Professor Roy Little Responds to Turley Column on the AR-15 Ban Case

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?