- An Overview of the Opposing Arguments
After coming to a decision on the case of District of Columbia v. Heller on June 26, 2008 Justice Scalia delivered the opinion of the court with the support of four other justices. The five of them held “that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.” District of Columbia v. Heller, 554 U.S. 570, 631 (2008). With this holding, the District of Columbia was forced to allow Heller to register his handgun and issue him a license to carry it in his home. Justice Scalia begins the opinion of the court by dividing the Second Amendment into three prominent statements before meticulously defining each segment. He then provides, by listing numerous independent state constitutions that use similar verbiage, evidence in support of a key argument; that the Second Amendment is not granting the right to bear arms strictly to those enrolled in military service. Justice Scalia further supports this argument by citing the ways in which previous scholars have interpreted the Second Amendment throughout America’s history, giving multiple examples from the Civil War era. Finally, he lists all previous cases that may be argued to hold precedent over this case and give reasons as to why the previous decisions support their current holding.
Justice Stevens, with the support of only three justices, wrote the dissenting opinion. Together, they believed that the Court should not have even heard the case. Justice Stevens writes that “it is not the proper role of this Court to change the meaning of rights ‘enshrine[d]’ in the Constitution.” Id., at 680. It is the opinion of the dissenting justices that the majority failed to prove that “the right of law-abiding, responsible citizens to use arms in defense of hearth and home” is “elevate[d] above all other interests.” Id. In order to prove their argument, Justice Stevens begins by writing extensively about United States v. Miller, 307 U.S. 174 (1937) and all of the precedent it may hold. Then, similarly to Justice Scalia, he continues by breaking down the Second Amendment and defining the individual segments before piecing it back together again while maintaining the original definitions. He follows this by listing his own prominent figures who have either spoken on or written about an interpretation of the Second Amendment holding a similar opinion to their current argument. Just as in the majority’s opinion, Justice Stevens brings supporting interpretations from throughout different eras of development within the United States. Further following the form of the majority opinion, Justice Stevens concludes his argument by discussing cases that may or may not be considered to hold precedent over the current case.
The main point that the majority and dissent disagree on is whether or not the Second Amendment pertains to citizens for uses other than certain military purposes, thereby arguing whether the right is given to the “individual” or to the “collective”. The majority believes that the Second Amendment gives citizens outside the military the right to “bear arms” for self-defense and, by extension, an individual right in which a firearm may be on one’s person within their personal house. The dissent believes that, according to the Constitution, the Second Amendment only grants the right to “keep and bear arms” to those citizens utilizing the “arms” for the collective military purposes only. A second major point that the two sides disagree on is the importance of the Court’s decision in Miller (1939). The majority argues that the dissent relies too heavily on this case’s holding as precedent and does not argue their case in support of it well enough. The dissent believes that, because of the numerous other cases Miller has held precedent over, it claims precedent over this case as well.
2. Personal Opinion of the Majority’s Holding
While, for the majority of my adolescence, I believed that the Second Amendment was moot because “A well-regulated militia” is no longer necessary to ensure the security of a free state, I now believe that the majority opinion and holding are correct in their interpretation of the Second Amendment and the decision to not follow the holding of significant previous cases. While it seems that Justices Scalia and Stevens simply looked at different dictionaries in order to determine the definitions of each segment of the amendment, I believe that Justice Scalia’s definitions make the most sense and seem to follow what the Framers intended. Not only do I agree with Justice Scalia’s definitions, but I also feel that, on occasion, Justice Stevens was over analyzing the text. For example, he attempted to show that the phrase “bear arms” was most frequently used in the military context and that because of this, the Framers were attempting to limit the right to military purposes. While it may be true that the phrase “bear arms” was, and probably is, more common in the military than in the general public, it can be used in either setting to mean the same thing with little confusion or misunderstanding.
Another reason I am inclined to believe the majority’s opinion is the strength of Justice Scalia’s sources when discussing previous scholars’ interpretations of the Second Amendment. He cites three founding-era legal scholars, 19th century cases interpreting the Second Amendment, post-Civil War Congress, and all late-19th century legal scholar who dealt with the interpretation of the Second Amendment; all of which seem to agree with each other and support the understanding that the amendment is not limited to those in military service. Justice Scalia believes that by considering these sources, which were presented immediately after the Amendment’s ratification, as equal to post enactment legislative history, Justice Stevens demonstrates “a fundamental misunderstanding of a court’s interpretive task.” Id., at 605.
