The second amendment, Heller, and originalist jurisprudence

UCLA Law Review

Volumn 56, Issue 5, 2009, Pages 1343-1376

  Lund, Nelson ^a   Henry, Patrick ^a  

^a GEORGE MASON UNIVERSITY   (United States)

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EID: 70349840610     PISSN: 00415650     EISSN: None     Source Type: Journal    
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References (165)

1. 128 S. Ct. 2783 (2008).
2. One response to these critiques has been that such judicial amendments are justified by the good results they produce. See, e.g., CASS R. SUNSTEIN, RADICALS IN ROBES: WHY EXTREME RIGHT-WING COURTS ARE WRONG FOR AMERICA 73 (2005). I deny that judges are authorized to amend the Constitution, whether or not they are right to think an amendment is needed. Nor is it clear that judges can be expected to make amendments that are on the whole beneficial.
3. See, e.g., John O. McGinnis & Michael B. Rappaport, A Pragmatic Defense of Originalism, 31 HARV. J.L. & PUB. POL'Y 917 (2008).
4. See, e.g., Erwin Chemerinsky, The Jurisprudence of Justice Scalia: A Critical Appraisal, 22 U. HAW. L. REV. 385, 385 (2000) ("Justice Scalia uses [original meaning jurisprudence] selectively when it leads to the conservative results he wants, but ignores [it] when it does not generate the outcomes he desires.");
5. Christopher L. Eisgruber, Birthright Citizenship and the Constitution, 72 N.Y.U. L. REV. 54, 89 (1997) ("Scalia prefers a Constitution that authorizes the judiciary to protect certain libertarian rights.");
6. Gene R. Nichol, Justice Scalia and the Printz Case: The Trials of an Occasional Originalist, 70 U. COLO. L. REV. 953, 968 (1999) (" [Originalism's] principal advocates relentlessly refuse to stick by it. Originalism works if they agree with the outcome dictated by history. If history does not lead them where they want to go, they simply reject it.");
7. see also David M. Zlotnick, Justice Scalia and His Critics: An Exploration of Scalia's Fidelity to His Constitutional Methodology, 48 EMORY L.J. 1377, 1423 (1999) ("Occasionally reaching 'liberal' results such as [invalidating bans on flag burning] has proven very useful to Scalia. He holds up the contrarian cases as proof that his methodology is politically neutral and constrains judicial discretion.").
8. Recent decades have seen an outpouring of scholarly debate about the merits of various versions of originalism and non-originalism. A review of that debate is beyond the scope of this Article.
9. See, e.g., Gary Lawson, The Constitutional Case Against Precedent, 17 HARV. J.L. & PUB. POL'Y 23 (1994);
10. Michael Stokes Paulsen, The Intrinsically Corrupting Influence of Precedent, 22 CONST. COMMENT. 289 (2005).
11. See, e.g., THE FEDERALIST No. 37, at 269 (James Madison) (Benjamin Fletcher Wright. ed., 1961 ) ("All new laws... are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.");
12. THE FEDERALIST NO. 78, at 496 (Alexander Hamilton) (Benjamin Fletcher Wright ed., 1961) ("To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.").
13. This need not lead to the conclusion that stare decisis is inconsistent with originalism or that originalists necessarily deploy stare decisis opportunistically, as a rhetorical device to defend decisions reached on other grounds. For somewhat different efforts to articulate an originalist theory of stare decisis, see, for example, Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 VA. L. REV. 1 (2001),
14. and John O. McGinnis & Michael B. Rappaport, Reconciling Originalism and Precedent (Dec. 1, 2008) (unpublished manuscript, on file with author).
15. Ordinarily, the Stevens position is called the collective- or states'-right interpretation. He rejects this label in the first paragraph of his dissent, agreeing that individuals have legal standing to vindicate the right. The insignificance of the label is shown by Justice Stevens' description of this nominally individual right as "the right of the people of each of the several States to maintain a well-regulated militia." District of Columbia v. Heller, 128 S. Ct. 2783, 2822 (2008) (Stevens, J., dissenting).
16. Id.
17. The arguments and evidence that I have advanced in support of the conclusion reached by Justice Scalia are summarized in Nelson Lund, D.C.'s Handgun Ban and the Constitutional Right to Arms: One Hard Question?, 18 GEO. MASON U. CIV. RTS. L.J. 229 (2008), and set forth in more detail in the articles cited therein at page 229, note.
