Working Paper No. 08-48:
Heller and Second Amendment Precedent
Date Posted: August 2008
Abstract (below) | Full text (most recent) on SSRN
District of Columbia v. Heller concluded, on the basis of a detailed analysis of the original meaning of the Second Amendment, that American citizens have a constitutional right to keep and bear arms for personal self defense, and held that this entails at least the right to keep a handgun in the home and to render it operable for the purpose of immediate self defense. The Court rejected a theory - unknown to the founding generation but accepted by most of the lower federal courts during the twentieth century - under which the Second Amendment protects only a right of state governments to maintain military organizations, or perhaps a right of individuals to have weapons only while serving in such organizations.
In this case, the Justices were confronted with only one significant Supreme Court precedent, an eight page opinion in United States v. Miller. Surprisingly, Heller contains an embarrassingly and pointlessly fictional statement of the procedural facts of the Miller case. More importantly, the Court does quote from Miller, and the Court does interpret the Miller opinion, but in doing so it distorts the holding beyond all recognition.
This brief essay analyzes Heller's treatment of Miller. The interpretations of the Second Amendment in the two cases are irreconcilable. There was no legal need for the Heller Court to treat Miller as a binding precedent, and no legal excuse for pretending that Miller's holding was consistent with the interpretation of the Constitution that Heller rightly adopted. The treatment of Miller appears to be part of a larger political strategy in which the Court displayed a calculated faint-heartedness toward the original meaning of the Second Amendment. We can only hope that future Courts will treat Heller in a more lawyerly manner than Heller treated Miller.