Heller's catch-22

UCLA Law Review

Volumn 56, Issue 5, 2009, Pages 1551-1577

  Winkler, Adam ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 70349813735     PISSN: 00415650     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (158)

1. JOSEPH HELLER, CATCH-22 (1961).
2. id. at 46.
3. 128 S. Ct. 2783 (2008).
4. See supra note 30.
5. See, e.g., David Nakamura & Robert Barnes, D.C.'s Ban on Handguns in Homes Is Thrown Out, WASH. POST, Mar. 10, 2007, at A1.
6. D.C. CODE ANN. §7-2502.01 (a) (LexisNexis 2008).
7. Seeid. §7-2502.02(a)(4).
8. See D.C CODE ANN. §224504(a) (LexisNexis 2008).
9. See Bsharah v. United States, 646 A.2d 993, 996 n.12 (D.C. 1994) ("It is common knowledge ... that with very rare exceptions licenses to carry pistols have not been issued in the District of Columbia for many years and are virtually unobtainable.").
10. See D.C. CODE ANN. §22-4504 (a) (making it a crime to carry a pistol without exception).
11. See Christopher Keleher, District of Columbia v. Heller: The Death Knell for Illinois Handgun Bans?, 96 ILL. B.J. 402, 405 (2008) ("Forty-eight states maintain concealed carry.").
12. See David B. Kopel, The Licensing of Concealed Handguns for Lawful Protection: Support From Five State Supreme Courts, 68 ALB. L. REV. 305 & n.3 (200.5) (listing California, Delaware, Hawaii, Maryland, and Massachusetts as states with "discretionary licensing" where, "especially in big cities, it may be very difficult to obtain a permit").
13. See the account provided in Complaint for Damages, Spears v. City of Torrance, No. 2:08-CV-03686 (SSx) (CD. Cal. June 5, 2008), available at http://www.californiaconcealedcarry.com/ cccw/cache/pdffiles/tonance-complaint. pdf.
14. D.C CODE ANN. §7-2507.02 (LexisNexis 2008).
15. Cf. McIntosh v. Washington, 395 A.2d 744, 755-56 (D.C. 1978) (recognizing that the D.C. law only allowed assembling or unlocking a long gun for "lawful recreational purposes").
16. There is one shooting range in the District of Columbia, belonging to the Metropolitan Police; it is neither open to the public nor does it permit the firing of long guns. The National Rifle Association's comprehensive directory of firing ranges lists this as the only firing range in the District. Nat'l Rifle Ass'n Headquarters, Shooting Range Services: Find a Local Range, http://www.nrahq.com/shootingrange/findlocal.asp ?State=DC (last visited Apr. 16, 2009). Independent research has turned up no others.
17. David B. Kopel, Clueless: The Misuse of BATF Firearms Tracing Data, 1999 L. REV. M.S.U.-D.C.L. 171, 180;
18. accord Bruce H. Kobayashi & Joseph E. Olson, In Re 101 California Street: A Legal and Economic Analysis of Strict Liability for the Manufacture and Sale of "Assault Weapons," 8 STAN. L & POL'Y REV." 41, 43 (1997).
19. See GARY KLECK, TARGETING GUNS: FIREARMS AND THEIR CONTROL 111 (1997);
20. WILLIAM J. VIZZARD, SHOTS IN THE DARK: THE POLICY, POLITICS, AND SYMBOLISM OF GUN CONTROL 140-41 (2000).
21. ROBERT J. SPITZER, THE POLITICS OF GUN CONTROL 133 (4th ed. 2008).
22. SEE DANIEL R. VICE, BRADY CTR. TO PREVENT GUN VIOLENCE, THE NRA: A CRIMINAL'S BEST FRIEND: HOW THE NATIONAL RIFLE ASSOCIATION HAS HANDCUFFED FEDERAL GUN LAW ENFORCEMENT 2 (2006), http://www.bradycampaign.org/pdf/facts/ reports/ enforcement-fable.pdf.
23. See id. at 8-10, 12-18.
24. See 18 U.S.C. §§921-922 (2006).
25. See Mike Wereschagin, Gun Bill Mandates Sharing Records in Nation, Pa., PITTSBURGH TRIB.REV., July 25, 2007, available at http://www.pittsburghlive.com/ x/pittsburghtrib/news/s-518889.html (noting the Gun Owners of America's opposition to a bill refonning the state reporting obligations).
