Oral Argument in Heller and the English Roots of the Second Amendment
As expected, during today’s Supreme Court oral argument in District of Columbia v. Heller there was no discussion whatsoever of comparative analysis of gun control laws in other countries or comparative death rates. To the extent there was any discussion of foreign authority, it was all about English history as an interpretive device for understanding the Second Amendment.
Here are the six key exchanges on that topic:
MR. DELLINGER: When Blackstone speaks of the personal guarantee, he describes it as one of the use of weapons, a common law right. And if we’re constitutionalizing the Blackstonian common law right, he speaks of a right that is subject to due restrictions and applies to, quote “such weapons, such as are allowed by law.” So Blackstone builds in the kind of reasonableness of the regulation that the District of Columbia has….
CHIEF JUSTICE ROBERTS: Well, that may be true, but that concedes your main point that there is an individual right and gets to the separate question of whether the regulations at issue here are reasonable. (pp. 8-9)
JUSTICE KENNEDY: Well, there’s no question that the English struggled with how to work this. You couldn’t conceal a gun and you also couldn’t carry it, but yet you had a right to have it.
Let me ask you this: Do you think the Second Amendment is more restrictive or more expansive of the right than the English Bill of Rights in 1689?
MR. DELLINGER: I think it doesn’t address the same subject matter as the English Bill of Rights. I think it’s related to the use of weapons as part of the civic duty of participating in the common defense, and it’s — and it’s — it’s –
JUSTICE KENNEDY: I think that would be more restrictive.
MR. DELLINGER: That — that could well -the answer then would be –
JUSTICE SOUTER: Well isn’t it — isn’t it more restrictive in the sense that the English Bill of Rights was a guarantee against the crown, and it did not preclude Parliament from passing a statute that would regulate and perhaps limit –
MR. DELLINGER: Well –
JUSTICE SOUTER: Here there is some guarantee against what Congress can do.
MR. DELLINGER: Parliament could regulate. And Blackstone appears to approve of precisely the kinds of regulations here. Now-
JUSTICE STEVENS: The Bill of Rights only protected the rights of protestants.
MR. DELLINGER: This is correct.
JUSTICE STEVENS: And it was suitable to their conditions then as allowed by law, so it was — it was a group right and much more limited.
MR. DELLINGER: I think that is — that’s correct.
JUSTICE SCALIA: And as I recall the legislation against Scottish highlanders and against -against Roman Catholics did use the term — forbade them to keep and bear arms, and they weren’t just talking about their joining militias; they were talking about whether they could have arms. (pp. 16-18)
JUSTICE KENNEDY: You think Madison was guided by the experience and the expressions of the right in English law, including the Bill of Rights of 1689?
GENERAL CLEMENT: I do, Justice Kennedy, and I think in that regard it is telling that — I mean, there are a variety of provisions in our Bill of Rights that were borrowed from the English Bill of Rights. Two very principal ones are the right to petition the government and the right to keep and bear arms. I don’t think it’s an accident –
JUSTICE GINSBURG: If we’re going back to the English Bill of Rights, it was always understood to be subject to the control and limitation and restriction of Parliament. And I don’t think there’s any doubt about that. And that’s what we’re talking about here, are legislative restrictions.
GENERAL CLEMENT: Well, Justice Ginsburg, I think you could say the same thing for every provision of the English Bill of Rights. And obviously, when those were translated over to our system you had to make adjustment for –
JUSTICE SOUTER: But isn’t there one difference? Not every provision of the English Bill of Rights had an express reference to permission by law, which is a reference to parliamentary authority. So that there — there — there was a peculiar recognition of parliamentary legislative authority on this subject.
GENERAL CLEMENT: That’s exactly right, Justice Souter. And the way I counted it, I only found three provisions in the English Bill of Rights that had a comparable reference to Parliament.
JUSTICE STEVENS: This provision has the additional limitation to “suitable to their conditions,” and a large number of people were not permitted to have arms.
