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349

THE RIGHT TO DEFENSIVE ARMS AFTER DISTRICT

OF COLUMBIA V. HELLER

Michael P. O’Shea

I. INTRODUCTION: CIVIC AND PERSONAL PURPOSES FOR PRIVATE

ARMS........................................................................................................350

II. HOW UNITED STATES V. MILLER SHAPED THE MODERN

SECOND AMENDMENT DEBATE .............................................................352

A. What Happened in Miller..........................................................352

B. Interpreting Miller’s Militia “End In View” ...........................354

1. Weak Miller .................................................................354

2. Intermediate Miller ......................................................355

3. Strong Miller ................................................................358

III. THE END OF THE “END IN VIEW”? HELLER’S REVISION OF MILLER...362

A. Justice Kennedy, Professor Lund, and the English

Right to Arms .............................................................................363

B. Revising Miller: Defensive Arms for Personal Purposes .......366

C. Heller, Tradition, and Modern Originalism ............................370

D. Summary.....................................................................................372

IV. HELLER’S IMPLICATIONS FOR THE FUTURE OF THE RIGHT TO

ARMS........................................................................................................373

A. Advantages.................................................................................373

1. Popular Support ...........................................................373

2. The Likelihood of Incorporation.................................374

3. Protection of Common Defensive Weaponry ............376

4. Protection of the Right to Carry Arms .......................377

B. Disadvantages............................................................................379

1. Insufficient Attention to Civic Purposes? ..................379

2. Loss of Pro-Right Arguments Based on Civic

Purposes........................................................................380

V. CONSTITUTIONAL CONSTRUCTION AND THE RIGHT TO

DEFENSIVE ARMS....................................................................................380

A. “Common Use” and the Problem of New Weapons: The

Lever-Action Rifle......................................................................381

Assistant Professor, Oklahoma City University School of Law. B.A., 1995, Harvard; M.A.

(Philosophy), 1998, University of Pittsburgh; J.D., 2001, Harvard. I thank David Hardy for pro-

viding useful comments on an earlier draft. I am also indebted to the students of the Firearms

Law and Policy seminar that I taught at Oklahoma City University in the spring of 2008 for their

help in developing the ideas about Miller and Heller that are reflected herein.

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350 WEST VIRGINIA LAW REVIEW [Vol. 111

B. The Circularity Problem ...........................................................384

C. The “Revealed Judgment” Approach ......................................386

1. Looking to the Revealed Judgment of the People .....386

2. Looking to the Revealed Judgment of the

Government: Ordinary Police Arms...........................391

I. INTRODUCTION: CIVIC AND PERSONAL PURPOSES FOR PRIVATE ARMS

At the heart of the debate about the meaning of the Second Amend-

ment,

which culminated last Term in the landmark Supreme Court decision of

District of Columbia v. Heller,

there are two linked questions: What purposes

does the constitutional “right of the people to keep and bear arms” serve, and

how does the right further those purposes? Personally kept firearms can serve a

range of legitimate purposes. Some are primarily civic in nature, such as deter-

ring tyrannical acts by the government,

protecting against invasion or internal

disorder,

and promoting military readiness through individual practice with

firearms.

To the extent the right to arms serves these purposes, the chief bene-

ficiary is the people at large, the civic community. Other legitimate purposes

for arms are more private and personal in nature, such as hunting

and partici-

“A well regulated militia, being necessary to the security of a free State, the right of the

people to keep and bear arms shall not be infringed.” U.S. CONST. amend. II.

128 S.Ct. 2783 (2008) (holding that the Second Amendment protects an individual right to

keep common firearms for self-defense and invalidating the District of Columbia’s bans against

handgun possession and against rendering firearms functional for the purpose of self-defense in

the home); see D.C. CODE §§ 7-2501.01(12), 7-2502.01(a), 7-2502.02(a)(4), 7-2507.02 (2001).

See, e.g., Heller, 128 S.Ct. at 2801 (“[W]hen the able-bodied men of a nation are trained in

arms and organized, they are better able to resist tyranny.”); Silveira v. Lockyer, 328 F.3d 567,

569 (9th Cir. 2003) (Kozinski, J., dissenting from denial of rehearing en banc) (“[T]he simple

truth—born of experience—is that tyranny thrives best where government need not fear the wrath

of an armed people.”); Aymette v. State, 21 Tenn. 154, 158 (1840) (holding that the right to bear

arms was intended to enable the citizenry to “keep in awe those who are in power […]. If the

citizens have these arms in their hands, they are prepared in the best possible manner to repel any

encroachments upon their rights by those in authority.”).

See, e.g., Heller, 128 S.Ct. at 2800 (noting that an armed popular militia “is useful in repel-

ling invasions and suppressing insurrections”); United States v. Miller, 307 U.S. 174, 179 (1939)

(concluding that the founding-era militia “comprised all males physically capable of acting in

concert for the common defense,” and that its members “were expected to appear bearing arms

supplied by themselves and of the kind in common use at the time.”); Aymette, 21 Tenn. at 158

(holding that right to bear arms was intended to enable citizenry to “maintain the supremacy of the

laws and the constitution”).

See Heller, 128 S.Ct. at 2862 (Breyer, J., dissenting) (acknowledging that restrictive gun

control legislation “might interfere with training in the use of weapons, training useful for military

purposes”).

See id. at 2801 (opinion of the Court) (suggesting that most Americans in the founding era

valued the right to arms more for hunting than for preserving the militia); Parker v. District of

Columbia, 478 F.3d 370, 395 (D.C. Cir. 2007), aff’d sub nom. District of Columbia v. Heller, 128

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2009] THE RIGHT TO DEFENSIVE ARMS 351

pating in shooting sports.

Finally, at the heart of Heller is the purpose of self-

defense against criminal violence, which Justice Antonin Scalia’s opinion for

the Court

ringingly endorses as “the core lawful purpose” served by the Second

Amendment right to arms.

Self-defense is best conceived of as a primarily

personal purpose, but one that also has a significant civic importance. One of

the main criminological claims advanced and supported by pro-rights gun policy

scholarship is that the presence of an armed, peaceable citizenry deters several

types of violent crime—particularly so-called “hot” or “home invasion” burgla-

ries.

Thus, while the benefit of acts of armed self-defense redounds most di-

rectly to the individual defender, the keeping of guns for defense can also con-

tribute to the civic purpose of crime reduction.

All of these civic and personal purposes played a role in the Heller liti-

gation, but they do not feature equally, or in the same ways, in the doctrine gen-

erated by the Supreme Court’s opinion. Understanding the different ways that

these purposes are acknowledged in the Court’s reasoning is the clearest method

of understanding Heller as constitutional doctrine. Accordingly, Parts II and III

of this Article explicate the right to defensive arms recognized in Heller by trac-

ing how Heller refined and altered the sketchy Second Amendment framework

bequeathed by United States v. Miller to adopt a broad individual right to arms

focused upon personal defense. Part IV discusses the pros and cons of this con-

ception of the Second Amendment and its implications for future issues such as

incorporation and concealed-carry reform. Finally, Part V considers at length

one of the most important adjudicative problems likely to arise under Heller:

how to determine which types of novel or current “arms” are protected by the

Second Amendment. I argue that, in order to promote clarity and avoid circular-

ity or obvious errors of omission, courts should rely as much as possible upon

verifiable, external sources of evidence on this matter, especially the revealed

judgments of citizens and police departments about which arms are worth ob-

taining today for defense.

S.Ct. 2783 (2008) (concluding that the Second Amendment right “was premised on the private use

of arms for activities such as hunting and self-defense”).

See Heller, 128 S.Ct. at 2822 (Stevens, J., dissenting) (noting use of personal firearms “for

sporting activities”); cf. id. at 2861 (Breyer, J., dissenting) (considering the effects of gun regula-

tion on “sporting purposes,” such as “hunting and marksmanship”).

Justice Scalia’s opinion was joined in full by Chief Justice John Roberts and Justices An-

thony Kennedy, Clarence Thomas, and Samuel Alito. Justices John Paul Stevens and Stephen

Breyer each penned dissenting opinions in Heller, and both dissents were joined in full by Justices

Stevens, Breyer, David Souter, and Ruth Bader Ginsburg.

Heller, 128 S.Ct at 2818; see id. at 2821 (“[W]hatever else [the Second Amendment] leaves

to future evaluation, it surely elevates above all other interests the right of law-abiding, responsi-

ble citizens to use arms in defense of hearth and home.”).

See GARY KLECK, POINT BLANK: GUNS AND VIOLENCE IN AMERICA 138-41, 182-84 (Aldine

de Gruyter 1991); David B. Kopel, Lawyers, Guns, and Burglars, 43 ARIZ. L. REV. 345 (2001).

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352 WEST VIRGINIA LAW REVIEW [Vol. 111

II. HOW UNITED STATES V. MILLER SHAPED THE MODERN SECOND

AMENDMENT DEBATE

A. What Happened in Miller

The Heller litigation naturally focused attention on the Supreme Court’s

main previous decision on the constitutional right to arms, United States v.

Miller,

which was handed down seventy years ago. The Heller opinion deni-

grates Miller in several places,

and it is true that Heller, with its far more ex-

tensive analysis of the meaning of the right to arms, supersedes Miller as the

leading Second Amendment precedent. However, it is useful to begin by exam-

ining Miller in some detail, for three reasons. First, as I will discuss, prior Sec-

ond Amendment jurisprudence was dominated by different competing interpre-

tations of this enigmatic 1939 case. Second, the dissenting Justices in Heller

invoked Miller as support for their views of the Second Amendment.

Third,

many of the significant features of the right to arms recognized in Heller can be

understood best through a comparison with Miller.

Miller’s story has been well told elsewhere, particularly in an eye-

opening article by Brian Frye.

In brief, Jack Miller, a small-time Oklahoma

criminal who served as a lookout and getaway driver for a bank robbery gang,

was prosecuted for transporting an unregistered sawed-off shotgun across state

lines in violation of the National Firearms Act of 1934.

The federal district

court dismissed the indictment against Miller in a summary three-paragraph

order on the ground that the National Firearms Act violated Miller’s Second

Amendment right to arms.

The federal government appealed this order to the

307 U.S. 174 (1939).

See, e.g., Heller, 128 S.Ct. at 2814 (concluding that Miller “did not even purport to be a

thorough examination of the Second Amendment”); id. at 2815 n.24 (describing Miller as “a

virtually unreasoned case”).

See id. at 2822-24, 2845-46 (Stevens, J., dissenting); id. at 2848, 2861 (Breyer, J., dissent-

ing).

Brian L. Frye, The Peculiar Story of United States v. Miller, 3 N.Y.U. J.L. & LIBERTY 48

(2008) (cited in Heller, 128 S.Ct. at 2814).

Id. at 52-53.

Miller, 307 U.S. at 178; Frye, supra note 14 at 58.

United States v. Miller, 26 F. Supp. 1002 (W.D. Ark. 1939), rev’d, 307 U.S. 174 (1939).

Frye presents provocative evidence that District Judge Ragon’s ruling in Miller did not reflect his

true views, and instead may have been a judicial head-fake intended to prompt a reversal by the

Supreme Court, thereby creating a precedent for the constitutionality of federal gun control. See

Frye, supra note 14 at 63-65 (discussing Ragon’s “vocal advoca[cy] of federal gun control,” and

his rejection of Second Amendment objections to gun control measures, during his tenure as a

member of the U.S. House of Representatives, prior to his appointment to the bench by President

Franklin D. Roosevelt). Frye contends that Judge Ragon “probably colluded with the government

to create the ideal [Second Amendment] test case” in Miller, by sustaining the defendants’ consti-

tutional claim in an unreasoned memorandum opinion that “begg[ed] for an appeal.” Id. at 63.

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2009] THE RIGHT TO DEFENSIVE ARMS 353

Supreme Court, arguing that the Second Amendment protected only a collective

right to arms, rather than an individual one; or, alternatively, that the Amend-

ment did not protect weapons such as Miller’s sawed-off shotgun.

On appeal,

Miller famously presented no arguments to the Supreme Court. His counsel

failed to appear for the oral argument and did not file an appellate brief on

Miller’s behalf.

The Supreme Court reversed the lower court’s order in a brief opinion

by Justice McReynolds. Commentators have generally regarded Miller as an

opaque and open-ended opinion that left a great deal of ambiguity concerning

the nature of its holding and its conception of the Second Amendment right.

Despite its deficiencies, however, Miller did reach two significant conclusions

about the Second Amendment. First, it declared that the right to arms recog-

nized in the Second Amendment’s operative clause should be “interpreted and

applied” in a way that acknowledges the civic purposes suggested by the prefa-

tory clause’s reference to the militia.

The Court stated that judicial applica-

tions of the Second Amendment should keep this “end”—i.e., the militia pur-

pose—“in view.”

Second, in conformity with this conception of the Second

Amendment, Miller held that an individual’s possession of a particular kind of

firearm is not constitutionally protected, unless that possession has “some rea-

sonable relationship to the preservation or efficiency of a well regulated mili-

tia.”

Applying these principles, the Court found a lack of evidence that

Miller’s possession of a sawed-off shotgun bore a reasonable relationship to the

militia purpose. It pointed out that there was no evidence in the record that a

sawed-off shotgun was “part of the ordinary military equipment” or that “its use

could contribute to the common defense.”

Therefore, the Court could not up-

hold Miller’s constitutional challenge to the indictment. It remanded the case

for further proceedings—which, in Miller’s case, never occurred, because Miller

had turned up in Oklahoma, shot dead, shortly after the oral argument in his

Id. at 66.

Miller, 307 U.S. at 175.; Frye, supra note 14 at 66-67.

See, e.g., Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 TENN. L.

REV. 461, 499-500 (1995) (describing Miller as “not very clear” and “offer[ing] only a modicum

of help” in understanding the right to arms); David C. Williams, Civic Republicanism and the

Citizen Militia: The Terrifying Second Amendment, 101 YALE L.J. 551, 558 (1991) (characterizing

Miller as providing “a dearth of judicial instruction” on the Second Amendment).

Miller, 307 U.S. at 178.

Id.

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354 WEST VIRGINIA LAW REVIEW [Vol. 111

case—perhaps as payback for testifying in earlier trials against his former con-

federates.

B. Interpreting Miller’s Militia “End In View”

Miller provided a bare-bones structure to Second Amendment doctrine

by holding that judicial applications of the federal right to arms must be in-

formed (in some “reasonable” fashion) by the militia purpose that Miller under-

stood as the Amendment’s “end”. Put another way, the fairest reading of Miller

was that the prefatory clause’s concern for the militia should influence Second

Amendment doctrine at the retail level—the level of specific rules used to de-

cide legal claims under the Second Amendment. It appears that the “reasonable

relationship” requirement that Miller adopted was intended to accomplish this

goal.

Unfortunately, this doctrinal framework was still radically open-ended.

In particular, the requirement of a “reasonable relationship” between arms pos-

session and the militia could be understood in several sharply different ways.

That is precisely what happened. For the seven decades between Miller and

Heller, the debate about the Second Amendment’s legal meaning was mainly

structured by the sharply different conclusions that participants drew from

Miller’s admonition to keep the militia purpose “in view” when applying the

amendment.

We can divide the possible interpretations of Miller’s “end in view”

language—and thus (while Miller remained authoritative) of the Second

Amendment right—into three categories. The names supplied for these catego-

ries are mine.

1. Weak Miller

Under this view, the right to arms “protects only a right to possess and

use firearms in connection with service in a state-organized militia.”

Only

possession within these narrow bounds has, in Miller’s words, a “reasonable

relationship” to the preservation of a well-regulated militia. Thus, courts can

best give effect to the “end in view” language in Miller by confining the right to

arms to such circumstances. This is done either by denying individuals standing

Frye, supra note 14 at 68-69. After remand from the Supreme Court, Miller’s codefendant

Frank Layton entered a guilty plea to the NFA charge. Id. at 69.

Brannon Denning has suggested a similar division of possible readings. See Brannon P.

Denning, Can the Simple Cite Be Trusted?: Lower Court Interpretations of United States v. Miller

and the Second Amendment, 26 CUMB. L. REV. 961, 971 (1996) (concluding that “there are basi-

cally three interpretations of Miller,” which turn on the nature of the connection between the

operative clause and the militia purpose).

District of Columbia v. Heller, 128 S.Ct. 2738, 2828 (2008) (Stevens, J., dissenting).

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2009] THE RIGHT TO DEFENSIVE ARMS 355

to invoke the right at all,

or, in a more recent version, by treating the right as

assertable by individuals, but in a way that is limited in scope to individuals who

seek to participate actively in organized militia service. The latter version of

Weak Miller, sometimes called the “sophisticated collective rights view,” was

adopted by many lower federal courts between Miller and Heller.

This view

was also the District of Columbia’s main litigating position in Heller

and was

accepted by Justice Stevens in his Heller dissent.

2. Intermediate Miller

Under this view, the right to keep and bear arms—which, after all, the

Constitution defines as a “right of the people,” not of government—is a right

vested in individuals, and extends to them whether or not they currently partici-

pate in a state-regulated military organization, or indeed whether or not their

state currently maintains such an organization. However, the purpose for which

individuals are constitutionally entitled to keep their own arms is wholly or pri-

marily limited by the civic purpose mentioned in the prefatory clause. While

such keeping has, in Miller’s words, a “reasonable relationship” to a militia, the

use of firearms for personal defense may not. Thus, this view holds that courts

can best give effect to the “end in view” language in Miller by upholding gun

regulations as long as they leave the people in possession of arms useful for

preparing for militia service—even if those regulations severely restrict private

See, e.g., Silveira v. Lockyer, 312 F.3d 1052, 1066 (9th Cir. 2003) (holding that individual

citizens “lack standing” to challenge gun restrictions because the Second Amendment merely

“protects the people’s right to maintain an effective state militia, and does not establish an indi-

vidual right to own or possess firearms for personal or other use,” and citing Miller as consistent

with this position).

