Last month, I provided a short discussion of the upcoming AR-15 rifle ban case, Viramontes v. Cook County, noting that the 2008 pathbreaking Second Amendment decision, District of Columbia v. Heller, ended by adding a “Part III” that identified “an important limitation on the right to keep and carry arms.” For a 5-4 majority, Justice Antonin Scalia wrote that “the sorts of weapons protected were those ‘in common use at the time (emphasis added).’” Scalia said that this limitation is “fairly supported by ... historical tradition” and he provided a lengthy string of citations to demonstrate that proposition.
The Supreme Court has never examined the meaning of the “in common use at the time of the founding” limitation that the Heller majority described and said was supported by history. Instead, as detailed below, federal courts have silently transformed the Second Amendment test to extend it to weapons “in common use today.” Under this transformed test, AR-15 semi-automatic rifles might be protected although its advocates explain that they are a 20th century technological development. Yet if Scalia’s words are given their plain meaning, local governments would seem to have authority to enact bans on such weapons.
Given the consequences of which language applies, I continue to wonder why this is not a centerpiece of the Viramontes debate. (That said, Cook County’s responsive brief on the merits has not yet been filed – it’s due Oct. 21.) Indeed, a week after my column, Professor Jonathan Turley published a short column responding to this point, and calling Scalia’s limitation an “errant qualifier.”
I think that is incorrect. The justices have never expressly examined the Heller limitation I identified (which Scalia wrote), nor has the court ever explained why it does not mean what it appears plainly to say. Transforming a constitutional limitation written as “were in common use at the time” into a test of “are in common use today” is a betrayal not just of words that were essential to the Heller result, but of the originalist soul of its author. It replaces an originalist understanding of the limitations of the Second Amendment with a rootless and manipulable contemporary view of it. If decisional text as well as stare decisis values are to have any integrity when our justices change, but law and precedents still govern, a principled rationale for abandoning Scalia and the court’s “important limitation” must be offered.
Some brief introductory points. First, I consider myself a flaming moderate. I am no firearms expert, but I enjoyed shooting various guns in my rural youth. And on this particular issue, I support reasonable restrictions on modern-day dangerous weapons like AR-15 rifles. I wrote critically about Heller in 2009 (failing to anticipate personnel changes at the Supreme Court a decade later). Whether these things have relevance for you or not, I urge you to not ignore the legal analyses of scholars who disagree with your policy views. But I hope you will agree that any scholar’s policy views should not negate a respectful discussion of the Constitution’s meaning.
Second, I haven’t had the pleasure of meeting Turley and I respect his scholarship. He is a longtime supporter of Second Amendment rights, and I stand in awe of his boundless media energy. Short online essays will never resolve complex legal issues or fully reflect the depth of serious Supreme Court analysis. I’d be pleased to further debate him or others on this constitutional issue.
On to the main discussion:
1. I highly doubt that Scalia’s inclusion of an “important limitation” on the Second Amendment right he championed for 63 pages was “errant.” That is, Scalia did not mean to say “in common use today” but somehow mistakenly wrote “in common use at the time.” Scalia was hardly known as a careless or sloppy writer. He’s been called “the Supreme Court’s greatest writer” by some and is the co-author of a leading treatise on writing and interpretation. The phrase “in common use at the time” appears not once but three times in his opinion (“at the time” appears 10 times, and it plainly means “at the time of the founding” (used four times) in 1791 when the Second Amendment was adopted). Heller was viewed, in 2008 and today, as the most important Second Amendment precedent in our history. There is no doubt in my mind that Scalia understood that and wrote precisely so as to stand the test of time. He did not include this interpretation of the Second Amendment and its “important limitation” by accident.
2. Further evidence that this limitation was not “errant” appears in the next sentence of Heller, where Scalia wrote that “[w]e think that [this] limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’” Scalia then included references to eight treatises and four old cases in support of this. Providing deep historical research that “fairly supported” his reading was no error but was perfectly consistent with the originalist method that Scalia effectively embedded at the court today.
3. It was a unanimous Supreme Court almost 90 years ago in United States v. Miller that first employed the “in common use at the time” standard. In that case, the court sustained the federal ban on possessing short-barreled (“sawed off”) shotguns, and by authority of the same statute, “machine guns.” How quickly we forget, or ignore, history (and it’s simply mistaken to say, even as one podcast did, that there “is no history on what the Second Amendment means” before Heller).
