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Published online by Cambridge University Press: 06 January 2021
1 554 U.S. 570 (2008).
2 Transcript of Oral Argument at 44, District of Columbia v. Heller, 554 U.S. 570 (2008) (No. 07-290).
3 Id.
4 See id.
5 Id.
6 Lund, Nelson, Second Amendment Standards of Review in a Heller World, 39 Fordham Urb. L. J. 1617, 1619 (2012)Google Scholar.
7 See Heller, 554 U.S. at 603 (finding issue with Justice Stevens' dissent relying on drafting history of the Second Amendment, which implies fashioning a new right rather than codifying a pre-existing right).
8 See discussion infra Part II.
9 561 U.S. 742 (2010).
10 883 F.3d 45 (2nd Cir. 2018), cert. granted, 139 S.Ct. 939 (U.S. Jan. 22, 2019) (No. 18-280).
11 Silvester v. Harris, 843 F.3d 816 (9th Cir. 2016), cert. denied, 138 S.Ct. 945, 945 (U.S. Feb. 20, 2018) (No. 17-342) (Thomas, J., dissenting).
12 Id.
13 Id. at 947.
14 Id. at 948 n.4.
15 Peruta v. Cty. of San Diego, 824 F.3d 919 (9th Cir. 2016), cert. denied, 137 S.Ct. 1995, 1998 (U.S. June 26, 2017) (No. 16-894) (Thomas, J., dissenting).
16 Id. at 1996.
17 670 F.3d 1244, 1295 (2011).
18 Heller II, 670 F.3d at 1295 (Kavanaugh, J., dissenting).
19 Id. at 1277.
20 Id. at 1274 (quoting McDonald, 561 U.S. at 804 (2010) (Scalia, J., concurring)).
21 Cf. McDonald, 561 U.S. at 786 (applying analysis of Second Amendment rights in a historical and traditional context).
22 See Kegler, Scott R. et al., Ctrs. for Disease Control & Prevention, Firearm Homicides and Suicides in Major Metropolitan Areas — United States, 2012–2013 and 2015–2016, 67(44) Morbidity & Mortality Weekly Report 1233, 1233 (2018)CrossRefGoogle ScholarPubMed (“Firearm homicides and suicides represent a continuing public health concern in the United States.”).
23 See discussion infra Part III.
24 See Lewis v. BT Inventory Managers, Inc., 447 U.S. 27, 36 (1980) (“[T]he States retain authority under their general police powers to regulate matters of ‘legitimate local concern.’”); Jacobson v. Mass., 197 U.S. 11, 25 (1905) (“the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.”).
25 Part of the disagreement in Heller is over whether United States v. Miller, 307 U.S. 174 (1939) addressed questions of Second Amendment protections See infra notes 30-37 and accompanying text.
26 Compare Heller, 554 U.S. at 573-635 (majority opinion) with id. at 636-80 (Stevens, J., dissenting), and id. at 681-722 (Breyer, J., dissenting).
27 Id. at 578 n.3, 583-84 n.7 (citing historical sources from England).
28 Id. at 580 n.7 (citing historical sources from the Founding Era).
29 Id. at 607 n.20 (citing post-ratification sources).
30 Id. at 611-12 n.21 (citing pre-civil war sources).
31 Heller, 554 U.S. at 600-03 (discussing state analogues).
32 Id. at 576-619 (interpreting the meaning of the operative clause and prefatory clause).
33 Id. at 634-35.
34 Id. at 592.
35 Id. at 594.
36 See Heller, 554 U.S. at 636-80 (Stevens, J., dissenting); see also id. at 681-91 (Breyer, J., dissenting).
37 Id. at 636 (Stevens, J., dissenting).
38 Id. at 636-37.
39 Id. at 637.
40 Id. at 680 (Stevens, J., dissenting).
41 Heller, 554 U.S. at 638. Stevens' analysis also starts with the prefatory clause, not the operative clause as Scalia does. Thus, Stevens believes this sets the object of the Amendment, keeping and bearing arms in the context of service in state militias, and informs the remaining part of the text. Id. at 643. He finds the order in which Scalia reads the text contradictory to how it would've been read at the time the Amendment was adopted. Id.