E.g., United States v. Parker, 362 F.3d 1279, 1284 (10th Cir. 2004); United States v. Rybar,

103 F.3d 273, 286 (3d Cir. 1996); United States v. Hale, 978 F.2d 1016, 1020 (8th Cir. 1992); cf.

United States v. Emerson, 270 F.3d 203, 218-221 (5th Cir. 2001) (distinguishing “sophisticated

collective rights” view from traditional collective rights view).

See Brief for Petitioner at 12, District of Columbia v. Heller, No. 07-290 (U.S. Jan. 4, 2008),

available at http://www.gurapossessky.com/news/parker/documents/PetitionersbriefinD.C.v

.Heller.pdf (arguing that the Second Amendment “has an exclusively military purpose” and “pro-

tects the keeping and bearing of arms only in service of a well-regulated militia.”) (capitalization

omitted).

Heller, 128 S.Ct. at 2823 (Stevens, J., dissenting) (concluding that the Second Amendment

“protects the right to keep and bear arms for certain military purposes, but […] does not curtail the

Legislature’s power to regulate the nonmilitary use and ownership of weapons”) (citing Miller for

this proposition); id. at 2827 (suggesting that the Second Amendment right does not “encompass

use or ownership of weapons outside the context of service in a well-regulated militia”); id. at

2847 (denying that the Second Amendment in any way “limit[s] the tools available to elected

officials wishing to regulate civilian uses of weapons”).

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356 WEST VIRGINIA LAW REVIEW [Vol. 111

self-defense with firearms, as did the District of Columbia’s pre-Heller gun

laws.

This position has attracted few adherents,

despite being at least as

faithful to the Miller opinion and the text of the Second Amendment as is the

Weak Miller view. Scholars who have claimed to transcend the usual “di-

chotom[ies]” in the Second Amendment debate and emphasized the civic pur-

poses of the right to arms,

thus making them natural candidates to embrace

Intermediate Miller, have nevertheless shied away from a natural implication of

their stance: that courts should engage in meaningful Second Amendment scru-

tiny of some gun restrictions, although (on this view) perhaps not the limits on

private self-defense exemplified by the D.C. statutes challenged in Heller.

E.g., D.C. CODE §§ 7-2501.01(12), 7-2502.01(a), 7-2502.02(a)(4) (2001) (prohibiting pri-

vate handgun ownership); 7-2507.02 (2001) (prohibiting armed self-defense in the home).

One recent historical analysis suggests that, by the time of the founding, Americans had

evolved a distinctive understanding that they were entitled by right to keep personal firearms.

Robert H. Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early

America: The Legal Context of the Second Amendment, 25 LAW & HIST. REV. 139 (2007) (cited in

District of Columbia v. Heller, 128 S.Ct. 2783, 2848-49 (Breyer, J., dissenting)). This under-

standing, Professor Churchill argues, arose out of the colonial experience of participation in orga-

nized militias, and reflected a break from (not, as the Heller majority suggests, a continuity with)

the English experience of arms regulation. Id. at 143. However, as the early American

understanding of the right to keep arms developed, it extended beyond those engaged in militia

service, and encompassed all members of the body politic. Id. at 148, 155-61. At the same time,

Churchill argues, this right to keep arms co-existed with extensive regulation of the bearing and

use of arms, particularly outside of the home. Id. at 161-65; cf. Aymette v. State, 21 Tenn. 154

(1840) (applying the Second Amendment and the Tennessee Constitution to uphold a ban on

concealed weapons; defining the right to “keep” arms as an “unqualified” individual right, but the

right to “bear” arms as qualified by the civic purpose of furthering the common defense).

Churchill’s reading of the sources suggests a right to arms that would provide forceful pro-

tections against the banning or confiscation of common firearms in private hands. See Churchill,

supra at 161 (criticizing Saul Cornell and other “civic rights” authors for understating the reluc-

tance of early colonial and state governments to interfere with the private keeping of firearms). At

the same time, while Churchill’s reading is not incompatible with a right to possess arms that

gives significant weight to self-defense, it tends to emphasize the discretion of founding-era gov-

ernments to regulate the uses of arms. Churchill’s claim that the American right to possess arms

was in many respects discontinuous with the English experience is in tension with the Heller

majority’s efforts to draw upon English authority to support the conclusion that personal defense

lies at the core of the Second Amendment right to arms. See infra notes 63 to 81 and accompany-

ing text. For all of these reasons, Churchill’s article deserves to be classified as a leading example

of the interpretation I call Intermediate Miller.

See, e.g., Saul Cornell and Nathan DeDino, A Well Regulated Right: The Early American

Origins of Gun Control, 73 FORDHAM L. REV. 487, 490-91 (2005) (“Rather than fitting into a

simple dichotomy, it now appears that Second Amendment scholarship is arrayed across a consid-

erable spectrum, from an expansive individual right to a narrow collective right of the states to

maintain their militias […]. The most interesting and exciting new developments . . . have oc-

curred in the middle of this vast spectrum.”).

Cf. id. at 527 (arguing for only “rigorous rational basis review” of gun restrictions; stating

that “there is really no need to invent new legal justifications for protecting the rights of firearms

owners.”); id. at 527 n.261 (contending generally that “aggressive judicial enforcement of an

individual right [to arms] is superfluous”).

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2009] THE RIGHT TO DEFENSIVE ARMS 357

Nonetheless, the District of Columbia offered Intermediate Miller as a fallback

position in the Heller oral argument.

Justice Stephen Breyer’s questions during that oral argument suggested

sympathy with the Intermediate Miller interpretation.

In the end, Justice

Breyer chose to join in full the dissenting opinion of Justice Stevens, which em-

braced Weak Miller.

But Justice Breyer also penned a separate dissent that

assumed arguendo the validity of the Intermediate Miller view, under which the

“first and primary objective” of the individual right to arms is “the furthering of

a well-regulated militia,” but this interest may still impose limits on firearms

regulation even when the local government does not currently maintain an orga-

nized citizen militia.

Justice Breyer also proclaimed himself willing to assume

arguendo that the right to arms includes an interest in promoting individual self-

defense

as a secondary (or tertiary

) objective. However, Justice Breyer’s

dissent concluded that even under this somewhat more rights-protective concep-

tion, the challenged D.C. laws should survive constitutional scrutiny. The ban

on possession of handguns, he claimed, “burdens the Amendment’s […] pri-

mary objective” of militia training “hardly at all,” since D.C. residents remained

free to possess “weapons other than handguns, such as rifles and shotguns”

—a

claim that turns out to require severe qualification.

The District’s counsel argued in the alternative that, since “there is a militia relatedness

aspect of the Second Amendment, […] Heller’s proposed use of a handgun [sc. self-defense] has

no connection of any kind to the preservation or efficiency of a militia and therefore the case is

over.” Transcript of Oral Argument at 11-12, Heller, 128 S.Ct. 2783 (No. 07-290), available at

http://www.supremecourtus.gov/oral_arguments/argument_transcripts/07-290.pdf (emphasis

added).

See, e.g., id. at 50-51 (Breyer, J.) (asking counsel to assume that “there is an individual

[Second Amendment] right, but the purpose of that right is to maintain a citizen army, call it a

militia, that that’s the basic purpose. So [that purpose] informs what’s reasonable and what isn’t

reasonable”; therefore, a handgun ban may be constitutional).

See Heller, 128 S.Ct. at 2822-47 (Stevens, J., dissenting); supra notes 27-31 and accompa-

nying text (arguing that Justice Stevens’s dissent adopts Weak Miller).

Heller, 128 S.Ct. at 2861-62 (Breyer, J., dissenting) (arguing that “the present case has

nothing to do with actual military service,” since the District of Columbia “has [not] called up its

citizenry to serve in a militia,” but acknowledging that the challenged D.C. gun bans might still

“interfere with training in the use of weapons, training useful for military purposes.”).

Id. at 2863.

Justice Breyer listed self-defense last among the interests potentially served by the right to

arms, placing it after not only the preservation of a well-regulated militia, but also “the use of

firearms for sporting purposes” such as hunting and target shooting. Id.

Id. at 2862 (stressing that the “only weapons that cannot be registered” in the District of

Columbia are “sawed-off shotguns, machine guns, short-barreled rifles, and pistols not registered

before 1976.”).

Justice Breyer’s argument on this point contains a significant error, which becomes evident

upon a close reading of the language of the D.C. Code as it stood when Heller was decided. His

suggestion that District of Columbia residents were free to own rifles and shotguns appropriate for

militia training and familiarization was factually mistaken. Justice Breyer stated that District law

prohibits “machine guns” while permitting rifles and shotguns. Id. (citing D.C. Code §§ 7-

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358 WEST VIRGINIA LAW REVIEW [Vol. 111

3. Strong Miller

Under this view, the Constitution broadly recognizes an individual con-

stitutional right to “keep and bear arms,” not only for militia purposes, but also

for other traditionally legitimate purposes, such as private self-defense. How-

ever, under this view, not all types of personal weapons qualify as protected

“arms.” Only those arms whose characteristics give them a “reasonable rela-

tionship” to militia activity are protected by the Second Amendment. Miller

supplies the test for this protection. Under Strong Miller, a court considering a

Second Amendment claim to possess or use a given firearm would ask, inter

alia, whether the weapon is “part of the ordinary military equipment” and is “of

the kind in common use at the [present] time.”

David Hardy has termed this

conception of the Second Amendment the “hybrid view” because it combines a

2502.01, 7-2502.02(a)). But he did not cite or discuss the District’s statutory provision defining

the term “machine gun,” D.C. Code § 7-2501.01(10)(B). This provision employed a bizarrely

overinclusive definition that encompasses, inter alia, any semi-automatic (i.e., self-loading, firing

one shot at a time) rifle or shotgun that contains, or can accept, a magazine holding 12 rounds or

more. See id. (defining as a “machine gun” “any firearm which shoots, is designed to shoot, or

can be readily converted or restored to shoot . . . [s]emiautomatically, more than 12 shots without

manual reloading”). Since one of the principal purposes of describing a firearm as semi-automatic

is precisely to distinguish it from a machine gun, which is a fully automatic or burst-fire weapon,

the District’s definition was as contrary to ordinary language as would be a criminal statute that

defined married men above six feet in height as “bachelors.” The effect of this provision is to

prohibit, under the spurious notion that they are “machine guns,” a wide swath of ordinary rifles.

The banned rifles include the millions of common, inexpensive self-loading .22 rimfire rifles sold

for decades by Marlin and Ruger, as well as virtually all modern rifles of military pattern adopted

since the 1950s, including the detachable magazine-fed rifles that are most valuable for military

familiarization and training today. See Posting of Mike O’Shea to Concurring Opinions,

http://www.concurringopinions.com/archives/2008/07/machine_guns_th.html (Jul. 10, 2008,

05:20 EST).

The error matters because Justice Breyer’s argument for the constitutionality of D.C.’s ban

on handguns turns on the availability of adequate alternatives in the form of rifles and shotguns.

Cf. Heller, 128 S.Ct. at 2862 (Breyer, J., dissenting) (discussing amicus curiae brief of retired

U.S. generals that specified “rifles, pistols, and shotguns” as the main classes of militarily useful

small arms). Thus, his argument was seriously undermined, even on its own terms, by the pro-

found restrictions that the District actually also imposed on common rifles through its misleading

statutory definition of “machine gun.”

At the time this article went to publication, the D.C. City Council (under pressure from the

U.S. Congress, see infra note 175), had passed temporary emergency legislation that eliminates

the anomalous language from the District’s definition of “machine gun,” and replaces it with a

narrower, ordinary language definition that mirrors the one employed by federal law. The effect

of this temporary legislation is to remove many of the prohibitions on ownership of modern rifles

described above. Firearms Registration Emergency Amendment Act of 2008, D.C. Legis. Act 17-

651 (Jan. 6, 2009) (expiring ninety days after enactment).

Miller, 307 U.S. at 178-79.

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2009] THE RIGHT TO DEFENSIVE ARMS 359

genuinely meaningful individual right with limits suggested by the militia pur-

pose.

Some proponents of Strong Miller have understood Miller’s mention of

weapons in “common use” to refer to whether weapons are commonly used by

military organizations at the present time.

This version of Strong Miller (call

it Very Strong Miller) makes current military utility both a necessary and a suf-

ficient test for the constitutional protection of a hand-carried weapon.

Others,

however, have understood Miller to impose a requirement that covered weapons

be not only appropriate for military use, but also “in common use” by private

citizens at the present time. This interpretation stresses Miller’s observation that

founding-era militiamen were traditionally expected to appear “bearing arms

supplied by themselves,”

and thus the kind that private citizens would likely

possess. Justice Antonin Scalia expressed sympathy for the latter, two-step ver-

sion of Strong Miller in the Heller oral argument

—though as we will see, nei-

ther version was ultimately adopted in Scalia’s opinion for the Court in Heller.

Under Strong Miller, courts could best give effect to the “end in view”

language in Miller by holding that the Second Amendment protects possession

of common firearms that have militia utility, such as modern rifles, shotguns,

and many types of handguns, but not of weapons that lack such utility—the

category to which the Miller Court assigned Miller’s sawed-off shotgun, render-

ing it constitutionally unprotected.

Strong Miller was the litigating position of the plaintiffs in Heller,

and

was adopted by the Fifth and D.C. Circuits

in the decade preceding the Heller

See David T. Hardy, 15 WM. & MARY. BILL RTS. J. 1237, 1237 (2007) (reviewing SAUL

CORNELL, A WELL REGULATED MILITIA: THE FOUNDING FATHERS AND THE ORIGIN OF GUN

CONTROL IN AMERICA (2006)).

E.g., Michael I. Garcia, Comment, The “Assault Weapons” Ban, the Second Amendment,

and the Security of a Free State, 6 REGENT U. L. REV. 261, 282 (1995) (“The primary weapons of

[…] modern light infantry are rifles— semiautomatic and automatic— and handguns.”); id. at 285

n.138 (“Since the main part of the [popular] Militia was to function as a light infantry, it should

have the weapons of a light infantry.”).

Pennsylanian Tench Coxe, a prominent Federalist and official in the Washington and Ad-

ams administrations, provided supporters of Very Strong Miller with their slogan in a 1788 pam-

phlet in support of constitutional ratification: “Who are these militia? Are they not our selves?

[…] Congress have no power to disarm the militia. Their swords, and every other terri-

ble implement of the soldier, are the birthright of an American.” Tench Coxe, A Pennsylvanian

III, PENNSYLVANIA GAZETTE, February 20, 1788, reprinted in THE ORIGIN OF THE SECOND

AMENDMENT: A DOCUMENTARY HISTORY OF THE BILL OF RIGHTS 1787-1792 276 (David E. Young

ed., Golden Oak Books 1995) (1991). Coxe, a prolific founding-era writer on the significance of

the right to arms, is conspicuous by his absence in Heller, where he is nowhere cited or discussed

by any Justice.

Miller, 307 U.S. at 179.

See Transcript of Oral Argument at 47, supra note 36 (suggesting that machine guns are not

protected by Miller’s test, because a weapon is “an ‘arm’ in the specialized sense that the [Miller]

opinion referred to it” if it “is the type of a weapon that was used in militia, and […] it is nowa-

days commonly held.”).

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360 WEST VIRGINIA LAW REVIEW [Vol. 111

litigation. Nor was this construction of the right to arms a post-Miller innova-

tion: it was shared by a number of influential nineteenth-century state court de-

cisions.

This view has also been a commonly-held understanding of Miller

among grassroots, non-lawyer gun rights supporters.

Strong Miller is a plausible interpretation of the Second Amendment

right to arms. It is the reason why gun rights proponents were correct in main-

taining that Miller did not settle the issue of whether the Second Amendment

protects an individual right to possess firearms for self-defense.

Strong Miller,

and its state court predecessors, sketched one way to define a broad, individual

Second Amendment right that nevertheless displayed a plain connection to the

militia purpose referred to in the amendment’s preface. By demonstrating this

connection on its face, Strong Miller was well positioned to defeat criticism that

Brief of Respondent at 43, District of Columbia v. Heller, No. 07-290 (U.S. Feb. 4, 2008),

available at http://www.gurapossessky.com/news/parker/documents/07-0290bs.pdf (last accessed

August 13, 2008) (“The test for whether a particular weapon is or is not within the Second

Amendment’s protection was established in Miller.”).

Parker v. District of Columbia, 478 F.3d 370, 390 (D.C. Cir. 2007), aff’d sub nom; District

of Columbia v. Heller, 128 S.Ct. 2783 (2008) (“[I]nterpreting ‘Arms’ in light of the Second

Amendment’s militia purpose makes sense because ‘Arms’ is an open-ended term that appears but

once in the Constitution and Bill of Rights. But Miller does not command that we limit perfectly

sensible constitutional text such as ‘the right of the people’ in a manner inconsistent with other

constitutional provisions.”); accord United States v. Emerson, 270 F.3d 203, 227 n.22 (5th Cir.

2001).

