Heller: Some Additional Problems

Scalia could have overruled United States v. Miller to reach his desired result in Heller - an individual right to bear arms. Indeed, he laid out a good case for doing so in his majority opinion. But Scalia most certainly did not overrule Miller; to the contrary, he pretended that it was perfectly consistent with his view of the 2nd amendment. Pretended is the right word, because Scalia (a) changed one passage in Miller that was inconsistent with his view, and (b) completely ignored another. See our last post for the details.

Putting that aside, however, does Scalia's made-up version of Miller still cause problems? Remember, even Scalia acknowledges that Miller permits the government to ban sawed-off shotguns because they are not "part of the ordinary military equipment" and because their use could not "contribute to the common defense."

We see at least three problems here:

First, isn't the horse already out of the barn? Miller (at the very least) permits the government to ban certain types of weapons because those weapons do not properly relate to militias. Thus, the scope of right to bear arms is tied to militias. Why should this principle be limited to restrictions on the type of weapons one may carry? Why can't Congress put restrictions on the purpose one has for bearing arms? In other words, why can't Congress regulate the possession of weapons so long as their owners are not involved in militias? Mr. Heller, as far as we know, was the not a member of a militia, and no intention of joining one.

Second, if the government can ban sawed-off shotguns, why can't it ban handguns? Admittedly, at Hawks and Handsaws, we're not experts in military matters. But it seems to us that .22 caliber revolvers, for example, are not currently part of the "ordinary military equipment." Perhaps a revolver could have some use in the "common defense" - but so could a sawed-off shotgun (if we were defending the Alamo, and had to pick, we'd pick the sawed-off shotgun). If sawed-off shotguns don't make the cut for "ordinary military equipment" or weapons appropriate for the "common defense," why would handguns?

And third - if Miller is read to only allow the prohibition of weapons that are not useful for militia purposes, does this mean that private citizens have a second amendment right to possess any weapon that is part of "ordinary military equipment" or useful for the common defense? Machine guns, for example? Rocket launchers? B-52 bombers? This cannot be the case - but why not?

Scalia is no dummy; he can anticipate these problems. How does he deal with them? Simple! He rewrites Miller yet again:

We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller's phrase "part of ordinary military equipment" could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act's restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller's "ordinary military equipment" language must be read in tandem with what comes after: "[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."The traditional militia was formed from a pool of men bringing arms "in common use at the time" for lawful purposes like self-defense. "In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same." Indeed, that is precisely the way in which the Second Amendment's operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.

Brilliant! Miller only concerns "weapons not typically possessed by law-abiding citizens for lawful purposes." That "interpretation" kills all three birds noted above: (1) It interprets Miller in a way that avoids any connection between the right to bear arms and militias; (2) It allows Heller to keep his handguns (which "law-abiding citizens" certainly might possess for "lawful purposes"), while still prohibiting those no-good sawed-off shotguns; and (3) Allows the government to ban private ownership of those other crazy weapons (since no one has "typically" possessed them for lawful purposes).

There's a huge problem here, though. Can you see it? That's right, Scalia is making this up out of the whole cloth. Miller doesn't say anything about "law-abiding citizens" or "lawful purposes." It links the 2nd amendment to the militia. Scalia doesn't like this, so it makes Miller say something else, entirely different.

Scalia complains that Miller wouldn't make sense otherwise, since it would allow private citizens to possess machineguns and other military-type weapons (see also our point above). But this problem is entirely the result of Scalia's initial misstatement of Miller. He insists that Miller only concerns the type of weapons that may be possessed. But as we pointed out yesterday, Scalia changes or disappears language in Miller that connects the right to possess arms to the purpose of that possession.

How would Miller, fairly read, deal with that private citizen who wants to own a machinegun or rocket launcher? While those weapons may have legitimate military use, it is difficult to see how their private ownership would further the effectiveness or continuation of a militia. As such, it seems that Miller - properly read - would have little trouble excluding their ownership from the second amendment.

SCALIA ON MILLER, THE SHORT VERSION: Miller contradicts my preferred view of the second amendment, under which the scope of the right has nothing to do with militias. So I'm going to ignore or change some of the language in Miller, and say that Miller only prohibits certain types of weapons. Absent the language I've eliminated, however, the holding in Miller makes no sense. So I'll change the holding the Miller to something that I like, and then pretend that Miller is perfectly consistent with my view.

"LAWFUL PURPOSES": As Stevens points out in his dissent, this whole business about weapons "typically possessed" for "lawful purposes" is circular. Private citizens cannot possess M-16s or rocket launchers, because they are not typically used for lawful purposes. But why are they not "typically used? Duh! Because the government has long prohibited the private ownership of these weapons! As the NRA has told us, if you outlaw guns, only outlaws will have guns!

"LAW-ABIDING" CITIZENS Doesn't the addition of this phrase seem a bit gratuitous? It's no accident, though - Scalia is anticipating yet another problem . . .

NEXT: Why can't felons own guns?