Historians are not required to limit themselves to those questions that people in the past explicitly posed, but we do have to acknowledge the risks involved when we impose our own. In this case, the question of an individual right to bear arms did not make sense in a society where everyone eligible for militia duty was required to participate.
Short of the kind of Rousseau-style abstract analysis of the individual which divides human males into both a private man and a public citizen, in a society with universal male militia participation it is impossible to separate the definitely-arms-bearing militia member from the possibly-but-not-definitely-arms-bearing private citizen. And yet, the ruling in Heller required a decision on just this matter. This difficulty is why the ruling deserved to be answered one way or the other.
Heller is not bad history because it rules that individuals had the right to bear arms outside of participation in the militia.
With this approach, Scalia shifted the decision from a questionable but defensible answer to the question the court had been asked, to a mischaracterization of the nature of the amendment itself. That mischaracterization, rather than the decision itself, is what makes Heller such bad history. Your email:. Toggle navigation Main Menu. Search the Blog. Subscribe to Second Thoughts Receive email notifications when new posts are written.
After all, Kennedy had been one of the three decisive votes that had saved Roe v. Wade from being overruled in Planned Parenthood v. Before the argument, I had decided that stare decisis provided a correct and sufficient basis for upholding the challenged gun regulation, but I nonetheless asked my especially competent law clerk, Kate Shaw, to make a thorough study of the merits of the argument that an independent review of the historical materials would lead to the same result.
I wanted that specific study to help me decide which argument to feature in my dissent, which I planned to complete and circulate before Scalia completed his opinion for the majority. Shaw convinced me that Miller had been correctly decided; accordingly, I decided to feature both arguments in my dissent, which we were able to circulate on April 28, , five weeks before Scalia circulated the majority opinion on June 2, In the cover memorandum for my probable dissent, I wrote:.
The enclosed memorandum explains the basis for my firm belief that the Second Amendment does not impose any limit whatsoever on the power of the federal government to regulate the non-military use or possession of firearms.
I have decided to take the unusual step of circulating the initial draft of a probable dissent before [Scalia] circulates his majority because I fear the members of the majority have not yet adequately considered the unusual importance of their decision.
We have profound differences over our role in areas of the law such as the Eighth Amendment and substantive due process, but I believe we all agree that there are areas of policy-making in which judges have a special obligation to let the democratic process run the show …. What has happened that could possibly justify such a massive change in the law? The text of the amendment has not changed.
The history leading up to the adoption of the amendment has not changed … There has been a change in the views of some law professors, but I assume there are also some professors out there who think Congress does not have the authority to authorize a national bank, or to regulate small firms engaged in the production of goods for sale in other states, or to enact a graduated income tax.
In my judgment, none of the arguments advanced by respondents or their numerous amici justify judicial entry into a quintessential area of policy-making in which there is no special need or justification for judicial supervision.
The District Court dismissed the suit, but the D. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Neither United States v. Cruikshank , 92 U. Illinois , U. United States v. Miller , U. Like most rights, the Second Amendment right is not unlimited.
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