The clearest example is a case repeatedly invoked by the Heller Court, Andrews v. State, 50

Tenn. 165 (1871), cited in Heller, 128 S.Ct. at 2806, 2809, 2818. In Andrews, the Tennessee

Supreme Court recognized a broad state constitutional right to keep arms for “all the ordinary

purposes for which arms are adapted,” but limited the class of protected “arms” to “the usual arms

of the citizen of the country, […] the use of which will properly train and render him efficient in

defense of his own liberties, as well as of the State.” 50 Tenn. at 177-79. It defined this class to

include military-type handguns (“repeaters”) but not all handguns. Id. at 179, 186-87, accord Fife

v. State, 31 Ark. 455, 461-62 (1876). For a fuller analysis of nineteenth-century case law and its

development of a “civilized warfare test” for the weapons covered by the right to arms, see David

B. Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU L. REV. 1359, 1416-21,

1424-25, 1432-33 (1998).

See, e.g., Who the Hell is Jim Zumbo?, Posting at View from the Porch, Feb. 18, 2007,

10:02 a.m., http://booksbikesboomsticks.blogspot.com/2007/02/boomsticks-who-hell-is-jim-

zumbo.html (“An argument could be made (and has been, by the Supreme Court in the Miller

decision) that [unlike military-pattern semi-automatic rifles] […] hunting guns are not

Constitutionally protected at all, except those that meet the requirements for militia service.”).

See, e.g., Brannon P. Denning and Glenn H. Reynolds, Telling Miller’s Tale: A Reply to

David Yassky, 65 LAW & CONTEMP. PROBS. 113, 114 (2002) (“What Miller plainly does not do is

deny that an individual’s right to keep and bear arms is protected by the Second Amendment—

the holding ascribed to it by most federal courts since 1939.”); William Van Alstyne, The Second

Amendment and the Personal Right to Arms, 43 DUKE L.J. 1236, 1238 (1994) (“[W]ere the Sec-

ond Amendment [to be] taken . . . [to protect a personal right to arms], … the scope of the right

that is protected […] would still remain to be defined.”); id. at 1238 n.8 (“For example, with re-

spect to the kind of ‘Arms’ one may have. Perhaps these include all arms as may be useful

(though not exclusively so) as an incident of service in a militia—and indeed, this would make

sense of the introductory portion of the amendment as well.”) (citing Miller, 307 U.S. at 178).

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2009] THE RIGHT TO DEFENSIVE ARMS 361

the individual-rights view of the Second Amendment improperly ignores its

prefatory clause, or gives insufficient weight to Miller—criticisms that were

urged by the dissenting Justices in Heller and other critics of the Court’s deci-

sion.

Further, as I will discuss in Part IV, because Strong Miller pays attention

to the weapons that governments deem appropriate to issue to their own ser-

vants, it would have enabled courts to avoid a problem of circularity that an

unadorned “common use by private citizens” criterion presents.

The most forceful objections to Strong Miller have been couched in

pragmatic and prudential terms, rather than those of legal interpretation. Virtu-

ally all standard infantry rifles issued today, including the U.S. military’s M4

carbine and M16 rifle, can fire fully automatically or in multi-shot “burst fire”

modes,

and so are classified as machine guns under federal law. In Miller’s

words, then, a machine gun is “ordinary military equipment” for the individual

soldier, if anything is. Thus, the strongest version of Strong Miller would have

implied that the federal government’s ban on the private possession of machine

guns made after 1986

violated the Second Amendment.

This was strong medicine to swallow for most lawyers, judges, and aca-

demics. In the decades between Miller and Heller, jurists often expressed alarm

at the prospect that the scope of covered “arms” would include machine guns if

Miller’s emphasis on “ordinary military equipment” were combined with a

meaningful individual right.

The prospect that the federal post-1986 machine

Heller, 128 S.Ct. at 2826 (Stevens, J., dissenting) (criticizing the Court for “tr[ying] to deni-

grate the importance of [the prefatory] clause of the Amendment by beginning its analysis with

the Amendment’s operative provision”); Erwin Chemerinsky, The Heller Decision: Conservative

Activism and Its Aftermath, Cato Unbound (July 25, 2008), available at

http://www.cato-unbound.org/2008/07/25/erwin-chemerinsky/the-heller-decision-conservative-

activism-and-its-aftermath/ (“Justice Scalia could find an individual right to have guns only by

effectively ignoring the first half of the Second Amendment.”).

See Colt Defense Weapons Systems, M4 5.56mm Carbine Specifications,

http://www.colt.com/mil/m4_2.asp; M16A4 5.56mm Rifle Specifications, http://www.colt.com

/mil/M16_2.asp (listing fully automatic and burst fire versions of each weapon) (both last visited

Nov. 23, 2008).

18 U.S.C. § 922(o) (2000). Somewhat in excess of 100,000 legally transferable machine

guns remain in circulation. See Proposed Legislation to Modify the 1968 Gun Control Act: Hear-

ings Before the House Judiciary Committee, 99th Cong., 1165 (1987) (testimony of Stephen E.

Higgins, Director, U.S. Bureau of Alcohol, Tobacco, and Firearms)(estimating around 118,000

registered machine guns in BATF’s files). This fixed pool consists of the weapons that were

properly registered pursuant to the National Firearms Act of 1934, 26 U.S.C. § 5801 et seq., prior

to the effective date of the ban provision, 18 U.S.C. § 922(o), on May 19, 1986. Prices currently

begin at $3,000 and range up to $25,000 or more for rare or high-quality weapons.

See, e.g., Cases v. United States, 131 F.2d 916, 922 (1st Cir. 1942) (expressing fear that,

under an individual rights reading of Miller, “Congress would be prevented by the Second

Amendment from regulating the possession or use by private persons . . . of distinctly military

arms, such as machine guns [or] trench mortars . . . . It seems to us unlikely that the framers of the

Amendment intended any such result”). The expressions of this danger have sometimes taken

intellectually unserious forms. Cf. United States v. Warin, 530 F.2d 103, 106 (6th Cir. 1976)

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362 WEST VIRGINIA LAW REVIEW [Vol. 111

gun ban would be jeopardized appears to have been a major motivation for the

Solicitor General’s filing of an ambivalent brief for the United States as amicus

curiae in Heller. The Solicitor General’s brief endorsed a broad individual right

to arms, yet also asked the Court to adopt a standard of review so deferential

that the United States did not even concede the invalidity of D.C.’s flat bans of

handguns and the defensive use of guns in the home.

Instead, the brief asked

the Supreme Court to reverse the D.C. Circuit’s opinion invalidating the bans,

and remand for further proceedings.

The brief of the United States repeatedly

invoked a potential legal threat to the post-1986 machine gun prohibition as a

reason to dilute the Second Amendment standard of review.

Mr. Heller’s counsel carefully litigated the case so as to avoid forcing

the Supreme Court to make a choice between preserving the machine gun ban

and recognizing an individual Second Amendment right with a meaningful

standard of review. Instead, Heller urged the alternative form of Strong Miller,

under which weapons must qualify as both militia-useful and in common use by

peaceable citizens in order to qualify as protected “arms.” This supplied a basis

for upholding sweeping restrictions on machine guns, without diluting the pro-

tection extended to firearms that do meet the “common use” test.

III. THE END OF THE “END IN VIEW”? HELLER’S REVISION OF MILLER

Justice Scalia’s opinion for the Court in Heller deals with many of the

complications inherited from Miller by dissolving them. Heller does not exactly

adhere to any of the aforementioned approaches to the Second Amendment,

though it is closest to Strong Miller. Heller departs from Miller, not in its af-

firmation of an individual right to arms that includes self-defense, but in its re-

(arguing that if a strict version of Strong Miller “was inconceivable in 1942 [when Cases was

decided], it is completely irrational in this time of nuclear weapons”).

See Brief for the United States as Amicus Curiae at 9, 32, District of Columbia v. Heller,

No. 07-290 (U.S. Feb. 4, 2008) available at http://www.gurapossessky.com/news/parker

/documents/07-290tsacUnitedStates.pdf (last accessed Nov. 25, 2008).

Id. at 32.

Id. at 2, 9 (expressing fear that Court of Appeals’ analysis “could cast doubt on the constitu-

tionality of existing federal legislation prohibiting the possession of certain firearms, including

machineguns,” which could be avoided through a “more flexible” standard of scrutiny), 21-22, 24-

25.

Brief of Respondent at 51-52, District of Columbia v. Heller, No. 07-290, available at

http://www.gurapossessky.com/news/parker/documents/07-0290bs.pdf (last accessed August 13,

2008) (arguing that even though machineguns clearly have militia utility, “the [Miller] Court

could nonetheless have held that machineguns fall outside the scope of the Second Amendment’s

protection as they were not ‘in common use at the time’ such that civilians could be expected to

have possessed them for ordinary lawful purposes.” (quoting Miller, 307 U.S. at 179)); Transcript

of Oral Argument, supra note 36, at 59 (Alan Gura, counsel for respondent) (conceding that ma-

chine guns could be excluded from the category of Second Amendment “arms” because they are

“not appropriate for civilian use.”).

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2009] THE RIGHT TO DEFENSIVE ARMS 363

fusal of Miller’s means of conceiving the linkage between the right to arms and

the militia purpose in the Second Amendment’s preface.

A. Justice Kennedy, Professor Lund, and the English Right to Arms

Signs of a switch in the Supreme Court’s view of the relationship of the

Second Amendment’s two clauses became evident as the Heller litigation pro-

gressed. One of the case’s most dramatic moments occurred at oral argument,

when swing Justice Anthony Kennedy expressed a willingness to rethink

Miller’s treatment of the civic purposes of the Second Amendment. Justice

Kennedy suggested a conception of the Second Amendment that would “delink”

its affirmation of a right to keep and bear arms from its affirmation of the mili-

tia,

and thereby move private purposes such as personal defense closer to the

core of the right to arms.

Justice Kennedy hinted that he would look to the

English right to arms as an exemplar in applying the Second Amendment, in-

stead of the activities of militiamen in the American revolutionary era.

Many of these remarks echoed a provocative amicus curiae brief filed

by Professor Nelson Lund on behalf of the Second Amendment Foundation.

Lund’s brief argued that the Court should reject Miller’s stress on the militia and

adopt a theory of the Second Amendment founded on the natural right of self-

defense.

Lund contended that the Amendment’s prefatory clause simply re-

flects the “limited and indirect—though real—relationship between a well regu-

lated militia and the . . . right to arms” by assuring that the people from whom a

traditional militia would be drawn could not be disarmed by the federal gov-

ernment.

The brief argued that private self-defense should properly be consid-

Transcript of Oral Argument, supra note 36, at 5-6 (Kennedy, J.) (proposing an interpreta-

tion that “conforms the two clauses and in effect delinks them. […] [S]o in effect the amendment

says we reaffirm the right to have a militia, we’ve established it, but in addition, there is a right to

bear arms.”).

Id. at 8 (suggesting that the Second Amendment right to arms “had . . . to do with the con-

cern of the remote settler to defend himself and his family against hostile Indian tribes and out-

laws, wolves and bears . . . and things like that”); id. at 30 (“Miller . . . is just insufficient . . . to

describe the interests that must have been foremost in the framers’ minds when they were con-

cerned about guns being taken away from the people who needed them for their defense.”).

See id. at 16 (Kennedy, J.) (“[T]here’s no question that the English struggled with how to

work this [sc. the proper scope of gun regulation under the right to arms] . . . . Do you think the

Second Amendment is more restrictive or more expansive of the right than the English Bill of

Rights in 1689?”); cf. id. at 13 (“[I]n my view . . . [the Second Amendment says] there’s a general

right to bear arms quite without reference to the militia either way.”).

Brief of Second Amendment Foundation as Amicus Curiae Supporting Respondent, District

of Columbia v. Heller (No. 07-290), available at 2008 WL 383529 (Feb. 4, 2008) [hereinafter

“Lund Brief”].

Id. at ** 31-40. Professor Lund presents arguments similar to the brief’s in Nelson Lund,

D.C.’s Handgun Ban and the Constitutional Right to Arms: One Hard Question?, 18 GEO. MASON

U. CIV. RTS. L.J. 229 (2008).

Lund Brief, supra note 66, at *22.

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364 WEST VIRGINIA LAW REVIEW [Vol. 111

ered part of the core of the constitutional right to arms, citing classical liberal

theorists admired by the Framers, such as Locke and Montesquieu, who treated

self-defense as a foundational individual right.

Finally, the brief discussed the

commentaries of Blackstone, who identified the English right to arms as an

“auxiliary right” that serves to preserve the fundamental right of self-defense.

Lund concluded that “[i]n the twenty-first century, the most salient purpose of

the Second Amendment is to protect the people’s ability to defend themselves

against violent criminals.”

In Heller, the Kennedy-Lund view of the Second Amendment has pre-

vailed. This forces the Court to rethink Miller. Recall that Miller held that the

Amendment must be not only “interpreted,” but also “applied” with the militia

“end in view.”

Heller rejects the “applied” part of Miller’s requirement. In-

stead, Heller reasons that a culture that protects gun ownership for personal pur-

poses, such as self-defense and sporting use, will naturally tend to produce a

population that is skilled and familiar with firearms, and in which personal gun

ownership is widespread. These traits, in turn, enhance the ability of the people

to function as a popular militia of the kind contemplated in the preface of the

Second Amendment. That is the connection between the Second Amendment’s

preface and its operative clause, Heller concludes. No further degree of connec-

tion is required.

While Professor Lund had emphasized first principles of liberal theory

in arguing for a right to arms centered on self-defense, the Heller Court chooses

instead to justify that conclusion by emphasizing the continuity of the Second

Amendment’s operative clause with the English right to arms. Indeed, one of

the Heller Court’s central criticisms of Miller is the 1939 opinion’s failure to

discuss the English right to arms.

The 1689 English Bill of Rights provided

Id. at ** 34-35.

Id. at **36, 38-39.

Id. at *39.

Miller, 307 U.S. at 178.

See Heller, 128 S. Ct. at 2817:

[T]he conception of the militia at the time of the Second Amendment’s ratifi-

cation was the body of all citizens capable of military service, who would

bring the sorts of lawful weapons that they possessed at home to militia duty.

It may well be true today that a militia, to be as effective as militias in the 18th

century, would require sophisticated arms that are highly unusual in society at

large. . . . But the fact that modern developments have limited the degree of fit

between the prefatory clause and the protected right cannot change our inter-

pretation of the right.

Heller, 128 S.Ct. at 2814 (stating that Miller “did not even purport to be a thorough exami-

nation of the Second Amendment”); id. at 2815 (asserting that “the [Miller] opinion […] discusses

none of the history of the Second Amendment.”). Justice Stevens correctly points out in dissent

that Miller did discuss the founding-era understanding of the militia, id. at 2845-46 (Stevens, J.,

dissenting); see Miller, 307 U.S. at 178-79. Thus, the relevant “history of the Second Amend-

ment” whose absence from Miller the Heller Court criticizes must be the history of the predeces-

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2009] THE RIGHT TO DEFENSIVE ARMS 365

that “the subjects which are Protestants may have arms for their defense suitable

to their conditions and as allowed by law.”

Heller stresses that this “was

clearly an individual right, having nothing whatever to do with service in a mili-

tia.”

The Court also emphasizes Blackstone’s eighteenth-century discussion of

the English right in his influential Commentaries. Invoking Lockean philoso-

phical ideas, Blackstone connected “the right of having and using arms for self-

preservation and defence” with “the natural right of resistance and self-

preservation.”

The resulting conception of the right to arms, the Court argues,

was “an individual right protecting against both public and private violence.”

Having presented evidence that the historic English right was not tied to

the concept of a militia, but rather served a range of personal purposes, the

Court then argues that the Second Amendment’s operative clause guarantees

that kind of right—not one qualified by Miller’s pervasive militia focus:

[I]t has always been widely understood that the Second

Amendment, like the First and Fourth Amendments, codified a

pre-existing right. The very text of the Second Amendment im-

plicitly recognizes the pre-existence of the right and declares

only that it shall not be infringed. As we said in United States

v. Cruikshank, 92 U.S. 542, 553 (1876), “[t]his is not a right

granted by the Constitution. Neither is it in any manner de-

pendent upon that instrument for its existence. The Second

amendment declares that it shall not be infringed . . . .”

This emphasis on a pre-existing right—arguably reflected in the syntax

of the Second Amendment, which refers to “the right to keep and bear arms”—

is important to Heller’s rejection of the dissenters’ argument that the Second

Amendment only protects participation in an organized militia. The English

sor English right to arms, and the Founding generation’s understanding of the English right’s

nature and importance.

1 W. & M., c. 2, § 7 in 3 Eng. Stat. at Large 441 (1689).

Heller, 128 S.Ct. at 2798; see also id. (emphasizing that the right to arms “was secured to

[Englishmen] as individuals, according to ‘libertarian political principles,’ not as members of a

fighting force” (quoting LOIS G. SCHWOERER, THE DECLARATION OF RIGHTS 1689 283 (1981)).

Id. (quoting 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE COMMON LAW OF ENGLAND

140 (1765)).

Id. at 2798-99. As the reference to “public” as well as “private violence” suggests (not to

mention Blackstone’s quoted reference to the “natural right of resistance”), the right that emerges

from the Heller Court’s discussion of the English right is grounded primarily in personal purposes

for arms such as individual self-defense, but also reflects civic purposes, such as resistance to

tyranny. Cf. id. at 2798 (noting that one of the evils that motivated the recognition of the English

right to arms was the Stuart kings’ use of “select militias loyal to them to suppress political dissi-

dents, in part by disarming their opponents” (citing, inter alia, JOYCE MALCOLM, TO KEEP AND

BEAR ARMS 31-53 (1994)).

Id. at 2797-98.