18. See Heller, 128 S. Ct. at 2799.
19. Id. at 2797 ("The very text of the Second Amendment implicitly recognizes the préexistence of the right and declares only that it 'shall not be infringed.'").
20. Id. at 2801 (stating that the Second Amendment's prefatory phrase "can only show that self-defense had little to do with the right's codification; it was the central component of the right itself").
21. For an argument supporting this conclusion, see Lund, supra note 10, at 236-45.
22. Heller, 128 S. Ct. at 2801.
23. Id. at 2800 ("Although the militia consists of all able-bodied men, the federally organized militia may consist of a subset of them.").
24. See id. at 2799-2800.
25. The text of the Constitution does appear to assume that there will be a militia that can be called upon when needed. It is also true that there was considerable sentiment at the time, of the founding favoring a militia comprising most able-bodied men, and it is true that the preexisting state militia laws of the time generally assigned militia duties accordingly. Beginning only a year after the adoption of the Second Amendment, however, Congress assumed that Article I gave it the authority to exempt many able-bodied men from militia duties. See Act of May 8, 1792, ch. 33, 1 Stat. 271. Moreover, Congress has now included some women in the militia.
26. See 10 U.S.C. § 311 (2006). Whatever truth there may be in the proposition, both abstract and imprecise, that the Constitution assumed the existence of a militia consisting of all able-bodied men, the Constitution also gave Congress virtually plenary authority to define the militia differently for all practical purposes.
27. U.S. CONST, art. I, §8, cl. 16. The imprecision of Justice Scalia's definition is illustrated by the founding-era sources that he cites in its support.
28. See Heller, 128 S. Ct. at 2799. One of the cited sources, a quote from a letter that Thomas Jefferson wrote in 1811, says just what Justice Scalia says: "[T]he militia of the State, that is to say, of every man in it able, to bear arms."
29. Id.
30. (citing Letter From Tilomas Jefferson to Destutt de Tracy (Jan. 26, 1811), in THE PORTABLE THOMAS JEFFERSON 520, 524 (Merrill D. Peterson ed., 1975)). Justice Scalia also offers a Madison quotation from the Federalist Papers: "near half a million of citizens with arms in their hands."
31. Id.
32. (citing THE FEDERALIST No. 46, supra note 6, at 334). This, however, is not a definition at all, but a description of the militia as it then existed and was organized, as the context clearly indicates. Madison is claiming that oppression by federal armies is little to be feared because, they would be opposed by "a militia amounting to near half a million of citizens with anns in their hands, officered by men chosen from among themselves... and conducted by governments possessing their affections and confidence."
33. THE FEDERALIST No. 46, supra note 6, at 334. The third, source, Webster's 1828 dictionary, gives a definition that on its face is significantly different from Justice Scalia's: "the able bodied men organized into companies, regiments and brigades... and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations."
34. 2 NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE 15 (New York, S. Converse 1828). This last definition, moreover, is the most relevant because, it is a deliberate effort by a lexicographer to capture the generally accepted usage of the term. Thus, while it is was widely agreed that the militia should, and at that time did, include most able-bodied men, it is at best misleading to say that "the militia" means "all able-bodied men."
35. One might try to save Justice Scalia's opinion from absurdity by interpreting it to mean that the right to anns was codified in the Constitution in order to prevent the elimination of a "selfarmed militia." But that is not what he says, and more, importantly it is not what the Constitution says. The constitutional text refers to a "well regulated Militia," which does not necessarily mean "all able bodied men owning and/or bearing their privately-owned arms." Justice Scalia's only comment on this part of the constitutional text is his assertion that "the adjective 'well-regulated' implies nothing more than the imposition of proper discipline and training." Heller, 128 S. Ct. at 2800 (citations omitted). This is accurate enough, but it simply makes more conspicuous Justice Scalia's complete failure to explain how the codification of a private right to arms could contribute to the preservation of a well regulated militia.
36. Stated as concisely as possible: A well regulated militia is one that is, among other things, not inappropriately regulated. The codification of the people's right to keep and bear arms in the Constitution served to prevent Congress from using its Article I authority to adopt inappropriate, militia regulations that infringed on that right. For more detailed presentations of the arguments leading to this conclusion, see Brief of the Second Amendment Foundation as Amicus Curiae Supporting Respondent at 6-28, Heller, 128 S. Ct. 2783 (2008) (No. 07-290);
37. Lund, supra note 10, at 235-45;
38. Nelson Lund, The Past and Future of the Individual's Right to Arms, 31 GA. L. REV. 1, 20-26 (1996).
39. I have explained why I think this conclusion is correct in the sources cited supra note 20.
40. Heller, 128 S. Ct. at 2821. Justice Breyer's opinion, joined by all four of the Heller dissenters, assumes for the sake of argument that the Second Amendment protects an individual right to have weapons for self defense.
