The Court’s Liberal Wing Shoots Itself In The Foot

D.C. v. Heller: The Court’s Liberal Wing Shoots Itself In The Foot

by David T. Hardy as published in

District of Columbia v. Heller was historic, the first Supreme Court decision to clearly hold that the Second Amendment right to arms was an individual one not linked to militia service. But it was historic for another reason: the sheer number of mistakes made in the dissenters’ opinions. Given that all four dissenters co-signed the Stevens and Breyer dissenting opinions, this means that the mistakes must have escaped, not only four members of the highest court in the land, but their sixteen research clerks!

Case in point: Justice Stevens’ dissent claims that he holds true to the Court’s earlier, 1939, decision in United States v. Miller, which he says involved “upholding a conviction.” Even a quick read of Miller shows that the Court reversed, rather than upheld, and there was no conviction involved. The first paragraph of Miller recites that the lower court “quashed the indictment” against him — dismissed the case before trial. Miller’s last paragraph orders “the challenged judgment must be reversed.”

Second illustration: In discussing the militia, Stevens cites a 1990 Supreme Court decision, Perpich v. Dodd, and says it states “In 1901 the President revitalized the militia by creating the ‘National Guard of the several States…'”

In Perpich, the Court actually said that President Teddy Roosevelt in 1901 called for revitalizing the militia, but it was Congress, not the President, that created the federal Guard… in 1903.

Stevens then turns to his central theme: “The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia.”

Stevens adopts D.C.’s line. He argues that certain Americans were concerned that Congress had exclusive power over organized and arming the militia, but it might not enact a law requiring militiamen to be armed, and this would “disarm” the militia system unless the States had the power to do so: “It [the Second Amendment] was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States.”

Justice Stevens’ theory is astonishing. This had been D.C.’s original theory of purpose. But it had been so thoroughly demolished by amicus briefs that D.C. abandoned it in its last briefing. The amicus briefs for Heller’s side had proven:

1. Yes, there were Framers concerned about the militia being left unarmed, but they weren’t pushing for what became the Second Amendment. They wanted a different and additional guarantee that “each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same.”

2. That additional guarantee (in the above words) was put into the Virginia ratifying convention’s demands for a bill of rights, as well as a provision that was the ancestor of the Second Amendment. They were two separate ideas.

3. When James Madison drafted the Bill of Rights, he worked from the Virginia ratifying convention’s proposals. He put the Second Amendment in. He omitted the separate clause about States arming the militia.

4. When the Bill of Rights came up in the First Senate, Virginia senators moved to put the militia-arming clause back in. The first Senate voted the idea down.

Yes, there were Framers concerned about having States able to arm their militias. But they weren’t calling for the Second Amendment, but for a different provision. And they lost.

Did the dissenting Justices either (1) not read the Heller-side briefs or (2) were willing to take this position in spite of its having been proven utterly ahistoric?

Justice Breyer’s dissent focuses, not upon the meaning of the Amendment, but upon whether D.C.’s handgun ban is “reasonable regulation.” It likewise contains a critical error.

Breyer argues that the main purpose of the Amendment is to ensure military preparedness, and the D.C. law does not much impair this: “the only weapons that cannot be registered are sawed-off shotguns, machine guns, short barreled rifles, and pistols not registered before 1976.”

Breyer did not closely read the law he defends: D.C. defines any semiautomatic rifle that can take a magazine holding more than 12 rounds (which is almost all of them) as a forbidden “machine gun.” Its residents are thus forbidden to own and practice with the semiautomatic version of any American military rifle made in the last half-century.

Both dissents are not merely mistaken, but (if I may be blunt) shoddy. Prior decisions and statutes seem to have been skimmed rather than researched. Historical theories that were clearly disproven are invoked as fact. The logical conclusion is that the dissenters cared not so much about constitutional law as about policy, and what they find good policy simply had to be constitutional.

And they came within one vote….

David T. Hardy is a Tucson AZ attorney specializing in constitutional law. He directed the documentary “In Search of the Second Amendment” and filed an amicus brief in Heller.