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366 WEST VIRGINIA LAW REVIEW [Vol. 111

right to personal arms (and, in Blackstone’s account, the underpinning natural

right to self-defense

) provides an obvious source to explain the general nature

of the pre-existing right guaranteed by the Second Amendment. In dissent, Jus-

tice Stevens argues that the requirement to participate in a state militia “was also

a pre-existing right,” though he provides no evidence for this claim.

B. Revising Miller: Defensive Arms for Personal Purposes

Heller’s human rights-centered conception of the Second Amendment

right to arms naturally entails a rejection of Weak and Intermediate Miller,

which condition the right on a more or less narrow understanding of the militia

purpose. But Heller also rejects Strong Miller, with its militia criterion for what

counts as covered “arms.” At first blush the incompatibility is easy to overlook.

Heller rightly glosses Miller as “stand[ing] . . . for the proposition that the Sec-

ond Amendment right, whatever its nature, extends only to certain types of

For an analysis of Heller’s reliance on sources that characterize the right to arms as a corol-

lary of a natural or inherent right of self-defense, see David B. Kopel, The Natural Right to Self-

Defense: Heller’s Lesson for the World, 59 SYRACUSE L. REV. 235 (2008).

Heller, 128 S.Ct. at 2831 (Stevens, J., dissenting); cf. id. at 2798 n.16 (calling Justice Ste-

vens’s claim that organized militia service was a pre-existing right “wholly unsupported”).

Dennis Henigan, author of the amicus curiae brief of the Brady Center to Prevent Gun Violence in

the Heller litigation, has taken up the gauntlet, attempting to substantiate Justice Stevens’s argu-

ment in a Cato Institute debate with David Kopel and others. Henigan notes that some state con-

stitutional provisions preceding the Second Amendment’s ratification referred to “a right” of the

people to bear arms (rather than “the right”), in some cases describing it as a right for “the defense

of themselves and the state,” and other times purely for “the common defense.” Compare Dennis

A. Henigan, Does the Second Amendment Issue Turn on the Word “The”?, The Conversation,

CATO UNBOUND (July 22, 2008), http://www.cato-unbound.org/2008/07/22/dennis-henigan/does-

the-second-amendment-issue-turn-on-the-word-the/ (last visited Feb. 9, 2009) with David Kopel,

More on the “The” and Pre-Existing Rights, The Conversation, CATO UNBOUND (July 22, 2008),

http://www.cato-unbound.org/2008/07/22/david-kopel/more-on-the-the-and-pre-existing-rights/

(last visited Feb. 9, 2009).

Alternatively, if Robert Churchill is right that Americans by the time of the founding had

developed their own, distinctive understanding of the right to keep arms, grounded in the colonial

militia experience, yet transcending it, then this would arguably offer a different potential candi-

date (besides the Blackstonian right to arms for self-defense) to fill the role of “the right” recog-

nized by the Second Amendment. See generally Churchill, supra note 33. However, this still

would not justify the result Justice Stevens sought to reach in his Heller dissent. Stevens voted to

uphold all of the challenged District of Columbia statutory provisions as constitutional. Cf.

Heller, 128 S.Ct. at 2847 (Stevens, J., dissenting) (denying that Second Amendment limits, in any

way, “the tools available to elected officials wishing to regulate civilian uses of weapons” or “the

contours of acceptable gun control policy”). Even under Churchill’s conception of the original

understanding of the right to arms (the one I have dubbed Intermediate Miller), there are still real

Second Amendment limitations on government’s ability to prohibit the private ownership of

common firearms. See supra notes 32-43 and accompanying text. While the District of Colum-

bia’s ban on rendering firearms functional in the home might conceivably be defended on this

view, the District’s complete ban on handguns (coupled with a simultaneous ban on a huge num-

ber of common rifles) would still be difficult to defend against invalidation.

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2009] THE RIGHT TO DEFENSIVE ARMS 367

weapons[,]” and agrees with that proposition.

However, that was not all that

Miller said about such a test. Miller also noted that there was no evidence that

the sawed-off shotgun was “ordinary military equipment” or that “its use could

contribute to the common defense.”

Heller rejects such a “military equipment” test as either a necessary or a

sufficient condition for Second Amendment protection. Instead, joining a mi-

nority tradition of nineteenth- and twentieth-century state courts,

Heller holds

that all hand-carried weapons are presumptively “arms” covered by the Second

Amendment: “any thing that a man wears for his defence, or take into his hands,

or useth . . . to cast at or strike another.”

Broadly encompassing “weapons of

offence, or armour of defence,”

the category of Second Amendment arms in-

cludes “weapons that were not specifically designed for military use and were

not employed in a military capacity.”

The converse is also true. Heller rejects the strongest version of Strong

Miller, under which the fact that a hand-carried weapon is in common use by

military organizations is sufficient to place it within the coverage of the Second

Amendment. Heller describes such a criterion as “startling” in its implications,

“since it would mean that the National Firearms Act’s restrictions on machine-

guns . . . might be unconstitutional,”

a prospect which the Heller Court re-

garded as obviously unacceptable.

Heller, 128 S.Ct. at 2814.

Miller, 307 U.S. at 178.

See, e.g., Nunn v. State, 1 Ga. 243, 251 (1846) (holding that the Second Amendment pro-

tects the “right of the whole people . . . to keep and bear arms of every description, and not such

merely as are used by the militia”); Andrews v. State, 50 Tenn. 165, 193-97 (1871) (Nelson, J.,

dissenting) (arguing that the right to carry arms for self-defense should not be limited to militia-

useful weapons); State v. Kessler, 614 P.2d 94, 100 (1980) (interpreting “arms” to “include the

hand-carried weapons commonly used by individuals for personal defense”; holding that the pos-

session of a billy club is protected by the Oregon Constitution).

Heller, 128 S.Ct. at 2791 (quoting 1 TIMOTHY CUNNINGHAM, A NEW AND COMPLETE LAW

DICTIONARY (1771)).

Id. (quoting 1 SAMUEL JOHNSON, DICTIONARY OF THE ENGLISH LANGUAGE 107 (4th ed.

1773)). Note the Court’s express approval of a definition of “arms” that includes not merely

weapons, but also “armour of defence.” This suggests that the Constitution would be violated by

a federal statute banning private citizens from acquiring modern ballistic body armor, which is

routinely worn for defensive purposes by police officers. See Kopel, supra note 52 at 1534 (mak-

ing the same argument under Miller). The legal issues raised by such a ban would be similar to

the ones raised by the handgun ban in Heller: a prohibition of the most common form of a major

category of defensive arms—in this case, the category of armor. See Heller, 128 S.Ct. at 2818

(invalidating D.C.’s prohibition of handguns).

Heller, 128 S.Ct. at 2791.

Id. at 2815.

The Court reiterates the point later in its opinion, acknowledging in dictum that under its

view, “M-16 rifles and the like . . . may be banned.” Id. at 2817. As discussed above, the Court’s

apparent decision to exclude machine guns altogether from the category of Second Amendment

“arms” should come as no surprise to observers. See supra text accompanying notes 54-59 (dis-

cussing the role played by the “machine gun specter” in the Heller litigation).

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368 WEST VIRGINIA LAW REVIEW [Vol. 111

In place of such tests, Heller “read[s] Miller to say only that the Second

Amendment does not protect those weapons not typically possessed by law-

abiding citizens for lawful purposes, such as short-barreled shotguns.”

The

Court adopts Miller’s reference to weapons “in common use at the time,” and

incorporates this requirement into the Second Amendment test. It justifies the

“common use” limitation by describing it as a gloss on a “historical tradition of

prohibiting the carrying of ‘dangerous and unusual weapons.’”

In sum, under

Still, for the sake of clarity, it is worth distinguishing between “the National Firearms Act’s

restrictions on machineguns,” which date back to 1934, and 18 U.S.C. § 922(o), which is the ban

on private possession of machineguns that were not registered prior to the statute’s effective date

of May 19, 1986. A court applying a Strong Miller approach to the Second Amendment might

indeed compare § 922(o), a flat ban, to the NFA’s extensive regulatory requirements, which in-

clude fingerprinting, a background check, a $200 transfer tax, and approval by local law enforce-

ment before a machine gun can be transferred to a private purchaser. See generally 26 U.S.C. §

5801 et seq. (National Firearms Act); 26 C.F.R. § 179.1 et seq. (implementing regulations).

Indeed, one reason a court applying the Strong Miller view might give for invalidating §

922(o) is that crimes committed with machine guns properly registered under the National Fire-

arms Act were already extraordinarily rare prior to the enactment of § 922(o), as the Director of

the Bureau of Alcohol, Tobacco, and Firearms repeatedly admitted to Congress at the time. See

Testimony of Stephen E. Higgins, Armor Piercing Ammunition and the Criminal Misuse and

Availability of Machineguns and Silencers, Serial No. 153, Hearings before the Subcomm. on

Crime, Judiciary Committee, House of Representatives, 98

Cong., 2d Sess. at 116-17 (1986)

(stating that “it is very, very rare that it would be a [NFA-] registered machinegun” that would be

used in a violent crime); id. at 208 (“Registered machineguns which are involved in crimes are so

minimal as to be not considered a law enforcement problem.”); STEPHEN P. HALBROOK, FIREARMS

LAW DESKBOOK § 5:8 at 366-67 (2007 ed.). This would seem to demonstrate that § 922(o) is not a

narrowly tailored response to the government’s interest in crime prevention, since “mere” NFA

regulation of machine guns is an obvious, significantly less restrictive, and adequate alternative.

Cf. Gratz v. Bollinger, 539 U.S. 244, 270 (2003) (under strict constitutional scrutiny, government

must “emplo[y] narrowly tailored measures that further compelling governmental interests”)

(internal quotation marks omitted); Ward v. Rock Against Racism, 491 U.S. 781, 800 (1989)

(under intermediate constitutional scrutiny, government cannot use regulatory means that are

“substantially broader than necessary to achieve the government’s interest”).

Thus, the Solicitor General’s call for a highly deferential standard of review in his Heller

amicus brief was explicable. If machine guns were Second Amendment “arms” (as Miller argua-

bly suggested), and the Amendment entails that regulations of covered “arms” must receive mean-

ingful scrutiny for narrow tailoring, then § 922(o) would indeed face invalidation. If one further

assumes that the Supreme Court would reject any interpretation of the Amendment that threatened

to produce that result, then gun rights proponents should view the Heller Court’s apparent deci-

sion to exclude machine guns altogether from the Second Amendment as the least bad realistic

outcome. The Court’s choice leaves open the prospect of applying genuinely demanding scrutiny

to federal laws and regulations that do infringe on the possession and use of covered “arms.”

Heller, 128 S.Ct. at 2815-16.

Id. at 2817 (quoting, inter alia, 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF

ENGLAND 148-49 (1769)). Two features of this reference are interesting. First, Blackstone re-

ferred to “dangerous or unusual” weapons. See 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE

LAWS OF ENGLAND, 148 (1769). The Heller Court’s choice of the conjunctive rather than the

disjunctive appears intended to narrow the class of weapons excluded by this limitation: weapons

must be both dangerous and unusual to fall outside of the Second Amendment’s protection. Sec-

ond, the English law referred to by Blackstone prohibited only the “carrying” of such dangerous

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2009] THE RIGHT TO DEFENSIVE ARMS 369

Heller, the “arms” covered by the Second Amendment include all hand-held

weapons in common use at the present time for self-defense and other legitimate

purposes, but do not include weapons that are not commonly possessed for law-

ful purposes.

What purposes count as lawful? Heller conceives the Second Amend-

ment right to arms as focused mainly upon personal purposes, particularly the

personal purpose (which also has civic aspects

) of individual defense against

criminal violence. The Court acknowledges that “the [Second Amendment]

right was codified [] to prevent elimination of the militia[,]” in order to assuage

“the fear that the federal government would disarm the people in order to im-

pose rule through a standing army or select militia.”

But although the political

reasons given for amending the new Constitution to expressly recognize the

right to arms may have been largely civic in nature, what was codified, the

Court argues, was a previously existing, “ancient right” whose “central compo-

nent”

and “core lawful purpose [was] self-defense”

—especially, but not

exclusively, the “defense of hearth and home.”

The Heller Court has little occasion to discuss other legitimate personal

purposes for firearms, such as hunting and target shooting, since the District of

Columbia prohibitions challenged in the case so directly implicate the core pur-

pose of self-defense. However, with respect to hunting arms, the Court does

list both “self-defense and hunting” as primary purposes for which founding-era

Americans valued the right to arms.

Moreover, the central concept that orga-

nizes Heller’s entire discussion of the Second Amendment is “the right to pos-

sess and carry arms in case of confrontation.”

It is not far-fetched to argue that

this right should extend to at least some “confrontations” with nonhuman ani-

mals. As for target shooting: since the Second Amendment protects the ability

to keep and use arms for self-defense, this also seems to entail the right to prac-

tice regularly with one’s arms (subject to ordinary safety regulations) so as to be

able to defend oneself effectively.

100

weapons, not the possession of them. Id. Thus the tradition acknowledged by Blackstone gives

only equivocal support to the Heller Court’s notion that a corresponding class of “dangerous and

unusual” weapons should be excluded from the Second Amendment’s reach.

See Heller, 128 S.Ct. at 2791-92, 2815-17.

See supra text accompanying notes 3-10.

Heller, 128 S.Ct. at 2801.

Id. (emphasis removed).

Id. at 2818.

Id. at 2821.

Id. at 2801.

Id. at 2797.

100

See Andrews v. State, 50 Tenn. 165, 178 (1871) (concluding that although the Tennessee

right to keep arms was motivated by civic purposes, it is an individual right to arms that entails

“the right to practice their use, in order to attain to . . . efficiency” with them).

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370 WEST VIRGINIA LAW REVIEW [Vol. 111

C. Heller, Tradition, and Modern Originalism

We may end this discussion by noting a modest irony in Heller’s han-

dling of the history of the right to arms. The litigation was marked from begin-

ning to end by a deep, often technical focus on originalist interpretation. Justice

Scalia’s opinion for the Court applies an “original public meaning” approach to

the constitutional text—a variant of originalism that has become orthodox

among most conservative and libertarian jurists.

101

Vasan Kesavan and Michael

Stokes Paulsen summarize this method as follows:

[W]hen we use the term “originalism,” it is not in reference to a

theory of “original intent” or “original understanding.” Rather,

it is in reference to the original, non-idiosyncratic meaning of

words and phrases in the Constitution: how the words and

phrases, and structure (and sometimes even the punctuation

marks!) would have been understood by a hypothetical, objec-

tive, reasonably well-informed reader of those words and

phrases, in context, at the time they were adopted, and in the

political and linguistic community within which they were

adopted. It is important to note that on this theory the state-

ments of Framers are no less and no more important than state-

ments of Ratifiers; it is what the text means that counts, not

what any particular body or group intended, expected, or under-

stood.

102

Justice Scalia proceeds clause by clause and sometimes word by word

through the text of the Second Amendment,

103

considering evidence of the gen-

erally understood meaning of each element of the text at the time of ratification,

then harmonizing the components into a coherent whole. Justice Stevens’s dis-

sent uses an approach closer to the “original intent” form of originalism. While

Stevens does present evidence of public meaning in opposition to the Court’s

interpretations,

104

he also criticizes the Court for “giv[ing] short shrift to the

101

See Randy Barnett, News Flash: The Constitution Means What It Says, WALL ST. J., June

27, 2008, at A13 (Heller “is the finest example of what is now called ‘original public meaning’

jurisprudence ever adopted by the Supreme Court.”).

102

Vasan Kesavan and Michael Stokes Paulsen, The Interpretive Force of the Constitution’s

Secret Drafting History, 91 GEO. L.J. 1113, 1132 (2003) (footnotes omitted). In addition to a

careful precis of the original public meaning approach, Kesavan and Paulsen’s article also in-

cludes a valuable brief history of the development of modern originalism. See id. at 1127-48.

103

See, e.g., Heller, 128 S.Ct. at 2791-97 (analyzing “keep and bear arms” as a semantic unit

within the Second Amendment’s operative clause, then breaking that analysis down still further

with individual analyses of “keep,” “bear,” and “arms”).

104

See, e.g., id. at 2827-30 (Stevens, J., dissenting) (gathering examples of military uses of

“bear arms” from the founding period, and military regulations concerning the “keep[ing]” of

arms by militiamen).

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2009] THE RIGHT TO DEFENSIVE ARMS 371

drafting history of the Second Amendment”

105

and slighting the framers’ con-

cern to preserve organized state militias as a counterweight to a distrusted stand-

ing army.

106

Justice Scalia’s response, in essence, is that the dissenters have

misidentified the means by which the framers chose to address that concern.

The means they chose, Scalia argues, was not the creation of additional struc-

tural protections for the organized militia; it was instead the recognition of a

“right of the people to keep and bear arms.” This language had a recognizable

public meaning, rooted in the English right to arms and Blackstone, and it was

strongly concerned with the keeping of private arms for self-defense. That, says

Scalia, is the public meaning the Court should enforce.

107

Both Scalia’s and Stevens’s approaches are originalist because they fo-

cus attention upon one particular temporal context, the context of enactment, in

interpreting the Second Amendment’s meaning. One important difference be-

tween the two is that unlike an intent-based approach, Scalia’s public meaning-

based approach allows the interpreter to consider evidence of usage in periods

before and after the context of enactment, since these too can be probative evi-

dence of original public meaning.

108

Indeed, major portions of Justice Scalia's

Heller opinion are taken up with consideration of pre-enactment English sources

and—especially—of post-enactment, nineteenth-century American sources that

confirm Heller’s construction of the right to arms.

