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Is Kavanaugh, The Supreme Court, Or The First Circuit Right About The Second Amendment?


In April, in Worman v. Healey, the United States Court of Appeals for the First Circuit, on appeal from the U.S. District Court for the District of Massachusetts, upheld Massachusetts’ ban on “assault weapons” and ammunition magazines that hold more than 10 rounds. Worman has been appealed to the Supreme Court, which will soon decide if it will take the case.

If the Supremes take the case, it will be interesting to see how they deal with it, not only for the obvious reason, but also because the district and appeals courts disregarded the high court’s rulings in District of Columbia v. Heller (2008), which struck down D.C.’s laws banning handguns and having any firearm in operable condition within the home, and McDonald v. Chicago (2010), which ruled that handgun bans are unconstitutional nationwide.

On the one hand, Heller found that the Second Amendment protects a “fundamental” right that, as the court observed in U.S. v. Cruikshank (1876), existed before the Constitution was adopted. Heller described it as “the individual right to possess and carry weapons in case of confrontation,” including “all instruments that constitute bearable arms.” (Of course, the amendment protects the right not only to “weapons,” but to “arms,” which Webster’s dictionary of 1828, cited by Heller, defined as “weapons of offense and armor for defense.”)

However, Heller erred in ways that could threaten the right to arms via Worman and beyond. As if the opinion were written by multiple people who gave no deference to what his or her co-authors had written—and it may have been—Heller contradicted its “all instruments” declaration, imposing two unsupportable limitations on the types of arms the Second Amendment protects the right to keep and bear.

The Supreme Court Misread Itself

As I have noted previously, Heller mischaracterized the court’s decision in U.S. v. Miller (1939) as holding that the Second Amendment protects the right to only such arms as are “in common use.” Instead, Miller cited the Tennessee Supreme Court’s decision in Aymette v. State (1840), that the Tennessee constitution protected the right to arms “usually employed in civilized warfare and that constitute the ordinary military equipment.” On that basis, Miller said the Second Amendment protects the right to arms that have a “reasonable relationship to the preservation or efficiency of a well regulated militia,” those that are “part of the ordinary military equipment,” and others the use of which “could contribute to the common defense.”

The first and third of Miller’s standards would encompass semi-automatic so-called “assault weapons” and magazines that hold more than 10 rounds used by civilians, including the unorganized component of the militia of the United States (see 10 U.S.C. 311). All three standards would encompass fully-automatic M16-series rifles and the same magazines used by the military and the militia’s organized component (the National Guard, when not under the plenary control of the federal government, per the Supreme Court’s unanimous decision in Perpich v. Department of Defense, 1990).

Heller also claimed that the M16 can be banned from private possession because over time the private possession of fully-automatic firearms has been incrementally restricted to the point of being now almost entirely banned. But that contradicts Heller’s “common use” standard, because the M16 is the rifle most “in common use” by the military and organized militia.

The “common use” standard also makes no sense. In his dissent in Heller, Justice Stephen Breyer ridiculed the notion, saying “the majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.” Similarly, in Worman the First Circuit cited the Seventh Circuit’s decision in a separate case, that “it would be absurd to say that the reason why a particular weapon can be banned is that there is a statute banning it.”

Furthermore, Heller mischaracterized “dangerous and unusual weapons” statutes. As Second and Fourteenth Amendment scholar Stephen Halbrook has explained, those laws did not prohibit the possession, nor, as Heller claimed, the carrying of any arms, but instead prohibited the use of arms in a terrorizing manner.

District Court Ruling Parrots Anti-Gun Activists’ Propaganda

In Worman, district court judge William G. Young upheld Massachusetts’ ban not by disputing whether the firearms and magazines in question are “in common use,” but on the notion that semi-automatic rifles are close enough to fully-automatic rifles that they might as well be considered one and the same. That idea originated in the first chapter of a 2003 publication by the anti-gun activist group that in 1988 proposed that gun control activists adopt “assault weapons” as a “new topic” to “strengthen the handgun restriction lobby.” A representative of the group was one of the Democrat witnesses during Democrats’ House Judiciary Committee hearing on “assault weapons” in September. (See items 5, 8, and 9 here.)