26. See Linda M. Harrington, In 8 Years Toll Soars as Brady Gun Bill Awaits OK, CHI. TRIB., Aug. 23,1993, at 1 (noting the Gun Owners of America and National Rifle Association's opposition to the Brady Bill).
27. SPITZER, supra note 19, at 140. Spitzer does however note that as of the year 2000, eleven states did require background checks of unlicensed dealers. id. For a definition of" the secondary market, see Violence Policy Center, An Agenda for Genuine Gun Control (1999) http://www.vpc.org/ fact-sht/agenda.htm.
28. SPITZER, supra note 19, at 140.
29. id. at 139.
30. See Wayne LaPierre, Op-Ed., Illegal Sales Already Covered, USA TODAY, Dec. 13, 2001, at 13A (stating opposition to closing the gun show loophole).
31. See Ben DuBose, Senators Try to Widen Scope of Firearm Background Checks, L.A. TIMES, Feb. 1, 2008, at All (referencing Larry Pratt, executive director of Gun Owners of America, voicing opposition to closing the gun show loophole).
32. Cf. J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 VA. L. REV. 253, 256 (2009);
33. Linda Greenhouse, SIDEBAR: 3 Defining Opinions, N.Y. TIMES, July 13, 2008, at WK4;
34. Eric Posner, Will Heller Implode?, SLATE, June 29, 2008, http://www.slate.com/blogs/blogs/ convictions/archive/2008/06/29/will-heller- implode.aspx. These sources refer to the possibility that Heller is a triumph of originalism, in those terms, without hailing the decision. For hailing on these grounds (without using that phrase),
35. see Debra Cassens Weiss, Second Amendment Ruling Is Justice Scalia's Originalism "Legacy," A.B.A. J., June 27, 2008, available at http://abajournal.com/news/ second-amendment-ruling-is-justice-scalias- originalism-legacy.
36. See District of Columbia v. Heller, 128 S. Ct. 2783, 2789-812 (2008).
37. See Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849 (1989) (arguing for originalism).
38. See id. at 854-55, 863-64.
39. id.
40. Greenhouse, supra note 30.
41. Elaine McArdlle, In Inaugural Vaughan Lecture, Scalia Defends the "Methodology of Originalism," SPOTLIGHT HARV. L SCH., Oct. 3, 2008, http://www.law.harvard.edu/news/spotlight/constitutionallaw/scalia-vauglian- lecture.html.
42. See Richard Posner, In Defense of Looseness: The Supreme Court and Gun Control, NEW REPUBLIC, Aug. 27, 2008, at 32.
43. See Adam Liptak, Ruling on Guns Elicits Rebuke From the Right, N.Y. TIMES, Oct. 21, 2008, at AI (noting Posner's reputation);
44. Brian Tamanaha, Are We Witnessing the Receding Tide of Law and Economics? (The Evolving Views of Judge Posner), BALKINIZATION, Dec. 17, 2008, http://balkin.blogspot.com/search?q= Are+We+Witnessing+the+Receding+Tide+of+Law+and+E conomics%3F (same).
45. See Douglas Kmiec, Guns and the Supreme Court: Dead Wrong, TIDINGS ONLINE, July 11, 2008, http://www.the-tidings.com/2008/071108/kmiec.htm.
46. See Wilkinson, supra note 30.
47. Jeffrey Rosen, McJustice: Liberals' Long-Feared Judicial Apocalypse Is Nigh, NEW REPUBLIC, NOV. 5, 2008, at 19-21.
48. Posner, supra note 37, at 33.
49. id. at 32; see also Kmiec, supra note 39.
50. See Wilkinson, supra note 30, at 266-67.
51. id. at 256.
52. Posner, supra note 37, at 35.
53. See HELLER, supra note 1, at 400.
54. Harris Interactive, Second Amendment Supreme Court Ruling Matches With Public Opinion From the Harris Poll, HARRIS POLL, June. 26, 2008, http://www.harrisinteractive.com/ harris-poll/index.asp?PID=922.
55. See District of Columbia v. Heller, 128 S. Ct. 2783, 2817-18 (2008)
56. (quoting Parker v. District of Columbia, 478 F.3d 370, 400 (D.C. Cir. 2007)).
57. id. at 2818.
58. See id. at 2815-17.
59. Under the National Firearms Act of 1934, machine guns can only be lawfully owned by civilians with specific authorization from government. See National Firearms Act of 1934, 48 Stat. 1236 (1934) (codified as amended at 26 U.S.C. §§5801-5872 (2000)).
60. Heller, 128 S. Ct. at 2816-17.
61. HELLER, supra note 1, at 398.
62. id.
