Legal Commentary

I'm pleased to be returning to Prawfsblawg for a stint of a couple of weeks! Thanks to Dan for inviting me back. I will be cross-posting at my new blog, findandreplace.blogspot.com. Before entering into some comments about Justice Scalia's stance in Heller, I wanted to point those of you not familiar with it already to fellow guest blogger Adam Winkler's excellent article on standards of review in state gun-law cases, which Justice Breyer cited in his Heller dissent. 

In light of Justice Scalia's insistence on the exceptional requirements of war in Boumediene, and his excoriation of the majority's opinion for "mak[ing] the war harder on us," I was somewhat surprised to discover very vivid traces of England's seventeenth-century civil wars being treated with distinct approval in Justice Scalia's opinion in Heller. Indeed, as the opinion makes evident, the kind of "self-defense" that the right to bear arms should preserve is not simply the kind that would result in less crime, but rather the kind that would permit citizens to menace government with the threat of its dissolution.

Throughout the case, Justice Scalia refers back to the context of seventeenth-century conflicts between religious dissenters and the Crown, situating his discussion of the English Bill of Rights--which he views as containing the predecessor to the Second Amendment--within this context. His most extended treatment of the history makes evident the extent to which the right was one designed to ensure the capacity to resist political authority:

"Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents. . . . These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed. . . . This right has long been understood to be the predecessor to our Second Amendment. . . . It was clearly an individual right, having nothing whatever to do with service in a militia. To be sure, it was an individual right not available to the whole population, given that it was restricted to Protestants . . . [b]ut it was secured to them as individuals, according to 'libertarian political principles,' not as members of a fighting force.

By the time of the founding, the right to have arms had become fundamental for English subjects. Blackstone . . . cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, 'the natural right of resistance and self-preservation,' and 'the right of having and using arms for self-preservation and defence' . . . . Thus, the right secured in 1689 as a result of the Stuarts' abuses was by the time of the founding understood to be an individual right protecting against both public and private violence." (Slip Op. 19-21)

Even if construed as rights to be exercised by individuals, the rights of resistance and self-preservation mentioned here were not, in seventeenth- and early eighteenth-century England, envisioned as simply ensuring the ability of one lone Protestant to attend religious services or protect his land. Instead, these rights were viewed as those which, at least under certain circumstances, could be exercised by a number of insurgents in the service of revolution. Perhaps then we should next ask the Court when, under Heller, we are authorized to bear arms not solely to protect ourselves against burglars in the night but rather against our own government. When would that not just render us enemy combatants?