109

But for the adherent of

originalism in its contemporary, relatively technical forms, these other periods

are ultimately relevant only as indirect evidence of meaning at the time of en-

actment, which remains the dispositive slice of time in determining the text’s

enforceable meaning.

The irony, then, is that despite this self-conscious modern originalism,

the Heller opinion is at least equally effective if it is viewed instead as an exam-

ple of an older, less formalized type of historical inquiry into legal meaning.

This older approach is Burkean: it allows tradition, the aggregated perspectives

105

Id. at 2836; see id. at 2831-36 (discussing drafting history).

106

Id. at 2836 (“The history of the adoption of the Amendment thus describes an overriding

concern about the potential threat to state sovereignty that a federal standing army would pose,

and a desire to protect the States’ militias as the means by which to guard against that danger.").

107

Justice Scalia thus chides Justice Breyer for using the founding-era concern for standing

armies to downplay the importance of personal self-defense to the Second Amendment right. He

reasons that concerns about a federal standing army may explain the political fact of “the right’s

codification,” but clarifies that the motives for codification cannot alter the substance of “the right

itself.” Id. at 2801.

108

See id. at 2805 (approving “the examination of a variety of legal and other sources to deter-

mine the public understanding of a legal text in the period after its enactment or ratification”);

Kesavan and Paulsen, supra note 102 at 1164-80 (discussing the originalist use of post-enactment

sources as “second-best sources” of original public meaning); id. at 1148-49 n.128 (discussing the

originalist use of pre-enactment sources as “second-best sources” of original public meaning).

109

See Heller, 128 S.Ct. at 2798-99 (discussing the seventeenth century English right to arms;

Blackstone’s Commentaries); id. at 2804-09 (discussing antebellum nineteenth-century sources);

id. at 2809-12 (discussing post-Civil War nineteenth-century sources).

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372 WEST VIRGINIA LAW REVIEW [Vol. 111

of successive periods of time, to claim weight in settling the meaning of the

text.

110

In the parts of their respective opinions dealing narrowly with the late

eighteenth-century American context of the Second Amendment’s enactment,

Justice Stevens roughly matches Justice Scalia’s scholarship and argumentation.

The seventeenth-century English evidence, though somewhat limited, favors the

majority more clearly. But when the focus shifts to the nineteenth century, the

body of case law

111

and constitutional commentary

112

mustered by the Court

dramatically outweighs the evidence for Justice Stevens’s position.

113

It could be said, loosely but not unfairly, that Heller recognizes a nine-

teenth-century right to arms. This does not suggest that Heller’s understanding

is incompatible with evidence of the late eighteenth-century understanding of

the right; rather, it means that the conception of the right to arms adopted in

Heller finds its clearest and most typical expressions in sources from the century

that followed the American founding. A typical state supreme court justice

circa 1870 would likely have found Heller’s individual, personal purpose-

centered conception of the right to arms to be unexceptionable.

114

A typical

federal circuit or district court judge circa 1970 might well have had the same

reaction to Justice Stevens’s narrow, civic-focused interpretation of the right.

115

D. Summary

To summarize, Heller’s conception of the right to arms involves a shift

away from Miller’s holding that the civic purposes of gun ownership, as re-

110

For one modern manifesto in support of this interpretive approach, see Ernest Young, Re-

discovering Conservatism: Burkean Political Theory and Constitutional Interpretation, 72 N.C. L.

REV. 619 (1994).

111

Important nineteenth-century decisions recognizing an individual right to defensive arms in

state and/or federal constitutions, and cited by the Court in Heller, include Johnson v. Tompkins,

13 F. Cas. 840 (C.C. Pa. 1833) (Baldwin, J.), cited in Heller, 128 S.Ct. at 2808; Bliss v. Com-

monwealth, 12 Ky. 90 (1822), cited, 128 S.Ct. at 2794 n.9; Nunn v. State, 1 Ga. 243 (1846), cited,

128 S.Ct. at 2794 n.9, 2809; State v. Chandler, 5 La. Ann. 489 (1850), cited, 128 S.Ct. at 2794

n.9, 2809; and Andrews v. State, 50 Tenn. 165 (1871), cited, 128 S.Ct. at 2794 n.9, 2806, 2809.

See Kopel, supra note 52 at 1415-33 (showing that the dominant state judicial understanding of

the right to arms in nineteenth-century America viewed it as an individual right that protected

arms for self-defense and was not conditioned on militia service).

112

See Heller, 128 S.Ct. at 2805-07 (discussing the views of antebellum nineteenth-century

commentators such as St. George Tucker, Joseph Story, and William Rawle); id. at 2811-12 (dis-

cussing post-Civil War commentators such as Thomas Cooley, James Kent, and others).

113

Indeed, Justice Stevens’s treatment of the nineteenth-century evidence is almost totally

reactive, limited to suggesting ambiguities in the views of some commentators cited by the Court

and downplaying the relevance of post-enactment sources in general to originalist inquiry. See id.

at 2839-42 (Stevens, J., dissenting).

114

See generally Kopel, supra note 52.

115

See Denning, supra note 26 at 999 (contending that most post-New Deal lower federal court

decisions in the twentieth century “avoid[ed] construing the Second Amendment to contain any-

thing resembling a right under which an individual might make a colorable claim.”).

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2009] THE RIGHT TO DEFENSIVE ARMS 373

flected in the traditional functions of the militia, must be reflected in Second

Amendment doctrine at the retail level, the level of crafting decision rules for

specific situations. Drawing on the English right to arms, and heavily bolstered

by nineteenth-century sources, Heller substitutes a Second Amendment right

that is structured mainly by the personal purposes of gun ownership, such as

self-defense. The Second Amendment’s connection to the civic purposes of the

right to arms is not abandoned, but it is understood to operate mainly at the

wholesale level: a people with a vigorous, legitimate gun culture, whose mem-

bers keep and use their own private arms, will be better able to act as a popular

militia, whether such action occurs in the capacity of an organized or an unor-

ganized militia.

Having explicated Heller’s reasoning and its departures from Miller, it

is appropriate to begin thinking about the potential consequences of this shift for

the gun rights debate and firearms policy in general.

IV. HELLER’S IMPLICATIONS FOR THE FUTURE OF THE RIGHT TO ARMS

A. Advantages

116

1. Popular Support

Heller’s personal purpose-centered approach to the Second Amendment

corresponds to a concrete, practical reason that countless Americans—

particularly handgun owners—find for keeping firearms today.

117

By adopting

such an approach, the Court acknowledged the broad popular support enjoyed

by the right to armed self-defense of life and limb, as reflected in state constitu-

tions

118

and in numerous state legislative developments of recent decades.

119

116

For the sake of organization, I classify as “advantages” of Heller’s approach not only rela-

tively uncontroversial strengths such as popular support, but also aspects of that approach that are

likely to lead to greater protection of individuals’ right to arms. My classification of “disadvan-

tages” follows similar lines. Readers will, of course, supply their own normative evaluations here.

117

One opinion survey found that sixty-five percent of Americans who own handguns acquired

them wholly or partially for self-protection. National Opinion Research Center, National Gun

Policy Survey (1998), cited by ANDREW J. MCCLURG, DAVID B. KOPEL, AND BRANNON W.

DENNING, GUN CONTROL & GUN RIGHTS: A READER AND GUIDE 1-2 (2002)

118

See Nicholas J. Johnson, A Second Amendment Moment?: The Constitutional Politics of

Gun Control, 71 BROOK. L. REV. 715, 735-45 (2005) (detailing the ways that “seventeen states . . .

have amended their constitutions to enshrine an individual right to arms in language beyond cavil”

since the beginning of the twentieth century).

119

I have in mind particularly the dramatic growth of “shall issue” concealed carry statutes,

which allow all adults who pass a criminal background check and meet specified training re-

quirements to acquire permits to carry a concealed handgun for self-defense. See id. at 747-53

(noting that as of 2005, 35 states recognized either shall issue concealed carry or, in two cases, the

more permissive “Vermont-style” carry under which no license is required to carry a lawfully

possessed handgun). Since Professor Johnson’s article was published, Kansas and Nebraska have

also adopted shall issue statutes, bringing the total number of “right to carry” states to thirty-

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374 WEST VIRGINIA LAW REVIEW [Vol. 111

2. The Likelihood of Incorporation

Heller’s conception of the right to arms also fits naturally with the view

of that right held by many of the framers of the Fourteenth Amendment. Ac-

cordingly, Heller supports the conclusion that the Second Amendment should be

deemed to be incorporated by the Fourteenth Amendment, rendering its protec-

tions applicable against state and local governments as well as the federal gov-

ernment. Many Reconstruction Republicans stressed the importance of the right

to arms as a right of American citizenship that could not be infringed by the

states.

120

They sought not to empower militias, but to empower African-

American freedmen and their supporters in the South to resist terrorism and

oppression at the hands of resurgent forces of the white supremacy move-

ment.

121

The 1868 conception of the right to arms “move[d] Blackstone to the

center” and “emphasized the personal right of all free citizens—white and black,

male and female, northern and southern, visitor and resident—to own guns for

self-protection.”

122

While Professor Amar, in these last-quoted remarks, was

actually describing the context of the Fourteenth Amendment’s ratification, one

could easily use the same words to summarize the view of the Second Amend-

ment adopted by the Supreme Court in Heller. The litigants in Heller limited

their discussion, somewhat artificially, to sources from the Framing era, rather

than Reconstruction,

123

but the right that has emerged from the case has close

affinities with the Reconstructors’ vision of the right to arms.

Indeed, although Heller does not decide the issue of incorporation,

124

the opinion gives careful and sympathetic attention to the context surrounding

the enactment of the Fourteenth Amendment and early civil rights legislation

after the Civil War.

125

The Court states that it considers these late nineteenth-

century sources simply in order to further its originalist inquiry by shedding

indirect light, from a post-enactment perspective, on “the origins and continuing

seven. Posting of David Kopel to the Volokh Conspiracy, http://volokh.com/posts/1143873304

.shtml (Apr. 1, 2006, 24:35 CST). Johnson and Kopel also count three states with liberally admin-

istered discretionary permit schemes as “shall issue.” Id.

120

MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE

BILL OF RIGHTS 35, 61-64 (1986).

121

See, e.g., AKHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY 390-91 (2005).

122

AKHIL REED AMAR, THE BILL OF RIGHTS 262 (1998).

123

Heller’s lawyers had obvious incentives to avoid complicating the case with the additional

issue of incorporation. The District of Columbia may also been happy to leave out the Fourteenth

Amendment and its surrounding history because the nineteenth-century conception of the right to

arms is so unfavorable to the merits of the District’s case. The Fourteenth Amendment context

was discussed in some of the amicus curiae briefing, principally in the brief of the Institute for

Justice. See generally Brief of the Institute for Justice as Amicus Curiae in Support of Respon-

dent, District of Columbia v. Heller (No. 07-290), available at 2008 WL 383529 (Feb. 11, 2008).

124

Heller, 128 S.Ct. at 2813 n.23 (stating that the issue is “not presented by this case”).

125

Id. at 2809-11.

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2009] THE RIGHT TO DEFENSIVE ARMS 375

significance of the [Second] Amendment.”

126

In doing so, however, the Court

discusses Reconstruction-era opposition to the disarmament of freedmen, oppo-

sition which often took the form of claims that disarmament violated the Second

Amendment right to defensive arms.

127

The Court notes, almost nonchalantly,

that some members of the Congress that ratified the Fourteenth Amendment

believed that it would require the states to protect every citizen’s “right to bear

arms for the defense of himself and family and his homestead.”

128

Much of this

discussion is so obviously pertinent to the issue of incorporation that it appears

tailor-made to be invoked in a future opinion incorporating the right to arms

against the states.

Even without this portion of the opinion, Heller’s Blackstonian, human

rights-centered conception of the Second Amendment would be difficult to

avoid incorporating. After all, under the Fourteenth Amendment “selective in-

corporation” framework developed in the mid-20th century, a right that (1) is

expressly included in the Bill of Rights,

129

(2) derives from an English predeces-

sor,

130

(3) is widely protected by state constitutions,

131

and (4) “continues to

receive strong support” today,

132

is likely to be held sufficiently fundamental to

require incorporation via the Due Process Clause of the Fourteenth Amendment.

The right to arms satisfies every one of these factors, and, as previously dis-

cussed, can claim a strong grounding in the original meaning of the Fourteenth

Amendment.

133

The most plausible textual argument against Second Amend-

126

Id. at 2810. The Court acknowledges that “[s]ince th[e]se discussions took place 75 years

after the ratification of the Second Amendment, they do not provide as much insight into its origi-

nal meaning as earlier sources.” Id.

127

See id. at 2810 (citing Congressional reports and other materials from the late 1860s sup-

porting the view that “all men, without distinction of color, have the right to keep and bear arms to

defend their homes, families, or themselves.”); Freedmen’s Bureau Act, § 14, 14 STAT. 176-77

(July 16, 1866) (providing that “the constitutional right to bear arms, shall be secured to and en-

joyed by all the citizens . . . without respect to race or color, or previous condition of slavery”).

128

Id. at 2811 (quoting Senator Samuel Pomeroy, CONG. GLOBE, 39th Cong., 1st Sess., 1182

(1866)).

129

Duncan v. Louisiana, 391 U.S. 145, 148 (1968) (recognizing that, in deciding how the Four-

teenth Amendment limits the states, the Supreme Court “has looked increasingly to the Bill of

Rights for guidance[,]” incorporating “many of . . . the first eight Amendments”).

130

Id. at 149-50 n.14 (emphasizing that incorporation depends on whether a guarantee “is nec-

essary to an Anglo-American regime of ordered liberty”) (emphasis added); id. at 151-52 (citing

Blackstone for the importance of the jury trial right at English law).

131

Id. at 153.

132

Id. at 154.

133

Compare Michael Anthony Lawrence, Second Amendment Incorporation Through the

Fourteenth Amendment Due Process and Privileges or Immunities Clauses, 72 MO. L. REV. 1, 51,

56-71 (2007) (arguing that the right to arms easily satisfies the due process selective incorporation

criteria of Duncan) with David A. Lieber, Comment, The Cruikshank Redemption: The Enduring

Rationale for Excluding the Second Amendment From the Court’s Modern Incorporation Doc-

trine, 95 J. CRIM. L. & CRIMINOLOGY 1079 (2005) (arguing that the right to arms should not be

incorporated under Duncan).

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376 WEST VIRGINIA LAW REVIEW [Vol. 111

ment incorporation would contend that the 1791 right to arms was a federalism-

inspired provision, specifically concerned with protecting state militias in order

to deter the newly created federal government from descending into tyranny.

134

But Heller’s reading of the Amendment, stressing personal purposes and the

inherent right of self-defense, weakens its link to a federal-state balance of

power, and thereby removes this objection to incorporation. If all this were

somehow not enough to justify Second Amendment incorporation, one may add

the fact that the states themselves have urged it. The Heller amicus briefing

afforded the extraordinary spectacle of thirty-one current attorneys general pub-

licly calling for an individual right to arms to be incorporated against their

states.

135

3. Protection of Common Defensive Weaponry

From a gun rights supporter’s point of view, Heller’s private-rights con-

ception has further advantages, since it extends constitutional protection to fire-

arms that do not satisfy the “militia utility” test of Strong Miller, yet are still

highly valued by Americans, such as sporting shotguns, or small handguns that

are useful for licensed concealed carry (as distinct from the full-sized “service”

Lieber acknowledges that the right to arms for self-defense has English antecedents, is rec-

ognized by the great majority of state constitutions, and enjoys wide popular support. Id. at 1093,

1117-22. These concessions impair the persuasiveness of his thesis that courts should deem the

right to arms to fail Duncan’s selective incorporation test. In addition, Lieber nowhere addresses

the Reconstruction-era evidence suggesting that the Fourteenth Amendment’s original meaning

included an individual right to arms.

134

See Nordyke v. King, 319 F.3d 1185, 1193 n. 3 (9th Cir. 2003) (Gould, J., concurring) (“To

the extent that the Second Amendment was aimed at maintaining an armed citizenry and local

power as a check against the possibility of federal tyranny, that purpose is not directly applicable

to the states, and a Second Amendment restraint on the states in this sense is not implicit to the

concept of ordered liberty.”).

The Second Amendment’s reference to the “security of a free state” might also be taken to

reflect a narrow focus on federal-state relations, and thus to resist incorporation. However, recent

scholarship rebuts this view, suggesting, after a review of historic sources, that the original public

meaning of “a free state” in the Second Amendment is simply “a nondespotic country.” Eugene

Volokh, Necessary to the Security of a Free State, 83 NOTRE DAME L. REV. 1, 27 (2007), cited in

Heller, 128 S.Ct. at 2800. This meaning creates no special obstacle to incorporation.

135

Brief of Texas et al. (Thirty-One States) as Amici Curiae in Support of Respondent, District

of Columbia v. Heller (No. 07-290), available at 2008 WL 383529 (Feb. 4, 2008), at 23 n.6

(“[T]he right to keep and bear arms is fundamental and so is properly subject to incorporation”).

This does not necessarily mean that incorporation must take place “jot for jot,” with state

and local gun laws being subject to precisely the same limitations as federal statutes or regulations

that presume to fix gun policy for the entire nation. Nor does it exclude a different type of feder-

alism argument, which stresses that national regulation is particularly inappropriate for divisive

cultural issues such as gun control. I consider an argument of this sort, and the support it lends to

a “partial incorporation” approach to the right to arms, under which courts should apply strict

scrutiny to national gun restrictions, in Michael P. O’Shea, Federalism and the Implementation of

the Right to Arms, 59 SYRACUSE L. REV. 201 (2008).

