3/08 Is the D.C. Gun Case Off Target?
Is the D.C. Gun Case Off Target?
Edwin Vieira, Jr. Ph.D., J.D.
As published in News With Views
If the present stir among lawyers in the greater Washington, D.C., area is any indication, the forthcoming decision in the Heller case, challenging the constitutionality of the District of Columbia’s “gun-control” scheme, promises to have far-reaching effects. To hear many optimists in the pro-Second Amendment camp tell it, Heller offers a Heaven-sent opportunity for the Supreme Court to uphold the “individual right” of average Americans “to keep and bear Arms.” I, however, must admit myself a pessimist on this subject. But with no apology. For, as folk wisdom has it, “a pessimist is an optimist who knows the facts.”
The Supreme Court is not the proverbial laboratory “black box” into which unbiased, scientifically minded investigators enter data, and from which correct answers invariably emerge. Quite the contrary. It is a gaggle of disparate individuals who have attained their offices primarily because they managed to survive a grossly partisan-political process in which knowledge of and devotion to the Constitution are not the most important criteria for selection, and too often serve as grounds for rejection. Moreover, the “data” the Court is fed usually consist of tendentious legal theories advanced, not for the purpose of securing correct constructions of the Constitution, but in aid of the schemes of special-interest groups and other factions that view certain Justices as their allies and other Justices as their antagonists in what amounts to political, economic, and cultural warfare camouflaged as “litigation”. So, the questions anyone of discernment should ask are: In light of the present composition of the Supreme Court, and its fluctuating “liberal” versus “conservative” line-ups in different decisions, was Heller a prudent case to litigate in the first place? Do advocates of the Second Amendment really want this Supreme Court to decide such a potentially important — even decisive or terminal — case? Forgive me for playing the disquieting role of Cassandra, but I doubly doubt it.
Four of the Justices — Breyer, Ginsburg, Souter, and Stevens — can be expected to be strongly anti-Second Amendment. Another four of the Justices — Alito, Roberts, Scalia, and Thomas — may prove to be tepidly pro-Second Amendment, although to what degree is difficult to predict. The remaining Justice — Kennedy — believes (among other bizarre notions) that the Constitution may be interpreted by reference to foreign law; so he is a very loose cannon on a wildly rolling deck. To obtain a barely satisfactory 5-to-4 majority, Heller must convince all four of the possibly favorable Justices along with Kennedy. The odds for that, even if convincing each Justice were a perfect 50-50 proposition, would be only 1 chance in 32! But convincing each of the four “conservative” Justices might be less than a perfect 50-50 proposition; and convincing Kennedy is far more problematic than that.
Also, perforce of the ideological conflicts and animosities that divide the Justices, no single majority might emerge for any particular ruling other than the bare judgment “affirmed” or “reversed”. Rather, a decision of the Court might arise in which some Justices concur, and from which other Justices dissent, or as to which some Justices concur in some parts and dissent in others, for altogether different reasons. That could leave the Second-Amendment issue in legal and intellectual chaos, at the mercy of subsequent decisions in the lower courts, in which the judges are largely hostile to the private possession of firearms by average Americans.
I fully appreciate that, whichever Establishment candidate assumes office as President in 2009, the composition of the Supreme Court will almost surely change for the worse in coming years — and that therefore, if a major Second-Amendment case must be brought to the Court, now is probably a more propitious time than hereafter. But that reasoning holds only if such a case must be brought, not (as with Heller) when litigating the case is entirely optional. All contingencies considered, under the present circumstances the essence of prudence should have been to let sleeping dogs lie in the judiciary, and concentrate pro-Second Amendment efforts on enacting favorable legislation in selected States, where something positive might be accomplished with far less risk of a result that could have disastrous consequences nationwide.
