UCLA Law Review Volume 56, Issue 5


Heller's Catch-22

Joseph Heller’s satire Catch-22 has become a classic for its revealing look at the illogic, inconsistency, and circular reasoning common in modern bureaucratic life. This Article uses Heller’s novel to frame a critical analysis of the recent landmark Second Amendment decision of the U.S. Supreme Court that carries the Catch-22 author’s surname, District of Columbia v. Heller. The majority opinion in Heller suffers from many of the missteps and contradictions Heller’s novel identified. Although hailed as a “triumph of originalism,” the opinion paradoxically relies on a thoroughly modern understanding of gun rights. Justice Scalia has argued that originalism is necessary to preserve the legitimacy of the Court, but Heller is more likely to be accepted as legitimate precisely because Scalia’s opinion departed from the original meaning of the Second Amendment. Moreover, this celebrated landmark decision has had almost no effect on the constitutionality of gun control. To date, the federal courts have yet to invalidate a single gun control law for violating the Second Amendment right to bear arms, despite scores of cases. While some laws are sure to be invalidated in time, the new Second Amendment’s bark is far worse than its right. The greatest irony is that Heller’s logical flaws and inconsistencies improve the decision, making it more likely to endure and helping to cement a reasonable, not radical, right to bear arms.

Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda

How should state and federal constitutional rights to keep and bear arms be turned into workable constitutional doctrine? I argue that unitary tests such as “strict scrutiny,” “intermediate scrutiny,” “undue burden,” and the like don’t make sense here, just as they don’t fully describe the rules applied to most other constitutional rights. Rather, courts should separately consider four different categories of justifications for restricting rights: (1) Scope justifications, which derive from constitutional text, original meaning, tradition, or background principles; (2) burden justifications, which rest on the claim that a particular law doesn’t impose a substantial burden on the right, and thus doesn’t unconstitutionally infringe it; (3) danger reduction justifications, which rest on the claim that some particular exercise of the right is so unusually dangerous that it might justify restricting the right; and (4) government as proprietor justifications, which rest on the government’s special role as property owner, employer, or subsidizer. I suggest where the constitutional thresholds for determining the adequacy of these justifications might be set, and I use this framework to analyze a wide range of restrictions: “what” restrictions (such as bans on machine guns, so-called “assault weapons,” or unpersonalized handguns), “who” restrictions (such as bans on possession by felons, misdemeanants, noncitizens, or 18-to-20-year-olds), “where” restrictions (such as bans on carrying in public, in places that serve alcohol, or in parks, or bans on possessing in public housing projects), “how” restrictions (such as storage regulations), “when” restrictions (such as waiting periods), “who knows” regulations (such as licensing or registration requirements), and taxes and other expenses.

Permissible Gun Regulations After Heller: Speculations About Method and Outcomes

This Essay speculates about the substance and timing of likely decisions by lower courts and the Supreme Court in dealing with issues left open by District of Columbia v. Heller. It suggests that lower courts will not address those issues by examining original understandings regarding permissible gun regulations, but will instead apply to such regulations something like an intermediate standard of review or rational basis with bite, and will rarely find unconstitutional an existing regulation of guns, short of what in practice amounts to a complete ban. It speculates as well that the Supreme Court will allow most Second Amendment issues to percolate in the lower courts, and that the Court that takes up another Second Amendment issue may well have a different composition, one less sympathetic than the present Court to gun rights. It concludes that Heller’s fate may be similar to the fate of the Rehnquist Court’s so-called Federalism Revolution—an important decision with relatively little enduring impact.

