-interpreted as recognizing an individual right to bear arms for self-defense and other purposes. It was this last understanding that was upheld in DC v. Heller. Each successive interpretation rests upon a increasing diminishment of the meaning of the text, Blocher claims. The first is consistent with the entire text of the amendment. The second one makes sense only if one ignores the first part regarding a well-regulated militia. The third understanding, which focuses on the right to keep and bear arms, makes sense only by disregarding the previous two clauses on the militia and a free state. Blocher concluded that conservatives who celebrate the Heller outcome are endorsing the very judicial activism that they so often decry, most famously in Roe v. Wade.

Defending the Decision

Alan Gura, the attorney for the plaintiff in DC v. Heller, disputed the notion that the decision was in some way a reversal of the original understanding of the Second Amendment or inconsistent with how it has been interpreted by the courts. In formal grammatical terms, the opening phrase— A well regulated Militia, being necessary to the security of a free State—is a nominative absolute clause which does not restrict the rest of the sentence. In fact, the clause presumes a pre-existing, individual right to keep and bear arms and was included to give a reason for why this pre-existing right was codified in the Constitution. The text of the amendment also is perfectly capable of accommodating the realities of modern weaponry and would not lead to absurd what-if scenarios in which people could claim a Second Amendment right to owning cruise missiles and tanks. As Gura clarified, “arms” has always been understood to mean hand-held and operated weapons. Heller also reaffirmed the traditional “common-use test” in order to determine whether a weapon can be lawfully owned—this rules out things like flame-throwers and grenade-launchers. Thus, while Blocher argued that the “original understanding” approach to constitutional interpretation is not sufficient for deciding such issues, Gura’s analysis suggests quite the opposite.  

Following their presentations, there was a lengthy question-and-answer period. Most of the questions from the audience of largely Brown students were tough and thoughtful on both sides of the issue. Most students touched on topics of history, law, and constitutional theory. If students strongly favored one side over the other, it wasn’t obvious.