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?
There was a statutory ban on AR 15s I think from 1994 to 2004. It was never found to be unconstitutional. There were no machine guns at the time of the founding. There were plenty of hand guns and rifles which we still have today. Rifles and handguns are allowed but ARs can be regulated if the regulations are reasonable.
Hopefully, SCOTUS will make things clear in their upcoming rulings. In the meantime, I am reminded of a comment to the effect that something “Was a distinction without a difference”. That appears to be the case here to a non-lawyer.
“SHALL NOT BE INFRINGED” is plain.
This is about lethality in the hands of We The People. The 2d Amendment right of self defense, before, beyond government infringement. Just like the 1st Amendment Indispensable Right. Before we embrace Rory Littles’s argument about Justice Scala’s part lll of Heller, we need to unpack whether his “common use at the time” speaks to the fear of a Viking Dane axe in a medieval market. Did Heller err by deciding the self defense right to a pistol like a Colt 1911 .45 cal. Semiautomatic pistol? Elon Musk just came with the Tesla Roadster that goes vertical like an F 35 fighter. Do we want the ability to repel a carjacking with a Star Trek phaser particle beam weapon when its time comes? Especially when that lethality is embraced by the military and the import of what is expected of the people under the interpretation of their part in forming a local militia under the 2d Amendment militia clause. Or do we hold to a story that the right of self defense under Heller Part lll limits the right to flintllocks?
Sorry but I give the second round to Roy Little
Your reading is too narrow when thinking of defending the US and how fences make good neighbors is a frosty reminder.
Look to points on the compass and what arms are available. A greater scope, expansion of militia may be required and citizens may be or should be trained militiamen and women with loyalty to the United States.
Furthermore, the US has been invaded under direction of Biden and Mayorkas. Nothing has been done. The drug cartels arsenal has it all. Clinton and Biden signed documents to sell arms to Columbia. Those weapons have made their way everywhere. They armed them . The cherry on top is the SCOTUS giving out willy wonka tickets citizenship with an unprotected presidency.
You all have my undying contempt.
Rage, rage against the dying of the light.
I’m a simple guy.
I don’t understand the fixation on banning AR-15’s, any gun will kill people, and you read in the media today it’s more often than not a different type of arms being used to kill multiple people, and when that person is apprehended (or killed) they almost always find many other arms on or with them, and half the time no AR-15.
The thing that really baffles me is if they ban anything, that only means criminals and moronically insane people will have (these kinds of) weapons. You simply cannot wave a magic wand and have these weapons disappear just because you write a law banning them.
‘Illegal’ drugs have been created, sold, consumed forever, despite there being laws against them.
I have been watching Ads on TV and radio for 40 years telling us not to drink and drive, yet people still do, and kill innocent people with their cars and trucks, shall we ban cars and trucks?
Of course not.
Druggies will still do drugs no matter what.
Drunks will still drive and kill people.
And CRIMINALS (and nutcases) will still own and use guns, despite any ‘new’ laws, or any interpretations of old laws.
Deaths you say?
43,000 highway deaths per year.
BAN CARS!
The following passage comes from Professor Turley’s earlier article: “Specifically, in addition to listing various “longstanding prohibitions on the possession of firearms” left undisturbed, part III said “we also recognize another important limitation on the right to keep and carry arms. … the sorts of weapons protected were those ‘in common use at the time’” (quoting United States v.Miller, a 1939 precedent upholding bans on machine guns). I add emphasis on “at the time,” because the Viramontes briefing all but ignores what the court said was this “important limitation.” Professor Turley gives a reasonable reading to the gist of Professor Roy Little’s argument. But I think Professor Turley seems to miss or overlook a critical flaw in Professor Roy Little’s reasoning. Even if Justice Scalia’s language poses an inconsistency, that inconsistency should not be rectified by adopting reasoning that would open a Pandora’s box with respect to the rest of the Bill of Rights (and other provisions of the Constitution).
I find it hard to imagine the Supreme Court would rule that (1) the Second Amendment was intended to limit the right to bear arms strictly to the circumstances, customs, practices and technology existing at the time the Second Amendment was ratified, but (2) every other provision of the Bill of Rights is not so limited to the circumstances, customs, practices, and technology existing when the Bill of Rights were ratified. The arbitrary and untenable result would be that (i) the Second Amendment is “frozen in amber” circa 1791, but (ii) every other provision of the Bill of Rights can be interpreted to deal with changes in the circumstances, customs, practices, and technology post 1791.
Thats correct- practice.
“The Second Amendment protects an individual right to keep and bear arms; on an individual-capacity reading, it does not extend to weapons that require a crew or military force to operate.”
GPT-6 Luna
A right is a right of an individual.
The right of individuals in the 2nd Amendment allows what an individual with the right can keep and bear.
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“Rights protect individual people. People may exercise some rights together, and the law may extend certain protections to organizations, but that doesn’t change the basic purpose: protecting individuals.”
– GPT-6 Luna
Infantry?
“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.
some don’t want a ‘free state’, they want unabated CONTROL.
Communism is unconstitutional; to impose it is subversion, insurrection, and treason—not to mention war.
Article 1, Section 8, and the unqualified and absolute 5th Amendment right to private property preclude communism completely.
Karl Marx wrote the Communist Manifesto 59 years after the adoption of the Constitution because none of the principles of the Communist Manifesto were in the Constitution. Had the principles of the Communist Manifesto been in the Constitution, Karl Marx would have had no reason to write the Communist Manifesto. The principles of the Communist Manifesto were not in the Constitution then, and the principles of the Communist Manifesto are not in the Constitution now.
The singular American failure is the judicial branch, with emphasis on the Supreme Court.
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!
Must be a bot since you offer no rational exclamation of your comment