May 5, 2014
Private: 'Heller': What in the World???
D.C. v. Heller, McDonald v. Chicago, Second Amendment Symposium, United States v. Miller
by Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor, The University of Chicago
* May 15 marks the 75th anniversary of United States v. Miller, a 1939 case in which the Supreme Court unanimously held that Congress could prohibit the possession of weapons that were not related to the “preservation or efficiency of a well regulated Militia.” For decades, this was the only consideration the Court gave the Second Amendment, and arguably, it was generally understood that the Amendment's scope was limited to the use of firearms in connection with military activities. This changed in 2008 in District of Columbia v. Heller, and subsequently in 2010 in McDonald v. Chicago, when the Court declared that the Second Amendment provided an "individual right to possess a firearm.” The Court explained that they were not overturning Miller; that Miller only limited the type of weapon to which the individual right applies. As we consider the constitutional, legal and policy questions that now surround the Second Amendment, we should take a step back and ask if the Supreme Court got it right in Heller and McDonald. How should the Second Amendment be interpreted? ACS is pleased to raise this important question with progressive constitutional scholars and historians in an ACSblog symposium this week, May 5 through May 9.
In many respects, the United States Constitution has served as a model for constitutions throughout the world. Of the 188 nations that have written constitutions, the vast majority have adopted fundamental guarantees that were first fully articulated in the United States Constitution.
Indeed, 97 percent of all the world's constitutions now protect the freedom of religion; 97 percent protect the freedom of speech and press; 97 percent protect a right of equality; 97 percent protect the right to private property; 95 percent protect the freedom against unreasonable searches; and 84 percent forbid cruel and unusual punishment. These freedoms, which were first constitutionalized in the United States, are now widely recognized as fundamental to a free, humane and civilized society.
On the other hand, only 1 percent of all the other nations of the world recognize a constitutional right to keep and bear arms. Of the 188 nations with written constitutions, only Mexico and Guatemala have followed our example. Every other nation has rejected the notion that individuals have a fundamental right to purchase and possess firearms.
These data are interesting because they shed light on the meaning of the Second Amendment. What did the Framers have in mind? Could they really have enshrined a right that virtually no one else in the world values?
The Amendment provides: "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." What is the meaning of this guarantee?
There are essentially two possible interpretations. The first construes the text as guaranteeing individuals a constitutional right to purchase and possess guns. The second construes the text as guaranteeing individuals a constitutional right to purchase and possess guns for the purpose of serving in the militia.
In District of Columbia v. Heller, the Supreme Court, in a sharply-divided 5 to 4 decision, embraced the first of these interpretations. In a dissenting opinion, Justice Stevens, reasoned that a plain reading of the text of the Second Amendment makes clear that it was not intended by the Framers to guarantee a personal right of individuals to own guns, but to ensure -- at a time when there were no professional police forces, no national guards and no standing armies - that the government would have the capacity to call up an appropriately equipped volunteer militia whenever it was needed to help preserve the peace.
The decision of 99 percent of the world's other nations not to guarantee a constitutional right to own guns of the sort imagined in Heller is a compelling affirmation of the reasoning of the dissenters. In a world in which there are now organized and well-armed police forces, national guards, and standing armies, there is no longer any need for a citizen militia. That is why other nations do not guarantee a right to own guns. By distorting the text and meaning of the Second Amendment, Heller usurped the authority of the American people to decide for themselves what controls on guns are most sensible.