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2009] THE RIGHT TO DEFENSIVE ARMS 377

pistols that are most likely to meet Strong Miller’s criteria). In fact, after Heller,

it appears indisputable that the “arms” protected by the Second Amendment

include common defensive weapons other than firearms, such as knives and

pepper spray.

136

4. Protection of the Right to Carry Arms

In addition, Heller provides potent arguments that the Second Amend-

ment protects a meaningful right to carry arms regularly for defense—a right

whose exercise can be regulated, but not denied, by the government. It is true

that this aspect of the Second Amendment right to arms was not fully explored

in Heller. The content of the challenged D.C. laws focused on the keeping and

use of arms in the home, not carrying arms abroad, so the Court’s legal analysis

displays a similar emphasis. But the central passages in Heller that characterize

the right to arms strongly suggest that the right extends beyond the home.

First, the Court glossed the Second Amendment’s right to “bear arms”

provision by adapting a reading that Justice Ruth Bader Ginsburg had proposed

in a 1998 statutory interpretation case: to bear arms is to “wear, bear, or carry

[them] . . . upon the person or in the clothing or a pocket, for the purpose . . . of

being armed and ready for offensive or defensive action in a case of conflict

with another person.”

137

Once one replaces this passage’s morally ambiguous

reference to “offensive or defensive action” with a strictly defensive attitude,

then Justice Ginsburg’s language reads like a literal description of the practice

of lawful concealed carry, as engaged in by millions of Americans in the forty-

eight states that authorize the carrying of concealed handguns by qualified citi-

zens.

138

Similarly, the Court sums up its extensive analysis of the Second

Amendment’s operative clause with the intriguing statement that the Second

Amendment “guarantee[s] the individual the right to possess and carry weapons

in case of confrontation.”

139

Again, this description of the right to bear arms

136

See supra text accompanying notes 82 to 87 (discussing Heller’s extension of Second

Amendment protection to a wide range of personal weapons usable for defense).

137

Heller, 128 S.Ct. at 2793 (quoting Muscarello v. United States, 524 U.S. 125, 143 (1998)

(Ginsburg, J., dissenting) (quoting BLACK’S LAW DICTIONARY 214 (6th ed. 1998))).

138

In addition to the roughly three dozen states with “shall issue” carry laws that require issu-

ance of a permit to all citizens meeting specified requirements, all of the remaining states (except

Illinois and Wisconsin) have discretionary permit schemes that allow local officials to issue carry

permits to individuals. See supra note 115 (discussing current concealed carry laws).

139

Heller, 128 S.Ct. at 2797 (emphasis added). Justice Scalia’s reference to the concept of

“confrontation” in the italicized passage is exceedingly suggestive. As the dissenters point out,

this way of expressing the scope of the Second Amendment right is original to the Heller opinion.

Cf. id. at 2828 (Stevens, J., dissenting) (“No party or amicus urged this interpretation; the Court

appears to have fashioned it out of whole cloth.”).

It is tempting to conclude that Justice Scalia is subtly connecting the Second Amendment

right with another major part of his constitutional legacy, which involves a different constitutional

guarantee that also ensures that Americans will retain the resources for effective “confrontation”

in defense of their lives and liberty—namely, the Confrontation Clause of the Sixth Amendment,

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378 WEST VIRGINIA LAW REVIEW [Vol. 111

reads like a near-idiomatic description of what countless lawful concealed carri-

ers do with their defensive weapons each day.

It is true that the Court elsewhere observes that most nineteenth-century

courts held that “prohibitions on carrying concealed weapons were lawful” un-

der the state and/or federal constitutions.

140

But the context of this statement is

crucial: Far from negating constitutional protection for weapons carrying, the

nineteenth-century decisions that the Court relies upon in this passage presume

that the right to “bear arms” does require government to allow peaceable citi-

zens to carry defensive weapons in some manner. As the Court itself points out

(indicating that it was quite aware of the limited nature of the approval of con-

cealed carry bans in the cases it chose to cite), the working assumption of these

courts was that government may regulate the right to carry arms—by requiring,

for example, that arms be carried openly, in a visible belt holster, rather than

concealed. However, government may not destroy the right through regulation

by prohibiting both open and concealed carry.

141

Thus, the most natural reading of Heller’s discussion of weapons carry-

ing is that the Second Amendment right to “bear arms” does include an individ-

ual right to carry weapons for defense outside of the home, which is subject to

the same, limited types of permissible regulation reflected in the nineteenth-

century cases. Government may regulate the right by prohibiting a particular

which protects a defendant’s right to face-to-face cross-examination of witnesses in criminal

trials. See U.S. CONST. amend. vi (“In all criminal prosecutions, the accused shall enjoy the right .

. . to be confronted with the witnesses against him . . . .”). The Supreme Court’s understanding of

this provision has been almost completely revised in the last five years, in a series of originalist

opinions that were all authored by Justice Scalia. See Crawford v. Washington, 541 U.S. 36

(2004) (holding that the Confrontation Clause categorically bars the use of unconfronted testimo-

nial hearsay by the government in criminal trials), overruling Ohio v. Roberts, 448 U.S. 56

(1980); Davis v. Washington, 547 U.S. 813 (2006) (applying Crawford to exclude a statement to

police investigators but admit a statement to a 911 emergency operator; holding that the Confron-

tation Clause does not extend to “nontestimonial” statements); Giles v. California, 128 S.Ct. 2678

(2008) (holding that a defendant cannot forfeit, through his wrongdoing, his Confrontation Clause

right to cross-examine a witness, unless the defendant intended to render the witness unavailable

to testify at trial).

In a future article, I hope to shed light on the intellectual connections between Sixth

Amendment confrontation under Crawford and Second Amendment confrontation under Heller.

140

Heller, 128 S.Ct. at 2816 (citing State v. Chandler, 5 La. Ann. 489, 489-90 (1850); Nunn v.

State, 1 Ga. 243, 251 (1846)).

141

Heller, 128 S.Ct. at 2818; see State v. Reid, 1 Ala. 612, 616-17 (1840) (holding that a regu-

lation of carrying arms is invalid if it “amounts to a destruction of the right,” or renders the carried

arms useless for self-defense); Chandler, 5 La. Ann. at 490 (concluding that Second Amendment

grants the right “to carry arms . . . in full open view, which places men upon an equality,” and “is

calculated to incite men to a manly and noble defense of themselves, if necessary,” but that con-

cealed carry can be banned) (internal quotation marks omitted); Nunn, 1 Ga. at 251 (invalidating

ban on open carry as violative of the Second Amendment; upholding a ban on concealed carry);

Andrews v. State, 50 Tenn. (3 Heisk.) 165, 187 (1871) (holding that, as applied to handguns with

militia utility, a complete ban on both open and concealed carry of handguns would violate Sec-

ond Amendment and state constitution); Kopel, supra note 52 at 1409-35.

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2009] THE RIGHT TO DEFENSIVE ARMS 379

mode of carry (and by prohibiting carry in “sensitive places such as schools and

government buildings,”

142

) but it cannot ban concealed carry unless it recognizes

reasonably broad open carry rights, or vice versa. If the Second Amendment is

incorporated against the states (as many observers expect), then the practical

effect of these limitations is fairly easy to predict. The nineteenth century

tended to view open carry of weapons as more socially acceptable than con-

cealed carry, but the reverse is true in the urbanized twenty-first century. Faced

with the alternatives of either adopting a “shall issue” concealed carry permit

system like the great majority of American states, or having to recognize a

meaningful right to carry weapons openly, even gun-restrictive “holdout” juris-

dictions are likely to choose the concealed carry approach. Thus, while it is

technically accurate to say that the Second Amendment leaves governments

with the option of prohibiting concealed carry, nevertheless, a possible medium-

term consequence of Heller (assuming the Second Amendment is incorporated)

is the nationalization of permit-based, shall-issue concealed carry.

B. Disadvantages

1. Insufficient Attention to Civic Purposes?

On the other hand, Heller’s personal rights-centered conception also has

identifiable disadvantages. The first has to do with interpretive fidelity. There

is some force to the dissenters’ criticism that Heller gives insufficient weight to

the civic purposes of the Second Amendment. These purposes are not only ex-

pressly asserted in the Amendment’s prefatory clause, but were the most dis-

cussed aspect of arms ownership in the Framing era.

143

It is worth being clear

on the point: There are powerful originalist and textualist arguments for adopt-

ing a conception of the Second Amendment right to arms that includes personal

purposes such as self-defense, and the Heller Court showcases these arguments.

Indeed, there is evidence that 18th century jurists and political thinkers viewed

private self-defense against crime and public self-defense against tyranny as

inseparable: as two sides of the same coin, reflecting the same liberal princi-

ples.

144

But a conception that exclusively, or near-exclusively, privileges per-

sonal purposes for arms ownership is thereby more vulnerable to originalist and

textualist criticism, for neglecting the civic purposes that the Framing generation

142

Heller, 128 S.Ct. at 2817.

143

See, e.g., THE FEDERALIST No. 46 (James Madison) (Bantam Classic, 1982) (emphasizing

the ability of Americans to resist overreaching by the federal government through both the state-

administered militia system and their privately owned arms); see also THE DECLARATION OF

INDEPENDENCE (U.S. 1776) (emphasizing the natural right to alter or abolish despotic govern-

ments).

144

See Don B. Kates, The Second Amendment and the Ideology of Self-Protection, 9 CONST.

COMM. 87 (1992).

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380 WEST VIRGINIA LAW REVIEW [Vol. 111

believed that citizen arms could serve.

145

A Heller opinion that (counterfactu-

ally) had endorsed the Strong Miller interpretation of the Second Amendment,

in which the scope of covered “arms” is directly influenced by the civic pur-

poses mentioned in the prefatory clause, could have deflected such criticism

with ease.

2. Loss of Pro-Right Arguments Based on Civic Purposes

For related reasons, a decision downplaying Miller and the militia pur-

pose removes some resources for a constitutional challenge to controversial

legislative measures such as a renewal of the expired federal “assault weapons”

ban.

146

Many of the self-loading firearms formerly covered by the ban would

have a uniquely powerful claim to Second Amendment protection under the

Strong Miller approach. As less destructive, semi-automatic versions of com-

mon light military weapons, with similar appearance and controls, they are pre-

cisely the arms one would want citizens to own and practice with in order to

function as an effective militia.

147

Nevertheless, the impact of this shift should

not be overstated. Potent arguments remain for protecting many of these arms

under Heller’s defense-centered Second Amendment, as I discuss next.

V. CONSTITUTIONAL CONSTRUCTION AND THE RIGHT TO DEFENSIVE ARMS

Loosening the connection between civic purposes and the constitutional

right to arms creates two potential puzzles for the courts that must police the

boundaries of the right recognized in Heller.

The first is the question of objective standards. Once it is acknowl-

edged that Americans have a right to keep firearms for self-defense, how does

one determine which firearms are protected? Technological evolution adds to

the perplexity here. At one extreme, someone might argue that the right to arms

for defense is adequately respected as long as Americans can still possess some

weapons that give their possessor a significant advantage in self-protection

145

See, e.g., Reva B. Siegel, Dead or Alive: Originalism as Popular Constitutionalism in

Heller, 122 HARV. L. REV. 191, 199 (2008) (“The [Heller] majority insists that the Second

Amendment doesn’t protect weapons that are most useful in military service, even if it means that

the right to [keep and] bear arms can no longer be exercised for the republican purpose of prevent-

ing tyranny that the text specifies”) (internal quotation marks omitted).

146

Chapter XI, Subchapter A of the Violent Crime Control and Law Enforcement Act of 1994

(formerly codified at 18 U.S.C. §§ 921(a)(30), 922(v), (w)) banned the manufacture, for sale to

private citizens, of defined “semiautomatic assault weapons” and large capacity magazines. The

ban expired by its terms in 2004. At the same time, there are continuing efforts in Congress to re-

enact a similar law. See, e.g., Assault Weapons Ban Reauthorization Act of 2008, H.R. 6257,

110

Cong. (2008), available at http://thomas.loc.gov/cgi-bin/bdquery/z?d110:h.r.06257: (last

accessed Nov. 26, 2008).

147

This argument is uncompromisingly presented in Garcia, supra note 46.

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2009] THE RIGHT TO DEFENSIVE ARMS 381

compared to an unarmed person. Under this view, sweeping regulation of

common firearms might be constitutional. After all, even a single-shot rifle or

an obsolete, single-action revolver confers a meaningful advantage over the

state of weaponlessness. Most dispassionate observers would probably agree

that if a constitutional right to defensive firearms is to be recognized at all, then

it must protect more than the weapons of the mid-nineteenth century. How

much is enough?

To the Heller Court’s credit, its approval (in a modified form) of

Miller’s “common use” criterion for Second Amendment arms responds to the

problem of objective standards, as I discuss below. But this leads to a second

difficulty: since restrictive firearms legislation influences which firearms will be

found “in common use” by law-abiding private citizens, a constitutional rule

that uses the presence or absence of particular arms in common use as a gauge

of the constitutionality of firearms legislation runs a serious risk of harmful cir-

cularity. Constitutional theorists will recognize these as problems of constitu-

tional construction, of the sort analyzed in recent years by Randy Barnett and

Keith Whittington.

148

A. “Common Use” and the Problem of New Weapons: The Lever-Action

Rifle

Consider the Henry rifle.

149

Developed on the eve of the U.S. Civil

War, Benjamin Tyler Henry’s lever-action rifle was one of the first successful

repeating rifles to use self-contained metallic cartridge ammunition. It was a

startling weapon: At a time when most infantry troops were issued single-shot,

muzzle loading rifles and muskets, the Henry’s tubular magazine held a full

fifteen cartridges of intermediate-powered .44 rimfire ammunition. The Henry

rifle, and its similar contemporary, the .56 Spencer lever-action rifle, repre-

sented an enormous increase in personal firepower: the user could fire the rifle,

then immediately eject the spent casing and chamber another round, by merely

working the lever assembly that was conveniently attached to the rifle’s trigger

guard.

150

More than ten thousand Henrys were produced during the war. With

148

Barnett suggests that “when the abstract terms of the Constitution do not directly resolve a

particular dispute, some construction (as opposed to interpretation) of constitutional meaning is

needed. . . . [C]onstructions operate ‘where the text is so broad or so underdetermined as to be

incapable of faithful but exhaustive reduction to legal rules.’” RANDY E. BARNETT, RESTORING

THE LOST CONSTITUTION 123 (2004) (quoting KEITH E. WHITTINGTON, CONSTITUTIONAL

CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING 5 (1999)).

149

The following historical discussion draws heavily upon R.L. WILSON, WINCHESTER: AN

AMERICAN LEGEND : THE OFFICIAL HISTORY OF WINCHESTER FIREARMS AND AMMUNITION FROM

1849 TO THE PRESENT 10-39 (2005).

150

U.S. NATIONAL PARK SERVICE, MANUAL FOR THE HANDLING AND FIRING OF THE HENRY

REPEATING RIFLE IN INTERPRETIVE DEMONSTRATIONS 3, available at http://www.nps.gov/

stri/upload/Henry%20Manual%20of%20Arms.pdf (last visited Oct. 18, 2008).

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382 WEST VIRGINIA LAW REVIEW [Vol. 111

the arrival of peace, the Henry entered production (after a few design improve-

ments) as the Winchester 1866 rifle.

151

Lever-action repeating rifles became widely popular in the course of the

late nineteenth century for self-defense, hunting, and law enforcement. The

1890s saw another technical innovation: the introduction of modern smokeless

gunpowder, which enabled the development of rifle ammunition with much

greater velocity and penetration than previous cartridges, which had used black

powder as a propellant.

152

In the 1890s, gunmakers Winchester and Marlin in-

troduced compact lever-action repeating rifles chambered for a smokeless car-

tridge (the .30 WCF or .30-30 Winchester) that dwarfed the power of the origi-

nal Henry rifle’s ammunition.

153

Winchester’s Model 94 and Marlin’s Model

1893 (later revised as the Model 36 and Model 336) went on to become main-

stays of the American gun culture. By the time the Winchester Model 94 ceased

production in 2006, more than six million rifles had been sold.

154

Marlin’s .30-

30 lever rifle remains in production to this day, with over four million sold.

155

What light do the introduction and eventual ubiquity of the lever-action

repeating rifle shed on the right to defensive arms recognized in Heller? The

first thing to note is that these rifles unquestionably fall within the core of Sec-

ond Amendment protection under Heller. Given the choice, Americans have

opted to acquire them in staggering numbers that place them among the most

common American firearms of any kind. They are widely kept for self-defense,

hunting, and recreation. They are, in short, quintessential “weapons typically

possessed by law-abiding citizens for lawful purposes,” as Justice Scalia ex-

pressed the contours of the Second Amendment’s protection in Heller.

156

The second thing to note is that, despite their old-fashioned, walnut-

stocked appearance,

157

the Winchester and Marlin guns are competent, func-

tional arms. When introduced, they represented major improvements in fire-

power and/or ballistic effectiveness. Suppose, counterfactually, that a nine-

teenth-century Congress had sought to ban private citizens from possessing

151

WILSON, supra note 149 at 11-14, 22.

152

Id. at 96-99.

153

See FRANK C. BARNES, CARTRIDGES OF THE WORLD 56, 485 (Stan Skinner ed., 11

ed.

2006) (discussing the .30-30 Winchester and .44 Henry cartridges and the rifles chambered for

them).

154

Stephen Hunter, Out With a Bang: The Loss of the Classic Winchester is Loaded with Sym-

bolism, WASH. POST, Jan. 20, 2006, at C1.

