By Dennis Henigan
As the Nation contemplates Justice Stevens’ impending retirement and its implications, all Americans concerned about the daily tragedy of American gun violence should pause to recognize their debt of gratitude to him for his penetrating dissent in District of Columbia v. Heller.
In Heller, Justice Stevens wrote for the dissenters from the Court’s landmark 5-4 ruling recognizing, for the first time in our history, a Second Amendment right to possess guns for self-defense in the home. In so doing, Stevens brilliantly exposed the faux originalism and faux textualism of Justice Scalia’s majority opinion, demonstrating that these oft-claimed “neutral principles” of constitutional interpretation were, in Heller, a thin disguise for a deeply ideological reading of the Second Amendment.
For example, Stevens’ dissent laid bare the artificiality of Justice Scalia’s approach to the text, in which the meaning of the “right of the people to keep and bear Arms” is determined before any consideration is given to the impact of the first thirteen words of the Amendment about “a well regulated Militia being necessary to the security of a free State.” This allows Scalia to assert the relevance of various 18th and 19th century examples of the phrases “keep arms” and “bear arms” denoting private conduct with guns unrelated to participation in a “well regulated Militia”.
But, of course, the issue is not whether “keep arms” or “bear arms” could have a non-militia meaning in some conceivable context, but rather the meaning of the phrase “keep and bear Arms” in the specific context of a provision referencing the importance of a “well regulated Militia” to the “security of a free State.” Justice Stevens carefully documents that “bear Arms” had a predominately military meaning at the time of the Founding, and “keep Arms” was a common phrase in state statutes specifying the duties of militiamen during the period. Thus, Justice Stevens shows that, taken in proper context, the Second Amendment right secured “to the people a right to use and possess arms in conjunction with service in a well-regulated militia.”
Instead, the Scalia majority manages to conclude that the Second Amendment “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home” in a text in which this interest is entirely hidden and in which the “security of a free State,” not the security of “hearth and home” is the only expressed purpose of the guarantee. “The right the Court announces was not ‘enshrined’ in the Second Amendment by the Framers,” writes Justice Stevens. Rather, “it is the product of today’s law-changing decision.”
In addition to exposing the flaws in Scalia’s version of original meaning, Justice Stevens’ dissent spins out the dangerous implications of reading the Second Amendment to permit excessive second-guessing by courts of the considered judgments of elected officials on the regulation of guns to protect public safety. Justice Stevens warns that the Heller decision “will surely give rise to a far more active judicial role in making vitally important national policy decisions than was envisioned at any time in the 18th, 19th, or 20th centuries,” expressing his fear that the District of Columbia’s gun law struck down by the Court “may well be just the first of an unknown number of dominoes to be knocked off the table.”
It seems reasonable to assume that this powerful warning from the dissenters was a primary reason for the extraordinary language in Justice Scalia’s opinion offering reassurances about the limited effect of the Court’s decision. This section of the majority opinion – the now famous Part III – effectively pulls the dominoes away from the edge of the table. The right to keep and bear arms, according to Scalia, “was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Indeed, he adds, “nothing in our opinion should be taken to cast doubt” on a wide range of gun restrictions, including such categories as “laws imposing conditions and qualifications on the commercial sale of firearms,” “prohibitions on carrying concealed weapons,” and prohibitions on “dangerous and unusual weapons,” a listing of “presumptively lawful regulatory measures” that “does not purport to be exhaustive.”
In the two years since Heller, the lower courts consistently have relied on this language to uphold all manner of federal gun laws as consistent with the new Heller right. The categories of “presumptively lawful” regulations laid out in Heller so far have functioned as “safe harbors” for existing laws. As UCLA Law Professor Adam Winkler has put it, “The Heller case is a landmark decision that has not changed very much at all.” This result is a tribute to the impact of Justice Stevens’ dissent.
Of course, if the Supreme Court decides, in the pending McDonald v. Chicago case, to incorporate the Second Amendment right as a restraint on the states, this will prompt an avalanche of additional legal challenges to state and local gun laws. But even if it endorses incorporation, and strikes down Chicago’s handgun ban, it seems unlikely that the Court will say anything in McDonald to weaken the “safe harbors” it constructed in response to Justice Stevens’ dissent. Comments made during the McDonald argument indicate that those in the Heller majority remain sensitive to the charge of judicial activism, especially the suggestion by Justice Kennedy (the swing vote in Heller) that states should retain “substantial latitude and ample authority to impose reasonable regulations” on firearms.
By putting the Heller majority on the defensive with his implicit charge of judicial activism, prompting the language of Part III, Justice Stevens may well have saved countless lifesaving gun laws against attack. For that, and for much more in his distinguished career as a jurist, we should all be grateful. And to President Obama, we should say – send us more like John Paul Stevens.