Heller & Originalism’s Dead Hand — In Theory and Practice

This Article considers whether and how originalism promotes the Constitution’s democratic legitimacy, in theory and in practice. In the late twentieth century, critics of the Warren and Burger courts argued that judicial review lacks democratic authority when judges depart from the original understanding of those who ratified the Constitution. Originalism’s critics objected that giving past generations this kind of control over the living would vitiate the Constitution’s democratic authority. Initially, originalism’s theorists belittled this objection to dead hand control; recently, originalists have developed varied and sophisticated responses to it. But these responses generally tend to qualify originalism’s claims to democratic legitimacy or to weaken the originalist character of the interpretive method they set out to defend. The dead hand objection may trouble originalism in theory, but it poses far less of a problem in practice. To show why, the Article examines originalist interpretation in Heller v. District of Columbia. While Heller purports to enforce the decisions of eighteenth-century Americans, this Article identifies several forms of internal evidence that suggest the opinion is enforcing the beliefs of Americans living long after the Constitution’s ratification. This evidence, considered alone or with the social movement history of Heller that I have elsewhere examined, shows how originalism can enforce the constitutional convictions of living Americans. In practice, originalism appears to be a species of popular constitutionalism. If originalism does not enforce dead hand control, what role might constitutional history play in constitutional interpretation? To explore this question, the Article compares the role of historical argument in Heller and Parents Involved in Community Schools v. Seattle School District No. 1—a recent equal protection decision in which conservative and liberal justices fought over Brown and the post-ratification history of the Fourteenth Amendment. As appeals to pre- and post-ratification history in these cases illustrate, history constrains as it channels debate. Appeals to the collective memory of past constitutional settlements enable Americans of very different normative views to make authoritative claims about who we are and what we owe one another.

The Right to Know: An Approach to Gun Licenses and Public Access to Government Records

Every state has passed laws, often called open records statutes or freedom of information acts, that provide for disclosure of certain information possessed by government agencies. But how does a state legislature decide which information should be subject to disclosure? Is there a discernable pattern in the types of records available to the public? Using concealed carry licenses as the main example, this Comment explains the inconsistencies that often characterize states’ treatment of different records and attempts to bring clarity by offering a new framework for determining which types of personally identifiable information should be available to the public. The proposed framework focuses on (1) the substantial value of the information to others in structuring their social and economic interactions, and (2) the underlying purpose of the practice implicated by the record. Taken together, these prongs address the needs of the public in a systematic manner, while explaining the current state treatment of common records, such as arrest, property tax, medical, and personnel records. Applied to the gun license context, this understanding of government records suggests that such licenses should be available to the public.

The Supreme Court and the Uses of History: District of Columbia v. Heller

The Second Amendment is unusual in that until District of Columbia v. Heller, the Supreme Court had never interpreted the core meaning of the right. But it is that core meaning that, in recent years, has been in dispute. The issue is whether the Amendment was intended to protect a right for individuals to keep and bear arms, as the operative clause implies, or merely a right for states to have a militia and for members of that militia to be armed. In light of this ambiguity, the justices necessarily employed an originalist approach in order to recapture the intent of the Founders and the understanding of “the people” whose right it was meant to protect. History is essential to revealing that meaning, and all the justices tried their hands at employing historical inquiry. This Essay examines how their use of history accords with the basic rule for historical writers: Do not invent convenient facts and do not ignore inconvenient facts. Using that yardstick, I evaluate the justices’ use, abuse, and avoidance of history, focusing on three aspects of the opinions in Heller: the analysis of the Amendment’s language, the question of the right to be armed as a pre-existing right, and the Amendment’s drafting history. The majority opinion is a model of rigorous historical inquiry, while the dissents fall short.

The Second Amendment, Heller, and Originalist Jurisprudence

District of Columbia v. Heller gave the Supreme Court an opportunity to apply a jurisprudence of original meaning to the Second Amendment’s manifestly puzzling text. Notwithstanding the Chief Justice’s decision to assign the majority opinion to Justice Scalia, the Court squandered the opportunity. In a narrow sense, the Constitution was vindicated in Heller because the Court reached an easily defensible originalist result. But the Court’s reasoning is at critical points so defective—and so transparently non-originalist in some respects—that Heller should be seen as an embarrassment for those who joined the majority opinion. It may also be widely (though unfairly) seen as an embarrassment for the interpretive approach that the Court purported to employ. Originalism deserved better from its judicial exponents.

