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Drawing New Conclusions: The Originalist Perspective In a New Era

March 30, 2017

This final installment of our three-part Re:CAP series on Second Amendment rights concludes with Justice Stevens’ originalist application of the Constitution.


As Judge Neil Gorsuch proceeds through the Supreme Court confirmation hearings, it is clear that guns remain a highly salient topic. Senator Diane Feinstein (D-CA), ranking member on the Senate Judiciary Committee, questioned Gorsuch at length regarding his understanding of the 5-4 vote in District of Columbia v. Heller. Gorsuch responded, "Whatever's in Heller, that's the law. It's not a matter of agreeing or disagreeing; respectfully, it's about the law. My job is to apply and enforce the law.”

Justice Stevens

Stevens’ dissent in Heller and McDonaldv. Chicago follows an authentic, originalist perspective. He argues the Second Amendment is a collective right of the people to maintain a state militia. For over two hundred years, the Second Amendment’s scope was undoubtedly related to military issues. There is irony in the fact that Stevens’ dissent in Heller looks towards precedent and original intent while Justice Scalia speaks of the evolving Constitution. With a rational basis review, Stevens believes that gun control should be decided by voters’ elected representatives and that “this is a quintessential area in which federalism ought to be allowed to flourish without this Court’s meddling.” Ironically, Scalia’s concurrence in Cruzan v. Director, Missouri Department of Health resembles Stevens’ rationale. Regarding the right to die, Scalia notes, “it is up to the citizens of Missouri to decide, through their elected representatives…we know no more about life and death then they [the citizens] do.” Scalia wishes to assert “clearly and promptly that the federal courts have no business in this field.”

Stevens’ originalist approach, coupled with parts of Justice Breyer’s statistical analysis in Heller (further elucidated by Stevens’ dissent in McDonald), provide insight of how to proceed forward. It suggests that if gun violence is prevalent, then the legislature has the right to create restrictions. For example, Chicago deals with violent criminal street gangs, but most rural areas do not. The legislature should deal with guns on an individualized basis and allow elected officials to enact laws.

The decisions in Heller and McDonald incorrectly insinuate that the framers of the Constitution were partially motivated by a common-law right to self-defense. However, that right is its own defense in criminal law cases. In U.S. v. Lopez, Heller, and McDonald, there appears to be an unsettling theme upholding gun laws. Rehnquist overturns sixty years of commerce clause precedent, Scalia alters his own conception of textualism and misconstrues the prefatory clause, and Alitocodifies gun ownership as a fundamental right using improper fundamental right analysis. To be sure, originalism/textualism must play a substantial role in fair and appropriate evaluation. However, with guns, there is only a history and tradition with respect to the militia.

In fact, one of the fears in Dred Scott v. Sanford was if freed slaves were entitled to interstate travel, they might incite rebellions while traveling to other states. If the Second Amendment was interpreted to allow individual personsa right to bear arms, freed slaves could acquire guns, move to slave states, and lead armed rebellions. However, if the Amendment were to suggest that membership in a militia was required to possess a gun, this blocks the possibility of individual persons receiving guns and inciting these rebellions. Dred Scott deliberately limited interstate travel and upheld property rights in part because it did not wish to arm individuals with guns.

Breyer’s dissent in Heller, rooted in judicial activism, is also misguided. Though the decision in Brown v. Board was a remarkable moment of judicial activism, it was an extreme measure and discarded deference to the legislature. The Court’s role is judicial: to interpret the constitution properly.

Stevens uses originalism and properly applies it by reinforcing the “effect” of the prefatory clause. Additionally, he also espouses judicial activism by demanding that the legislature devise particularized plans depending on the circumstances. Stevens rightly advocates that gun regulation is the goal of the Second Amendment and points to the historically-rooted definition that has existed since the Second Amendment was developed. If the framers intended to arm private citizens, they would not have used the words “well regulated.” The Second Amendment was meant to limit and control guns, not to put them in everyone’s hands.

Finally, the right to bear arms is not a fundamental right, and therefore rational basis review should apply. The state interest in preserving life is rationally related to a decrease in crime and death. Restrictions on guns is rationally related to this pursuit, especially in D.C. and Chicago where gun violence is more prevalent. To the incoming Justice: you should come out differently on both Heller and McDonald – much closer to Stevens assessment which follows a fair and appropriate philosophy. Therefore, your appointment to the Court is imperative in helping to prevent the constant refusal to uphold gun regulation. On the question of guns, you should restore the Amendment to its traditional and commonly understood meaning, which will also promote judicial activism by addressing the gun violence that plagues our country.

Contact Information

Fels Institute of Government
University of Pennsylvania
3814 Walnut Street
Philadelphia, PA 19104

Phone: (215) 898-2600
Fax: (215) 746-2829

felsinstitute@sas.upenn.edu