Putting aside the problems with the Justices themselves (on the strength of the adage that “it is a poor workman who blames his tools”), the keen observer arrives at the question of whether Heller is litigating the case on the strongest constitutional basis possible. Not as far as I can tell. In keeping with the consensus among the pro-Second Amendment intelligentsia, Heller is relying primarily on the so-called “individual-right theory”, which focuses on the Amendment’s words “the right of the people to keep and bear Arms, shall not be infringed”, and minimizes consideration of the preceding words “[a] well regulated Militia, being necessary to the security of a free State.” This approach, however, contradicts the rule commonly employed for construing legal documents in the late 1700s, that if “the reason of the law” is “expressed in such clear and precise words, as to leave no doubt at all about the ultimate effect” that the legislature “designed to produce, or about the end which [it] designed to obtain,” then “the meaning of the law is to be determined by the reason of it.” Thomas Rutherforth, Institutes of Natural LawCommentaries on the Laws of Englandbeing necessary to the security of a free State.” Which means that “the right of the people to keep and bear Arms” must be construed with that “reason,” “effect,” and “end” squarely in view. Surely it cannot be construed with any hope of a correct result by disregarding, downplaying, or denigrating that “reason.” (1754-1756), Book II, Chapter VII. See also William Blackstone, (American edition, 1771-1773), Volume I, pages 59-62. It is difficult to imagine that legally astute Americans of the founding era read the Second Amendment with any other method of construction in mind. Plainly, “the reason,” “effect,” and “end” of the Amendment is “expressed in … clear and precise words,” with an emphasis to be found nowhere else in the Constitution: “[a] well regulated Militia,
In addition to this weakness, the “individual-right theory” flies in the face of a fundamental principle of constitutional interpretation — that, “‘[i]n expounding the Constitution …, every word must have its due force, and appropriate meaning; for it is evident from the whole instrument, that no word was unnecessarily used, or needlessly added.'” Williams v. United States, 289 U.S. 553, 572-573 (1933).
As a consequence of both of these demerits, the “individual-right theory” leaves unexplored the most relevant, important, complete, and convincing legal history — the pre-constitutional Militia statutes of the Colonies and then independent States. The correct way to construe the Second Amendment is as a whole, including the clause “[a] well regulated Militia, being necessary to the security of a free State”. Only by focusing on the Militia statutes of the thirteen Colonies and independent States can one unerringly define what “[a] well regulated Militia” and “the right of the people to keep and bear Arms” meant in terms of the patterns of actual behavior, both legal and practical, in that era. And what those words meant then they mean today, too, the Constitution never having been amended in that particular.
Moreover, reliance on the “individual-right theory” is unnecessary — because Heller could easily establish that the substance of the particular “individual right” he claims (that is, the behavior in which he wants to engage without governmental interference) actually operates within, advances, and conduces to “[a] well regulated Militia”; and therefore he does not need to amputate the head of the Second Amendment in order to prevail. Exactly how does simply possessing a fully functional handgun and ammunition in one’s own home relate to the Militia? Heller is a member of a Militia, perforce of the Constitution. When the Constitution incorporated what it calls “the Militia of the several States” into its federal structure, it incorporated as well the principles of the Militia as they had been applied throughout the pre-constitutional period. The fundamental principle of the Militia in every one of the Colonies was that essentially every able-bodied free male, usually from sixteen to fifty or sixty years of age, was required, by statute, to acquire and to possess in his own home at all times a firearm, ammunition, and necessary accoutrements suitable for Militia service. Once the Militia became parts of the Constitution, this statutory duty became an individual constitutional duty for every man (and subsequently, upon their legal emancipation, to some degree for every woman, too) to provide himself with “Arms” suitable for Militia service — particularly where (as is the case today) Congress and the States (or, in Heller’s case, Congress and its municipal creature, the District of Columbia) have failed in their duties to enact proper legislation for organizing and arming the Militia. This individual constitutional duty necessarily entails an individual constitutional right — enforceable against every public official, National, State, and Local — to possess a firearm and ammunition suitable for Militia service. Almost every modern handgun is suitable for some kind of Militia service. In addition, almost any (probably every) modern handgun is suitable for personal self-defense, which, insofar as it directly and immediately enforces the law against criminals, is an aspect of Militia service. Thus, Heller’s possession in his home, for purposes of personal protection, of a typical modern centerfire handgun falls within the Second Amendment’s Militia clause as an individual right. (Of course, as a litigator I should also want more than simply these arguments in the record — relying in addition upon (i) copies of all the pre-constitutional Militia laws, together with an analytical breakdown and explanation of their fundamental principles; and (ii) actual evidence establishing beyond peradventure the usefulness to Militia service and self-defense of the very handgun Heller desires to possess in the District.)