Why The Second Amendment Has a Preamble: Original Public Meaning and the Political Culture of Written Constitutions in Revolutionary America

This Article seeks to historicize the meaning of the Second Amendment as well as the constitutional debate now swirling about it in the wake of District of Columbia v. Heller.1 This Article takes seriously the interpretive significance of the concept of “original public meaning” that figures so prominently in that decision; it seeks to examine—and even to apply—that concept more broadly to the discourse struggling to come to terms with the meaning of the Second Amendment and “the right of the people to keep and bears arms” in 1791.2 This discourse, like that of the drafting of the Amendment itself, is taking place at a particular historical point in time, and the articulation of original public meaning reflects the contested nature of today’s discourse as much as it does that of any “original” discourse, which was no less contested. This Article therefore will draw not only on the continuing debate about original meaning, but also will attempt to recognize and accommodate the present-day constitutional dialogue that has brought the role and authority of judicial review into question. In addition, it recognizes and applies the significant advances in scholarship on the Founding and the early Republic by scholars outside the legal academy studying the role of the public in constitutional politics and print culture. By bringing those discourses into a common dialogue, this Article finds a common ground of meaning shared by the public at the Founding, and on that common ground, it finds a structure of public meaning sharply at odds with the majority opinion in Heller.

The Myth of Big-Time Gun Trafficking and the Overinterpretation of Gun Tracing Data

In recent years the gun control movement has increasingly shifted its efforts from lobbying for new gun-control legislation to facilitating lawsuits against the gun industry, especially those based on claims of negligent distribution of firearms. These lawsuits are based on the premise that organized gun trafficking, much of it involving corrupt or negligent licensed dealers, plays an important role in supplying guns to criminals. This paper first assesses the extant evidence bearing on this claim, as well as on underlying assertions as to how one can tell whether a crime gun has been trafficked or whether a licensed dealer is involved in trafficking. Law enforcement evidence indicates that high-volume trafficking is extremely unusual, and that average “traffickers” handle fewer than a dozen guns. The aggregate volume of guns moved by known traffickers is negligible compared to even low estimates of the number of guns stolen. City-level data on crime guns recovered in fifty large U.S. cities in 2000 are then analyzed to investigate (a) whether supposed indicators of gun trafficking are valid, (b) what factors affect trafficking levels, (c) the impact of gun trafficking on gun possession levels among criminals, and (d) the impact of gun trafficking on crime rates. The findings suggest that most supposed indicators that a crime gun has been trafficked have little validity. One possible exception is whether a gun has an obliterated serial number (OSN). Using the share of crime guns with an OSN as a city-level indicator of the prevalence of gun trafficking, the analysis showed that trafficking is more common where guns are scarcer. The analysis also showed that laws regulating the purchase of guns, including one-gun-a-month laws specifically aimed at trafficking, show no effect on trafficking activity. Finally, the research indicates that trafficking levels show no measurable effect on gun possession among criminals (measured as the share of homicides committed with guns), and generally show no effect on violent-crime rates.

A Modern Historiography of the Second Amendment

The Second Amendment right to arms was uniformly viewed as an individual right from the time it was proposed in the late eighteenth century until legal debate over gun controls began in the twentieth century. This Essay seeks to illuminate major late twentieth century contributions to that debate.

The Heller Paradox

In this Article, I argue that the Heller majority, in discovering a new Second Amendment right to possess guns for personal self-defense, engaged in an unprincipled abuse of judicial power in pursuit of an ideological objective. The ideological nature of Justice Scalia’s opinion is revealed in his inconsistent brand of textualism, in which Scalia’s own longtime insistence on the importance of context is cast aside as he interprets “the right of the people to keep and bear Arms” by divorcing it from its particular context in the Second Amendment. The majority’s ideological approach is further revealed by Scalia’s selective manipulation of the relevant historical record, particularly his dismissal of key elements of the Amendment’s legislative history, misleading account of analogous state right-to-bear-arms guarantees, and misunderstanding of the “well regulated Militia.” I find the majority opinion a paradox. Although its interpretation of the Second Amendment is driven by ideology, the opinion nevertheless is unlikely to pose a substantial constitutional threat to gun regulation and may actually weaken the Second Amendment as an argument against the adoption of new gun control laws. Finally, Heller, by taking a general gun ban “off the table” as a policy option, may eventually weaken the gun lobby’s use of the slippery slope argument to frame the gun control debate in cultural terms, allowing a greater focus on the public safety benefits of specific reforms designed to reduce access to guns by dangerous persons.

