Recently, I wrote a column addressing an argument by Professor Rory Little of UC Law (San Francisco) that the historic decision in District of Columbia v. Heller contains an important but often overlooked limitation on gun rights. Professor Little has now responded, and his new column makes salient and intriguing arguments in favor of a narrower reading of Heller and the Second Amendment. While I remain unconvinced, I wanted to share a link to the column for those interested in Second Amendment jurisprudence. Our discussion was triggered by the upcoming argument over the ban on AR-15s in Viramontes v. Cook County.
Professor Little argued in his original column that the constitutionality of bans on weapons such as the AR-15 can be justified on a key qualification in the 5-4 decision where Justice Antonin Scalia wrote that “the sorts of weapons protected were those ‘in common use at the time (emphasis added).’” I disagreed with the interpretation and cited opposing language in the opinion.
In his new Scotusblog column, Professor Little acknowledges that there is a conflict with the language that I cited in my column where Justice Scalia wrote:
“Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way…Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”
Professor Little insists that this language is not as weighty as the qualifier in Part III of the opinion:
“This was in a different section of Heller, examining what counts as “arms” rather than defining the scope of the right. I think the qualifier (not errant) of “prima facie” further indicates that this was part of a preliminary, “on its face,” discussion of the constitutional text, not (like Part III) a conclusion. Prima facie literally means “on first impression,” that is, before everything else is considered.”
I certainly agree that there is tension between the two sections, but I still do not agree that the language from Part III creates the sweeping potential exception suggested by Professor Little and others. However, I found his discussion of the history behind the Part III language (as part of a compromise to secure Justice Anthony Kennedy’s vote) quite interesting.
I strongly recommend the column despite our disagreement. As I said in my column, this is a good-faith debate with strong scholarship on both sides. Professor Little’s account offers a thoughtful and intriguing alternative reading of Heller that you might want to consider.
Here is Professor Little’s column: The Second Amendment and AR-15s: an unexplained betrayal of originalism?
The problem is found in the word “professor.” Professors are merely professional students who never left academia and got in the real world. The Founders (James Madison) were addressing the issue as they saw it which was to give the populace the means of defending against tyrannical government. Incidentally, the only difference between an AR-15 and a Remington .22 automatic is the size of the cartridge. They’re both semiautomatic rifles. Incidentally, the kid in Bend used a 12 gauge pump shotgun.
Rory Little’s column offers a fascinating critique of Professor Turley’s argument.
Little is right about one point that Turley acknowledges without directly challenging: Justice Scalia did not make an errant mistake in Part III of Heller. Scalia explicitly used the phrase “in common use at the time” several times across 63 pages of text. Writing consistently in the past tense, Scalia—highly regarded as a masterful writer and originalist champion—left a clear historical limitation on the scope of the Second Amendment.
Turley plays a classic game of omission by leaning heavily on Scalia’s famous counter-argument—the one dismissing as “bordering on the frivolous” the idea that only 18th-century weapons are protected. But as Little brilliantly points out, this “frivolous” discussion was merely a prima facie, preliminary look at what counts as a bearable arm. It was never meant to override the operational conclusion in Part III, which limits protection to weapons that “were” common when the amendment was ratified.
Little also highlights a striking, unexplained pivot in how this language was later treated by modern gun-rights advocates and Justice Brett Kavanaugh. In what Little describes as a modern “semantic transfiguration,” originalists quietly swapped Scalia’s past-tense requirement that arms “were” in common use at the founding into a modern standard that they “are” in common use today. Without any doctrinal explanation, this overnight linguistic shift allowed originalists to bypass their own founding-era philosophy to protect twentieth-century weapons like the AR-15.
Ultimately, Little’s argument carries enough rational weight to force Second Amendment proponents to consider that he might be right. However, many remain hesitant to admit that Scalia’s text was subtly altered. If Scalia, the original originalist, meant “were” as in weapons common at our founding, the Second Amendment cannot seamlessly protect weapons that happen to be popular today.
You are both missing the point. The Miller Court based its decision primarily on the government argument that the Second Amendment applied only to militias:
“..[history] show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. “A body of citizens enrolled for military discipline.” And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”
Thus the Miller test asked “if a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia”
Miller was dead and no party appeared on his behalf to argue that sawed off shotguns were in fact in use by militaries in WW I.
“The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon”
https://supreme.justia.com/cases/federal/us/307/174/
In 1942 the First Circuit realized the consequence of a literal reading of Miller:
“At any rate the rule of the Miller case, if intended to be comprehensive and complete would seem to be already outdated, in spite of the fact that it was formulated only three and a half years ago, because of the well known fact that in the so called “Commando Units” some sort of military use seems to have been found for almost any modern lethal weapon. In view of this, if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus.
https://law.justia.com/cases/federal/appellate-courts/F2/131/916/1511728/
This was the exact opposite of what Prof Little is arguing.
