Academic journal article Suffolk University Law Review

Gun-Shy Originalism: The Second Amendment's Original Purpose in District of Columbia V. Heller

Academic journal article Suffolk University Law Review

Gun-Shy Originalism: The Second Amendment's Original Purpose in District of Columbia V. Heller

Article excerpt

"[I]f circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.

"I hasten to confess that in a crunch I may prove a faint-hearted originalist." (2)

I. INTRODUCTION

In District of Columbia v. Heller, (3) the Supreme Court held that the Second Amendment protects an individual right to keep and bear arms for self-defense. (4) In doing so, the Court settled the long-debated question of whether the Second Amendment applies outside the context of state-organized military institutions. (5) The National Rifle Association heralded the decision as a major victory for gun owners across America. (6) Others saw Heller differently, with one scholar arguing that the decision likely demands little change to the nation's existing gun laws. (7)

Despite its landmark decision that the Second Amendment protects an individual right, the Heller Court failed to protect the full scope of that right, as read by the Court itself. A strong theme throughout the decision is that the Second Amendment's original purpose was to protect Americans' ability, if the need arose, to resist the tyranny of their federal government. (8) Heller's holding, however, is limited to the Second Amendment's protection of a right to self-defense, and the Court indicated that it would allow limitations on the types of firearms protected by Amendment, even though such limitations would render its original purpose unachievable. (9) Moreover, the Court avoided setting the standard of review for Second Amendment violations, further allowing for infringement of its original purpose. (10)

This Note examines the conflict between Heller's reading of the Second Amendment's original purpose, on the one hand, and its holding about self-defense and dicta on the Amendment's limitations, on the other. Part II.A outlines the Supreme Court's pre-Heller Second Amendment cases. (11) Part II.B examines Heller, focusing on its holding, as well as its interpretation of the Second Amendment's purposes and its dicta on the Amendment's limitations. (12) Part II.C introduces the federal machine gun ban, a law that is presumably constitutional under Heller. (13) Part III.A argues that the limitation that Heller allows on the types of firearms that citizens may lawfully possess fundamentally frustrates the Court's own reading of the Second Amendment's original purpose. (14) Part III.B highlights the Court's use of circular reasoning to support this specific restriction on the Second Amendment. (15) Part III.C argues that the Second Amendment, as a fundamental right, should enjoy the protection of strict scrutiny. (16) It then applies this standard to the federal machine gun ban, concluding that the law would be unconstitutional as the Court has previously applied that standard. (17) Part III.D argues that in implementing Heller, federal courts seeking to render a truly originalist interpretation of the Second Amendment would rely on the Heller Court's broad reading of the Amendment's purposes rather than its dicta on the Amendment's limitations. (18)

II. HISTORY

A. Pre-Heller Second Amendment Cases

Though the Second Amendment has sparked passionate political debate in recent history, the Supreme Court's Second Amendment jurisprudence was limited to only four cases before Heller. (19) The Court alluded to the Second Amendment in Dred Scott v. Sandford, (20) where it explained that black slaves did not possess the rights of American citizens, such as the right "to keep and carry arms wherever they went" (21) Twenty years later in United States v. Cruikshank, (22) the Court held that the Second Amendment limits only the power of the federal government, and does not protect the right to keep and bear arms against infringement by other citizens. …

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