63. Some of these forms of gun control were described in Justice Breyer's dissent. See Heller, 128 S. Ct. at 2848-50 (Breyer, J., dissenting). For a more comprehensive treatment, see SAUL CORNELL, A WELL-REGULATED MILITIA: THE FOUNDING FATHERS AND THE ORIGINS OF CIUN CONTROL IN AMERICA 26-30 (2006).
64. See CORNELL, supra note 56, at 3 & 27.
65. See id. (noting that some militia statutes allowed the government to keep track of who had firearms).
66. See Robert H. Churchill, Gun Ownership in Early America: A Survey of Manuscript Militia Returns, 60 WM. & MARY Q. 615, 620 (2003) [hereinafter Churchill, Gun Ownership];
67. Robert H. Churchill, Gun Regulation, the Police Power and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment, 25 LAW & HIST. REV. 139, 161 (2007) [hereinafter Churchill, Gun Regulation].
68. See, e.g., Act of June. 26, 1792, ch. 10, 1792 Mass. Acts 208 (addressing the carting and transporting of gunpowder in Boston);
69. Act of Mar. 1, 1783, ch. 13, 1783 Mass. Acts 218 (prohibiting the storage of firearms loaded with gunpowder in dwellings and other buildings in Boston);
70. Act of Apr. 13,1784, ch. 28,1784 N.Y. Laws 627 (concerning the storage of gunpowder).
71. CORNELL, supra note 56, at 28-29.
72. Churchill, Gun Regulation, supra note 59, at 157-60.
73. CORNELL, supra note 56, at 28.
74. U.S. CONST., amend. II.
75. Nor are any of the laws on the laundry list defensible as unbroken traditions that reflect the original understanding. Some originalists, including Justice Scalia, argue that courts should defer to "constant and unbroken national traditions" that reflect the original meaning. See United States v. Virginia, 518 U.S. 515, 568 (1996) (Scalia, J., dissenting). But none of these exceptions originated in the Founding era or even in the immediate post-Revolutionary period. They are instead products of the popular understanding of the right to keep and bear arms as it evolved in the twentieth century. Would the ban on handguns be permissible today if it had been adopted in the 1930s instead of the 1970s, and if it was adopted by many jurisdictions rather than just a few? That seems to be enough for the Heller majority. But an originalist would demand that any tradition be consistent with the original meaning of the text. Otherwise, tradition trumps text. When the trumping tradition first emerges in the twentieth century, then the scope of constitutional protection is evolving to reflect contemporary values, conditions, and preferences. In short, we have a living Constitution.
76. District of Columbia v. Heller, 128 S. Ct. 2783, 2817 (2008).
77. Scholars have offered two historical bases for excluding felons from the Second Amendment. One argument is that felons were not part of "the people" mentioned in the Second Amendment. See Don B. Kates, Gun Rights for Felons?, N.Y. POST, July 22, 2008, available at http://www.nypost.com/seven/ 07222008/postopinion/opedcolumnists/gun-rights-fbr-felons-120908.htm . Heller, however, suggested that "the people" referred to in the Second Amendment should be treated the same as "the people" referred to in the First and Fourth Amendments.
78. See Heller, 128 S. Q. at 2790-91. Felons retain their rights under the First and Fourth Amendments, so Heller would seem to mean they must retain their rights under the Second Amendment too. Second, some have argued that the Founders understood the right to keep and bear arms to extend only to "virtuous" citizens.
79. See Don B. Kates, Jr., The Second Amendment: A Dialogue, 49 LAW & CONTEMP. PROBS., Winter 1986, at 143, 146;
80. Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 TENN. L REV. 461, 480 (1995). While this may be historically accurate, if anything it suggests the necessity of abandoning the original meaning of the Second Amendment. In modern constitutional law, rights are not selectively doled out by legislatures to those whom elected officials deem to be sufficiently virtuous or worthy. Indeed, for years gun rights advocates have railed against discretionary permitting precisely because it wrongfully allowed government officials to selectively grant the right to keep and bear arms. All this is not to say that felons shouldn't be disarmed. They should be. But it is not because they don't have the right to keep and bear anns. They do. But like all rights, the Second Amendment right can be limited when government has sufficiently good public policy reasons to do so. That some people are not virtuous enough for the legislature's liking is not a good public policy reason. That some people are too dangerous to permit to have firearms is. See infra text accompanying and following notes 118-119.
