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?
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”.
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.
“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.
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!