The pragmatic skeptic may ask what difference the theory of the case makes if both the “individual-right” and the “Militia” approaches could conceivably arrive at the same result. The answer is that they do not necessarily converge. Under either approach, Heller himself might win his case, by being allowed to possess his own firearm in operable condition in his own home. But a ruling based upon the “individual-right theory” might — indeed, probably would — still allow for so-called “reasonable regulation” of that supposed “right” as against many other individuals in many other contexts. Thus, all sorts of people elsewhere throughout the country could arguably lose as the result of Heller’s winning. “Reasonable regulation”, after all, denies that the ostensible “right to keep and bear Arms” is a “right” (in the true sense of the word) at all. For, according to the practitioners of this theory, who determines whether a regulation is “reasonable” except some level or branch of government? If the whole purpose of the “right” in the Second Amendment is to restrain the government, but nonetheless the government itself can decide, on the basis of what it considers “reasonable”, whether, when, how, and to what extent it is to restrain itself or not, what significance other than as hollow rhetoric does the “right” retain independent of the will of the government?
Similarly, Heller himself might prevail if the Supreme Court determines that the District of Columbia’s law does not serve a so-called “compelling governmental interest”. (For purposes of argument, I leave aside the illegitimacy of the “compelling governmental interest” theory — that, in fact, its sole purpose and operation is to contract the ambit of individual freedoms and expand the reach of governmental powers, in derogation not just of the Constitution in particular but even of constitutionalism in general.) Yet even such a bastardized ruling in favor of Heller would at least implicitly allow for “gun control” in other situations. For, if a court enjoys the power to hold that a putative governmental interest in a particular type of “gun control” under particular circumstances is not “compelling”, it must also enjoy the power to hold the opposite — and certainly to hold that the same type of “gun control” under putatively different circumstances, or a putatively different type of “gun control” under the same circumstances, or a putatively different type of “gun control” under putatively different circumstances, does serve a “compelling interest”. In which cases the “individual right” to “keep and bear Arms” must yield to the “compelling governmental interest”, thereby reducing the “right” to the status of a non-right (in strict legal terminology a “liability” or “exposure”) and the Second Amendment to a merely hortatory slogan.
Particularly disturbing in all this is that the key adjective “compelling” has no determinate, let alone fixed, meaning. As with any other obscenity, it depends on the eye of the beholder. What one judge might consider a “compelling governmental interest” for “gun control” another might not — and no process of scientific reasoning can prove either of them wrong. At base, the adjective “compelling” is not a means of legal analysis at all, but a mere label attached to a judicial conclusion. If a judge approves of some “gun-control” measure, he will find that the arguments its proponents advance are “compelling”; and if not, then not. So, once the concession is made that “the right of the people to keep and bear Arms” may be overridden by a “compelling governmental interest”, the legitimacy of “gun control” becomes a matter of judges’ opinions, prejudices, and political agenda.
Conversely, a proper ruling under the “well regulated Militia” approach would result in recognition of an absolute personal right for almost all common Americans to keep certain types of firearms: that is, a right which is not subject to (is immune from) any regulation — “reasonable,” “compelling,” or otherwise — because “the right of the people to keep and bear Arms” is actually the consequence of an individual constitutional duty to do so. And no government, National, State, or Local, can have any power whatsoever — under color of some supposedly “compelling interest” or any other excuse — to prohibit or inhibit the fulfillment of a constitutional duty that is “necessary to the security of a free State”, upon the continued existence of which the very legitimacy of that government depends. (This conclusion would hold even if “the right of the people to keep and bear Arms” were largely an “individual right,” provided that it could serve as an instrument in aid of “[a] well regulated Militia” — that is, provided the Second Amendment’s two clauses were construed as mutually supporting, rather than as separate from and independent of one another.)
