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Drawing New Conclusions: Clarifying Gun Laws for the New Supreme Court

January 6, 2017

In this first part of a three-piece series on the the Supreme Court and the Second Amendment, Adam Joseph Neuman analyzes the context surrounding decisions previously made by the court and proposes considerations for future discussion.


“A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.”

Second Amendment, United States Constitution

In order to formulate a fair and appropriate judicial philosophy, it is crucial to locate a middle ground between a strict textualist/originalist approach to judicial review and a loose constructionist approach that incorporates today’s realities. A proper analysis of the decisions in District of Columbia v. Heller and McDonald v. Chicago will provide an appropriate guide to interpreting the Second Amendment. Justice Stevens’ dissents in Heller and McDonald, which draw from both the late Justice Scalia’s originalist approach, and Justice Breyer’s ‘living, breathing’ constitution approach, should help guide the Court’s perspective.

Two Philosophies from Heller

The Supreme Court’s decision in Heller determined that the Second Amendment protects an individual’s right to bear arms and that the provisions challenged by the D.C. legislature unconstitutionally overstepped this right. In the majority opinion, Justice Scalia disregards the public’s perception of the definition of bearing arms at the time the Amendment was passed (for purpose of militia service). Instead, he advocates for the current understanding as modern and legitimate weapons. This approach runs contrary to Scalia’s originalist philosophy, which dictates that provisions in the Constitution should be understood by their original meaning at the time the provision was drafted. This is the same Justice Scalia who once noted how disappointed he was when schoolchildren visited the Supreme Court and called the Constitution a “living document.” He responded that “it’s not a living document, it’s dead, dead, dead.”

Surprisingly, Scalia’s argument in Heller is reminiscent of Justice Souter’s concurrence in Washington v. Glucksberg,,determining that the right to physician-assisted suicide was not protected by the Due Process clause of the 14th amendment. Souter advocated that “as-applied” cases are not fully determinative and if new circumstances develop, a future plaintiff might succeed. Similarly, in Heller, Scalia demands that the constitution be of an evolutionary nature that relies on the people’s contemporary understandings. But, if Scalia believes the constitution is dead, then original intent should have guided his decision in Heller.

Scalia also noted in his Heller opinion that, in the prefatory clause, preserving a militia was merely an illustration for the right to bear arms. On the other hand, “Right of the People” refers to individual rights, “not collective rights, or rights that may be exercised through participation in some corporate body.” The militia reference in the prefatory clause only “announces the purpose for which the right was codified: to prevent elimination of the militia.” However, Marbury v. Madison explains that it “can’t be presumed that any clause in the constitution is intended to be without effect.” Failing to interpret the prefatory clause runs counter to Marbury’s demand. The first clause requires a proper effect, and, by doing so, the first clause is not merely illustrative, but qualifies the second clause.

However, Breyer’s dissent in Heller goes too far in the other direction and presents an approach that involves too much judicial activism. His dissent is rooted in statistics (“guns were responsible for 69 deaths in this country each day, for a total of approximately 25,000 gun deaths a year, along with an additional 200,000 gun-related injuries”) which legislators would discuss while considering specific laws. But Breyer’s role as a Judge is to interpret statutes, not to create or amend them. As Justice Holmes suggests, “unlike courts, which are bound by stare decisis, legislatures can correct their decisions relatively easily where they prove to be either normatively mistaken, or empirically unjustified, or when the commitments of the people shift.” The statistics are important to consider when a statute written two hundred years ago fails to conform to today’s realities, but should not independently guide constitutional interpretation. Breyer’s living and breathing constitutional approach seems to reach beyond its judicial limits.

Author’s note: I am deeply indebted to Jason Sugarman, J.D. Candidate 2017, University of Pennsylvania, for his tireless efforts and without whom writing this article would not have been possible.

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