41. See id. at 2847 (Breyer, J., dissenting). Justice Breyer then balances the individual's interest in self defense against the government's interest in public safety, and concludes that D.C.'s regulations should be upheld.
42. See id. at 2854-70 (Breyer, J., dissenting).
43. See id. at 2819-20 (majority opinion).
44. Even a court that was extremely deferential to the legislature recognized that this kind of regulation would go too far. See State v. Reid, 1 Ala. 612, 616-17 (1840) ("A statute which, under the pretence, of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional.").
45. The English Bill of Rights provided that "the Subjects which are Protestants may have Anns for their Defence suitable to their Conditions and as allowed by Law." Bill of Rights, 1 W. & M., 2d Sess., c. 2 (1689) (Eng.).
46. Americans would have been familiar with the English constitutional right primarily through Blackstone's description of it: [T]hat of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the [English Bill of Rights] and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression. WILLIAM BLACKSTONE, 1 COMMENTARIES * 143-44. Although this passage might be read as a hint that the constitutional right was broader than the one described in the English Bill of Rights, it need not be so read. Even if there is such a hint, the passage does not indicate how or how much any such broader right might have differed from the right as it was described in 1689.
47. Only four of the fourteen states in the Union in 1791 had right-to-arms provisions in their constitutions: Massachusetts, North Carolina, Pennsylvania, and Vermont. See Heller, 128 S. Ct. at 2802-03.
48. See, e.g., Markman v. Westview Instruments, Inc., 517 U.S. 370, 376 (1996).
49. See, e.g., Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 42 (1989).
50. Heller, 128 S. Ct. at 2817-18 (footnote and citation to opinion of the court below omitted) (emphasis added).
51. Id. at 2816-17.
52. Id. In a footnote to the sentence containing this dictum and the dicta about sensitive places and commercial sales discussed below, the Court says, "We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive."
53. Id. at 2817 n.26. The Court does not say how strong the presumption is, but the opinion later refers to these restrictions as "regulations of the right that we describe as permissible," and calls them "the exceptions we have mentioned."
54. Id. at 2821. And, at the very end of the opinion, the Court flatly declares: "The Constitution leaves the District of Columbia a variety of tools for combating [the problem of handgun violence], including some measures regulating handguns...."
55. Id. at 2822 (citing the page on which the Court had earlier endorsed the three Second Amendment exceptions). AU of this suggests that the presumption is very strong indeed, if it can be overcome at all.
56. See C. Kevin Marshall, Why Can't Martha Stewart Have a Gun?, 32 HARV. J.L. & PUB. POL'Y 695, 698-99, 735 (2009). Even limited bans on the possession of concealable weapons by violent felons were apparently not adopted until well into the twentieth century.
57. See id. at 707-08. It might be possible to interpret the sentence from Heller quoted in the text to refer only to those felon-in-possession laws that are in fact "longstanding," and perhaps a court determined to read the dictum narrowly might adopt such an interpretation. That is, however, a highly unnatural reading of the sentence, and such a court would still be left to wonder how long a particular felon-inpossession law has to have been in existence to be "longstanding."
58. Heller, 128 S. Ct. at 2818.
59. See Marshall, supra note 33, at 728-35.
60. Unlike Justice Scalia, Mr. Marshall provides a great deal of historical evidence to support his conclusions. The result of his analysis of the evidence is that Justice Scalia's broad endorsement of bans on fireanns possession by all felons is unsupported. Id. at 696-98.
61. Heller, 128 S. Ct. at 2816-17.
62. See generally Stephen P. Halbrook, "Only Law Enforcement Will Be Allowed to Have Guns": Hurricane Katrina and the New Orleans Firearm Confiscations, 18 GEO. MASON U. CIV. RTS. L.J. 339 (2008).
63. Heller, 128 S. Ct. at 2821.
64. Id. at 2817.
65. Id. at 2816 (citations omitted).
66. Id.
67. Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90 (1822), invalidated restrictions on the carrying of concealed weapons under a 1792 state constitutional provision commanding "that 'the right of the citizens to bear arms in defense of themselves and the state, shall not be questioned."'