Indeed, because the Second Amendment declares — and everyone in the United States, public official and private citizen alike, is bound by its declaration — that “[a] well regulated Militia” is “necessary to the security of a free State”, the government’s most “compelling interest” must be the preservation of “well regulated Militia”. For this very purpose, the Second Amendment commands that “the right of the people to keep and bear Arms, shall not be infringed”. Therefore, the government can have no “compelling” — or, for that matter, even any legitimate “interest” — in disarming common Americans, but instead must have a “compelling” interest in allowing them to arm themselves. Where the Second Amendment is concerned, the “compelling governmental interest” theory is unidirectional. Once again, though, this chain of reasoning depends upon construing the Second Amendment’s two clauses as inextricable.
A pragmatist should also consider that, although an “individual right” “to keep and bear Arms” would to some degree support “[a] well regulated Militia”, because some individuals would choose to possess firearms useful for Militia service, nonetheless the Militia approach (if properly enacted into law) would guarantee that almost every able-bodied man and woman in the United States, from sixteen to sixty years of age, and not a conscientious objector, would be suitably armed. Thus, the Militia approach would in fact provide more of a practical “individual right”, in terms of the number of people actually in possession of firearms in their own homes and on the streets (and trained to use those firearms safely and effectively), than would the “individual-right theory”. As for individuals less than sixteen years of age, no prudent person doubts that their access to and use of firearms are properly subject to supervision, in the first instance by their parents or guardians, and where that fails by public authority. Individuals more than sixty years old would almost all have served in the Militia in earlier years, and would always be allowed to volunteer for Militia service thereafter, and on the basis of that previous service and present possibility alone would be entitled to an absolute right to possess firearms.
In addition, patriots should remember that only the Militia approach can serve the vital purpose of the Second Amendment, which is not to promote hunting, target shooting, or other “sporting” or “recreational” uses of firearms (although the Militia approach would protect these activities too), but instead is to arm “the people” so as to provide “the security of a free State” through “well regulated Militia.” By itself, an “individual right” to possess firearms cannot protect this country against the imposition of a police state by rogue public officials. For what good will arms in individuals’ hands prove to be against large-scale para-militarized police forces and other instruments of oppression, without thoroughgoing organization of those individuals and legal authority for their collective action in defense of their liberties? The Militia are the constitutional institutions that provide both — which is why the Second Amendment declares them to be “necessary to,” not simply useful let alone optional for, “the security of a free State.”
Assume, though, for purposes of argument, that somehow or other the Supreme Court stumbles into a decision favorable to Heller on the “individual-right theory”. What can one expect will be gained? Perhaps not much more than Americans already have now. For, in all likelihood, a favorable decision will be very narrow.
A basic rule of constitutional adjudication is that the Supreme Court ought not to write an opinion that is broader than the legal issues and the facts actually before it in the case under consideration. Anything beyond that amounts to an “advisory opinion”, which lies outside the Court’s constitutional jurisdiction. If the decision is in favor of Heller, it will be to some degree consistent with the Constitution. If to some degree consistent with the Constitution, it will be written by one of the Justices who is at least a lukewarm constitutionalist. And even a lukewarm constitutionalist will respect the rule against “advisory opinions”.
The facts in Heller’s case are peculiarly susceptible to a narrow ruling, too. First, Heller himself is a “licensed armed protection officer” who works for a private security company. So he has been investigated and trained, and is supervised, far in excess of an ordinary citizen. A majority of Justices might very well consider this a basis for voiding the D.C. gun law as an “unreasonable regulation”, or as serving no “compelling governmental interest” — but only as against Heller and others similarly situated, not as against just any ordinary citizen. Second, Heller is asserting a right to keep a working firearm and ammunition in his home for purposes of self-protection there. A majority of Justices might accept this particularized, localized purpose, without opining on any other possible purposes, or especially other venues, for private citizens’ possession of firearms. Third, Heller desires to keep a medium-caliber centerfire pistol in his home. A majority of Justices might agree that this is an “appropriate” firearm for self-defense, and that therefore Heller’s possession of it is protected by the Second Amendment, while at the same time denying that other types of firearms — such as so-called “assault rifles”, big-bore “sniper rifles”, or short-barreled shotguns — are embraced by that constitutional guarantee. Any good decision on the second and third of these points would doubtlessly be welcomed by all patriots. Yet such a decision might be so tailored to the extremism of the District’s law as to have little applicability in other jurisdictions, where “gun control” is less draconian.
