The Second Amendment and Federal Law

By Mike Dorf

**Updated: Here's the video link or just watch below:

This afternoon I'll be debating Alan Gura about the future of gun regulation in the U.S. in a Federalist Society sponsored event at Cornell.  I expect that we'll spend some of our time discussing state and local laws restricting public carriage of firearms, about which I wrote Verdict columns earlier this month (here and here).  In addition, I expect that we'll talk a bit about current efforts to tighten federal laws.  On that subject, I reproduce below a letter I recently sent to Sen. Dick Durbin, Chair of the Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights.


Dear Chairman Durbin:

      I write to share with you my views regarding the constitutionality of current and proposed federal laws governing private possession of firearms. I come to this task as a constitutional scholar rather than as a policy expert. I am the author, co-author, or editor of four books, over sixty scholarly articles, and hundreds of essays for general audiences, as well as a teacher of constitutional law for over twenty years.

      For many years, historians and legal scholars have debated the question of how best to construe the Second Amendment to the Constitution. Some argue that it protects a right of states to maintain a militia; others argue that it protects an individual right to private possession of firearms for self-defense and other purposes. Still others have taken even more nuanced views. For example, in a 2000 article, I argued that the Constitution should be understood to protect some right of self-defense but that such a right fits awkwardly with the text and history of the Second Amendment.  See Michael C. Dorf, What Does the Second Amendment Mean Today?, 76 CHI-KENT L. REV. 291, 337-38 (2000).

      The scholarly debate over the Second Amendment continues, but the practical debate is over.  The Supreme Court resolved the core legal issues in its decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 130 S. Ct. 3020 (2010). Even as it left some issues open for future adjudication, the Heller case clearly established two bedrock principles: first, that the Second Amendment protects an individual right to firearms possession for self-defense in the home; and second, that common-sense laws restricting but not completely banning firearms do not violate the Second Amendment. The McDonald case reaffirmed the Heller ruling, extending its framework to laws enacted by the several States as well as to federal laws.
The Heller and McDonald cases were decided by a 5-4 margin, with the Court breaking down on what may be understood as “ideological” grounds. The five most conservative Justices were in the majority for finding protection for an individual right of armed self-defense, subject to reasonable regulation. The four most liberal Justices were in dissent; they thought the Second Amendment protects no individual right of armed self-defense. Notably, not a single Supreme Court Justice—liberal or conservative—took the position that the Second Amendment protects an “absolute” right of armed self-defense.

In Heller, the majority concluded that self-defense “was the central component of the right” protected by the Second Amendment. 554 U.S. at 599 (emphasis in original). Two years later, the same majority reaffirmed the centrality of self-defense to the Second Amendment in the McDonald case. 130 S. Ct. at 3036. Accordingly, the high Court invalidated laws in the District of Columbia and Chicago that made it effectively impossible for most law-abiding citizens to possess handguns that could be used for self-defense against an assailant in the home.

Yet, even as the Court held in Heller that government may not completely ban “the most popular weapon chosen by Americans for self-defense in the home,” 554 U.S. at 629, the majority made clear that our history confirms the logical limitations on that principle: Laws that promote public safety without interfering with the basic right of armed self-defense do not offend the Constitution. The relevant discussion from Justice Scalia’s majority opinion warrants quoting in full. He explained:
      Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.  . . . For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.  . . . Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Id. at 626-27 (citations replaced with ellipses).

      That is not all. The Court hastened to add in a footnote that it was “identify[ing] these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.” Id. at 627 n.26. Making good on that characterization, Justice Scalia and the majority next specified another class of constitutionally valid limitations. Citing its own prior precedent and what Blackstone called the “historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons,’” the Court stated that the Second Amendment only protects those weapons “in common use.” Id. at 627.

The foregoing language makes abundantly clear that existing federal laws fall clearly on the permissible side of the line. Congress may require background checks of the sort currently codified at 18 U.S.C. §§ 921-926, because the Second Amendment permits laws prohibiting “possession of firearms by felons and the mentally ill.” Heller, 554 U.S. at 626.  Congress may limit the number of firearms individuals may purchase in any given period, because the Second Amendment permits “laws imposing conditions and qualifications on the commercial sale of arms.” Id. at 626-27. Congress may ban private possession of machine guns, as it did in a law signed by President Reagan and currently codified at 18 U.S.C. § 922(o), because the Second Amendment permits prohibitions on “dangerous and unusual weapons.”

Currently circulating proposals to extend or apply existing regulatory principles fall within the heartland of the exceptions Justice Scalia’s Heller opinion recognized. Closing loopholes in the background check system keeps firearms out of the hands of dangerous persons; extending the machine gun ban to cover semi-automatic weapons and large magazines targets dangerous weapons commonly used for attacks rather than defense; and so forth. Without considering all of the details of any particular proposed legislation, it suffices to say that Congress should be guided by the core principle that the Supreme Court articulated in Heller: federal law will continue to fall clearly on the permissible side of the line, so long as it permits Americans to possess weapons commonly used for self-defense.

Before concluding, I want to address one argument that I have sometimes heard from opponents of proposals to restrict access to semi-automatic so-called “assault” weapons like the AR-15 used by the Sandy Hook elementary school killer. Because Americans possess millions of such weapons, the argument goes, they are not “unusual,” and so fall outside of the Heller Court’s exception for “dangerous and unusual” weapons. This is a clever lawyer’s argument but it rests on a fundamental misreading of the Supreme Court’s opinion.

      Neither Blackstone in his Commentaries on the Laws of England nor any of the other authors Justice Scalia cited in Heller can be sensibly read to suggest that the government lacks the power to limit an especially dangerous class of firearms unless those weapons are also unusual. Nor, more importantly, should Justice Scalia and the modern Supreme Court be read to espouse that absurd position. For example, if rocket-propelled grenades were to gain popularity as private weapons, the Second Amendment would nonetheless offer them no protection, even though they could no longer be said to be dangerous and unusual.
      The crucial question under the Second Amendment is whether Americans commonly possess some weapon that is suitable for self-defense. In Heller and McDonald, the Court recognized that handguns are indeed suitable for self-defense and also very popular for that purpose. If Congress fairly concludes that some category of semi-automatic weapons is not generally suitable for self-defense—or that even if it is suitable for self-defense in some circumstances, it is nonetheless highly dangerous—that conclusion should also dispose of any Second Amendment objection.

Hence, Congress should have confidence that it can consider bills containing measures like the ones contained in the President’s proposal of January 16, 2013, simply on the policy merits. The Second Amendment poses no obstacle to the proposed legislative changes, all of which fit comfortably within the framework of clearly valid existing laws.