Bruen Dissent and Gun Control (Part 25)

by | Nov 27, 2022 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

Supreme Court - Gun RightsThe dissent continued: Consider Heller itself. That case, fraught with difficult historical questions, illustrates the practical problems with expecting courts to decide important constitutional questions based solely on history. The majority in Heller undertook 40 pages of textual and historical analysis and concluded that the Second Amendment’s protection of the right to “keep and bear Arms” historically encompassed an “individual right to possess and carry weapons in case of confrontation”—that is, for self-defense. 554 U. S., at 592; see also id., at 579–619.

Justice Stevens’ dissent conducted an equally searching textual and historical inquiry and concluded, to the contrary, that the term “bear Arms” was an idiom that protected only the right “to use and possess arms in conjunction with service in a well-regulated militia.” Id., at 651. I do not intend to relitigate Heller here. I accept its holding as a matter of stare decisis. I refer to its historical analysis only to show the difficulties inherent in answering historical questions and to suggest that judges do not have the expertise needed to answer those questions accurately.

For example, the Heller majority relied heavily on its interpretation of the English Bill of Rights. Citing Blackstone, the majority claimed that the English Bill of Rights protected a “‘right of having and using arms for self-preservation and defence.’” Id., at 594 (quoting 1 Commentaries on the Laws of England 140 (1765)). The majority interpreted that language to mean a private right to bear arms for self-defense, “having nothing whatever to do with service in a militia.” 554 U. S., at 593. Two years later, however, English and early American historians (including experts at top universities) told us in McDonald v. Chicago, 561 U. S. 742 (2010), that the Heller Court had gotten the history wrong: The English Bill of Rights “did not . . . protect an individual’s right to possess, own, or use arms for private purposes such as to defend a home against burglars.” Brief for English/Early American Historians as Amici Curiae in McDonald v. Chicago, O. T. 2009, No. 08– 1521, p. 2. Rather, these amici historians explained, the English right to “have arms” ensured that the Crown could not deny Parliament (which represented the people) the power to arm the landed gentry and raise a militia—or the right of the people to possess arms to take part in that militia—“should the sovereign usurp the laws, liberties, estates, and Protestant religion of the nation.” Id., at 2–3. Thus, the English right did protect a right of “self-preservation and defence,” as Blackstone said, but that right “was to 28 to be exercised not by individuals acting privately or independently, but as a militia organized by their elected representatives,” i.e., Parliament. Id., at 7–8.

There is an irony in looking to the English for guidance regarding our constitutional rights. It was concern for English tyranny that motivated the American people’s right to possess firearms and other weapons.