Even if the Court rules that an ordinary citizen has a constitutional right to keep some type of handgun or other firearm “appropriate” for self-protection in his home, it may not explain how a resident of the District of Columbia (or any other large city with strict “gun-control” ordinances) who does not already have such a firearm in his home can arrange to acquire one, particularly if the District prohibits or stringently regulates the retail sale or other transfer of firearms within its territory. What good is a “right” for most people to possess firearms in their homes without a “right” to obtain firearms in the first place, typically through the channels of private commerce? And before anyone concludes that such a “catch-22” decision is unlikely, he should compare Stanley v. Georgia, 394 U.S. 557 (1969), with United States v. Reidel, 402 U.S. 351 (1971). If that is the result, rather than settling matters once and for all Heller will simply spawn further complex, contentious, and costly litigation in the lower courts.
Besides all this, the overriding fact in Heller is blatantly political and propagandistic in nature: namely, that the District of Columbia is the capital of the United States — and if not the “murder capital” of this country today, certainly a perennial challenger for that dubious title. The Justices will naturally try to avoid any decision that they imagine might exacerbate, or even might simply appear to exacerbate, this situation. Also, the District is a metropolis that follows the myopic pattern of such other large cities as Boston, New York, Chicago, and so on, in having strict “gun control”, as well as high rates of violent crime. Unable to fathom (or unwilling openly to admit on the pages of the United States Reports) that “gun control” actually stimulates and facilitates crime by empowering criminals as against their victims, the Justices will doubtlessly try to avoid any decision that might throw into doubt the rationality and legitimacy of the “gun-control” regimes in all of those cities. What, after all, would Mayor Bloomberg say? The strange reality of the present era is that jurists who do not seem to lose sleep over being directly responsible for tens of millions of premeditated homicides-for-hire by abortion undoubtedly would cringe in the face of editorials in the Washington Post or the New York Times, claiming on the basis of the post hoc ergo propter hoc fallacy that, as a result of some decision barely favoring the Second Amendment, narco-gangster killings, drive-by shootings, or massacres perpetrated in “gun-free” schools and shopping malls by drugged-up zombies had multiplied in those cities. And what if a series of sensational “gun crimes” coincidentally occurs just before the Supreme Court actually decides Heller?
How broad, or how narrow, a favorable decision in Heller might be also depends upon what sort of “individual right” a majority of the Justices deigns to recognize. To be sure, a very clear-cut, specific “right of the people to keep and bear Arms” — immune from “infringement” by “reasonable regulations” or “compelling governmental interests” — could be derived from the dozens and dozens of pre-constitutional Militia statutes in the Colonies and independent States, were the “Militia” interpretation the basis for decision: namely,
* Who enjoys the right — essentially every common American above the age of sixteen years (thus defining “the people.”)
* What “Arms” does the right encompass — every type of firearm that could have a use with respect to Militia service, including “assault rifles,” “sniper rifles,” “combat shotguns,” and other small arms of contemporary regular light infantry (thus defining “Arms.”)
* Where and how can the right be exercised — by personal acquisition of “Arms” in the free market, and personal possession of “Arms” in every American’s home and on the streets
* When can the government prohibit such behavior — never (thus properly defining a “right,” because it cannot be “infringed.”) (thus defining “keep and bear.”)
In the absence of the “Militia interpretation” and reliance on the pre-constitutional Militia statutes, though, the Justices will essentially have to make up “the right of the people to keep and bear Arms” as they go along — on the basis of historical speculation, lawyers’ arguments, and the Justices’ own political and sociological prejudices that hide behind the labels “reasonable regulation” and “compelling governmental interest”. As with anything ersatz, although their concoction may perhaps suffice for the immediate purpose, it will nonetheless not be the real thing, and therefore will prove not good enough for the long haul.