68. Id. at 90 (citation omitted). Justice Scalia was presumably familiar with this case, which he cited for a different point elsewhere in his opinion.
69. See Heller, 128 S. Ct. at 2794 n.9.
70. Justice Scalia acknowledges that discussions long after the ratification of the Second Amendment "do not provide as much insight into its original meaning as earlier sources." Heller, 128 S. Ct. at 2810.
71. The entire opinion in State v. Mitchell, 3 Blackf. 229, 229 (Ind. 1833), for example, reads as follows: "It was held in this case, that the statute of 1831, prohibiting all persons, except travelers, from wearing or carrying concealed weapons, is not unconstitutional." This unexplained conclusion reveals nothing about the pre-1791 right to arms.
72. State v. Reid, 1 Ala. 612 (1840), upheld restrictions on concealed carry under a state constitution that provided: "Every citizen has a right to bear arms, in defence of himself and the State."
73. Id. at 614-15. The court rested its decision on the principle that "[b]efore the judiciary can with propriety declare an act of the Legislature unconstitutional, a case should be presented in which there is no rational doubt."
74. Id. at 621 (citation omitted).
75. Heller rejects this interpretive, principle. 128 S. Ct. at 2817 n.27.
76. Aymette v. State, 21 Term. (2 Hum.) 154 (1840), upheld a ban on the concealed carry of certain kinds of knives, which was challenged under an 1834 state constitutional provision that declared "the free white men of this State have a right to keep and bear arms for their common defence."
77. Id. at 156. The qualifying terminology at the end of the provision ("for their common defence") is absent from the Second Amendment, and the Tennessee court rested its conclusion on the ground that these knives were not "such as are usually employed in civilized warfare, and that constitute the ordinary military equipment."
78. Id. at 158.
79. Heller rejects a similar interpretation of the Second Amendment. 128 S. Ct. at 2815-16.
80. State v. Buzzard, 4 Ark. 18 (1842), upheld restrictions on concealed carry against challenges under the Second Amendment and an 1836 state constitutional provision that protected the right to keep and bear arms "for their common defense."
81. Id. at 26. One member of the court treated the state and federal provisions as though they were identical, and concluded that their purpose was only to enable the citizenry to resist would-be tyrants.
82. See id. at 26-27. Another member of the court, argued that the Second Amendment does not protect an individual right.
83. See id. at 32 (Dickinson, J., concurring). A dissenting member of the court argued that the majority had effectively rendered the Second Amendment a nullity.
84. See id. at 41-43 (Lacy, J., dissenting).
85. Heller rejects the interpretations of the Second Amendment adopted by the Buzzard majority. 128 S. Ct. at 2797-99.
86. State v. Chandler, 5 La. Ann. 489, 489-90 (1850).
87. Nunn v. State, 1 Ga. 243 (1846).
88. Id. at 251. The court appeared to imply that the ban on the sale of certain weapons was also invalid, although their sale was not at issue in the case and the court did not explicitly address that question.
89. Id.
90. WILLIAM BLACKSTONE, 4 COMMENTARIES *148. For a discussion of the common law rule,
91. see infra notes 54-64 and accompanying text.
92. District of Columbia v. Heller, 128 S. Ct. 2783, 2815-16 (2008) (footnote omitted).
93. The case referenced here is United States v. Miller, 307 U.S. 174 (1939), which I discuss below.
94. Heller, 128 S. Ct. at 2817.
95. Id.
96. BLACKSTONE, supra note 50, at *148-49.
97. See JOYCE LEE MALCOLM, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT 104, 184 n.36 (1994).
98. Id. at 104-05.
99. Id. at 105.
100. See Brief of the Cato Institute and History Professor Joyce Lee Malcolm as Amici Curiae in Support of Respondent at 15-19, District of Columbia v. Heller, 128 S. Ct. 2783 (2008) (No. 07-290).
101. 3 JAMES WILSON, WORKS OF THE HONOURABLE JAMES WILSON 79 (Bird Wilson ed., Philadelphia, Bronson and Cliauncey 1804) (footnote omitted) (emphasis added).
102. JOHN A. DUNLAP, THE NEW-YORK JUSTICE 8 (New York, Isaac Riley 1815) (emphasis added).
103. CHARLES HUMPHREYS, A COMPENDIUM OF THE COMMON LAW IN FORCE IN KENTUCKY 482 (Lexington, Ky., William Gibbes Hunt 1822).
104. Justice Scalia knew about the second sentence in this quotation, which he quoted elsewhere in the Court's opinion. See District of Columbia v. Heller, 128 S. Ct. 2783, 2795 n.10 (2008).