“Ironically, Miller can be read to support some of the most extreme anti-gun control arguments, e.g., that the individual citizen has a right to keep and bear bazookas, rocket launchers, and other armaments that are clearly relevant to modern warfare, including, of course, assault weapons. Arguments about the constitutional legitimacy of a prohibition by Congress of private ownership of handguns or, what is much more likely, assault rifles, might turn on the usefulness of such guns in military settings.”
The Embarrassing Second Amendment
Thank you for bringing up the procedural history of United States v. Miller and the First Circuit’s analysis in Cases v. United States. You make an excellent point regarding the technical limits of the Miller ruling, particularly that the Court lacked defense counsel to argue the military utility of short-barreled shotguns during World War I.
However, the conclusion that Miller or Cases inherently undermines Professor Little’s argument overlooks how the Supreme Court ultimately synthesized these cases in Heller.
When the First Circuit in Cases pointed out that modern “Commando Units” could find a military use for almost any weapon, it wasn’t arguing for an unregulated right to heavy military weaponry. Instead, the court was highlighting the danger of a literalist trap: if the baseline for a protected weapon is strictly its “military utility,” the law would produce absurd results, either protecting bazookas or restricting regulators to 18th-century tools like a flintlock musket. To avoid this, the First Circuit focused heavily on the individual’s lack of militia intent to uphold the firearm regulation.
When Justice Scalia wrote Heller, he resolved this tension by explicitly tethering Miller to a historical boundary line. Scalia noted that the Second Amendment protects weapons that “were in common use at the time” of the founding.
This is the exact textual restriction Professor Little is highlighting. The historical quote you cited from Miller perfectly underscores this, noting that citizens were expected to appear with arms “of the kind in common use at the time.” Far from working against Professor Little’s thesis, the text of Miller and the warnings in Cases reinforce the idea that originalism requires strict adherence to the historical context of the text, rather than dynamically modernizing past-tense protections to fit whatever highly destructive weapons happen to be popular or manufactured today.
In Miller, the Court famously ruled that a sawed-off shotgun was not protected because there was no evidence showing it had a “reasonable relation to the preservation or efficiency of a well regulated militia.” Pro-gun advocates often interpret this to mean that the Second Amendment primarily protects military-grade weapons.
Justice Scalia completely flips that interpretation. In Heller, he writes:
“ordinary military equipment” phrasing alongside the expectation that militia members provide their own arms “of the kind in common use at the time“.
By doing so, he shifts a precedent focused on militia utility into a historical test for citizen ownership.
The cost , price of such arms is prohibitive. The drug cartels have every imaginable weapon in their arsenal. They’re neighbors. Expand the idea of militia.
I was enlightened to a very real truth before, during and after the Feinstein/Clinton “ban” on “assault weapons”:
>>> If you want to put WAY more of ANYTHING on the streets, go ahead and let politicians “ban” the things.
Before the Feinstein/Clinton “ban”, the few makers of the dreaded ARs went into 24/7 overdrive, making/selling as many as they could. “Gun nuts” like me bought them as investments.
After the “ban”, there must have been about 10 new companies making them, and the prices went WAY down due to supply/demand, putting even more of them on the streets.
New shooters found out how easy and fun it way to shoot targets with such a light load, which turned many who might have voted FOR “gun control” in the past to now be gun enthusiasts.
Gun-grabbers can debate what the meaning of “is” is all they want, but all they keep doing is putting more and more “blue dresses” on the streets, hurting their unconstitutional wishes.
“how easy and fun it WAS….”
The good professor, Little, hoists himself on his own petard, to wit, “I support reasonable restrictions on modern-day dangerous weapons like AR-15 rifles.” He blithely disregards the truth that there are no “dangerous weapons” only dangerous people who choose the weapons to use for their purposes, regardless of that purpose. Second his defense of the Miller decision ignores the fact that Mr. Miller could not afford a lawyer to plead for him before SCOTUS. They then had no other choice but to affirm the government’s position.
Professor Little contends:
“This was in a different section of Heller, examining what counts as “arms” [that is a] discussion of the constitutional text . . .”
That section of Scalia’s argument is not a “discussion of the constitutional text.” That section is Scalia’s discussion and analysis of the Miller case. It is a refutation of Stevens’ overly broad interpretation of it. In that section, Scalia does not endorse the expression: in common use at the time. He argues that Miller, at most, limits gun ownership to those arms “in common use at the time” — which was 1939.
