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07/22/2022

Bruen is Wrong, Because Heller and McDonald are Wrong
David Weisberg

New York State Rifle Association & Pistol Inc. v. Bruen struck down New York’s “proper-cause” requirement for an unrestricted license to carry a concealed firearm.  (Posts herehere, and here discuss the case.)  The correctness of the result in Bruen depends on the correctness of D.C. v. Heller and McDonald v. Chicago, and McDonald depends on Heller.  I think all three were wrongly decided.  (A more complete statement of my view is here.)

Justice Scalia’s majority opinion in Heller is both foundational and fatally flawed.  The greatest obstacle to recognizing its flaw is, ironically, the fact that Justice Scalia is correct in his main dispute with Justice Stevens.  They wrangled over whether the 2nd Amendment (per Stevens) prohibits the federal government from infringing the right of the people to keep and bear arms only while they are serving in a State’s militia, or (per Scalia) prohibits the federal government from infringing that right regardless of militia service.  The drafters could have written: “The right of the people to keep and bear Arms, when serving in the well-regulated Militia of a State, shall not be infringed.”  They didn’t.  Score one for Scalia.

But Scalia’s victory in what apparently is “the main event” obscures his fatal error regarding the source of the right.  Scalia asserts: “[I]t has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.”  (554 US 592, original emphasis.)  The question arises: What is the source of that pre-existing right?  Scalia’s answer: “self-defense … was the central component of the right itself.”  (554 US 599, original emphasis.) 

Arms of all kinds—pistols, rifles, etc.—can be used in self-defense, but so can a brick.  The fact that a firearm can be used in self-defense does not establish that the right to self-defense is the central component of the right to own and use firearms, any more than the fact that a brick can be used in self-defense establishes that the right to self-defense is the central component of the right to buy, keep and use a load of bricks. If self-defense were indeed the central component of the arms-bearing right, one would expect the 2nd Amendment to read something like: “Self-defense, being a right enjoyed by every person, the right of the people to keep and bear Arms, shall not be infringed.”  It does not.  A red flag waves.    

I believe there are irrefutable objections to Scalia’s idea that self-defense is the central component of the pre-existing right.  The first derives from Scalia’s reliance on Blackstone, who “cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen.”  (554 US 594.)  But that provision says: “That the Subjects which are Protestants, may have Arms for their Defense suitable to their conditions, and as allowed by Law.”  (554 US 593.)  This may well indicate, as Scalia argued, that the right isn’t limited to militia service, but it contradicts the notion that self-defense was the central component of the right. 

Surely Catholics in England in 1689 had a right of self-defense even if they could not lawfully have arms for their defense, and Protestants themselves were limited in their right to have arms.  I submit that self-defense cannot be the central  component of an arms-bearing right that is limited by social condition or by law, because in 1689, 1791 or 2022 one may do literally anything—including using a weapon that one is prohibited by law from owning or using—in a valid case of self-defense.  Of course, if I use a firearm which I am not licensed to possess or use, I may be criminally liable for that offense.  Nevertheless, I would still have a perfectly valid claim of self-defense if I used that unlicensed firearm to injure or kill a person who presented an imminent unlawful threat of grave bodily harm to me or any other person.

A second objection—Scalia writes:

Like most rights, the right secured by the Second Amendment is not unlimited. … [N]othing 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 sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.  (554 US 626-27, footnote omitted.)

But the “longstanding prohibitions” on the arms-bearing right are all inconsistent with the supposed central component of the right.

If self-defense is the central component of a right, it would follow that a limitation on the right would be a limitation on self-defense.  But none of Scalia’s limitations on arms-bearing are limitations on self-defense.  If, e.g., I use a firearm in a public building where firearms are prohibited, that prohibition would be irrelevant to my affirmative defense of self-defense.  I could be punished for violating the prohibition, but the prohibition remains irrelevant to the issue of self-defense.  The same irrelevance obtains with respect to every one of Scalia’s limitations.

A third objection: Scalia relies on U.S. v. Cruickshank, 92 US 542 (1876)in which the Court vacated the convictions of white men who had killed several black men; the defendants were convicted of violating the decedents’ rights under federal law and the Constitution by, inter alia, depriving them of rights under the 2nd Amendment.  Cruickshank vacated the convictions because the right referred to in the 2nd Amendment pre-existed that amendment and thus was “not a right granted by the Constitution[.]”  (92 US 553.)  

Justice Scalia cites Cruickshank for two purposes: to confirm that the right referred to in the 2nd Amendment pre-exists the amendment (554 US 592), and to support the “individual-rights interpretation” of the 2nd Amendment.  He says this about the latter:

There was no claim in Cruikshank that the victims had been deprived of their right to carry arms in a militia; indeed, the Governor had disbanded the local militia unit the year before the mob’s attack[.] … We described the right protected by the Second Amendment as “ ‘bearing arms for a lawful purpose’” and said that “the people [must] look for their protection against any violation by their fellow-citizens of the rights it recognizes” to the States’ police power. … That discussion makes little sense if it is only a right to bear arms in a state militia.  (554 US 620, citations and footnotes omitted.)

Thus, Scalia himself asserts (and I agree) that “the States’ police power” underlies the arms-bearing right.  Yet he also approvingly notes Blackstone’s recognition of “the natural right” of self-defense.  (554 US 594.)  But natural rights are the opposite of rights created or protected by “the State’s police power.”  The “self” in “self-defense” contradicts the notion that the right of self-defense is dependent on a State’s police power.  Thus, if the State’s police power enforces citizens’ arms-bearing rights (as Scalia himself asserts), then the natural right of self-defense cannot be the central component of those rights.

Fourth objection: Scalia asserts that “the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right … was codified in a written Constitution.”  (554 US 599.)  But the primary targets of an overbearing federal government would be the States, which is why the 2nd Amendment prefatory clause recites: “A well regulated Militia, being necessary to the security of a free State[.]”  If the States are the entities primarily threatened by a potentially overbearing federal government, it makes perfect sense to have each State determine, through its own laws and constitution, who among its citizens shall be armed.  It makes no sense to say that, because the States might be threatened, every individual person has a right, derived from some fanciful connection to the right of self-defense, to be armed.   

In sum, on a proper understanding of the 2nd Amendment, each State decides who will be permitted to be armed within its borders, and under what conditions that permission will be granted.  The amendment serves only to prohibit the federal government from interfering in those decisions.  That is why HellerMcDonald and Bruen were all wrongly decided.