105. 1 WILLIAM OLDNALL RUSSELL, A TREATISE ON CRIMES AND INDICTABLE MISDEMEANORS 271-72 (Philadelphia, P.B. Nicklin and T. Johnson, Boston, Lilly and Wait 1831).
106. HENRY J. STEPHEN, SUMMARY OF THE CRIMINAL LAW 48 (Philadelphia, John S. Littell, New York, Halsted and Voorhies 1840).
107. FRANCIS WHARTON, A TREATISE ON THE CRIMINAL LAW OF THE UNITED STATES 726-27 (Philadelphia, James Kay, Jun. & Brother, 2d ed. 1852).
108. Justice Scalia cites only the first page of Wharton's discussion, which presents the standard definition of an affray, including the qualification "in such a manner as will naturally cause a terror to the people." District of Columbia v. Heller, 128 S. Ct. 2783, 2817 (2008).
109. Heller, 128 S. Ct. at 2817
110. (citing O'Neill v. State, 16 Ala. 65, 67 (1849);
111. State v. Lanier, 71 N.C. 288, 289 (1874);
112. State v. Langford, 10 N.C. (3 Hawks) 381, 383-384 (1824);
113. English v. State, 35 Tex. 473, 476 (1871)).
114. Heller, 128 S. Ct. at 2816.
115. English, 35 Tex. at 476.
116. United States v. Miller, 307 U.S. 174, 178 (1939) (citation omitted).
117. Heller, 128 S. Ct. at 2815.
118. 307 U.S. at 179.
119. Heller, 128 S. Ct. at 2814. Even if the Court alters this sentence when it publishes the opinion in the U.S. Reports, it won't be able to alter the fact that the mistake was made in the slip opinion that issued on the day of decision.
120. For a more detailed analysis of Justice Scalia's misrepresentations of Miller, and an argument that the Heller Court was not obliged to embrace Miller's interpretation of the Second Amendment, see Nelson Lund, Heller anil Second Amendment Precedent, LEWIS & CLARK L. REV. (forthcoming 2009), available at http://papers.ssm.com/sol3/papers.cfin?absttact-id=1235537.
121. Properly configured and loaded with appropriate ammunition, short-barreled shotguns may be optimal weapons for home defense in many circumstances. If the government stopped suppressing them, they might become very popular.
122. Heller, 128 S. Ct. at 2817.
123. Id.
124. Id. at 2821.
125. PDK Labs. Inc. v. U.S. Drug Enforcement Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment).
126. Heller, 128 S. Ct. at 2816 n.25
127. (discussing Lewis v. United States, 445 U.S. 55 (1980)).
128. Compare Justice Scalia's well-known discussion of "faint-hearted originalism," in which he suggests that most originalists would strike down laws providing for public flogging, even in the face of unequivocal evidence that such a punishment was not considered "cruel and unusual" in 1791. Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 861-62 (1989).
129. This point will assume even greater importance if the Court makes the Second Amendment applicable to the states under substantive due process, which is a likely outcome, given the existing incorporation precedents. For more detail, see Nelson Lund, Anticipating the Second Amendment Incorporation: The Role of the Inferior Courts, 59 SYRACUSE L. REV. 185 (2008)
130. and Lund, supra note 20, at 46-55.
131. One court has already reached this conclusion. See Nordyke v. King, 563 F.3d 439 (9th Cir. 2009).
132. 410 U.S. 113 (1973).
133. 290 U.S. 398 (1934).
134. See id. at 453-82 (Sutherland, J., dissenting).
135. The majority stated: It is no answer to say that this public need was not apprehended a century ago, or to insist that what the provision of the Constitution meant to the vision of that day it must mean to the vision of our time. If by the statement that what the Constitution meant at the time of its adoption it means to-day, it is intended to say that the great clauses of the Constitution must be confined to the interpretation which the framers, with the conditions and outlook of their time, would have placed upon them, the statement cames its own refutation. Blaisdell, 290 U.S. at 44-43.
136. See, e.g., James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 HARV. L. REV. 129 (1893);
137. Lino A. Graglia, Constitutional Interpretation, 44 SYRACUSE L. REV. 631 (1993).
138. See, e.g., Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 439 (1911) (explaining that joining with others to call for a boycott is not speech but a "verbal act");
139. Davis v. Beason, 133 U.S. 333 (1890) (approving an Idaho territorial statute denying Monnons, polygamists, and advocates of polygamy the right to vote and to hold office);
140. Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1 (1890) (upholding federal statute dissolving the Mormons church and providing for the seizure of all its property);
141. Ex parte Jackson, 96 U.S. 727, 736-37 (1878) (upholding a federal statute that banned lottery material from the mail because Congress may deny access "for the distribution of matter deemed injurious to the public morals").