81. While states passed their own restrictions on felons possessing firearms during this era, the federal government effectively banned felons from purchasing firearms through the Federal Firearms Act of 1938. See Federal Firearms Act (Copeland Firearms Act), ch. 850, 52 Stat. 1252 (1938) (codified as amended at 18 U.S.C. §921-31 (2005)) (repealed 1968).
82. Heller, 128 S. Ct. at 2816-17.
83. id. at. 2823 (Stevens, J., dissenting).
84. HELLER, supra note 1, at 356.
85. id.
86. id. at 398.
87. See, e.g., Posner, supra note 37, at 34.
88. A comprehensive database of published and unpublished opinions relying on Heller is maintained by the author. Anyone can obtain the same information by running a simple Shepard's search of Heller.
89. See, e.g., United States v. Miller, No. CR 108-112, 2008 WL 5170440 (S.D. Ga. Dec. 9, 2008);
90. Holter v. United States, No. 2:08-CV-100, 2008 WL 5100846 (D. N.D. Dec. 1, 2008).
91. See, e.g., United States v. Yancey, No. 08-CR-103-BBC, 2008 WL 4534201 (W.D. Wis. Oct. 3, 2008).
92. See, e.g., United States v. Boffil-Rivera, No. 08-20437-CR-GRAHAM/TORRES, 2008 U.S. Dist. LEXIS 84633 (S.D. Fla. Aug. 12, 2008).
93. See, e.g., United States v. Booker, 570 F. Supp. 2d 161 (D. Me. 2008).
94. See, e.g., United States v. Artez, 290 Fed. App'x 203, 208 ( 10th Cir. 2008).
95. See, e.g., United States v. Fincher, 538 F.3d 868, 873-74 (8th Cir. 2008);
96. Hamblen v. United States, No. 3:08-1034, 2008 WL 5136586, at *3-4 (M.D. Tenn. Dec. 5, 2008).
97. See, e.g., United States v. Garnett, No. 05-CR-20002-3, 2008 WL 2796098, at *4 (E.D. Mich. July 18, 2008) (finding that District of Columbia v. Heller does not "cast[] doubt on the constitutionality of federal regulations over ... machineguns and silencers").
98. See, e.g., United States v. Walters, No. 2008-31, 2008 WL 2740398 (D.V.I. July 15, 2008).
99. See, e.g., United States v. Dorosan, No. 08-042,2008 WL 2622996 (E.D. La. June. 30,2008).
100. See, e.g., United States v. Hall, No. 2:08-00006, 2008 WL 3097558 (S.D. W. Va. Aug. 4, 2008).
101. See, e.g., United States v. Perkins, No. 4:08CR 3064, 2008 WL 4372821 (D. Neb. Sept. 23, 2008).
102. See, e.g., United States v. Heredia-Mendoza, No. CR08-5125BHS, 2008 WL 4951051 (W.D. Wash. Nov. 18, 2008).
103. See, e.g., District of Columbia v. Lewis, No. 2007 CDC 15745, 2008 WL 4961591 (D. D.C. Nov. 17, 2008).
104. See, e.g., Mullenix v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, No. 5:07-CV-154-D, 2008 WL 2620175, at *5 (E.D. N.C. July 2, 2008).
105. There have been two federal court decisions that struck down a provision in federal law that barred people charged with, but not yet convicted of, certain crimes from possessing arms; these decisions were both due process cases, not Second Amendment cases. See United States v. Arzberger, 592 F. Supp. 2d 590 (S.D.N.Y. 2008);
106. United States v. Kennedy, 593 F. Supp. 2d 1221 (W.D. Wash. 2008).
107. See, e.g., United States v. Luedtke, No. 08-CR-189, 2008 WL 4951139, at *1 (E.D. Wis. Nov. 18, 2008) (recognizing this pattern).
108. See, e.g., United States v. Booker, 570 F. Supp. 2d 161 (D. Me. 2008).
109. 18 U.S.C. §922(g)(9) (2006).
110. id.
111. District of Columbia v. Heller, 128 S. Ct. 2783, 2797-2804 (2008).
112. id. at 2817-18.
113. See CAL. PENAL CODE §12071(b)(3)(A) (West 2000).
114. Heller, 128 S. Ct. at 2816-17.
115. See generally CLAYTON E. CRAMER, CONCEALED WEAPON LAWS OF THE EARLY REPUBLIC: DUELING, SOUTHERN VIOLENCE, AND MORAL REFORM (1999).
