Heller and the Vagaries of History

By now, Heller’s central holding is familiar: whatever other restrictions it may impose, the government cannot ban handgun possession in the home because “the American people have considered the handgun to be the quintessential self-defense weapon.” But what “people” made that choice? Not The People who ratified the Second Amendment in 1791. For them, the “quintessential self-defense weapon” was almost certainly a musket or hunting rifle, if a firearm at all. Does it matter that, through sheer happenstance, Heller was decided in 2008 when handguns were the predominant self-defense weapon?

It ought not to matter if one is an originalist, unless the Second Amendment has a built-in technologically adapting metric like the Eight Amendment’s reference to “evolving standards of decency.” On that view, one might read the Second Amendment to protect whatever happens to be the quintessential self-defense weapon of the time. At the founding, maybe it was a muzzle-loading musket; in the post-Civil War era, maybe it was Sam Colt’s revolver; at one point, maybe the rifle or shotgun took precedence; and today, as Justice Scalia proclaimed, it might be the handgun. As Akhil Amar put it: “[B]etween 1775 and 1866 the poster boy of arms morphed from the Concord minuteman to the Carolina freedman.” There’s good reason to believe that, as technology changes, so too does the People’s weapon of choice.

The Heller majority said something that could be read to support this evolving-standards-of-utility view. In discussing its 1939 decision in Miller v. United States, the Court said that case stood for the view that “the sorts of weapons protected were those ‘in common use at the time.’” Indeed, in 2016, the Supreme Court reversed the Massachusetts high court’s ruling that stun guns could be banned because they were not in common use in 1791. But Heller’s “common use” test—which raises a host of its own questions—is importantly different than its “quintessential self-defense weapon” (QSDW) test (if we can call it that). There are many types of weapons in common use, and not just firearms either. But there can be only one QSDW at a time. The tests for these two categories seem to be importantly different.

For the QSDW, Heller set a categorical rule that bans are forbidden. It doesn’t matter how compelling the government interest, how narrowly tailored the rule, or how decisive the weight of statistical and scientific data supporting the law. The Constitution, according to Heller, forbids a ban on the QSDW. In that instance, Second Amendment rights are trumps. As Joseph has written, sometimes in Constitutional law bans are subjected to these per se rules of invalidity. But it’s not at all clear that that is the case for the category of weapons that are in “common use” but are not the QSDW.

To see why, it’s important to observe a distinction between a constitutional provision’s “coverage” and its “protection.” Frederick Schauer explains it this way: coverage concerns the scope of the right; it tells us what category of conduct comes within the sweep of the Constitution. Fighting words, for example, fall outside the First Amendment’s scope. The government doesn’t need to articulate any interest or adduce any evidence to ban fighting words.  Protection, on the other hand, concerns whether covered conduct ultimately gets vindicated. The various modes of constitutional review—rational basis review, intermediate & strict scrutiny, the undue burden test, and the like—are all protection inquiries. Can the government ban independent corporate expenditures in elections? Can it ban judges running for political office from personally soliciting campaign donations? These are protection questions, and they depend on (in this instance) whether the strict scrutiny test is satisfied.

For the QSDW, the coverage and protection questions converge. But we know from Heller that that isn’t the case for every type of Second Amendment-related arm or activity. And the Court of Appeals have uniformly adopted a two-part test that splits the coverage and protection questions. First, they ask whether the arms, activity, or person falls within the scope of the Second Amendment. Next, if it does, the courts ask whether the government has carried its burden under the appropriate means-end scrutiny test. Most courts, for example, have held or assumed that so-called “assault weapons” fall with the Second Amendment’s scope (assault weapons are covered); but they have nevertheless uniformly upheld these laws because they concluded that the government satisfied means-end scrutiny (assault weapons are not protected).

Even Heller’s most ardent defenders—Justices Thomas and Scalia—might be read to support this distinction between the QSDW and other covered common-use weapons. In a dissent from the Supreme Court’s refusal to hear a challenge to Illinois’s assault weapons ban, they chided the lower court for upholding “a ban on many common semiautomatic firearms based on speculation about the law’s potential policy benefits.” But they didn’t say the fact the weapons were common meant any ban was off the board. Instead, they suggested the state had to make a stronger showing, and that the lower court should have held the government to its burden. The distinction between these categories—the (one) QSDW and other common-use weapons—seems important to maintain. After all, if the core of the right is (as Heller says) self-defense, then it would make sense to provide greater protection to the QSDW while still recognizing that many other types of weapons are entitled to at least some (and perhaps even very strong) protection.