The First Circuit upheld Massachusetts’ ban on a different basis, perhaps realizing that because Heller clearly distinguished between fully-automatic firearms and all others, as do federal and state laws, the Supreme Court would reject the district court’s ruling out of hand. Noting Heller’s “common use” standard, it said that “as of 2013, nearly 5,000,000 people owned at least one semiautomatic assault weapon” and “between 1990 and 2015, Americans owned approximately 115,000,000” of the magazines. (Magazines that hold more than 10 rounds outnumber “assault weapons” primarily for two reasons: They are standard equipment not only for “assault weapons,” but also for many other firearms, mostly handguns, and it is typical for a person to own multiple magazines for a single firearm.)

However, the First Circuit did not consider such numbers sufficient for it to rule that the guns and magazines are “in common use.” So, it claimed that Heller said the “core” of the right to keep and bear arms is self-defense “in the home,” then said Massachusetts’ ban “does not heavily burden” defense within the home because it “does not ban the sale, transfer, or possession of all semiautomatic weapons, nor does it impose any restrictions on magazines that are designed to hold ten rounds or fewer.”

Concluding that intermediate scrutiny was the appropriate standard of review in Worman, it said that while “the time-honored right of individuals to bear arms in self-defense . . . is protected in varying degrees by the Second Amendment,” “the interests of state and local governments in regulating the possession and use of such weapons are entitled to great weight.”

Judicial Activism Gone Rogue

Put simply, the First Circuit lied about what Heller and McDonald said about the “core” of the right to arms, thumbed its nose at their guidance on how to evaluate gun bans, and mischaracterized the Second Amendment.

First, Heller did not say that the “core” of the right to arms is self-defense “in the home.” Having referred to “the core lawful purpose of self-defense” in general, Heller said (and McDonald reiterated) that “self-defense [is] the central component of the right.” Heller only noted that it is in “the home where the need for defense of self, family, and property is most acute,” because “in the home” was what the case was about; D.C. had refused the plaintiff’s request to have a handgun in his D.C. home. As Heller said in its opening sentence, “We consider whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution.”

Second, Heller preemptively rejected the First Circuit’s argument that Massachusetts can ban some semi-automatic firearms and some magazines because it does not ban all of them. In striking down D.C.’s handgun ban, Heller said, “It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed.”

Additionally, Heller preemptively rejected the First Circuit’s notion that the right to keep and bear arms should be balanced against government’s claimed interest in banning guns and magazines. McDonald did so as well, saying Heller “expressly rejected the argument that the scope of the Second Amendment right should be determined by judicial interest balancing.” Heller said:

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach. The very enumeration of the right [to arms] takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.

Finally, relative to the First Circuit’s idea that the Second Amendment protects the right to arms to “varying degrees,” there are no varying degrees indicated in the amendment’s command that “the right . . . shall not be infringed.”

Enter Justice Brett Kavanaugh

In 2011, thus after Heller and McDonald but before Worman, then-Judge Brett Kavanaugh dissented from the decision of the U.S. Court of Appeals for the District of Columbia Circuit in Heller v. District of Columbia (“Heller II”), which upheld the District’s “assault weapon” ban. “Our sole job is to faithfully apply Heller and the approach it set forth for analyzing gun bans and regulations,” Kavanaugh wrote.

He asked: “Are gun bans and regulations to be analyzed based on the Second Amendment’s text, history, and tradition . . . . Or may judges re-calibrate the scope of the Second Amendment right based on judicial assessment of whether the law advances a sufficiently compelling or important government interest to override the individual right?” Kavanaugh answered, “Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” (McDonald said “Heller makes it clear that this right is “deeply rooted in this Nation’s history and tradition.”)