Rather than dispute Miller, Heller endorsed and quoted from Miller’s constitutional ruling. According to the Miller court, even if viewed as useful (and commonly used by then-new gangsters like “Machine Gun Kelly”), such weapons could be banned because they were not “in common use” by the militia when the Second Amendment was ratified. That fact is also undoubtedly true about AR-15 rifles, which, as the solicitor general’s brief explains, were not technologically available until the 20th century. Embracing the “in common use at the time” limitation from Miller demonstrated the court’s commitment to the oft-repeated idea that, as Scalia explained in this same paragraph, “[l]ike most rights, the right secured by the Second Amendment is not unlimited.”
4. Turley concluded his essay by saying that “an immediate reversal of Heller” is “unlikely to turn on the word ‘were.’” I completely agree: no “reversal” of Heller is required or even suggested by giving plain meaning to Heller’s statement that “the sorts of weapons protected were those ‘in common use at the time.’” Heller obviously protected the use of handguns, which were in common use in revolutionary times, and at the same time it endorsed the prohibition of modern machine-gun technology in Miller. Thus Heller, and Scalia for the court, drew an unsurprising, constitutional line, a “limitation [which] is fairly supported by ... historical tradition.” Affirming a ban on AR-15 rifles, which as the U.S. solicitor general and the Second Amendment Foundation acknowledge represent new 20th century technology that explains their now-popular use, would honor Scalia’s memory and his careful constitutional consideration, not “reverse” it.
5. Importantly, it is undisputed, and clear from the structure of the Heller opinion, that its Part III, which outlined the “in common use at the time” limitation and other possible restrictions, was included to preserve a shaky five-justice majority. This was explained in detail by a contemporary witness: former Justice John Paul Stevens in 2019, and has been endorsed by other scholars. Now retired Justice Anthony Kennedy was a quiet, but demanding, fifth vote. Without Kennedy’s signing on to this language, Scalia’s opinion might have changed to, at best, a plurality, or a dissent, with Kennedy joining the four Heller dissenters and writing or voting for a more restrictive gun-control doctrine than currently exists. (One wonders what Kennedy’s two prior law clerks now sitting as justices, Brett Kavanaugh and Neil Gorsuch, might say about this at oral argument.)
6. Given all this, what should we make of a statement made 45 pages earlier in Heller (quoted by Turley without noting that fact), that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding”? This was in a different section of Heller, examining what counts as “arms” rather than defining the scope of the right. I think the qualifier (not errant) of “prima facie” further indicates that this was part of a preliminary, “on its face,” discussion of the constitutional text, not (like Part III) a conclusion. Prima facie literally means “on first impression,” that is, before everything else is considered.
Still, there’s no doubt that this early sentence is in tension with the later Part III limitation. But Part III represents the conclusion of the entire opinion. After 45 further pages of consideration – it’s the court’s final word. Other aspects of Part III have been accepted as Second Amendment limitations (such as “sensitive places” and prohibiting possession by dangerous individuals) – so why not this one? If the two statements separated by 45 opinion pages in Heller are in tension, the court needs to explain why Part III does not mean what the majority seemed to plainly rule.
7. If the Part III “in common use at the time” limitation is clear, how then has it been (seemingly successfully) transformed today into a contemporary “are in common use today” idea?
As best I can tell, the problem goes back to a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit in a 2011 Heller follow-up case.
After Heller was decided in 2008, the District of Columbia enacted a new ban on assault weapons and large-capacity magazines (both terms have disparate and disputed definitions; interestingly, the Sentencing Commission’s definition of the latter term is the specific issue underlying this term’s first criminal law oral argument, Beaird v. United States). The circuit upheld, 2-1, those bans (while questioning various registration requirements). For the majority, Judge Douglas Ginsburg noted the “in common use at the time” limitation, and that Heller had stated this was “supported by ... historical tradition.” But he then also applied the earlier statement in Heller that weapons “not typically possessed” are unprotected and noted an argument that semiautomatic AR rifles “are commonly possessed” (my emphasis). Frankly, the panel mushed together – or as a lawyer might say “conflated” – the past tense of the limitation, with some present-tense ideas. The panel then noted that the record was “uncertain” regarding whether the weapons at issue “are commonly used” in a relevant sense and upheld the bans on other grounds.