Heller and the Triumph of Originalist Judicial Engagement: A Response to Judge Harvie Wilkinson

Judge J. Harvie Wilkinson criticizes the U.S. Supreme Court’s landmark decision in District of Columbia v. Heller through the lens of post-Roe judicial conservatism, a doctrine that exalts judicial deference to the political branches above the interest in individual liberty. But that vision is incompatible with the sort of judiciary the Framers established, and Wilkinson’s prescription does not lay out neutral guidelines for use of the judicial power. In Heller, the Supreme Court acted exactly according to Constitutional design, enforcing a fundamental right against recalcitrant political forces. Not just conservatives, but all Americans, should rejoice in the decision.

Heller, New Originalism, and Law Office History: “Meet the New Boss, Same as the Old Boss”

District of Columbia v. Heller has been hailed by its supporters as a model of “new originalism,” a methodology that focuses on original public meaning and eschews any concern for original intent. The decision and its methodology have drawn fire from legal scholars from across the contemporary ideological spectrum. The “public meaning” approach employed by the Heller majority rests on a flawed methodology that is antithetical to Founding-era interpretive practices. The problems with this method are evident in Justice Scalia’s interpretation of the Second Amendment’s preamble. Scalia uses a “Cheshire Cat rule of construction” in which he reads the text of the Second Amendment backwards. In this bizarre approach, the Second Amendment’s preamble vanishes during the process of interpretation and only reappears at the very end when it is used to confirm Scalia’s interpretation. This rule has no foundation in Founding-era practice and violates the Blackstonian method favored by most judges in the Founding era. The problems with new originalism are also evident in post-Heller commentary, particularly criticism of Justice Stevens’ dissent. Gun rights advocates have been especially outraged by Stevens’ discussion of St. George Tucker. Yet, when Tucker’s earliest writings on the Second Amendment are examined with a Blackstonian interpretive method, they lend additional weight to Stevens’ argument. Indeed, Tucker’s earliest comments on the Second Amendment challenge Scalia’s ahistorical claim that the Founders believed that the English Bill of Rights established a broad right to have arms. In contrast to Scalia, Tucker thought that the scope of the English right to arms was so limited that it was virtually non-existent.

Gun Control After Heller: Threats and Sideshows From a Social Welfare Perspective

What will happen after District of Columbia v. Heller? We know that five justices on the Supreme Court now oppose comprehensive federal prohibitions on home handgun possession by some class of trustworthy homeowners for the purpose of, and maybe only at the time of, self-defense. Perhaps the justices will push further and apply Heller’s holding to state and local governments via the Fourteenth Amendment. But the majority opinion in Heller offered limited guidance for future cases. It did not follow a purely originalist method of constitutional interpretation, nor did it establish a constraining doctrinal framework for evaluating firearms regulation—although the opinion did gratuitously suggest that much existing gun control is acceptable. There is significant room for judges to maneuver after Heller. In the absence of more information from the Supreme Court, we identify plausible legal arguments for the next few rounds of litigation and assess the stakes for social welfare. Based on available data, we conclude that some salient legal arguments after Heller have little or no likely consequence for social welfare. For example, the looming constitutional fight over local handgun bans—an issue on which we present original empirical data—seems largely inconsequential. The same can be said for a right to carry a firearm in public with a permit. On the other hand, less prominent legal arguments could be quite threatening to social welfare. At some point judges might draw on free speech doctrine and presumptively disfavor taxation or regulation targeted especially at firearms. This could have serious consequences. In addition, and perhaps most important, Second Amendment doctrine might deter innovative regulatory responses to the problem of gun violence. The threat of litigation may inhibit useful policy experimentation ranging from personalized firearms technology and the microstamping of shell casings, to pre-market review of gun design, social-cost taxation, gun-owner insurance requirements, and beyond.