But one superficially read in constitutional history may object: Did not the Founding Fathers speak, again and again, to the meaning of “the right of the people to keep and bear Arms”? Certainly that is the technique often employed in naive studies of the Second Amendment: namely, marshaling statements attributed to James Madison, Thomas Jefferson, George Mason, and even Alexander Hamilton, in order to establish legal principles by reference, deference, and adherence to personalities. Now, these statements may themselves be facts — in the sense that such and so is what some Founder actually said or wrote. But their substance consists, not necessarily of historical or legal truths, but only of the opinions of the men who made them — even if those men were in high public office at the time. Fundamentally, this is why so-called “legislative history” such as records of legislative debates were rightly considered incompetent evidence during the founding era and for many decades thereafter: “Doubtless, the intention of the Congress which framed and of the States which adopted [a constitutional] Amendment must be sought in the words of the Amendment; and the debates in Congress are not admissible as evidence to control the meaning of those words.” United States v. Wong Kim Ark, 169 U.S. 649, 698 (1898). (Today, “legislative history” is often employed by lawyers and judges for the purpose of expanding or contracting laws beyond their actual terms — and legislative debates are often intentionally larded with tendentious statements in aid of this subversive procedure, either by legislators who opposed a law and want to see it constricted, or by legislators who supported a broader version of a law than was actually enacted, or both.)
In addition, where the Constitution “asserts a certain right, or lays down a certain principle of law * * * , it speaks for the entire people.” Davis v. Burke, 179 U.S. 399, 403 (1900). Therefore, its meaning must be derived from its own words, as construed according to then-contemporary rules of interpretation upon which “the entire people” — that is, average Americans — would have relied, not just from the opinions of a handful of even the most illustrious statesmen of that time.
Even if the foregoing problems were set to one side, and some particular Founding Father could in some sense be deemed an “expert” on the subject, his words would not necessarily constitute conclusive evidence. After all, he could have been intentionally misstating the matter to make a point in a political debate. He could have been biased. He could have been honestly wrong or confused. Or he could simply have expressed himself badly. And how is one to know? Even in a court, where an expert testifies under oath, his opinion on a matter within his area of expertise is subject to cross-examination on both its basis and its sufficiency. And a jury may discount or disregard entirely the expert’s testimony, if it determines that the foundation for his opinion, his reasoning there from, or his conclusion is faulty — or that in some other respect he is unreliable as a witness. But the Founders are not present to be cross-examined on their opinions.
So, what can be identified as the objective basis for the Founders’ subjective opinions concerning “the right of the people to keep and bear Arms”? That basis was their own personal experience and knowledge of pre-constitutional history. (They were not talking about theory at all.) And in every case, both their experience and their knowledge were largely the products of laws — specifically, the pre-constitutional Colonial and State Militia statutes. Many, if not most or even all, of these men had actually served in the Militia in their Colonies and States, or at least were subject to and aware of the Militia laws prescribing the duties of service.
Therefore, the best evidence is not the Founders’ personal opinions as to what “the right of the people to keep and bear Arms” entailed throughout the 1600s and 1700s, but instead the actual pre-constitutional laws that specified what was supposed to be done, and what were the standards that governed when, how, and by whom it should be done, with respect to the actual “keep[ing] and bear[ing of] Arms” by “the people”. The Colonies and independent States enacted dozens and dozens of such laws from the early 1600s to the late 1700s. All were substantively the same (outside of some special provisions that applied only to “patrols” in the Slave States). These statutes tell us precisely what “well regulated Militia” were — indeed, many describe themselves in so many words as “regulating” the Militia of this or that Colony or State; and that their provisions were enacted and reenacted throughout that period, without substantive change, tells us that these statutes were understood to have “well regulated” the Militia. The statutes also tell us that “the right of the people to keep and bear Arms” — not simply “a” right, but “the” right — was actually in its operation a complex duty, and as the consequence of being a duty was also a right to be interposed in opposition to any interference with fulfillment of that duty. These laws are straightforward, impersonal, objective, historically verifiable in every detail, and utterly consistent in their various iterations over an extensive period of time. They validate the Founders’ opinions, not the other way around. They, not the Founders’ opinions or lawyers’ arguments based on such opinions, tell us what the Constitution means when it speaks of “Militia”, “the people”, and “Arms”. In a judicial world ruled by ratiocination and fair play, that should be enough.