42 Id. at 639 (emphasis in original). Stevens sees the Amendment as a response to a compromise that was reached to address two issues during the Founding Era. There was “widespread fear that a national standing Army posed an intolerable threat to individual liberty and to the sovereignty of the separate States.” Id. at 653. Yet, “the Framers recognized the dangers inherent in relying on inadequately trained militia members ‘as the primary means of providing for the common defense.’” Id. Thus, Congress was authorized in the Constitution to raise and support a national Army and Navy, as well as organize, arm, discipline, and provide for the calling forth of “the Militia.” Id. at 654. According to many, this left a critical gap: the ability of Congress to disarm the militia, rendering them useless, while the federal government maintained their own standing forces. Id. at 655. Thus, the Second Amendment sought to protect those state militias. Id. at 660-61. Stevens explains the curious absence of Second Amendment jurisprudence following these Founding Era debates by the fact that they simply faded relatively quickly. Id. at 671.
43 Id. at 603 (majority opinion).
44 307 U.S. 174 (1939).
45 Heller, 552 U.S. at 624. (“As for the text of the Court's opinion itself, that discusses none of the history of the Second Amendment. It assumes from the prologue that the Amendment was designed to preserve the militia (which we do not dispute), and then reviews some historical materials dealing with the nature of the militia, and in particular with the nature of the arms their members were expected to possess. Not a word (not a word) about the history of the Second Amendment.”).
46 Id. at 623.
47 Id. at 624.
48 Id. at 627.
49 Id. at 676-77 (Stevens, J., dissenting). Stevens explains that the government, arguing in Miller, used the English Bill of Rights, history leading to the English guarantee, as well as citations to Blackstone, Cooley, and Story. Thus, “[t]he Court is reduced to critiquing the number of pages the Government devoted to exploring the English legal sources.” Id. at 678.
50 Heller, 554 U.S. at 679.
51 Id. at 677.
52 Id. at 626-27 (majority opinion).
53 Id.
54 Id. at 626-27.
55 Heller, 554 U.S. at 627 n.26.
56 Id. at 644 (Stevens, J., dissenting).
57 Id. at 644-45.
58 Id. at 628-29 (majority opinion).
59 Id.
60 Heller, 554 U.S. at 687 (Breyer, J., dissenting).
61 Id. at 633-34 (majority opinion) (“A broader point about the laws that JUSTICE BREYER cites: All of them punished the discharge (or loading) of guns with a small fine and forfeiture of the weapon (or in a few cases a very brief stay in the local jail), not with significant criminal penalties. They are akin to modern penalties for minor public-safety infractions…The District law, by contrast, far from imposing a minor fine, threatens citizens with a year in prison (five years for a second violation) for even obtaining a gun in the first place.”).
62 561 U.S. 742 (2010).
63 Id. at 767 (quoting Wash. v. Glucksberg, 521 U.S. 702, 721 (1997))..
64 Id. at 764, 768 (emphasis in original).
65 Id. at 803-04 (Scalia, J., concurring)
66 Heller, 554 U.S. at 634.
67 See McDonald, 561 U.S. at 791-804 (Scalia, J., concurring) (distinguishing his historical analysis with that of Stevens, J., dissenting).
68 Cornell, Saul, Originalism on Trial: The Use and Abuse of History in District of Columbia v. Heller, 69 Ohio St. L. J. 625, 625 (2008)Google Scholar.
69 Id. at 627.
70 Richard A. Posner, In Defense of Looseness, The New Republic (Aug. 27, 2008), https://newrepublic.com/article/62124/defense-looseness.
71 Id.
72 Id.
73 Cornell, supra note 68, at 625.
74 Posner, supra note 70.
75 See Epstein, Richard A., A Structural Interpretation of the Second Amendment: Why Heller is (Probably) Wrong on Originalist Grounds, 59 Syracuse L. Rev. 171, 183 (2008)Google Scholar (“Nor does his brief structural analysis of the Article I provisions deal with the federalism concerns.”).
76 Id. at 174.
77 Id. at 177.
78 Id. at 172.
79 See, e.g., Barry, Colleen L. et al., Public Support for Gun Violence Prevention Policies Among Gun Owners and Non-Gun Owners in 2017, 108 Am. J. Pub. Health 878, 878 (2018)CrossRefGoogle ScholarPubMed (finding support for 23 of 24 gun policies examined that restrict or regulate gun ownership); Butkus, Renee et al., Reducing Firearm Injuries and Deaths in the United States: A Position Paper from the American College of Physicians, 169 Annals Internal Med. 704, 705-05 (2018)CrossRefGoogle ScholarPubMed (calling gun violence a public health crisis that requires immediate attention and offers recommendations to update American College of Physicians' policies); Hemenway, David & Miller, Matthew, Public Health Approach to the Prevention of Gun Violence, 368 New Eng. J. Med. 2033, 2033 (2013)CrossRefGoogle ScholarPubMed (analogizing the public health approach to reducing motor vehicle fatalities).
