Rights versus Duties, History Department Lawyering, and the Incoherence of Justice Stevens's Heller Dissent

Article excerpt

Introduction
 I. Explaining Away the Individual Right to Arms Version 1.0:
      The States' Rights Second Amendment
 II.  Explaining Away the Individual Right to Arms Version
      2.0: Justice Stevens's "Individual Militia Right"
 III. Redeeming Version 2.0: A Substantive Individual Militia
      Right? 1513
  IV. Justice Stevens Concurs?
   V. A Note About Counting and Some Lesser-Known Versions
       of the Hollow Second Amendment
       A. A Leading Historian Says the Second Amendment
          Means Nothing at All....
       B. The "Real" but "Secret" Meaning of the Second
          Amendment
       C. A Narrow Definition of Militia Exposes the
          "Individual Militia Right"
       D. Collective Rights: A Gloss on States' Rights
       E. A Second Amendment Hollowed Out by
          Neorepublicanism
       F. A Prize Winning Historian Says American Gun
          Culture (and Thus the Right to Arms) Is Myth
       G. The Tally
Conclusion

INTRODUCTION

The individual right to keep and bear arms is settled law for now. In District of Columbia v. Heller, (1) the Supreme Court reconciled the two clauses of the Second Amendment, reasoning that the amendment protects an individual right of the people from whom the militia is to be drawn. This comports with the centuries-old understanding of the militia as the body of the people, who when called for duty are expected to appear bearing arms provided by themselves, in common use at the time. (2) As for the boundaries on the right to arms, the Court took an approach common for understanding the Bill of Rights (3)--that the right to arms predated the Bill of Rights. So the stated purpose for the codification (facilitating the militia) did not define the boundaries of the pre-existing right. The Court discerned the American right to arms for self-defense rooted significantly in the rights of Englishmen and the 1689 English Bill of Rights. (4) This approach reflects the "standard model" of Second Amendment scholarship. (5)

Many still object to Heller and envision the day when it will be overturned. Speaking at the Harvard Club of Washington, D.C. on December 17, 2009, Justice Ginsburg expressed her hope that Justice Stevens's dissenting opinion in Heller will become the majority opinion of a "future, wiser Court." (6) Writing for this Symposium, Richard Aborn and Marlene Koury draw on Justice Ginsburg's criticism to imagine more precisely how the Court might overturn Heller. (7) Other critics of Heller who presumably would be happy to see it overturned have included Judge J. Harvie Wilkinson, (8) Judge Richard Posner, (9) and Richard Epstein. (10) During the Symposium proceedings, one historian chided that Heller is clearly wrong but is a fun case to teach because it is so silly. More broadly, many others who criticize Heller view our armed society as a profound collective mistake or object that Heller upsets decades of lower court practice and precedent. (11)

The majority opinion in Heller, as a guide to courts and as an impetus for policy changes, naturally has received most of the attention. But lurking in the background is the dissenters' alternative construction of the Second Amendment that critics implicitly contend is a better, wiser, truer rendition of the right to keep and bear arms. That construction is equally deserving of a critical assessment. That is the intent of this Article.

I. EXPLAINING AWAY THE INDIVIDUAL RIGHT TO ARMS VERSION 1.0: THE STATES' RIGHTS SECOND AMENDMENT.

In their effort to explain away the Second Amendment, critics of Heller fall into two broad categories. The first group consists of people who have glancing familiarity with the cases but have not studied them. These critics would describe the Second Amendment as a kind of federalism provision that only protects the states' right to maintain or arm state militias. This states' rights view was a prominent part of the jurisprudence of the lower federal courts from the 1940s through 2008. …