Guns are obviously ‘arms,’ as are magazines, because firearms for which they are designed will not work without them.

At first glance, a view based upon “history and tradition” would clearly favor the right to semi-automatic firearms and magazines that hold more than 10 rounds. Semi-automatic firearms and detachable ammunition magazines were introduced in the late 19th century, magazines holding more than 10 rounds were introduced in the early 20th century, and popular semi-automatic handguns and rifles using magazines of more than 10 rounds were introduced in the 1930s and 1940s respectively. The M1 Carbine and the AR-15, rifles Massachusetts bans as “assault weapons,” were introduced in 1942 and 1963, respectively.

One might note that an evaluation of a gun law based upon text might reach a different conclusion than one based upon history and tradition, depending on when history and tradition are thought to have begun. For example, prior to the adoption of the federal and state constitutions, it was legal to carry concealed handguns. However, in the 1800s some states prohibited the practice. Then, in the 20th century most states that had prohibited concealed carry rescinded those prohibitions in favor of carry permit systems, and today one-third of the states don’t even require a permit to carry concealed.

One might also note that a conclusion based upon text alone is sufficient unless there is reasonable doubt about what the text means. For example, in traffic court there would be no need to go beyond the text of a law that “the speed limit in school zones shall be 20 miles per hour,” unless someone could reasonably question the distance covered by a mile, the duration of time covered by an hour, or how to count to 20. In evaluating Massachusetts’ gun and magazine ban against the text of the Second Amendment, guns are obviously “arms,” as are magazines, because firearms for which they are designed will not work without them.

In the case of Massachusetts’ gun and magazine ban, the amendment’s text alone would be insufficient only if one asks whether “the right” includes the modern equivalent of the muskets, powder horns, and lead balls the right to which was beyond question when the Second Amendment was ratified in 1791. Because the firearms and magazines banned by Massachusetts give an individual today even less ability to defeat tyranny—the purpose contemplated in the Second Amendment—than an American armed with a musket had in 1791, the answer to any such question must necessarily be “yes.”

As Heller said, obviously thinking of gun control supporters’ claim that “the Founding Fathers couldn’t envision ‘assault weapons’”:

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, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

Heller might also have noted that the Founding Fathers did envision those who would try to disarm the people to obtain control over them, hence their adoption of the Second Amendment.

On the interaction between text, history, and tradition, as well as on the First Circuit’s idea that the Second Amendment protects the right to arms “in varying degrees,” the case of Bliss v. Commonwealth (1822) is instructive. Kentucky’s constitution provided “that the right of the citizens to bear arms in defence of themselves and the state, shall not be questioned.”

Ignoring its constitution, the Kentucky legislature thereafter prohibited carrying “a pocket pistol, dirk, large knife, or sword in a cane, concealed as a weapon.” But it did not do so for long. Said the Kentucky Supreme Court:

To be in conflict with the constitution, it is not essential that the act should contain a prohibition against bearing arms in every possible form; it is the right to bear arms in defence of the citizens and the state that is secured by the constitution, and whatever restrains the full and complete exercise of that right, though not an entire destruction of it, is forbidden by the explicit language of the constitution.

As the U.S. Supreme Court would say about the Second Amendment in U.S. v. Cruikshank in 1876, the Kentucky court recognized that “the right” preexisted their state constitution. It continued:

The right existed at the adoption of the constitution; it had then no limits short of the moral power of the citizens to exercise it, and it in fact consisted in nothing else but in the liberty of the citizens to bear arms. Diminish that liberty, therefore, and you necessarily restrain the right; and such is the diminution and restraint, which the act in question most indisputably imports, by prohibiting the citizens wearing weapons in a manner which was lawful to wear them when the constitution was adopted. . . . For, in principle, there is no difference between a law prohibiting the wearing concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise.

Were those Kentucky justices with us today, and given the opportunity to strike down Massachusetts’ ban, no doubt they would do so with a vengeance. Whether there are five votes on the Supreme Court to do the same remains to be seen.