80 Lawrence O. Gostin, Public Health Law: Power, Duty, Restraint 4-5 (2008).
81 Id. at 92.
82 See, e.g., Heller II, 670 F.3d at 1295 (Kavanaugh, J., dissenting) (applying history- and tradition-based test instead of majority's balancing test); Meltzer, Jonathan, Open Carry for All: Heller and Our Nineteenth-Century Second Amendment, 123 Yale L.J. 1486, 1518-22 (2014)Google Scholar.
83 197 U.S. 11 (1905).
84 Id. at 25.
85 Id. at 26.
86 Heller, 554 U.S. at 626.
87 Jacobson, 197 U.S. at 26. (“Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will.”).
88 Id. at 31.
89 321 U.S. 158 (1944).
90 Id. at 166.
91 Jacobson, 197 U.S. at 26.
92 Id.
93 See Parmet, Wendy E., Health Care and the Constitution: Public Health and the Role of the State in the Framing Era, 20 Hastings Const. L. Q. 267, 314 (1993)Google Scholar; Sherry, Suzanna, The Founder's Unwritten Constitution, 54 U. Chi. L. Rev. 1127, 1151-77 (1987)CrossRefGoogle Scholar.
94 See id. at 270.
95 Gostin, supra note 80, at 10.
96 Zucht v. King, 260 U.S. 174, 177 (1922).
97 Jacobson, 197 U.S. at 26.
98 Id. at 27.
99 Parmet, Wendy E., J.S. Mill and the American Law of Quarantine, 1 Pub. Health Ethics 210, 213 (2008)Google Scholar.
100 See Jacobson, 197 U.S. at 27-28 (discussing whether investing the Massachusetts legislature with the authority to regulate vaccinations was an “unreasonable or arbitrary requirement.”).
101 Parmet, supra note 99, at 213.
102 Jacobson, 197 U.S. at 28, 34.
103 Id. at 31.
104 Though it is not worth a lengthy description for purposes of this paper, I have described elsewhere that the discussion above, and what emanates from Jacobson, amounts essentially to a three-prong test: (1) there is a risk of harm, or threat to public health and safety; (2) the government action has a reasonable chance to mitigate that threat; and (3) the burdens placed on individual rights by the government action are sufficiently outweighed by the benefits generated. See Ulrich, Michael R., Law and Politics, An Emerging Epidemic: A Call for Evidence-Based Public Health Law, 42 Am. J. L. & Med. 256, 261-62 (2016)Google Scholar. The government carries the burden of proof to demonstrate the three prongs are met. This last prong is similar, though not discussed specifically in terms of police power and past public health cases, to analysis found in the majority opinion in Whole Women's Health v. Hellerstedt, 136 S.Ct. 2292, 2310 (2016) (“It then weighed the asserted benefits against the burdens. We hold that, in so doing, the District Court applied the correct legal standard.”).
105 Jacobson, 197 U.S. at 28.
106 Ulrich, supra note 104, at 261-62.
107 Id. at 262.
108 Jacobson, 197 U.S. at 35-36.
109 See Posner, supra note 70 (questioning the methodology of using history in Heller when “interpreting a constitutional provision ratified more than two centuries ago, dealing with a subject that has been transformed in the intervening period by social and technological change, including urbanization and a revolution in warfare and weaponry.”).
110 See id. (“Heller gives short shrift to the values of federalism.”).
111 See Braga, Anthony A. & Cook, Philip J., The Association of Firearm Caliber with Likelihood of Death from Gun-shot Injury in Criminal Assaults, 1 J. Am. Med. Ass'n. Network Open 1, 7 (2018)Google Scholar (finding that if the same shooting studied had occurred but with smaller-caliber weapons there would have been a 39.5 percent reduction in the probability of death).
112 Heller, 554 U.S. at 687 (Breyer, J., dissenting).
113 See Rostron, Allen, Justice Breyer's Triumph in the Third Battle Over the Second Amendment, 80 Geo. Wash. L. Rev. 703, 756-57 (2012)Google Scholar.
