Mimesis Law
4 June 2020

Guns & The Hypocrisy of Heller

Oct. 16, 2015 (Mimesis Law) — In 2008, the United States Supreme Court issued a groundbreaking opinion in District of Colombia v. Heller, holding that the right to bear arms contemplated under the Second Amendment was not merely the right to take part in a well-regulated militia, but the right, as an individual, to keep and bear arms for protection of hearth, home, family and self.

Now, a lot of people have argued, that, as a matter of policy, this was a bad decision. But, as the Supreme Court pointed out, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.” The Supreme Court, in its own view, was making a principled decision based purely on the constitutional merits.

Of course, certain individuals were exempt:

“[N]othing 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.”

This all makes sense as part of the Supreme Court’s ruling. The government can’t stop individuals from having operational handguns in their home because, at the time of the founding, there were no such regulations. But we can ban felons from a fundamental right for life because, at the time of the founding, felons couldn’t possess firearms.

Unfortunately, Heller’s footnote doesn’t have a hyperlink letting you know how the court reached that conclusion. And that’s because there is very little historical evidence to support it. As Judge Tymkovitch of the Tenth Circuit Court of Appeals put it:

[R]ecent authorities have not found evidence of longstanding dispossession laws. On the contrary, a number have specifically argued such laws did not exist and have questioned the sources relied upon by the earlier authorities.

As C. Kevin Marshall noted in his excellent law review article, the earliest law that anyone has been able to point to as a ban on felons in possession of firearms was passed in 1926. It applied only to people who committed acts of violence, and only to easily concealable weapons.

Still, the Supreme Court must have been relying on some historical evidence. It does cite Emerson, an awful lot. That’s a 5th Circuit Court of Appeals case that first held that there is an individual right to bear arms. In that case, the court described proposed constitutional provisions to disarm those who had been in “Actual Rebellion,” those who posed “real risk of public injury,” and language suggesting that only “peaceable citizens” be allowed to bear arms. Obviously, none of these measures ever made it into the Constitution.

So maybe the Heller court agrees with Emerson that you can learn a lot about the Constitution from the provisions that were never adopted. Let’s see what they say:

“It is always perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process.”

Whoops. So that’s not it.

But maybe the Supreme Court thinks felons are such uniformly dangerous people that we must assume that the Constitution precludes them from having firearms. Except no, the Supreme Court admits that even minor, irrelevant crimes can be federal felonies.

A defendant falls within the [felon] category simply by virtue of past conviction for any [qualifying] crime ranging from possession of short lobsters to the most aggravated murder.

Now I don’t have any historical textbooks with me, but I don’t remember reading any 19th century cases where criminals were hanged for possessing short lobsters, or putting the wrong amounts of money in their bank accounts. Chances are, such intrusive laws would seem pretty alien to a group of men who didn’t get around to cranking out any real federal felonies until 1789.

In short, if the government can only pass laws banning possession of firearms that are roughly analogous to those at the time of the founding, and there is no evidence of laws banning felons from that time, then the Supreme Court pretty much just made up a convenient historical record on the spot. If we take the 2nd Amendment as seriously as its strongest advocates suggest we should, then felons should absolutely be entitled to possess firearms.

Now maybe it’s terrible policy to let felons have firearms. Maybe it’s insanely dangerous. But if the Court is serious about constitutional text trumping arguments about public safety, then that should be no deterrent.

The Supreme Court doesn’t like that result. While claiming that it was overcoming the petty personal preferences of federal judges based on a principled reading of the historical record, it was instead creating a set of new petty personal policy preferences, those endorsed by judges who like to go hunting with Dick Cheney.

Heller isn’t a bad decision because it found an individual right to bear arms. That can be supported by the historical record. It’s a bad decision because it refused to put its interest in accurate constitutional scholarship ahead of its desire to ensure that felons are punished and marginalized.

Main image via Flickr/Michael Saechang

7 Comments on this post.

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  • Greg Prickett
    16 October 2015 at 12:47 pm - Reply

    There wasn’t a need to prohibit felons from having firearms in the time of the Founding Fathers. Felons were executed unless granted the benefit of clergy or some other legal issue. Some issues had specific punishments, for example a perjury in Virginia carried a penalty of the loss of both ears. In any event, there’s not much need to prohibit felons from possessing firearms if you are hanging most of them.

    • shg
      16 October 2015 at 2:29 pm - Reply

      They didn’t kill ’em all. But more to the point, even if that’s the case, Scalia fails to provide a doctrinal basis to except them now. He just plops it down in the middle of Heller because reasons.

    • Andrew Fleischman
      17 October 2015 at 9:05 am - Reply

      So your argument is that if we were comfortable killing felons back in the day, then we should be comfortable stripping them of 2nd amendment rights now. But under that reasoning, even a law that for instance, said that felons are not allowed to criticize the government would be permissible.

      Also, as pointed out in the post, felonies used to be serious. The behaviors that make you a felon now would draw a confused shrug from law enforcement in 1790. Maybe your argument could be used to say that those who commit formerly capital crimes should lose important rights, but I don’t see how it applies to the guy with bald eagle feathers and a sack of weed.

    • Wrongway
      18 October 2015 at 6:19 am - Reply

      Hmm…Speaking of getting ears cut off in Va., I remember the SNL skit with John Belushi & Steve Martin..

      “Lets See, you were convicted of theft, We Cut off your Hand..
      Then You were convicted of Lying, so we cut out your Tongue..
      Hmm.. Now your here accused of adultery.. Hmmm… ??”

      That’d be a plea bargain I’d seriously think over…

  • jdgalt
    16 October 2015 at 1:04 pm - Reply

    The only surprise here for me is that the writer himself seems surprised. When the Supreme Court allowed (most of) the New Deal to stand, rather than be “packed,” it replaced the Constitution with a game of Calvinball. I frequently snicker at their so-called reasons for their arbitrary, unaccountable decisions.

    • shg
      16 October 2015 at 2:26 pm - Reply

      That’s so weird. I frequently snicker when I see someone comment under the name jdgalt.

  • To Retain Gun Rights, Just Be Perfect
    15 July 2016 at 10:02 am - Reply

    […] any form of mental illness isn’t allowed to own a firearm? Well, it’s all because of that same damned footnote we’ve talked about […]