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?
“Shall Not Be Infringed.”
Surely, the Second Amendment is clear enough for anyone to read and understand. Its language is unqualified and unequivocal.
Surely, no branch of government has the authority to modify or amend the Constitution outside the constitutionally prescribed amendment process.
The judicial power is vested in the judicial branch. The power to amend the Constitution is not.
Interpreting the Constitution does not confer the power to rewrite it. Nor does judicial interpretation authorize the imposition of qualifications that its text does not contain.
This is not the constitutional amendment process.
What the heck are we doing here?
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2nd Amendment
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Turley is surprisingly a dismissive of Scalia’s overall point by focusing on the parts where Justice Scalia notes that modern technological variations of bearable arms are protected. He just leaves it at that as his rationale while ignoring the fact Scalia spent 63 pages emphasizing past tense terminology and a clear originalist view. As Rory little pointed out,
“Given all this, what should we make of a statement made 45 pages earlier in Heller(quoted by Turley without noting that fact), that “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”? 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 indicatesthat 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.”
Turley skipped the important parts in order to arrive at his position which is literally based on a selective point of view rather than the complex more nuance view which Roy Little explains in better detail and better rationale.
Turley gives a lot of credit to Roy Little not only for his excellent points, but also for his civil disagreement which Turley returned in kind. It seems Roy Little made a better case and Turley hopefully can make a similarly more detail case for his position.
No Kings like Little LeRoy!