Gun Control on Trial: Inside the Supreme Court Battle over the Second Amendment

By Brian Doherty | Go to book overview

6. The Heller Aftermath

Those to whom the Supreme Court's decision meant the world had been waiting since 1939 (at least metaphorically) for the justices to say something more authoritative about the Second Amendment than that a sawed-off shotgun didn't seem to fall under what it meant by protected arms. Everyone had longer to wait. The oral arguments were in March. Every other March case had been decided by June 23. It was the last week of decisions. Heller could come down any day, but it kept not being that day. The invaluable ScotusBlog (the leading Supreme Court-watching news and opinion blog) made an educated guess that Scalia would write the majority opinion. He was the only justice not to have written a majority opinion in a March case. People who paid attention to the oral arguments were confident that the individual rights interpretation would win five votes. And Scalia was most likely to have an expansive reading of the rights the amendment protected. Indeed, ScotusBlog was right: Scalia did pen the majority opinion.

Scalia said everything that Levy and Gura and a generation of Second Amendment scholars had been saying. The Second Amendment protected an individual right. The prefatory clause did not restrict the operative one; that right went beyond militia service. The relevant contemporaneous debates and state constitutions supported this interpretation. The Miller precedent was about the type of weapon, not the people to whom the right accrued.

Oh, it was a glorious day for Second Amendment fans to read lines like these in a majority Supreme Court opinion: “The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose.” “Nowhere else in the Constitution does a 'right' attributed to 'the people' refer to anything other than an individual right.” '“Keep arms' was simply a common way of referring to possessing arms, for militiamen and everyone else.” “Putting all of these textual elements together, we find that

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Gun Control on Trial: Inside the Supreme Court Battle over the Second Amendment
Table of contents

Table of contents

  • Title Page iii
  • Contents ix
  • Acknowledgments xi
  • Introduction: Heller Makes History xiii
  • 1. the Roots of the Second Amendment 1
  • 2. the Genesis of Heller 23
  • 3. the Politics of Gun Control 43
  • 4. Gun Stories, Gun Culture, and Gun Prejudice 71
  • 5. Guns by Numbers and Heller's Day in Court 85
  • 6. the Heller Aftermath 109
  • Selected Bibliography 117
  • Table of Cases 119
  • Index 121
  • About the Author 127
  • Cato Institute 128
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