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04/02/2021

If the Supreme Court Reviews Young v. Hawaii, It Might Well Make Bad Law Even Worse
David Weisberg

The recent en banc decision of the U.S. Court of Appeals for the Ninth Circuit in Young v. Hawaii held (7 to 4) that Hawaii’s restrictions on the open carrying of firearms in public do not violate the Second Amendment.  Prof. Ramsey wonders whether the case will reach the Supreme Court.  I fear that, if it does, the Court will only create further confusion and muddle in an area where it has already made bad law.

I’ve written an SSRN article entitled, “A Unique, Stand-Alone Second Amendment Implies that Both Heller and McDonald  Were Wrongly Decided.”  As we know, D.C. v. Heller, 554 US 570 (2008), held that the District violated the Second Amendment when it prohibited any resident from possessing an operable handgun in the home for self-defense.  McDonald v. Chicago, 561 US 742 (2010), held that, because the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the States, similar regulations imposed in Chicago also violated the amendment.  

The title of my article constitutes full disclosure, but limited space prevents full exposition of my arguments.  One startling fact can, however, be noted: Justice Scalia’s opinion for the 5 to 4 Heller majority—which he referred to in 2013 as his “legacy opinion”—is literally self-contradictory on its face.  Under the heading “Meaning of the Operative Clause,” Justice Scalia asserted: “[I]t has always been widely understood that the Second Amendment…codified a pre-existing right.  The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’ ”  (554 US at 592, emphasis in original.)  But, under the heading “Relationship Between Prefatory Clause and Operative Clause,” we find: “Does the preface fit with an operative clause that creates an individual right to keep and bear arms?  It fits perfectly, once we know the history that the founding generation knew[.]”  (554 US at 598.) 

Thus, in the course of six pages, the right to keep and bear arms morphed from one that (with Justice Scalia’s own emphasis) pre-exists the Second Amendment into one that the amendment “creates.”  A right can’t pre-exist, and also be created by, an amendment—it’s one or the other, but not both.  The fact that a judicial opinion is self-contradictory doesn’t prove that its announced result is bad law.  But a logically incoherent argument surely would make any thoughtful person extremely cautious about accepting the conclusion that argument supposedly supports. 

I think the fundamental error in Justice Scalia’s Heller opinion was his belief that “self-defense…was the central component of the right” referred to in the Second Amendment.  (554 US at 599, emphasis in original.)  Thus, the right referred to in the amendment partakes of, or is somehow related to, the natural right of self-defense.  But Justice Scalia also asserts that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in…schools and government buildings[.]”  (554 US at 626.) 

All these exceptions are inconsistent with the notion that self-defense is “the central component” of the right referred to in the amendment.  Felons and the mentally ill could all use firearms while legitimately acting in self-defense.  Similarly, anyone could have properly acted in self-defense, even if he or she used a firearm in a school or a public building.  If self-defense is “the central component” of the amendment, and all these persons might have used a firearm for legitimate self-defense, why are the “longstanding prohibitions” valid?   There are a multitude of other objections to Justice Scalia’s invocation of a link between the amendment and the right of self-defense, but space is wanting.    

I will simply submit that the source of the pre-existing right referred to in the Second Amendment is always positive law embodied in the constitution and laws of the States.  Therefore, the Second Amendment is violated only if the federal government purports to infringe a right granted by the laws of some State.  If, e.g., Congress purported to ban possession of handguns anywhere in the U.S., that ban would violate the Second Amendment where the law of a State or locality permitted such possession.

Moreover, if I’m correct that the amendment bars the federal government from infringing upon rights granted by a State’s law, then it would be logically impossible to incorporate the amendment in the Due Process Clause and apply it against the States, notwithstanding the contrary conclusion in McDonald.  If the amendment applies to the States, that would mean that the States, like the federal government, may not infringe upon the right of the people to keep and bear arms.  But Illinois banned the possession of handguns in Chicago.  Thus, Chicagoans had no right, under Illinois law, to possess handguns.  The Second Amendment (Justice Scalia emphatically insisted, when he was being duly careful) refers only to pre-existing rights; it does not create any rights.  Therefore, it is logically impossible for Illinois to infringe upon a right Chicagoans do not have.

Alas, none of the foregoing would likely figure into the Supreme Court’s review of Young v. Hawaii.  In my opinion, the majority reached the correct result in Young.  Yet the very first sentence of the dissent boldly asserts: “The Second Amendment to the United States Constitution guarantees ‘the right of the people to keep and bear Arms.’”  (Emphasis in original.)  But it doesn’t.  Putting the prefatory clause aside, the amendment says the right of the people to keep and bear arms shall not be infringed by the federal government. If that “guarantees” anything, it guarantees only that the right of the people to keep and bear arms shall not be infringed by the federal government.  And, in saying that that right shall not be infringed by the federal government, the amendment does not say that that right (which, on my analysis, exists only to the extent granted by the constitutions and laws of a State) shall not be limited, or even extinguished, by the State that created the right in the first place. 

Finally, I don’t think stare decisis could reasonably be invoked to preserve Heller and McDonald.  The very fact that Hawaii, like many other States, still stringently regulates firearms indicates that those two precedents have not ushered in a new regulatory regime that could not readily be dismantled.  Lawrence v. Texas (2003) overruled Bowers v. Hardwick (1986) only 17 years after that case was decided; Heller was decided 13 years ago.  And one might well ask what weight stare decisis should be given when the most directly relevant precedent, McDonald, is explicitly derived from a case, Heller, that features an opinion that is self-contradictory on its very face.  

In an ideal world, a Supreme Court review of Young would result in overruling both Heller and McDonald, but, last time I looked, we weren't living in an ideal world.  The best outcome one could realistically hope for is that, rather than compounding its previous grievous errors, the Court would affirm the Ninth Circuit's decision and leave it at that.