Home -> Law Blog Directory -> Legal Commentary Blogs -> Balkinization

Legal Commentary

: Balkinization

Three More Observations About the Gun Case

By Jack M. Balkin

Well, because surely not enough has been written about the Heller case already . . . I thought I'd weigh in with three fairly discrete observations about it. My remarks in many respects complement what Akhil Amar and Kenji Yoshino have recently posted.

1. First, there has almost certainly been more textualist and originalist writings -- in the briefs, the blogosphere, the law reviews, etc. -- about this case than about any other in recent memory. (This is largely a function of the fact that there is so little Supreme Court doctrine on point, and thus an argumentative void that could easily be filled by appeals to text and original meaning.) Yet in my unscientific small survey, I've yet to find even one observer of the Court who thinks that textualist and/or originalist arguments will have the slightest effect on the vote of even a single Justice in the case . . . just as in most other constitutional cases (such as the Sixth Amendment right to counsel case argued this morning), in which such arguments are window dressing, at best.

Now, of course this would not be the case if the text or original intent (or original "meaning") pointed unequivocally in one direction or the other. But as Mark Tushnet's terrific, concise volume demonstrates, they don't. Or, in any event, and as Akhil Amar emphasizes, the text and original understanding surely do not unequivocally point in the direction of securing an individual right to own a handgun for purposes of self-defense against other private parties. (That's why, as Doug Kmiec notes, Heller supporters such as Nelson Lund (see Part IV of his brief) so quickly fall back upon fairly vague and very general Blackstonian notions of a natural right of self-defense.)

I therefore agree with Akhil that the Justices are much more likely to decide the case, not upon evidence from text or original understanding of the Second Amendment (although such matters will undoubtedly pepper their various written opinions), but instead based upon whether they are persuaded that (in Akhil's words) "Americans have established, merely by living our lives freely across the country and over the centuries, certain customary rights that governments have generally respected; basic rights [that] are simply facts of life, the residue of a virtually unchallenged pattern and practice on the ground in domains where citizens act freely and governments lie low."

As noted below, however, I'm less certain than Akhil which way such a consideration will (or should) cut with respect to D.C.'s restrictions in th Heller case, because it turns out the District does not prohibit the use of all firearms for self-defense in one's home.

2. Second, even if the Court does recognize an "individual" right to bear arms, and establishes some sort of doctrinal test to apply to various legal regulations, that test -- whether it be "strict scrutiny," the SG's proposed "reasonable basis" test, or something else -- will almost certainly involve some sort of balancing between governmental interests and the advancement of those constitutional values that the Second Amemdment is thought to serve. Yet Mr. Heller, like most modern Second Amendment plaintiffs, alleges that he wishes to have access to operational handguns in his home only for the purpose of self-defense. And so, even if the "individual rights" view were to prevail, courts would once again invariably confront the question of whether Second Amendment has anything to do with establishing a means of self-defense against private violence. The Fourteenth Amendment might be the source of such a right; but the District of Columbia is not generally thought to be governed by the Fourteenth Amendment, and the case for a Second Amendment right to self-defense is, in this respect, shaky at best. Jack will no doubt argue, not without some force, that if the Fourteenth Amendment establishes such a right, it might be "reverse-incorporated," a la Bolling v. Sharpe, in the District . . . which probably is not all too different, in effect, from Akhil's Privileges & Immunities/Ninth Amendment rationale.

3. Finally: OK, but even if, as Akhil suggests, the Court were to recognize some sort of constitutional right to a means of self-defense in the home -- invoking some combination of the Second, Ninth and Fourteenth Amendments -- based upon "customary rights that governments have generally respected; . . . the residue of a virtually unchallenged pattern and practice on the ground in domains where citizens act freely and governments lie low," such a holding would only take us to the brink of the "as applied" problem lurking in the Heller case itself.

According to Akhil (and I will assume for present purposes that he's right about this, as I have not looked into the question myself), when we "look at the actual pattern of lived rights in America," particularly in the "critical chapter in the history of American liberty" after the Civil War, what we (arguably) find is evidence "of an individual right to have a gun in one's home, regardless of the original meaning of the Second Amendment."

Well, as it happens, the District of Columbia does not prohibit its residents from having a gun in their homes for purposes of self-defense. (Indeed, the District virtually concedes that such an absolute ban would be unconstitutional.) D.C. residents can't keep handguns in their homes; but they may own "long guns," such as rifles and shotguns, as long as they use trigger-locks on such weapons. And, the District construes its trigger-lock requirement to permit owners to disable the lock where required for self-defense. (Heller argues that under D.C. law he may not unlock a rifle to defend himself against a sudden intruder in his home. But that's a reading of the statute against Heller's own interest -- a reading that would exacerbate, not alleviate, serious constitutional questions -- and the District concedes that Heller may use his rifle for self-defense.) Thus, as the District argues:

Although handguns are banned in the District, rifles and shotguns are not. So long as homeowners have a means of defending themselves, the handgun ban can be under-stood to be the Second Amendment analog to a time, place, or manner restriction properly tailored to the District?s unique status as an urban jurisdiction. Indeed, First Amendment jurisprudence makes clear that "alternative" means of exercising a right need not be precisely equivalent to the banned or burdened means. See, e.g., Renton v. Playtime Theatres, Inc., 475 U.S. 41, 53-54 (1986). If the Second Amendment has a self-defense purpose, it is concerned with the practical realities of functional disarmament?not guaranteeing a choice among whatever weapons fit the labels in the court of appeals? test.

As the Solicitor General further explains, if there is a constitutional right to the use of firearms for self-defense in one's home, then

the courts below would be required to address the factual issue?not fully explored during the prior course of the litigation?whether the firearms that are lawfully available to respondent are significantly less suited to the identified lawful purpose (self-defense in the home) than the type of firearm (i.e., a handgun) that D.C. law bars respondent from possessing. [FN: The practical adequacy of long guns as a means of self-defense within the home will likely vary from individual to individual. Some disabled persons, as well as some individuals with less than average
physical strength, might have particular difficulty using rifles or shotguns. Respondent himself has not alleged, however, that he is unable to use a long gun effectively. To the contrary, he has alleged that he owns long guns and seeks to use them for self-defense. J.A. 51a. The record compiled to this point does not appear to shed light on the question whether, and to what extent, long guns provide a functionally adequate alternative to handguns for self-defense in the home.

Full post as published by Balkinization on March 17, 2008 (boomark / email).