A conclusion about the proper interpretation of a case (Miller) is not the same as agreeing with that conclusion. Ironically, Little got that part wrong, too. As Scalia argues, the context for the meaning of “in common use at the time” is the Miller case — 1939. Not 1776.
Little uses a typical academic con: Pluck an expression or argument out of its context. Then rewrite its meaning to satisfy a desire — in Little’s case to gut 2A.
As I wrote earlier, I agree with you. It is clear from Scalia’s discussion of Miller that the “in common use” test derives from Miller and that it applies at the time of the challenge.
Rory Little…bleeding ink all over the page attempting to explain what modern sporting rifles should be banned, claims he’s a gun enthusiast, yet not a single word about “shall not be infringed”. To my very simple way of thing that very simple, yet forceful statement trumps everything he said.
Rory Little…bleeding ink all over the page attempting to explain what modern sporting rifles should be banned, claims he’s a gun enthusiast, yet not a single word about “shall not be infringed”. To my very simple way of thing that very simple, yet forceful statement trumps everything he said.
Frivolous arguments are exactly what are being offered by Professor Turley’s friend in his challenge to Turley.
If we are to apply that view then how do we license any automobile or have laws pertaining to their use, ownership etc? Motor vehicles did not exist when the Constitution was written. But then neither did the Courts that are involved in the Case….or the TV’s and Cell Phones….or Satellites…X-Ray machines, and right on down the line.
That Loon of a Professor who seeks to undo Heller should demonstrate his dedication to his thinking and give up use of indoor plumbing, refrigeration, electricity, his automobile, TV, train, bus, medical care, hospitals, computer, airplane, and internet as none of those existed back then. He should start using an ink quill, milk his own cow, plant his own food garden, raise some Hogs, chop his wood, split it, and cook/heat his house with wood.
That would remain the moron how false his narrative really is….as plain commonsense noted by Scalia in Turley’s quote is exactly on point.
Of course AR-15’s are legal Arms just as much as wasa smooth bore musket was back when the Constitution was written and the Second Amendment is just as current as is the First, Fourth, Fifth, and other Amendments in the Bill of Rights. Each were important enough to be codified as they are.
Arguing they are not and that Heller changes that is pure poppy cock no matter how Turley wishes to describe it out of some courtesy to those who think otherwise.
Turley makes on mistake in all of this…..he is far too polite and should call a spade a spade and call out with great definition exactly why such notions as we see today should be strongly refuted. That can be done without being seen as being rude, disrespectful, and lacking of courtesy. However, when people attack the Constitution they should be informed with firmness how their views are considered by those who understand what freedoms guaranteed by the Constitution and why we have them.
It seems to me, as I consider the state of the American Left today, the wisdom of our Founding Fathers is ever more important. They took up arms to protect their freedoms and then codified a document that sets forth what those freedoms are….and in the process offered up in writing why they took up arms in defense of their freedom. Those documents lead us to where we are today and the Second Amendment is there as both a reminder and the vehicle that affords us the ability to keep and enjoy those freedoms.
I am not a “gun nut” but I have taken multiple oaths to protect and serve the Constitution and am of the view that perhaps no longer having a formal and legal obligation to live up to that Oath….I hold myself to remain so so dedicated and accept I have both a legal right and a moral obligation to do so.
I am not alone in that belief….there are millions just like me and who are just as dedicated in that loyalty to the Constitution. The Left in this country fails to fully understand that and those that will in any way condone, appease, or tolerate any effort to harm our God Given Rights as noted in the Constitution are only going to earn our scorn and ultimate dismissal of any attempt to undermine the principles set forth in that document.
Your comparison to cars, cell phones, and indoor plumbing actually highlights the exact logical trap Professor Little is exposing.
No one is arguing that modern technology shouldn’t exist. The debate is about originalism—the judicial philosophy that says we must interpret the Constitution according to what the words meant when they were written.
When it comes to the First and Fourth Amendments, the Supreme Court regularly allows massive regulations on modern technology. The government can completely ban cellular signal jammers, regulate broadcast airwaves, and search your modern automobile without a warrant under exceptions that didn’t exist in 1791.
The contradiction here is that many self-proclaimed originalists want to treat the Second Amendment differently than the rest of the Bill of Rights. Justice Scalia—a strict originalist—explicitly wrote in Part III of Heller that the amendment protects weapons that “were in common use at the time” of the founding. He used the past tense because his entire philosophy was anchored in history. Originalism.
To argue that the Second Amendment automatically protects an AR-15 just because it is popular today requires changing Scalia’s word “were” into “are.” That isn’t originalism; it is “living constitutionalism,” which is the exact judicial philosophy that conservative jurists claim to despise. Pointing out this massive linguistic and philosophical flip-flop isn’t “poppycock”—it is holding originalists to their own stated rules.