As anyone who has read my book How To Dethrone the Imperial Judiciary knows, I can muster good and sufficient reasons why judicial “precedents” have little utility as means for construing the Constitution, and often provide the grist for much mischief in that endeavor. After all, precedents are only the opinions of different sets of fallible judges, which can be complete or incomplete, correct or incorrect, honest or dishonest, and so on. A judicial opinion does not determine what the Constitution actually means. Wearing a black robe does not transmute Judge Rancid Flapdoodle from an ignoramus into a constitutional prophet, any more than sitting in an elevated chair in the judicial simulacrum of a throne room makes him a king. Rather, the Constitution determines whether a judicial opinion is right or wrong. Nonetheless, if one feels compelled to play the lawyers’ game of parsing precedents penned by political appointees, rather than reasoning from the legal history and principles that control and judge all precedents, he needs to consult the best precedent from the Supreme Court on the Second Amendment, United States v. Miller, 317 U.S. 174 (1939).
Although even many lawyers fail to understand it, Miller is a decision strikingly favorable to “the right of the people to keep and bear Arms” — a decision in which the Justices, on their own initiatives, rejected a veritable torrent of one-sided “gun-control” arguments, and correctly employed the “Militia interpretation”, not the “individual-right theory,” of the Second Amendment, on the basis of just three pre-constitutional Militia statutes from Massachusetts, New York, and Virginia. Unfortunately, perforce of a rather technical point of law, Miller did not go far enough in the direction of securing, once and for all, “the right of the people to keep and bear Arms”, because the factual record in the case was incomplete. Yet, by using Millerhundreds of pre-constitutional Militia statutes from all of the original thirteen Colonies, and by evidence establishing that the firearm Heller desires to possess in his home is useful for Militia purposes — Heller would be able to prevail without mentioning the “individual-right theory” at all. as the dispositive precedent — backed up by
Having considered the possibility of a favorable decision in Heller, one must also ask how much Americans could lose as the result of an unfavorable outcome. Surprisingly enough, the answer is: “perhaps not necessarily everything.” Obviously, if the Court adopts the “individual-right theory” in whole or part, revitalization of “the Militia of the several States” such as I propose in Constitutional “Homeland Security,” Volume One, The Nation in Arms can go forward, because the “individual-right theory” and the “Militia interpretation” of the Second Amendment are perfectly compatible in practice as far as the Militia are concerned, even though the “individual-right theory” is defective in principle. On the other hand, an unfavorable decision in Heller probably would signal the end for the “individual-right theory” in contemporary constitutional litigation. Yet that would not be an unmitigated disaster, because the “individual-right theory” is at best incomplete (if not incorrect) anyway, and in any event would be set aside only if the Court adopted some variant of the “Militia interpretation”. And howsoever the Court did so, the kind of reform I propose would remain viable. Moreover, my proposal would have to be promoted, because after an unfavorable decision in Heller it would be the only means remaining to secure “the right of the people to keep and bear Arms” for average Americans.
If, as with every cloud, even an unfavorable decision in Heller could prove in the long run to have a silver lining, nonetheless in the short run it will emit much political thunder and lightning. Proponents of radical “gun control” will run amok in every jurisdiction with the power to pass such laws. First, subversive anti-Second Amendment special-interest groups and the big media will propagandize for every imaginable, and many as yet unimaginable, forms of “gun control.” Second, anti-Second Amendment State legislators, mayors, and other public officials will surge ahead aggressively on dozens of fronts — clones of Mayor Bloomberg on steroids, as it were. Third, a Congress controlled by the Democratic Party, with a President drawn from the same faction, will operate a sausage factory of new “gun-control” schemes that will make the defunct “assault-weapons ban” resemble an exercise in libertarianism. And fourth, these “gun-control” ordinances and statutes will surely be upheld in the kangaroo courts — inasmuch as the present herd of judges, nationwide, is generally hostile to the Second Amendment, and therefore will seek to enforce and even expand upon whatever an unfavorable decision in Heller offers. In all of these venues, “gun controllers” will advance a grotesquely warped “Militia theory” of the Second Amendment, aimed at disarming everyone who is not part of the National Guard, the nascent National police-state agencies, and the federally controlled, para-militarized State and Local police.
