Why Heller got it right and the 'militia only' reading falls apart

"Heller was judicial activism. Five conservatives invented an individual right in 2008 that nobody had noticed for two hundred years." You will hear that at some dinner table sooner or later, delivered with the calm confidence of a person who has read the headline and never the opinion. I'd like to take that sentence seriously, which means I'd like to test it, and a claim that survives testing deserves more respect than one that only survives applause.

So this post does something the other side's partisans rarely do for ours. It states the dissent at full strength first. Then it answers it. If Justice John Paul Stevens could be here, I think he'd say that is the fair way to do it.

What the case was about

In the mid-1970s the District of Columbia put in place a law that, in effect, banned handguns. You could not register a new handgun, and carrying an unregistered pistol was illegal. The law also required that any lawful firearm in a home, a rifle or shotgun, be kept unloaded and disassembled or bound by a trigger lock or similar device. The District's ban covered the whole city and every household in it, which is a considerable thing to say about a right that supposedly doesn't exist.

Dick Heller, a special police officer who carried a handgun to guard a federal building during his workday, applied to register a handgun to keep at home. The District refused. Heller and others sued. In March 2007 the D.C. Circuit held, 2-1, that the Second Amendment protects an individual right and that the handgun ban and the disassembly rule violated it. The Supreme Court took the case, heard argument in March 2008, and decided District of Columbia v. Heller on June 26, 2008, by a vote of 5-4. Justice Antonin Scalia wrote for the majority, joined by Chief Justice Roberts and Justices Kennedy, Thomas and Alito.

Justice Stevens wrote the main dissent, joined by Justices Souter, Ginsburg and Breyer. Justice Breyer wrote a second dissent, joined by Justices Stevens, Souter and Ginsburg. They are different arguments, and it matters to keep them apart.

The Stevens dissent, stated at its strongest

Here is how a good lawyer would put the dissent, in terms its authors would accept.

1. The text is about the militia. The amendment opens with the militia and gives the militia as its reason. A fair reading, Stevens argued, treats the right as one that protects the states' ability to maintain their militias.
2. "Bear arms" is a military phrase. In the founding era the phrase overwhelmingly meant to serve in a military capacity. The majority could not point to enough examples of the phrase being used to mean carrying a weapon for private purposes.
3. The drafting history points to the militia. The amendment was a response to Anti-Federalist worries about federal control of the militia. Nobody was thinking about a pistol in the nightstand.
4. The Court had already said so. In United States v. Miller (1939) the Court upheld a conviction under the National Firearms Act and spoke of the amendment in terms of the militia. For nearly seventy years, lower courts treated Miller as rejecting the individual-right reading, and the Court had let that stand. Overruling it, Stevens said, ignored precedent.
5. The District's law was a reasonable policy choice. Handguns are the weapon most used in crime, and the people of a city may decide that handguns in homes cost more than they are worth. That was Breyer's emphasis in the second dissent, which would have applied a balancing test and upheld the law.

That's a serious argument, and it is how the other side gets its footing. Now to the answer.

The answer, point by point

One: a purpose clause does not narrow the command

Scalia's opinion began with the structure of the sentence. The amendment has a prefatory clause announcing a purpose and an operative clause stating the right. The majority held that the prefatory clause may clarify the operative clause but cannot limit it. This is how founding-era legal drafting worked, and how courts read parallel provisions in statutes and state constitutions. I gave the hypothetical about books and voters in What the Second Amendment says, read one clause at a time, and it's worth repeating in a sentence: a preamble that says why a right matters doesn't tell you who holds it. The operative words do that, and they say "the people."

Two: "the people" is not a code word for "the states"

Scalia observed that the Constitution uses "the people" in the First, Fourth and Ninth Amendments, and that every one of those is understood as an individual right, held by individual members of the political community. The dissent had to read the same two words differently in the Second. The Tenth Amendment, which separates "the States" from "the people," shows the drafters could tell them apart.

Three: "bear arms" does not require a uniform

Stevens was right that "bear arms" often appeared in military contexts. The majority did not deny it. The majority's answer was that the phrase wasn't limited to the military, citing founding-era state constitutions such as Pennsylvania's, which spoke of a right to bear arms "for the defence of themselves and the state." The word "keep" is the other half of the answer. You do not "keep" a weapon the way you serve in a regiment. A reading that turns the amendment into a regulation of army service has to ignore half the verbs.

Four: the militia was the people

The dissent leaned on the idea that the amendment protected a state militia as an institution. But the militia of 1791 wasn't an institution with a payroll. It was the armed body of citizens. Under the Militia Act of 1792, ordinary able-bodied men enrolled and brought their own muskets. If the militia consists of the people, a right of the people to keep arms and a right to maintain the militia come to the same thing. The dissent's reading needed the militia to be something other than the people so the right could be something other than theirs. History doesn't supply that.

Five: Miller did not say what the dissent needed it to say

Miller involved two men charged with transporting an unregistered short-barreled shotgun across state lines. The Court said that without evidence a shotgun of that barrel length had some reasonable relationship to the preservation or efficiency of a well-regulated militia, it could not say the Second Amendment guaranteed the right to keep one. The majority in Heller read that as a holding about the type of weapon, not about whether the defendants were militia members. And look at the way the case was decided: no lawyer appeared for the defendants at the Supreme Court. The Court heard only the government. A one-sided record from the 1930s is not a strong foundation for erasing a right written in 1791.