116. For an account of dueling and the rise of concealed carry laws in the early 1800s, see id. at 139-41.
117. Heller, 128 S. Ct. at 2817-18.
118. U.S. CONST. amend. II.
119. Heller, 128 S. Ct. at 2791-817.
120. For example, the Georgia and Louisiana decisions relied upon by the Court invalidated bans on the open carrying of firearms in public on the basis of the self-defense rationale. See Nunn v. State, 1 Ga. 243, 251 (1846);
121. State v. Chandler, 5 La. Ann. 489, 490 (1850). Whether these cases have anything worthwhile to show about the original understanding of the. Second Amendment is highly doubtful. Notice the date of these two sources, a half-century after the ratification of the Bill of Rights.
122. It is akin to reading Lawrence v. Texas, 539 U.S. 558 (2003), which found a right to same-sex sodomy, as indicative of the original understanding of the Supreme Court justices who wrote
123. Griswold v. Connecticut, 381 U.S. 479 (1965), finding a right of privacy within the context of heterosexual marriage.
124. See RICHARD MAXWELL BROWN, No DUTY TO RETREAT 5 (1991).
125. See RICHARD G. SINGER & JOHN Q. LA FOND, EXAMPLES ¿k EXPLANATIONS: CRIMINAL LAW 444-45 (4th ed. 2007).
126. See Cooper v. United States, 512 A.2d 1002, 1005 (D.C. 1986) (discussing the castle doctrine).
127. 665 N.W.2d 785 (Wis. 2003).
128. Id. at. 789-90 nn.1-2.
129. Id. at 789.
130. Id. at 808-12.
131. Id. at 791.
132. See Mark Johnson, Grocer Endures Risk to Support His Family, MILWAUKEE J. SENTINEL, July 19, 2000, at 1B.
133. Hamdan, 665 N.W.2d at 812.
134. Id. at 809.
135. District of Columbia v. Heller, 128 S. Ct. 2783, 2821 (2008).
136. Id.
137. Cf. Near v. Minnesota, 283 U.S. 697, 716 (1931) (recognizing the legitimacy of restrictions on publication of the location of military troops).
138. Cf. JOHN R. LOTT, JR., MORE GUNS, LESS CRIME: UNDERSTANDING CRIME AND GUN-CONTROL LAWS (1998) (arguing that allowing concealed carry of firearms reduces violent crime).
139. Heller, 128 S. Ct. at 2817.
140. For a historical assessment of the transformation of popular understandings of the Second Amendment from a militia-based right to one based on personal self-defense, see generally CORNELL, supra note 56.
141. See Adam Winkler, Scrutinising the Second Amendment, 105 MICH. L. REV. 683, 686 (2007).
142. See Wilkinson, supra note 30, at 301-02.
143. See MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 48 (1987);
144. Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U. L REV. 1185, 1199-1208 (1992);
145. Jeffrey Rosen, Dissenting, in WHAT ROE V. WADE SHOULD HAVE SAID 170 (2005).
146. For a persuasive contrary view, see David J. Garrow, Abortion Before and After Roe v. Wade: An Historical Perspective, 62 ALB. L REV. 833, 840-41 (1999).
147. Dennis A. Henigan, The Heller Paradox: A Response to Robert Levy, CATO UNBOUND, July 16, 2008, http://www.cato-unbound.org/2008/07/16/dennis-henigan/ the-heller-paradox-a-responseto-robert-levy/.
148. Jacob Sullum, Second Sight, REASON, Oct. 23, 2001, available at http://www.reason.com/ news/show/35880.html.
149. Glenn Harlan Reynolds, Letter to the Editor, REASON, June 1996, at 10, available at http://www.reason.com/news/show/29954.html.
150. See RONALD DWORKIN, A MATTER OF PRINCIPLE 71 (1985).
151. See Frank I. Michelman, The Supreme Court 1985 Term: Foreword: Traces of Self-Govemment, 100 HARV. L. REV. 4, 76-77 ( 1986).
152. See ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT 14 (4th ed. 2005).
153. 347 U.S. 483 (1954).
154. See Jon S. Vernick et al., Public Opinion Polling on Gun Policy, 12 HEALTH AFF. 198, 204-05 (1993) (reviewing public opinion polls).
155. See TOM W. SMITH, 2001 NATIONAL GUN POLICY SURVEY OF THE NATIONAL OPINION RESEARCH CENTER 34 (2001), available at http://www.mindchanging.com/politics/ guncontrolsurvey.pdf. Some studies find somewhat greater support for a handgun ban, although the position consistently has less than majority support.
156. See Vernick et al., supra note 133, at 206.
157. See SMITH, supra note 134, at 2;
158. accord Vernick et al., supra note 133, at 201-05.