GENERAL CLEMENT: Again, that is also true and is also relatively unique to this amendment. And if I get to the point in the argument where I talk about why we think that something less than strict scrutiny is appropriate, I think I would point precisely to those elements of the English Bill of Rights as being relevant. But what I was about to say is I think what is highly relevant in considering the threshold question of whether there’s an individual right here at all is that the parallel provisions in the English Bill of Rights that were borrowed over included the right to petition and the right to keep and bear arms. Both of those appear with specific parallel references to the people. They are both rights that are given to the people. And as this Court has made clear in Verdugo-Urquidez, that’s a reference that appears throughout the Bill of Rights as a reference to the entire citizenry. (pp. 33-35)
JUSTICE SCALIA: Wasn’t — wasn’t it the case that the banning of arms on the part of the Scottish highlanders and of Catholics in England used the term, forbade them to “bear arms”? It didn’t mean that could just not join militias; it meant they couldn’t carry arms.
GENERAL CLEMENT: And again, I think various phrases were, were used. I also think that some of the disarmament provisions specifically used the word “keep.” And so I think there is some independent meaning there, which is one point. And then I do think that, even in the context of bearing arms, I will grant you that “arms” has a military connotation and I think Miller would certainly support that, but I don’t think it’s an exclusively military connotation.
JUSTICE STEVENS: Not only Miller, but the Massachusetts declaration. “The right to keep and bear arms for the common defense” is what is the normal reading of it.
GENERAL CLEMENT: Oh, absolutely. And I grant you if this, if the Second Amendment said “keep and bear arms for the common defense” this would be a different case. (pp. 37-38)
MR. GURA: Oh, yes. Yes, Justice Kennedy. The right of the people to keep and bear arms was derived from Blackstone. It was derived from the common-law English right which the Founders wanted to expand. In fact, the chapter in which Blackstone discusses this in his treatise, his fifth auxiliary right to arms, is entitled –
JUSTICE BREYER: That brings me back to the question because Blackstone describes it as a right to keep and bear arms “under law.” And since he uses the words “under law,” he clearly foresees reasonable regulation of that right. And so does the case not hinge on, even given all your views, on whether it is or is not a reasonable or slightly tougher standard thing to do to ban the handgun, while leaving you free to use other weapons?
I mean, I notice that the militia statute, the first one, spoke of people coming to report, in 1790, or whenever, with their rifles, with their muskets, but only the officers were to bring pistols. So that, to me, suggests they didn’t see pistols as crucial even then, let alone now.
MR. GURA: Well, certainly they saw –
JUSTICE BREYER: What’s your response to the question?
MR. GURA: Well, my response is that the government can ban arms that are not appropriate for civilian use. There is no question of that. (pp. 58-59).
JUSTICE STEVENS: Well, if you look at the individual rights I suppose you start back in 1689, the Declaration of Rights in England. And the seventh provision that they talked about said that: “The subjects which are protestants may have arms for their defense suitable to their conditions and as allowed by law.” Now do you think the term “suitable to their conditions” limited the number of people who had access to arms for self-defense?
MR. GURA: It was in England, but that was criticized by the framers. St. George Tucker’s edition of Blackstone –
JUSTICE STEVENS: So you think that the Second Amendment is a departure from the provision in the Declaration of Rights in England?
MR. GURA: It’s quite clearly an expansion upon it.
JUSTICE STEVENS: So that’s not really your — you would not confine the right the way the English did then.
MR. GURA: I think the common law of England is a guide, and it’s always a useful guide because that’s where the — where we — where we look to, to interpret –
JUSTICE SCALIA: It’s useful for such purposes as what “keep and bear arms” means and things of that sort.
MR. GURA: It certainly is, Your Honor. And it’s also useful to see how –
JUSTICE SCALIA: They certainly didn’t want to preserve the kind of militia that America had, which was a militia separate from the state, separate from the government, which enabled the revolt against the British. (pp. 67-69)