In dissent, then-Judge Kavanaugh immediately adopted the majority’s conflated test, asserting that weapons that “are in common use” are protected (my emphasis). Indeed, Kavanaugh’s 52-page dissent repeated the present-day “are in common use” test over a dozen times, without explaining why he was altering Scalia’s statement.
After Heller (and McDonald in 2010, extending it to the states) numerous scholars have noted that there was a long period of strategic caution or avoidance at the court – effectively 12 years of silence until Kennedy left it. Meanwhile, Scalia’s untimely passing meant he was not around to explain his meaning. (Hats off to Adam Winkler for using the phrase “gun shy” to describe this period).
It is important to note, as Turley pointed out in an earlier column, that the court did file a short unsigned opinion in 2016 on this topic. The Massachusetts Supreme Court had upheld a state ban on stun guns because they “were not in common use at the time of the Second Amendment’s enactment.” In Caetano v. Massachusetts, the court summarily reversed that decision, without full briefing or oral argument. The eight-justice per curiam opinion (Scalia had died a month earlier) said the Massachusetts ruling was “inconsistent with Heller’s clear statement that the Second Amendment “extends . . . to . . . arms . . . that were not in existence at the time of the founding.” Yet Caetano did not mention, let alone address, another obvious inconsistency: that the sentence they quoted appeared to conflict directly with Heller’s “important limitation” of the right, to weapons that “were in common use at the time.” Because the Caetano opinion identified two other reasons for reversing, the force of its per curiam summary reversal is open to debate. But one thing is clear: the Caetano court did not – and the court still never has – discussed or explored the meaning of Heller’s “important limitation” of the Second Amendment to weapons “in common use at the time.”
Finally, in 2022 with a newly constituted court, Justice Clarence Thomas fully adopted (in New York State Rifle & Pistol Association v. Bruen) the contemporary “are in common use” idea that Kavanaugh had used in 2011, omitting “were” and “at the time.” His opinion presented this idea, without further explanation, as a “holding” of Heller. This is, frankly, pick-and-choose selective editing. I am unaware of any further discussion among the justices of the limitation as written by Scalia, its plain meaning, or its semantic transfiguration. Poof – it is as if that paragraph of Heller’s Part III had never been written.
8. There are only three justices left on the court who were there when Heller was written: Chief Justice John Roberts, and Justices Thomas and Samuel Alito. They know the internal history. (Justice Kennedy, now retired, is still with us but remains characteristically circumspect.) Significantly, Thomas and Alito seemed to agree with a statement by Kavanaugh last year questioning a Maryland AR-15 ban and adopting, without explanation, an “are in common use today” test. But Roberts stayed silent, and certiorari was denied in that case. I think Roberts remains an important wild card here.
9. “Wisdom too often never comes, and so one ought not reject it merely because it comes late.” Multiple justices have used variations on this candid mea culpa of Justice Felix Frankfurter, including Scalia himself. Frankfurter further explained that he “would not compound error by pushing [an erroneous decision] further.” Maybe it is “too late” to apply what was a clear majority limitation in Heller. Or perhaps a majority in Viramontes will find wisdom in its later semantic transfiguration. But simply ignoring what the Heller majority found to be an “important limitation,” and failing to engage with Scalia’s historical project, is an application of power rather than judicial integrity.
10. I am unaware of any authority permitting the abandonment of an undisputed textual limitation in a Supreme Court opinion based on the untimely death of its author. “Narrowing” a precedent is one thing – but ignoring its text without analysis seems, to me, to be quite another.
I think the rule of law requires more. The public, at least 50% of which supports modern AR-15 bans, needs to hear why this selective editing, to produce a contemporary rather than originalist test, is consistent with the history-and-tradition approach of Heller and Bruen. Law professor Michael Dorf has written about “a belief in the independent integrity of law” in the context of “predictive” court evaluation. I share that belief (and without, I hope, too much partisan bias). If a historic precedent’s text as well as stare decisis values are to have any real meaning when justices change on the court, a principled rationale for abandoning Heller’s critical language must be offered.