Furthermore, Justice Scalia’s skepticism of the argument that the Framers only protected those weapons that were in common use and effective as military weapons during the original times seems to be a valid concern. He writes, “The traditional militia was formed from a pool of men bringing arms ‘in common use at the time’ for lawful purposes like self-defense.” Id., at 624. He uses this statement to justify the majorities’ decision to view Miller’s holding as banning those weapons that are not typically used for lawful purposes but not those that are typically found in the possession of law-abiding citizens.
3. The Effects of Legal Realism
Legal realism is the belief that changes in legal doctrine are largely functions of experienced-based determinations by judges who create policy choices dictated neither by logic nor by preexisting law (Schauer, 125). Simply put, legal realism is the realization that when it comes to a court’s decision, there may be sources that are not strictly law-related that have influence on the outcome. For example, at a lower level than the Supreme Court, a trial court judge may deliver a guilty verdict based on resentment that was carried over from a previous case. An example of possible legal realism at the Supreme Court level is the majority opinion’s holding during the Obergefell (2015) that may have been based on the public’s changing attitude towards the LGBT community rather than what the law has previously said.
I believe that, based on the strength of both arguments and the lack of contradictory data put forth, both the majority and dissent were influenced by legal realism and the practice of deciding to hold a certain stance and then finding sources that support that given idea specifically. In my opinion, the sections of both opinions that detail the examples of how the Second Amendment has been previously interpreted is the strongest example of finding sources that are guaranteed to support only one side of the argument. Specifically, when discussing Post-Civil War commentators, Justice Scalia writes that “every late-19th-century” legal scholar that we have read “interpreted the Second Amendment to secure an individual right unconnected with militia service.” Id.. If what Justice Scalia is implying, that all legal scholars from the post-19th-century era believe the amendment to be unconnected to military service, is in fact true, then the dissent is fighting an uphill battle. Justice Scalia does not stop by saying that just post-19th-century era legal scholars agree with him: he brings up Post-Civil War Congress, Pre-Civil War case law, and founding-era legal scholars. District of Columbia v. Heller, 554 U.S. 605-620 (2008). Even with all of this said, I am somewhat hesitant to say that Justice Scalia utilized the practices included in legal realism because he is usually the first to say that the Supreme Court should not be hearing a case. By looking at his previous stances on controversial cases, we are able to see that pattern and if he is not sticking to this pattern on the current decision, there must be substantial evidence convincing him to join an opposite stance.
I think that the dissent uses legal realism to a lesser extent because of their reliance on the statements given in Miller and their slightly weaker arguments. That being said, they still find definitions for each segment of the amendment that fit their argument perfectly and are able to find sources that advocate the necessity of military involvement or that the Second Amendment supports a collective right. For example, when discussing the definition of to “bear arms”, Justice Stevens uses the Oxford definition stating that it means “to serve as a soldier, do military service, fight.” Id., at 646. He also cites the Latin origin arma ferre which, translated literally, means “to bear war equipment.” Id.. These may not be enough to say that the dissent definitely formed an opinion and found definitions to support it, but the exactness of each definition seems to illustrate that it is a possibility
4. The Effects of the Decision
Justice Stevens writes at the end of his argument that he does “not know whether today’s decision will increase the labor of federal judges to the ‘breaking point’ envisioned by Justice Cardozo, but it will surely give rise to a far more active judicial role in making vitally important national security policy decisions than was envisioned at any time in the 18th, 19th, or 20th centuries.” Id., at 680.With this sentence, Justice Stevens is making it clear that, in his opinion, the Supreme Court had overstepped the fine line, that is the Supreme Court creating law, in order to take and then decide on this case. With this decision, in his opinion, the Court has taken away law “creating” power from the Legislative branch in order to claim it as the Judiciary’s. This is because if the Court begins to take on cases and ruling against the original law, there is no longer a limit to the Judiciary’s power; essentially opening the flood gates and allowing the Court to change any law it pleases.
On the other hand, Justice Scalia believes that more legislation is just what is needed after the law already in place is reversed. In a secondary conclusion, he writes “We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution.” Id., at 636. He then follows this sentence by saying that the while the prohibition of handguns is denied by the Constitution, there are many other forms of regulation or public policy changes to keep handguns out of the hands of non-law-abiding or irresponsible citizens.
It is interesting that just as they so vehemently disagree throughout their opinions, they are looking to the future and see completely different effects of the current case. Every justice of the Supreme Court is extremely well versed in the world of politics and law but they are still able to see completely different outcomes in terms of what has been done and what should be done next.
Works Cited
District of Columbia v. Heller, 554 U.S. 570 (2008)
Schauer, Frederick. Thinking Like a Lawyer: A New Introduction to Legal Reasoning. President and Fellows of Harvard College, 2009. Print.