The majority also pointed out that the dissent's reading of Miller makes the Court's own reasoning odd. If the right belonged only to militia members, the Court would not have asked what kind of weapon was at issue. It would have asked who owned it.

Six: the interest-balancing proposal is the real policy argument

Justice Breyer's dissent said that even if the amendment protects an individual right, the District's law was a reasonable regulation and should be upheld under a test that weighs the government's interest against the burden on the right. Scalia replied in a line that deserves to be remembered. The Court knew of no other enumerated constitutional right whose core protection had been made subject to a freestanding balancing test. Imagine telling a newspaper that its First Amendment protection will be decided case by case by weighing how much the government dislikes what it printed. The Second Amendment, the majority said, is the product of the people having already done the balancing. Judges may not re-do the weighing and decide the right isn't worth the trouble.

That point matters beyond this case, because it is where the fight went next. In Bruen and Rahimi explained, the history test every gun law now faces you'll see how the Court, in 2022, finished the job by dropping the balancing test altogether.

What the majority did not say

If you only hear Heller described by its enemies, you will be told that it struck down gun control. If you hear it described by its loudest friends, you may be told that it struck down all of it. Both are wrong, and the opinion tells you so.

The majority said the right is "not unlimited." It listed, as "presumptively lawful," several kinds of regulation: longstanding prohibitions on possession of firearms by felons and the mentally ill, laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, and laws imposing conditions and qualifications on the commercial sale of arms. It also noted that the historical tradition supports prohibiting "dangerous and unusual weapons" while protecting arms in common use for lawful purposes. And the actual holding was narrow: the District's total ban on handguns, which Scalia called the class of arms most popular for home defense, and its requirement that lawful firearms in the home be kept inoperable, violated the amendment.

That narrowness matters when you hear the "judicial activism" charge. Activism means a court inventing something that isn't there. The majority read the words, the history and the structure of the Constitution, and then, in the same opinion, wrote limits into the right. A court bent on destroying gun law would not have written the "presumptively lawful" list. This was a court trying to say what the text says and not a word more.

A word on method, because the "activism" charge is really a charge about method. Scalia's approach in Heller was originalist: ask what the words meant to the people who ratified them. If you want a plain-English primer on that approach and its critics, Originalism Explained for People Who Skipped Law School covers it. And if you want to learn to read an opinion the way I have been reading this one, with the syllabus first, the holding second and the dissent last, How to Read a Supreme Court Opinion Without a Law Degree will get you there in an evening.

One more thing about what Heller left open. The case covered the District of Columbia, a federal enclave, which means it said nothing directly about whether a state or a city could ban handguns. That question took two more years and a Chicago retiree, and you'll find it in How McDonald v. Chicago carried the Second Amendment to every state.

"But the dissent was right about the two hundred years"

I said I'd take the strongest objection seriously, so here is the one with the most force: for most of American history no federal court struck down a gun law under the Second Amendment, so surely the individual-right reading is a recent invention.

The reply has three parts. First, a right can go unlitigated because it has not been seriously threatened. Courts applied the Fourth Amendment sparingly until the twentieth century, when police departments and wiretaps and a federal criminal code gave them something to apply it to. Second, the lack of litigation is not the same as an understanding to the contrary. The generation that wrote the amendment, as we've seen, wrote state constitutions protecting arms for self-defense. Third, the Supreme Court had never squarely decided the question, and Miller did not answer it. In 2008 the Court did what courts are supposed to do with an unanswered constitutional question: it read the text and the history, and it decided.

Nor should anyone think the individual-right view was invented by five justices. The question had been argued in law journals for decades, and the position had adherents across the spectrum before Heller. That's a fact worth checking for yourself by looking at the scholarship that preceded the case.

What the case means for a family

Why should a family in Ohio or Texas care? Because Heller answered a question about what a government may do to you in your own house. The District of Columbia's rule did not merely restrict a hobby. It told a resident that the one weapon most easily used for home defense was off the table, and that any rifle or shotgun he was allowed to keep had to be taken apart or locked so that it couldn't be used quickly. A person with a burglar at the door is not in a position to unlock, reassemble and load. The majority said so, and it held that this made the rule unconstitutional as applied to self-defense in the home.

The decision also drew a line that applies to every state and city. Governments may regulate. They may not abolish. There is a core, and the core is a law-abiding citizen's ability to keep a usable firearm at home for self-defense. When your city council debates the next ordinance, the question isn't only whether it sounds sensible. It is whether it leaves that core intact.

The bottom line

• The dissent was serious, and it lost on the text. The militia-only reading needs "the people" to mean something in the Second Amendment that it means nowhere else in the Bill of Rights.
• Activism invents; Heller read. The majority applied the text and history, and in the same opinion wrote limits into the right: felons, sensitive places, commercial sales and dangerous and unusual weapons.
• Balancing tests make rights negotiable. The Court refused to let judges decide case by case whether a right is worth the trouble. If you wouldn't accept that for your speech, don't accept it for your self-defense.
• The decision was 5-4. One vote. Say that out loud to anyone who thinks the matter is settled, and then ask what they think about the next judicial appointment.
• Read the opinion. Go to the Supreme Court's website, find District of Columbia v. Heller, and read the syllabus and the first dozen pages. It's more readable than you expect, and you'll never again be fooled by a summary.