Roy Little points out exactly when the switch occurred and how it seamlessly became the phrase that is not in Scalia’s opinion.
X admitted a few days ago that he feeds AI and Google with a premise, then extracts [euphemism for lifts or copy-pastes] the results that would support that premise. Ornery, contrarian, only ‘agrees” with other commenters when he is losing attention.
Just walk past him. Maybe throw a dime is his hat on the sidewalk in front of him
So? You don’t bring anything to the discussion…at all.
Rory Little…bleeding ink all over the page attempting to explain what modern sporting rifles should be banned, claims he’s a gun enthusiast, yet not a single word about “shall not be infringed”. To my very simple way of thing that very simple, yet forceful statement trumps everything he said.
If anything, present history (since the revolution) more strongly advocates for the 2nd amendment than ever before. We already see greater and greater attempts by the radical left to quash dissent. The surveillance that has been increased by various presidents recently has impacted our freedom and our ability to use the 1st amendment. Surveillance of school board members or those who protest their actions is not a federal matter. Debanking of individuals because of opposing political views has been admitted to by large banking institutions. If there ever was a need for the 2nd amendment it is now. It is basically your last safeguard.
Well GEB, it’s a choice at some point. Fight to the death or be dragged into a street and shot. Most likely the founders had a preference.
Nice enlightening back and forth. Exchanges arguing ideas rather than the character of the opposition are exceedingly rare. Both should commended.
Under the professors reasoning, all guns today could be banned because they were not in common use at the time of the passing of the second amendment. An AR15 is just a semiautomatic rifle, in common use for many decades.
Little’s argument is wrong, it seems to me. The “in common use at the time” language comes from Miller. The “at the time” concept did not mean “at the time of the ratification”. It meant at the time the court was considering the restriction. The idea was that the 2A protected the keeping and bearing of arms at the time the challenge was being heard, because the 2A was meant to maintain a citizen body able to use the weapons in common use from time to time.
I meant to say it “protected the keeping and bearing of arms at the time the challenge was being brought”.
Sorry, “in common use at the time the challenge was being heard”.
D: You’re right.
Little whimsically changed the Miller meaning of “in common use at the time” (1939) to the Founding. He’s misrepresents Scalia’s argument to (falsely) claim that there’s a contradiction in Heller — and to use Scalia as a prop to gut 2A.
From a layman, that might be an honest mistake. From a legal scholar, it’s intellectually dishonest.
No, the phrase “in common use at the time” comes from Scalia. His entire opinion is about his originalist interpretation. It was Kavanaugh who changed the wording Scalia wrote in Heller.
The interpretation of birth rights has a greater negative impact on America than the right to own a semiautomatic weapon.
The problem for the gun grabbers is that the AR-15 is very popular and in common use by millions making it not some kind of outlier that can be banned and instead part of our culture.
Think of it like the banning of cruel and unusual punishment and those trying to ban the death penalty. If 70-80% of the people support the death penalty for heinous and exception crimes then how can it be considered unusual?
Also, to say that the 2nd Amendment only applies to arms in use at the time of the drafting of the Constitution how does that square with other amendments like the 1st and 4th not doing so? As Turley pointed out.
I read the linked column and I found the writer less polite and generous than Professor Turley implied. It sounded to me more like the typical pedantic, snobbish, left wing arrogance that we get daily.
I don’t believe there was any ambiguity in what Scalia stated and I am certain that a majority of today’s SC will agree. To your point regarding the popularity of the AR-15 style rifle, these rifles also account for approximately 2% or fewer, of total homicides. So they are not dangerous killing machines that are in the public’s hands. While any firearm can be misused, this is an example of one that is mostly owned by people who have no intention of harming anyone.
“The problem for the gun grabbers is”…
They are the problem.
“We do not interpret constitutional rights that way”.
But we do only with gun control laws. If Originalists want play historians to analyze gun laws, they can’t abandon originalism when they don’t like the results.
We the People need more debate of this sort, and less hatred and division. Thank you.
Considering your always conspicuous and blatant anti-liberal bias here, along with your constant outbursts of religious zealotry, its ironic that you or all people would call for a ceasefire on this issue.
Anonymous,
Thank you for proving my point.
Leftwing Fascists fight very hard to disarm the public, so that their dream of an all-powerful centralized government can exercise total control without fear of resistance can finally be realized in the United States. No other civil right is trampled as readily–and gleefully–by the left like the right to keep and bear arms.
So what?
As is always the case, gun nuts are mass killers. I suspect you’re a sicko, you’re the kind who kill cats and dogs and eats them. Guessing liberals are next on your list.
Death to the MAGA infidels!