155

See Carolee A. Boyles, SHOT Show 2005: The Shooting, Hunting, Outdoor Trade Show and

Conference, SHOOTING INDUSTRY January 2005 (noting Marlin Firearms Co.’s commemoration of

its manufacture of the four millionth Model 336 rifle).

156

Heller, 128 S.Ct. 2783, 2816 (2008).

157

Lever-action rifles are widely used in the self-consciously nostalgic sport of Cowboy Action

Shooting, in which participants wear Western clothing and shoot cowboy-themed target courses

using firearms of late nineteenth-century design. See generally ABIGAIL A. KOHN, SHOOTERS:

MYTHS AND REALITIES OF AMERICA’S GUN CULTURES 48-53 (2004) (describing the sport and its

participants).

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2009] THE RIGHT TO DEFENSIVE ARMS 383

them.

158

And suppose Heller was on the books at the time. If late nineteenth-

century American judges had shared the attitudes of many twentieth-century

federal judges, it is not hard to imagine them using a grudging application of

Heller to uphold these bans against a Second Amendment challenge. The re-

sulting opinions would remark with alarm at the high ammunition capacity and

rapid firepower of the new Henry rifles, and their rise to prominence on the

military battlefield. Surely, they might reason, these new weapons of war qual-

ify as “dangerous and unusual,” and therefore (arguably) fall outside of the pro-

tection of the Second Amendment, as construed in Heller.

159

After all, the rifles

are certainly “dangerous”: all firearms are so; besides, these rifles include tech-

nical innovations that increase their effectiveness. And at the time our hypo-

thetical courts are adjudicating this Second Amendment claim, the rifles are

indeed “unusual” in private hands, since they have not long been in production.

Such decisions would allow legislative bans on repeating rifles to re-

main in force, and would therefore stifle the growth of any legitimate culture of

private ownership of these arms. We might expect a culture to emerge in which

Winchester rifles were found solely in the hands of “armed criminals and armed

police.”

160

This result should be considered a reductio ad absurdum. However

Heller’s “in common use” criterion is to be applied in the future, it cannot prop-

erly be applied in the simplistic fashion imagined above. All new firearms are

rare in private hands (“unusual”) at some point, simply because they are new.

Yet, new firearms, too, are presumptively protected by the Second Amendment.

Heller is explicit on this point:

Some have made the argument, bordering on the frivolous, that

only those arms in existence in the 18th century are protected

by the Second Amendment. We do not interpret constitutional

rights that way. Just as the First Amendment protects modern

forms of communications, e.g., Reno v. American Civil Liber-

ties Union, 521 U.S. 844, 849 (1997), and the Fourth Amend-

ment applies to modern forms of search, e.g., Kyllo v. United

States, 533 U.S. 27, 35-36 (2001), the Second Amendment ex-

158

The hypothetical is doubly counterfactual, of course, since the enumerated legislative pow-

ers of the federal government were not then understood to authorize it to enact police-power legis-

lation of the sort imagined. See United States v. E.C. Knight Co., 156 U.S. 1 (1895); United

States v. Lopez, 514 U.S. 549, 584-602 (1995) (Thomas, J., concurring).

159

Cf. Heller, 128 S.Ct. at 2817 (holding that Second Amendment protection is limited to

weapons “in common use at the time,” and that this limitation derives from “the historical tradi-

tion of prohibiting the carrying of dangerous and unusual weapons”) (internal quotation marks

omitted).

160

David B. Kopel, Paul Gallant & Joanne D. Eisen, 2 J.L. ECON & POL’Y 417, 424 (2006)

(reviewing JOYCE LEE MALCOLM, GUNS AND VIOLENCE: THE ENGLISH EXPERIENCE (2002) (de-

scribing the culture that emerged in Great Britain after decades of increasingly restrictive gun

legislation and regulation virtually eliminated the legitimate gun culture)).

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384 WEST VIRGINIA LAW REVIEW [Vol. 111

tends, prima facie, to all instruments that constitute bearable

arms, even those that were not in existence at the time of the

founding.

161

The cases cited by the Court in this passage deal with internet commu-

nications (Reno), and an infrared thermal imaging device (Kyllo). The Court’s

chosen illustrations thus do more than just detach the Second Amendment from

the flintlock era; they suggest that individual armed Americans are ordinarily

entitled to claim the full benefit of contemporary technological innovations in

defensive weaponry.

B. The Circularity Problem

An unduly mechanical application of “common use” as a criterion of

Second Amendment protection makes the criterion circular. Compare the

“common use” criterion with the subjective prong of the “reasonable expecta-

tion of privacy” criterion used to evaluate intrusions under the Fourth Amend-

ment.

162

If the Second Amendment’s “common use” criterion is applied in a way

that focuses exclusively on private citizens, it incurs a structural flaw similar to

(and in some respects worse than) the one that impairs the Fourth Amendment

“reasonable expectation of privacy” criterion. Both criteria look to attitudes

expressed in citizens’ conduct (the appropriateness of acquiring a particular type

of arm; the belief that a particular location is private) to determine the validity

of laws impinging on that conduct. But the very existence, at a given time, of

positive laws that authorize the government to interfere with the conduct in

question (statutes banning private possession of that type of arm; court decisions

declining to find a reasonable expectation of privacy in a particular location)

will naturally deter individuals from expressing the relevant attitudes (owning

the statutorily prohibited arms; holding a subjective expectation that such a loca-

tion is private). Yet the law was supposed to be based (in whole or part) on the

attitudes expressed, not the other way around.

163

The characteristic flaw of such

a circular criterion for protecting a constitutional right is under-protectiveness.

161

Heller, 128 S.Ct. at 2791-92.

162

The “reasonable expectation of privacy” criterion is generally traced to Justice Harlan’s

concurring opinion in Katz v. United States, 389 U.S. 347, 361 (1967): “My understanding of the

rule that has emerged from prior decisions is that there is a twofold requirement, first that a person

have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be

one that society is prepared to recognize as ‘reasonable.’”

163

See Michael Abramowicz, Constitutional Circularity, 49 UCLA L. REV. 1, 60-61 (2001)

(criticizing Katz’s “reasonable expectation of privacy” test as circular because “someone can have

a reasonable expectation of privacy in an area if and only if the Court has held that a search in that

area is reasonable”). Likewise, arms can be “typically possessed by law-abiding citizens for law-

ful purposes” if and only if those arms are not prohibited and their possession criminally punished

by the government—or if courts are willing to scrutinize, and potentially invalidate, legislative

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2009] THE RIGHT TO DEFENSIVE ARMS 385

It might be responded that the approach to Heller criticized here stops

short of self-contradiction, because it only excludes those new arms that legisla-

tures act swiftly to prohibit. If the legislature allows the new arms to proliferate

in private possession until they reach the critical mass of being “commonly

owned,” the arms will then become protected by the Second Amendment. The

problem with this approach is simply that it makes the ability to possess con-

temporary defensive arms contingent upon the good faith of the legislature. Yet

the very premise of the Second Amendment is that free peoples are in danger of

being wrongfully deprived of arms by legislatures—attempts that typically arise

from political motivations, but are carried out under different pretexts such as

safety or the regulation of sporting use.

164

A better reading of Heller’s adaptation of Miller’s “common use” crite-

rion concludes that the Court wishes to distinguish a limited class of arms that is

only appropriate for use on military battlefields, where the social compact is

completely suspended, from the broader class of arms that are amenable to be-

ing commonly kept within civil society.

165

To return to the hypothetical above:

the flourishing of the lever-action rifle demonstrates that such rifles are, and

were, from their earliest introduction, weapons appropriate for common owner-

ship by peaceable citizens. Given the chance, Americans chose to acquire them

by the millions, integrating them into the national life. They are, and were, enti-

tled to Second Amendment protection, regardless of what legislatures might

have done at the time of their introduction.

This problem illustrates an important strength of the strictest version of

the Strong Miller interpretation—what I jokingly dubbed “Very Strong Miller”

in an earlier section. For all its arguably radical implications, the Very Strong

Miller view had the advantage of coherence. It filled an analytical gap by sup-

plying a test for covered “arms,” rooted in part in the civic purposes of the Sec-

ond Amendment, that is external (and therefore easy for courts to administer

consistently), and also defeats the circularity problem, by looking beyond cur-

rent positive laws restricting individual citizens, to ask which arms the govern-

ment deems appropriate to issue routinely to those subject to its orders and con-

trol—specifically, under this view, the members of the standing military forces.

Thus, Very Strong Miller is not subject to the self-contradictory result in which

a broad ban on private firearms paradoxically becomes the warrant of its own

constitutionality, by preventing the banned arms from having any chance to

gun bans even when they are applied to new, technologically advanced firearms that have not yet

had the requisite chance to become common.

164

Accord Heller, 128 S.Ct. at 2798 (arguing that the Stuart Kings’ use of “select militias loyal

to them to suppress political dissidents, in part by disarming their opponents,” and the manipula-

tion of seventeenth-century game acts to implement “general disarmaments of [disloyal] regions”

led the English to “be extremely wary of concentrated military forces run by the state and to be

jealous of their arms”).

165

Cf. id. at 2815 (rejecting a reading of Miller that would hold that “only those weapons use-

ful in warfare are protected” by the Second Amendment).

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386 WEST VIRGINIA LAW REVIEW [Vol. 111

enter “common use.” If Miller is to be de-emphasized, then it is desirable to

find a replacement test for covered “arms” that is also defined externally, in

terms of verifiable facts rather than judicial preconceptions about firearms,

while also avoiding the circularity problem.

166

External, non-circular standards

are doubly desirable if one shares the view, held by some scholars, that the

lower federal courts have historically shown an unjustified hostility to Second

Amendment claims, above and beyond the limits suggested by the Supreme

Court’s scanty pre-Heller jurisprudence.

167

In the remainder of this Article, I set

forth a two-part test that meets these requirements. It focuses upon the revealed

judgments of both private individuals and of governments (specifically, police

departments) in choosing arms for personal defense.

C. The “Revealed Judgment” Approach

1. Looking to the Revealed Judgment of the People

One important source of external guidance about the scope of the right

to arms for self-defense is simply the revealed judgment of contemporary

Americans about which firearms they should acquire for defense. De-

emphasizing the militia tie (the second step of Strong Miller) offers no reason

for ignoring the value of Strong Miller’s first step—looking at what firearms are

in common use at the present time.

That hundreds of thousands, indeed millions of individuals choose a

particular means of participating in constitutionally protected conduct is power-

ful prima facie evidence that the chosen means is itself deserving of protection.

In other constitutional contexts, wide deference is given to individuals’ chosen

means for exercising a constitutional right—even if most judges and other elites

might find the people’s choice as unseemly and ill-adapted as, say, the decision

to engage in political protest by wearing a jacket that reads “Fuck the Draft.”

168

166

Some of the District of Columbia’s amici in Heller recognized the difficulty of asking

courts to administer constitutional limits in this area. See Brief of Law Professors Erwin Chemer-

insky and Adam Winkler as Amici Curiae Supporting Petitioner at 10-12, District of Columbia v.

Heller 128 S.Ct. 2783 (2008) (No. 07-290), 2008 WL 157186 (arguing that gun regulation is “a

difficult and technical matter best left to legislatures”), but failed to give sufficient consideration

to the possibility that external sources of guidance may permit a more confident decision.

167

See, e.g., Denning, supra note 26 at 971 (claiming that lower federal court decisions from

1939 until the mid-1990s took such a consistently restrictive view of the Supreme Court’s am-

biguous decision in Miller that they disclose “a collective judicial assumption . . . that the Framers

could not have really meant that individuals should have a judicially-enforceable right to keep and

bear arms.”).

168

See Cohen v. California, 403 U.S. 15, 24 (1971) (concluding that the freedom of speech

protects offensive displays like Cohen’s jacket; stressing that the First Amendment “put[s] the

decision as to what views shall be voiced largely into the hands of each of us, . . . in the belief that

no other approach would comport with the premise of individual dignity and choice upon which

our political system rests.”). Notice, too, that the Second Amendment criteria I am proposing call

for considerably less judicial tolerance of eccentric or outlying conduct than the First Amendment

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2009] THE RIGHT TO DEFENSIVE ARMS 387

Applying this criterion leads to the conclusion that modern semi-

automatic handguns and rifles are constitutionally protected against legislative

prohibition. First, consider handguns. The typical American handgun today is a

detachable magazine-fed, semi-automatic centerfire pistol. About 800,000 new

semi-automatic pistols are manufactured for sale in the United States in an aver-

age year.

169

Roughly a fifth of these are .22 rimfire target pistols. The rest are

chambered for centerfire cartridges, such as the .45 and 9mm rounds, that are

preferred for defense. Pistols outsell revolvers by a margin of two or three to

one in a typical year,

170

and also lead in sales for personal defense.

171

Since

such pistols have been commercially available for more than a century,

172

the

total U.S. stock of privately owned semi-automatic handguns must easily reach

the tens of millions.

In Heller’s immediate aftermath, the District of Columbia responded to

the invalidation of its ban on handguns by digging in its heels, adopting a new

statutory regime that prohibited all semiautomatic pistols and allowed only re-

volvers to be registered.

173

Dick Heller and his lawyers swiftly filed a new law-

standards advanced in Cohen. While Cohen lets a single protestor decide which means of verbal

expression are appropriate for him, my test stresses the revealed judgment of the arms-keeping

public at large about which arms are appropriate for their defense. Such a social consensus is

more likely to be reasonable than the isolated judgment of one or two individuals.

169

The production statistics in this paragraph are derived from the U.S. Bureau of Alcohol,

Tobacco, Firearms, and Explosives (BATFE) Annual Firearms Manufacturing and Export Reports

for the years 1998 to 2006, available at http://www.atf.gov/firearms/stats/index.htm (last ac-

cessed Feb. 9, 2009). BATFE generally classifies as a “pistol” any handgun that is not a revolver,

i.e., that does not use a revolving cylinder to hold its ammunition. See 27 C.F.R. § 479.11 (2003)

(defining “pistol” and “revolver”). The vast majority of pistols are semi-automatics, but a few

specialty types of handguns are classified as “pistols” although they are not semi-automatics.

These are principally large, single-shot hunting pistols and small derringers firing one or two

shots. Therefore, to estimate the semi-automatic pistol production figures, I subtracted the entire

annual handgun output of the principal American manufacturer of single-shot pistols, Thomp-

son/Center Arms Co. I subtracted a further 6,000 handguns a year to approximate the annual

output of derringers, which are made by a variety of small companies such as Bond Arms and

American Derringer. Finally, to arrive at domestic semi-automatic pistol production figures, I

further subtracted the number of pistols listed each year by BATFE as “exported.”

170

Between 1998 and 2006, the ratio of semi-automatic handguns to revolvers dipped below

2:1 only once, in 2001, when 626,836 semi-automatics and 320,143 revolvers were produced.

(About 32,000 of each type were exported.) BUREAU OF ALCOHOL TOBACCO AND FIREARMS,

ANNUAL FIREARMS MANUFACTURING AND EXPORT REPORT 2 (2001), available at

http://www.atf.gov/firearms/stats/afmer/afmer2001.pdf (last accessed Feb. 9, 2009).

171

See Massad Ayoob, Blue Chips: Handguns Equal Solid Sales, SHOOTING INDUSTRY, Dec.

2003 (“Most dealers report semi-auto pistols outsell revolvers for defensive needs.”).

172

One of the first popular semiautomatic pistols in America was the Colt Model 1903 Pocket

Hammerless, named for the year of its introduction. BARNES, supra note 153 at 289.

173

Firearms Control Emergency Amendment Act of 2008, D.C. Act 17-422, 55 D.C. Reg. 8237

(July 16, 2008), available at http://mpdc.dc.gov/mpdc/lib/mpdc/info/pdf/firearmscont_emact

_071608.pdf (last accessed Nov. 26, 2008). This act failed to lift the ban on semiautomatic fire-

arms imposed by the District’s sweeping and idiosyncratic definition of “machine gun,” § 7-

2501.01(10)(B). See supra note 43 (discussing the effects of the District’s “machine gun” provi-

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388 WEST VIRGINIA LAW REVIEW [Vol. 111

suit to enjoin these restrictions.

174

In September 2008, a bipartisan majority of

the House of Representatives approved a bill to overturn this ban through legis-

lation, using Congress’s supervisory power over the District.

175

Even as the

House of Represesntatives deliberated the bill, the District of Columbia City

Council retreated from its position and enacted emergency legislation permitting

semiautomatic pistols to be registered, and allowing them to be kept in operable

condition in the home.

176

Congress’s effort is a salutary attempt to bring the

District of Columbia’s firearms laws closer to compliance with the constitu-

tional standards announced by the Supreme Court. There is no doubt, under

Heller’s criteria, that the semiautomatic pistol is “typically possessed by law-

abiding citizens for lawful purposes,”

177

is “in common use,”

178

and is among

“the most preferred firearm[s] in the nation to ‘keep’ and use for protection of

one’s home and family,”

179

rendering it a type of arm within the core of the Sec-

ond Amendment’s protection. Under Heller, a return of the District’s ban on

the ubiquitous self-loading pistol would merit judicial invalidation as a violation

of the Second Amendment.

Magazine-fed, self-loading rifles—the Henry rifles of today—are also

widely owned by private citizens today for legitimate purposes. The growth in

popularity of the AR-15

180

and similar carbines (i.e., compact rifles) for self-

defense,

181

hunting,

182

and target shooting

183

has attracted national media atten-

sion); Paul Duggan, Having Toppled D.C. Ban, Man Registers Revolver, WASH. POST, July 19,

2008, at B1.

