The “Handgun Article” in Justice Powell’s Papers

Twenty seven years ago this week, Justice Powell’s clerk sent him a lengthy fax with the subject line “Handgun Article.” Along with Justice Stevens’ post-retirement commentary (about which Darrell and I will have more to say shortly), I think it might be the most thorough statement of a Justice’s views on guns and the Second Amendment outside a legal opinion—that is, of course, if they’re actually his. And yet, until recently, I’d never even seen it.

Let me start with the disclaimer: The memo (described in a cover sheet as “the first rough draft of the handgun article”) doesn’t seem to have been written by Powell. It’s addressed to him by a clerk, and suggests that the prior term’s clerk (who, a bit of Googling suggests, is now a distinguished member of the federal bench) worked on it as well. There are handwritten edits throughout the piece, but only some of them are the Justice’s, according to one former Powell clerk I checked with. As with many papers of Justices—speeches, articles, and draft opinions—it seems entirely plausible that this was penned in large part by clerks, attempting to capture their Justice’s views (i.e., “I hope you will find the basic structure of the article satisfactory”).

Indeed, many of the views expressed in the “article” are consistent with those that Justice Powell himself voiced publicly. I’m not aware of any Second Amendment cases in which he authored opinions, but in August, 1988—a year after retiring from the Court, and four years before the memo—he gave a prominent speech expressing some of the same views on guns that are reflected in the memo. In particular, Justice Powell argued for the constitutionality of handgun regulation (and perhaps even bans), something that’s reflected in the memo and the handwritten comments.

Without the aid of those who knew the Justice well enough to tell which comments are his, I’m reluctant to attribute to him any of the specific views expressed throughout the document. It does seem that he edited the piece, though, so perhaps the unedited or lightly-edited passages received at least tacit approval. That includes an analysis (pgs 11-14) of United States v. Miller, of which the article says: “[N]othing in Miller directly supports the argument that the Second Amendment should be read to guarantee an individual’s right to bear arms for purposes of self-defense or for hunting, in other words for purposes unrelated to participation in a ‘well regulated militia.’” (pgs 13-14)

Much of the article is devoted to policy analysis, and the harms of handgun violence in particular: “Perhaps the most alarming trend of all is the spread of violence to our schools.” (pg. 3) Given the school massacres that have happened since the article was penned, the citations to articles like “First Grader Uses Gun to Threaten Teacher” seem almost quaint.

All that said, the article is not a confiscationist jeremiad. The conclusion—which is particularly hard to attribute to the Justice’s own pen—notes, “my own experience with guns has been a positive one,” but “I have come to be persuaded by those who argue that something must be done about their ready availability and irresponsible use.” (pg. 23) It goes on: “I think it preferable to avoid an outright ban on handguns. While perhaps constitutionally permissible, a ban would strike at the core of our culture,” (pg. 23), and endorses, in its final sentence, “reasonable regulation.” (pg. 24)

I could go on quoting, but that would also mean piling up caveats and interpreting marginalia. Anyone interested should have a look for themselves. At risk of over-emphasis: This is a memo to Justice Powell, which seems to be primarily authored by his clerks. It does, however, largely track views that the Justice himself expressed, and it would be surprising if the article—worked on by different clerks across multiple Terms—were a stark departure from those views.

As far as I can tell, the “Handgun Article” was never published. John Jeffries’ terrific biography of the Justice basically ends with his retirement from the Court, so unsurprisingly does not discuss the article or the handgun speech. In summing up Powell’s service, Jeffries emphasizes Powell’s “most often remarked judicial attribute—an instinct for moderation and compromise. Genuine respect for the views of others directs the mind toward the common ground.” With that in mind, the “Handgun Article” is at the very least an interesting bit of evidence into what the Justice apparently perceived to be common ground on gun rights and regulation.