142. See, e.g., Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985) (holding that the Interstate Commerce Clause authorizes Congress to regulate wages and hours of employees of local, municipally-operated mass transit system);
143. Buckley v. Valeo, 424 U.S. 1 (1976) (upholding limits on contributions to political campaigns);
144. Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969) (upholding regulatory control over editorial decisions by broadcasters);
145. Wickard v. Filburn, 317 U.S. Ill (1942) (permitting Congress to forbid the consumption of home-grown wheat on the ground that such consumption may affect interstate commerce).
146. See Jack M. Balkin, Abortion and Original Meaning, 24 CONST. COMMENT. 291 (2007).
147. This principle is composed of three sub-principles: prohibitions against class legislation, caste legislation, and subordinating legislation. Id. at 319-20.
148. Jack M. Balkin, Original Meaning and Constitutional Redemption, 24 CONST. COMMENT. 427, 498 (2007).
149. Eugene Volokh's excellent contribution to this symposium adopts an approach that I think is generally consistent with conscientious originalism. See Eugene Volokh, Implementing the Right to Keep and Bear Arms: An Analytical Framework and a Research Agenda, 56 UCLA L. REV. 1443 (2009).
150. For further detail, see Lund, supra note 20, at 56-58;
151. Nelson Lund, The Second Amendment, Political Liberty, and the Right to Self-Preservation, 39 ALA. LREV. 103, 114-15 (1987).
152. U.S. CONST, art. 1, § 8, cl. 15; art. 2, § 2, cl. 1, §3.
153. See, e.g., District of Columbia v. Heller, 128 S. Ct. 2783, 2852 (2008) (Breyer, J., dissenting) (advocating a standard of scrutiny in which "the Court nonnally defers to a legislature's empirical judgment in matters where a legislature is likely to have greater expertise and greater institutional factfinding capacity");
154. id. at 2859 ("[T]he question here is whether [empirically based arguments against the handgun ban] are strong enough to destroy judicial confidence in the reasonableness of a legislature that rejects them.");
155. id. at 2860 ("[L]egislators, not judges, have primary responsibility for drawing policy conclusions from empirical fact.");
156. id. ("[D]eference to legislative judgment seems particularly appropriate here, where the judgment has been made by a local legislature, with particular knowledge of local problems and insight into appropriate, local solutions.").
157. Neither Breyer nor any other Justice consistendy applies this presumption of constitutionality to individual rights that are enumerated in the Constitution. Ironically, Justice Breyer and the other Heller dissenters reject such a presumption of constitutionality when considering unenumerated rights that they like, such as the right to abortion. For an extremely vivid example, see Stenberg v. Carhart, 530 U.S. 914 (2000).
158. If any proof of the inefficacy of doctrinal labels on the standard of review were needed, one could simply read Grutter v. Bollinger, 539 U.S. 306 (2003), in which the Court applied strict scrutiny in a manner that is indistinguishable from rational-basis review.
159. See Brief for Petitioners at 49, 51, 53, District of Columbia v. Heller, 128 S. Ct. 2783 (2008) (No. 07-290).
160. See, e.g., Brief of Criminologists, Social Scientists, Other Distinguished Scholars and the Claremont Institute as Amici Curiae in Support of Respondent, District of Columbia v. Heller, 128 S. Ct. 2783 (2008) (No. 07-290);
161. Brief of Int'l Law Enforcement Educators and Trainers Ass'n et al. as Amici Curiae in Support of Respondent, District of Columbia v. Heller, 128 S. Ct. 2783 (2008) (No. 07-290);
162. Brief of Amici Curiae Southeastern Legal Foundation Inc. et al. in Support of Respondent, District of Columbia v. Heller, 128 S. Ct. 2783 (2008) (No. 07-290).
163. Heller, 128 S. Ct. at 2817-18.
164. Justice Scalia repeatedly recognized that these provisions of the Constitution require similar treatment. See, e.g., id. at 2791-92, 2797, 2799, 2821.
165. For an early judicial recognition of this point, see United States v. Sheldon, 5 Blume Sup. Ct. Trans. 337, 346 (Mich. 1829).