174

See Complaint, Heller v. District of Columbia, No. 1:08-CV-01289-RMU (D.D.C. July 28,

2008), available at http://www.washingtoncitypaper.com/blogs/citydesk/wp-

content/uploads/2008/07/0728heller.pdf (last accessed Oct. 18, 2008).

175

110th Cong., 2d Sess., H.R. 6842, Second Amendment Enforcement Act, available at

http://thomas.loc.gov/cgi-bin/bdquery/z?d110:hr6842 (last accessed Nov. 25, 2008).

176

Second Firearms Control Emergency Amendment Act of 2008, D.C. Act 17-502, 55 D.C.

Reg. 9904 (Sept. 16, 2008), available at http://newsroom.dc.gov/show.aspx?agency=os&section

=37&release=14959&year=2008&file=file.aspx%2frelease%2f14959%2f3%2520%2520DC%252

0Acts.pdf (expiring ninety days after enactment).

177

Heller, 128 S.Ct. at 2816.

178

Id. at 2815.

179

Id. at 2818 (quoting Parker v. District of Columbia, 478 F.3d 370, 400 (D.C. Cir. 2007).

180

This term is used generally to refer to the semiautomatic rifles and carbines that share the

external appearance and most of the controls of the U.S. M16 and M4 military weapons, but are

mechanically incapable of firing automatically. See Staples v. United States, 511 U.S. 600, 603

(1994).

181

Television host and shooting sports advocate Michael Bane writes that AR-15s “are

increasingly seen as an important part of not just the law-enforcement battery, but the civilian self-

defense arsenal as well.” Michael Bane, The World’s Most Versatile Rifle, OUTDOOR LIFE (July 2,

2007), available at http://www.outdoorlife.com/article.jsp?ID=21010945 (last visited Oct. 18,

2008).

182

AR-15 rifles are now mainstream equipment for so-called “varmint” hunters, who must

make rapid, long-range shots on small targets such as prairie dogs and coyotes. See, e.g., Greg

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2009] THE RIGHT TO DEFENSIVE ARMS 389

tion.

184

Retailers report vigorous sales of ammunition in the calibers used by

such carbines.

185

Major manufacturers produce carbine ammunition aimed spe-

cifically at the private self-defense market.

186

These rifles usually come equipped with standard, detachable maga-

zines holding twenty to thirty rounds.

187

They are often equipped with elec-

tronic optical sights that project an illuminated target reticle within the sight

window, to be used by the shooter. Their modern features, much like those of

the Henry rifle in its time, may appear startling to those unfamiliar with firearms

or the American gun culture. But that cannot change the fact that the arms are

indeed “in common use” at this time for a broad range of legitimate purposes.

While exact numbers are hard to come by, it seems likely that the number of

AR-15s and similar rifles in private hands in America today exceeds the one

million mark.

188

These arms, too, should be deemed constitutionally protected

against federal prohibition or restrictions that would cripple their effectiveness.

Rodriguez, ARs Rock: What Makes the Best Varmint Rifle? Try An AR, RIFLE SHOOTER May/June

2008, at 52 (“[A]ccuracy, combined with the . . . fast follow-up shot and reasonable price, [are]

why I have come to rely almost exclusively on AR-15s for varmint hunting”); Accurate AR-15

Rifles: Buy the Fulton Armory, Rock River Guns, GUN TESTS, vol. 20, no. 6, June 2008, at 3 (re-

viewing “AR-15 varmint/predator rifle[s]” made by four different companies; noting that articles

covering varmint rifles of this type were “one of the most popular requests” received).

183

Andrew Park, A Hot-Selling Weapon, an Inviting Target, N.Y. TIMES, June 3, 2007 (AR-15s

have “bec[o]me standard issue for target shooters” in high power rifle competitions).

184

See id. (reporting that AR-15 type carbines, formerly subject to significant federal restric-

tions under the 1994-2004 “assault weapons” ban, have become “guns of choice for many hunters,

target shooters and would-be home defenders”).

185

One of the nation’s largest online ammunition retailers, Midway USA, regularly lists the six

most popular rifle ammunition calibers sold on its web site. This list always includes .223 Rem-

ington (used by AR-15 carbines) and 7.62x39 Russian (used by the SKS and other semi-automatic

carbines of eastern bloc origin). See http://www.midwayusa.com/browse/BrowseCate

gories.aspx?tabId=3&categoryId=690&categoryString=653*** (last visited Feb. 9, 2009).

186

Nebraska-based Hornady Manufacturing, Inc., an established maker of sporting ammuni-

tion, now sells a TAP-FPD (“For Personal Defense”) line of .223 Remington caliber ammunition

for semiautomatic carbines, an offshoot of the company’s popular TAP (Tactical Application

Police) line of defensive ammunition for law enforcement. See Press Release, Hornady Manu-

facuting, Inc., TAP for Personal Defense, available at http://www.hornady.com/story.php?s=149

(press release) (last visited Nov. 26, 2008).

187

New production of such standard capacity magazines for sale to private citizens was tempo-

rarily prohibited during the ten-year effective period of the federal “assault weapons ban,” Chapter

XI, Subchapter A of the Violent Crime Control and Law Enforcement Act of 1994, formerly

codified at 18 U.S.C. §§ 921(a)(30), 922(v), (w). See supra note 146. Even during the ban, how-

ever, at least 25 million pre-1994 standard capacity magazines remained in commercial circula-

tion. Christopher S. Koper, An Updated Assessment of the Federal Assault Weapons Ban: Im-

pacts on Gun Markets and Gun Violence, 1994-2003 61-67 (2004). Millions more have been

manufactured since the lapse of the federal ban in 2004; indeed, most new centerfire pistols and

AR-15 type rifles are sold today with factory-made full capacity magazines.

188

It is currently difficult to calculate with precision the number of AR-15s and similar mod-

ern, detachable magazine-fed semiautomatic rifles and carbines sold each year in America. The

BATFE’s Annual Firearms Manufacturing and Export Reports do not break down rifle production

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390 WEST VIRGINIA LAW REVIEW [Vol. 111

Indeed, it may surprise some to learn that the United States Supreme

Court has already considered a case raising the question of whether an AR-15

should be viewed as an ordinary firearm of law-abiding private citizens. So it

has, and in the 1994 decision in Staples v. United States,

189

the Court strongly

suggested that the answer to this question is yes. Staples owned a self-loading

AR-15 rifle that included parts from a fully automatic M-16. When his gun

proved capable of fully automatic fire, he was prosecuted and convicted for pos-

session of an unregistered machinegun in violation of the National Firearms

Act.

190

The Supreme Court reversed his conviction, holding that Staples’s jury

had been incorrectly instructed on the mens rea requirement for a violation of

the National Firearms Act. Justice Clarence Thomas’s majority opinion inter-

preted the statute to require specific proof that the defendant knew that the gun

he possessed would fire fully automatically—not merely that it was a gun of

some kind.

191

In order to hold that the traditional mens rea requirement was applica-

ble, the Court had to distinguish prior cases holding that certain criminal stat-

utes, which address so-called “public welfare offenses,” do not require a show-

ing of mens rea because they regulate “dangerous device[s] of a character that

places [their owner] in responsible relation to a public danger” and “alert[s him]

to the probability of strict regulation.”

192

The Court declined to classify com-

mon firearms—including Staples’s semiautomatic rifle—as “dangerous de-

vices” in this unique sense. The Court justified this decision by stressing the

by type or caliber as they do with handguns. However, most of the companies that manufacture

and sell AR-15 pattern rifles (such as Bushmaster, Colt, Rock River Arms, DPMS, Stag Arms)

sell few rifles of other types. It is therefore possible to estimate AR production by adding up the

rifle production figures for these companies. This yields an estimate of slightly over 100,000

rifles per year. Adding other common types of domestically produced, military-pattern self-

loading rifles (such as the M1A) yields a total annual production of around 120,000 rifles in this

category. Cf. BUREAU OF ALCOHOL TOBACCO AND FIREARMS, ANNUAL FIREARMS

MANUFACTURING AND EXPORT REPORT YEAR 2006, available at

http://www.atf.gov/firearms/stats/afmer/afmer2006.pdf (last accessed Feb. 9, 2009). This estimate

is in line with earlier figures computed by Professor Christopher Koper in a report submitted to

the U.S. Department of Justice. Koper estimated that between 1990 and 2001, production of AR-

15 rifles fluctuated between 40,000 and 120,000 units per year. Koper, supra note 187 at 36.

In the weeks following the 2008 presidential and Congressional elections, sales in these

types of modern firearms accelerated dramatically, due evidently to fears that the Democratic-

controlled Congress and President Barack Obama would be likely to pursue new legal restrictions

on their ownership. See, e.g., Kirk Johnson, On Concerns Over Gun Control, Gun Sales Are Up,

N.Y. TIMES, Nov. 6, 2008, available at http://www.nytimes.com/2008/11/07/us/07 guns.html;

Gun Sales Surge After Obama’s Election, http://www.cnn.com/2008/CRIME/11/11/obama

.gun.sales/ (Nov. 11, 2008). Thus, if anything, the pre-2008 figures above are likely to understate

the current level of demand for such firearms.

189

511 U.S. 600 (1994).

190

Id. at 603-04.

191

Id. at 619.

192

Id. at 607.

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2009] THE RIGHT TO DEFENSIVE ARMS 391

“long tradition of widespread lawful gun ownership by private individuals in

this country.”

193

It expressed concern about interpretations of the mens rea re-

quirement that would potentially subject “every owner of a semiautomatic rifle

or handgun” to strict criminal liability if the owner’s gun turned out to be capa-

ble of firing automatically in a particular instance.

194

Such reasoning means that Staples can be read quite naturally as a

“shadow Second Amendment” case, reflecting the Justices’ concerns about

harsh regulation of modern self-loading firearms, without openly acknowledg-

ing an individual right to arms during the long silence between Miller and

Heller. Staples rests on a conclusion that a semi-automatic rifle, including a

modern, detachable magazine-fed arm like an AR-15, is still a part of the ordi-

nary firearms tradition in America, and should not be subject to highly restric-

tive regulations that would be inappropriate for other firearms.

195

Again, Staples

characterizes the AR-15 as not constituting an unusually “dangerous device”

betokening “a public danger.” From this, it is not much of a leap—if indeed it is

a leap at all—to the conclusion that such a rifle is not a “dangerous and unusual

weapon” under Heller.

196

This, combined with its common possession by law-

abiding Americans today, entails that this class of weapon is constitutionally

protected against future prohibition by the federal government.

2. Looking to the Revealed Judgment of the Government: Ordi-

nary Police Arms

Another external source of evidence about the scope of the right to de-

fensive arms lies in the revealed judgment of American local and state govern-

ments about this question. This judgment is most reliably expressed, not in the

public statements of governments, nor in the restrictions they may seek to im-

pose upon citizens who do not work for the government, but in the defensive

equipment that they choose to issue to their own agents: ordinary patrol officers

in police departments. Moreover, since even restrictive governments typically

exempt law enforcement from firearms prohibitions, paying attention to which

arms make up standard police equipment today provides a crucial tool for break-

ing out of the circularity problem sketched above.

In a major article authored ten years ago, David Kopel suggested that

Second Amendment jurisprudence under Miller might do well to “chang[e] the

focus from the military to the police” as a criterion for the right to arms. Kopel

suggested that such an approach could be reconciled with Miller’s emphasis on

193

Id. at 610.

194

Id. at 612 n. 6.

195

Cf. id. at 603 (describing the AR-15 as “the civilian version of the military’s M-16 rifle”)

(emphasis added); Carter v. United States, 530 U.S. 255, 269 (2000) (describing Staples’s holding

as intended “to avoid criminalizing the innocent activity of gun ownership”).

196

See Heller, 128 S.Ct. at 2817 (suggesting that the Second Amendment protects weapons “in

common use at the time” but not certain “dangerous and unusual weapons”).

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392 WEST VIRGINIA LAW REVIEW [Vol. 111

the militia due to the militia-like “internal order functions” performed by mod-

ern police.

197

In truth, police functions lie along a spectrum. They range from

militia-type functions, such as suppressing riots, to routine functions such as

apprehending and defending against individual criminals in personal-scale con-

frontations that resemble acts of self-defense by armed private citizens. Thus,

for different reasons, police equipment is relevant evidence under both a Miller

militia-centered right to arms and a private purpose-centered right to arms of the

Kennedy-Lund type. It may be that a Miller-type test would give most rele-

vance to the equipment used by specialized police units such as SWAT teams,

but a court applying a private purpose-centered right to arms would more logi-

cally turn to evidence of the equipment issued to ordinary patrol officers today.

Because police officers are subject to government control, the government has

full, appropriate incentives to ensure that they are adequately equipped to pro-

tect themselves in personal-scale confrontations. For this reason, paying atten-

tion to police equipment serves as a corrective—in some cases a necessary cor-

rective—to the problem of circularity (and thereby potential underinclusiveness)

that attends the use of the “common use” test to determine the scope of the cate-

gory of constitutionally protected arms at a given time.

This police criterion implies a right to defensive arms of similar scope

to the one suggested by the people’s revealed judgment, as discussed in the pre-

vious subsection. Thus, it reinforces the conclusions reached in that subsection.

As Kopel notes, under the police criterion, “quality handguns,” including self-

loading pistols, “would lie at the core” of such a Second Amendment, as would

the “ordinary shotguns and rifles” routinely carried in patrol cars.

198

Semi-

automatic pistols are overwhelmingly chosen in preference to revolvers as po-

lice sidearms today.

199

What is less widely known is that the “ordinary rifles”

issued to patrol officers are often modern semi-automatic carbines like the AR-

15. Dubbed “patrol rifles” in this context, the carbines serve the same function

in 2008 that a pump-action shotgun in the trunk might have served a generation

ago.

200

Carbines are becoming common equipment for patrol officers even in

197

Kopel, supra note 52, at 1534.

198

Id.

199

See Raymond W. Kelly, The Police Department’s 9-Millimeter Revolution, N.Y. TIMES,

Feb. 15, 1999, at A17 (observing that “[m]ost . . . major police departments” in America “had

already switched to semi-automati[c]” handguns by 1993).

200

See PATRICK SWEENEY, MODERN LAW ENFORCEMENT WEAPONS AND TACTICS 181-82 (3d ed.

2004) (discussing the use of modern magazine-fed carbines as “patrol rifles” for “line officers,”

i.e., ordinary patrol officers; noting that “the AR[-15] is the embodiment of the modern patrol

rifle”); Jeff Chudwin, Tactical Ops: the long guns, Why police patrol rifles make sense, LAW

OFFICER, Sep. 19, 2005, available at http://www.policeone.com/writers/columnists/lom/articles/

134810-Tactical-Ops-The-long-guns (last accessed Oct. 18, 2008) (urging more police depart-

ments to adopt “patrol rifle programs” that equip ordinary officers with self-loading AR-15 car-

bines in their vehicles); Diane Nicholl & Dave Kopel, Police Show Legitimacy of Semi-

Automatics, available at http://www.davekopel.com/ 2A/OpEds/Police-Show-Legitimacy.htm

(June 18, 1998) (noting that Denver Police Department equips officers with AR-15 carbines).

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2009] THE RIGHT TO DEFENSIVE ARMS 393

smaller towns and on university campuses.

201

Thus, the police criterion, too,

strongly suggests that these firearms are entitled to protection under a Second

Amendment right that focuses on arms for defense.

Technology progresses in the field of defensive firearms, as it does in

other fields of commerce in a market society. Many of the most common arms

and ammunition owned by private citizens today descend from earlier military

developments.

202

Gun control advocates have argued that modern semiauto-

matic carbines constitute “assault weapons” or “weapons of war” whose pres-

ence in American life is cause for alarm. Yet it is difficult to accept extreme

characterizations of these firearms when they have become literally as common

as police cars in many parts of the country—indeed, far more so, given the hun-

dreds of thousands, or millions, of such firearms in the possession of private

citizens. By drawing on external evidence in the form of the revealed judgment

of the people about which arms to acquire, supplemented by evidence of the

revealed judgment of the government in equipping police officers, courts can

decide right-to-arms cases on a principled basis, and give substance to the right

to keep and bear arms for self-defense, even in the absence of the guidance

many scholars once urged them to derive from the militia purpose, Miller’s “end

in view.”

201

For example, the Police Department of North College Hill, Ohio, a working-class Cincinnati

suburb of about 10,000, issues AR-15 carbines to patrol officers. See NCHPD.org, Equipment

Used by Members of the North College Hill Police Department, http://www.nchpd.org/equipment

.html (last visited Oct. 18, 2008). The same is true of the campus police at the University of

Texas at Austin. See University of Texas at Austin Police Department Policy A-13, available at

http://www.utwatch.org/security/utpd_manual.pdf (effective Dec. 1, 2002) (last accessed Oct 18,

2008) (identifying Glock 23 self-loading pistol and Bushmaster AR-15 carbine, with high-

capacity magazine loaded with 28 rounds, as standard equipment for campus patrol officers). I

thank Robert Duncan for his assistance with these sources.

202

Examples could be multiplied. Two of the most popular 20th century hunting cartridges, the

.308 Winchester and .30-06 Springfield, began life as military rifle cartridges. FRANK C. BARNES,

CARTRIDGES OF THE WORLD 61-62 (11th ed. 2006). The ubiquitous Smith and Wesson six-shot

.38 Special double action revolver, now regarded as a rather old-fashioned or even obsolete hand-

gun, entered life in 1902 as the “Military and Police Model.” Id. at 298.