These developments will set into place many more bricks in the edifice of “gun control” — and, ultimately, prohibition of private possession of most, if not all, firearms — that must be erected if a National police state is to be imposed on America. For there has never been a police state in a country in which the average citizen could and did freely possess small arms — which, of course, is why “[a] well regulated Militia” is “necessary to the security of a free State.” Therefore, average Americans must be disarmed. How strikingly coincidental, then, that — just now, at the most politically propitious moment — Heller affords the Forces of Darkness a Hellish opportunity to advance their agenda of oppression as never before. One can almost hear the gods laughing at this ironic twist of events.
If these bad results come to pass, it will be absolutely essential that patriots meet the “gun controllers'” challenge head-on, by putting forward the correct interpretation of the clause “[a] well regulated Militia, being necessary to the security of a free State”, and the correct definition of “the Militia of the several States”, in the legislatures of State after State. If that is done, an effective “individual right” “to keep and bear Arms” for almost all Americans can be secured in one State statute following another. Otherwise, everything will soon be lost, for a very long time if not for good — and all the pro-Second Amendment organizations might as well close up shop, because they will not be allowed to operate in a police state anyway.
But can the pro-Second Amendment forces rebound from a loss (or even an equivocal win) in Heller — in time? Years during which the necessary groundwork could and should have been laid down have been allowed to slip away in complacent idleness. Can this lack of effort be made up in the face of one “gun-control” disaster after another? Oh, I should expect that, if the “individual-right theory” is gutted in Heller, every ostensibly pro-gun organization and writer will suddenly and very vocally announce themselves advocates of revitalizing “the Militia of the several States” in some way or another. The practical problem, though, will be that — not having done all of the necessary research and other foundational work, as I have over a long period of time — they will be unable to finish the job in a timely fashion, because they will not know in sufficient detail what needs to be done or how to do it. And whether I — as one individual, working alone — can complete this rather formidable task remains open to question.
Doubtlessly, the foregoing may not endear me to the great optimistic majority of pro-Second Amendment intellectuals and organizations who and which imagine that arguing a case on the “individual-right theory” in the contemporary Supreme Court is the best way to promote “the right of the people to keep and bear Arms”. Too bad. My purpose in writing my commentaries is not to make everyone — or anyone, for that matter — happy. My aim is to save this country’s bacon before the frying pan becomes too hot, if that be possible.
I may be wrong in my less-than-Pollyannaish conclusions. I hope that events prove my pessimism unfounded, and that the Supreme Court can be led into accepting the “individual-right theory” of the Second Amendment, insufficient as that theory may be. For, when dealing with “gun controllers,” one must always be ready and willing to apply the old adage: “It takes a crooked stick to beat a mad dog!” Certainly a mountain of not unpersuasive arguments in favor of the “individual-right theory” has been piled up in Heller’s brief to the Court, along with the briefs of the army of amici curiae supporting him. My own concerns aside, Heller’s advocates and their allies have done a workmanlike job, and should be commended on that score. Where I differ from them is in my belief that much of their argument is constitutionally unsound, and in any event does not go far enough in the direction of securing by true constitutional right a thoroughly armed and trained populace. If (as the quaint patriotic saying has it) “God protects old drunks and the United States,” their extensive efforts may pay off after all. Let us pray for that.
But brigaded with our prayers must march our own efforts. God helps those who help themselves. I suspect that the Supreme Court may do otherwise than simply bow to the “individual-right theory,” even under the weight of all the paper Heller’s supporters have filed. So, in prudence, should you. And we all should be planning now for the new course of action we may have to follow if the Court takes the wrong turn.