A Question for Chief Justice John Roberts

In his concurring opinion in the Supreme Court’s 6-3 ruling striking down Roe v. Wade and Planned Parenthood v. Casey in Dobbs v. Jackson Women’s Health Organization, Chief Justice John Roberts noted that “Mississippi’s Gestational Age Act generally prohibits abortion after the fifteenth week of pregnancy—several weeks before a fetus is regarded as ‘viable’ outside the womb,” and that Dobbs asked the Court “to decide one question: ‘Whether all pre-viability prohibitions on elective abortions are unconstitutional.’”

Roberts agreed that Roe and Casey were wrongly decided, but said that it was unnecessary to overturn those decisions to resolve the matter before the Court in Dobbs. He said, “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.”

But if that is how the Chief Justice sees the role of the Court, why did he not file a concurring opinion raising the same objection in District of Columbia v. Heller (2008)?

In Heller, there were only two questions before the Court. First, whether the Second Amendment guarantees the right to keep and bear arms for “the people” or, as the District claimed, for only active-duty militia members. Second, if the right belongs to “the people,” whether the Second Amendment was violated by D.C.’s ban on handguns and its ban on having any gun assembled and ready to use for defense within the home.

The Court easily answered the first question by pointing out that the amendment protects the right of “the people,” a term that elsewhere in the Constitution refers to individuals generally. And though the Court concluded the amendment’s text is clear, making further explanation unnecessary, the Court nevertheless showed that the right to arms, before and when the amendment was adopted, was considered a right of individuals generally, that it was never considered limited to active-duty militia members, and that the Framers abhorred the idea of a “select militia.”

Also, the Court could have noted, militias are military organizations, thus their members bear arms not by right, but because they are ordered to do so.

With the question about whose right the Second Amendment protects having been answered, the Court could have easily answered the questions about D.C.’s bans on handguns and assembled firearms. It could have pointed out that the keeping and bearing of arms, before and when the amendment was adopted, was considered a right to do so for defensive purposes, and included the right to handguns and other arms useful for individual self-defense and collective defense against three threats noted in Heller: invasion, insurrection, and tyranny.

Further, as Justice Amy Coney Barrett said in her concurring opinion in New York State Rifle & Pistol Association v. Bruen (concerning handgun-carry licenses) the day before Dobbs, the Court should not employ a “freewheeling reliance on historical practice from the mid-to-late 19th century to establish the original meaning of the Bill of Rights.” Instead, she said, the Court should rely on the “prevailing understanding of an individual right” in 1791, when the Second Amendment was ratified.

However, Heller did not do that. After paying lip service to the Framers of the Bill of Rights—saying, “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”—Heller said, “We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits,” meaning the Court’s decision in U.S. v. Miller in 1939.

Miller was concerned with whether the National Firearms Act of 1934, in requiring that a short-barreled shotgun be registered with the federal government, violated the Second Amendment. The Court indicated that it might have thought so, if the defendants’ lawyer had appeared before the Court (which he didn’t) and presented evidence that such a shotgun “has some reasonable relationship to the preservation or efficiency of a well regulated militia,” such as by being “ordinary military equipment or (any other weapon the use of which) could contribute to the common defense.”

To support its endorsement of the individual right to possess military and other arms useful for the common defense, the Court cited the Tennessee Supreme Court’s decision in Aymette v. State (1840). Aymette said that Tennessee’s constitution guaranteed the right to arms “such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. 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.” (Emphasis added.)

Heller said “Read in isolation, Miller’s phrase ‘part of ordinary military equipment’ could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939.” Of course, “read in isolation,” that is exactly what Miller said.

Miller’s obvious error is that while the right to arms includes arms that are useful for military purposes—particularly for “the security of a free State” against tyranny—it does not limit the people to those arms alone. And Heller pretended to recognize that, when it said—again, paying lip service to original intent—“the Second Amendment extends, prima facie, to all instruments that constitute bearable arms.”

In any event, to answer the handgun-specific questions asked in Heller, the Court did not need to consider the shotgun-related case of Miller. But—here is where it gets complicated—during oral arguments in Heller, then-Solicitor General Paul Clement referred to a statement by the Court of Appeals for the District of Columbia Circuit in Parker v. District of Columbia (as Heller was known at the time), that “Once it is determined—as we have done—that handguns are ‘Arms’ referred to in the Second Amendment, it is not open to the District to ban them.”

Recognizing that fully-automatic firearms are also “arms,” Clement told the Supreme Court “I think it is more than a little difficult to say that the one arm that’s not protected by the Second Amendment is that which is the standard issue armament for the National Guard.” The Guard is, of course, part of the Militia of the United States, which under federal law also includes all able-bodied, non-Guard males ages 17-44. More importantly, the militia is a subset of “the people” whose right to arms the Second Amendment guarantees.

The “standard issue” arm to which Clement referred is the M16, a fully-automatic rifle. There is a federal ban on the sale, to individuals, of fully-automatic firearms manufactured after May 19, 1986, and Clement, representing the United States, raised his objection due to his obligation to defend that ban.

Justice Antonin Scalia, Heller’s author, could have ignored Clement’s complaint, because fully-automatic firearms were not at issue in Heller. But Scalia instead looked for a way to justify the fully-automatic firearm ban while also striking down D.C.’s handgun ban.

He found his solution by pretending that the right to arms is limited to arms that are common. There is nothing in the legislative history of the Second Amendment to support that, but Miller observed that historically, militia members, if called to duty, “were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” (Emphasis added.) Scalia seized upon that, while ignoring Miller’s stronger endorsement of the right to “ordinary military” arms, which today would include fully-automatic rifles, such as the M16.

Scalia seized upon Miller’s “common use” verbiage for two reasons. First, handguns are exceedingly common. Americans own more than 100 million of them and the number grows by several million every year. Thus, Scalia wrote, “Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home ‘the most preferred firearm in the nation to “keep” and use for protection of one’s home and family,’ would fail constitutional muster.”

Second, while fully-automatic firearms are exceedingly common among the military and National Guard, they are relatively uncommon among the private citizenry, because they have been prohibitively taxed at the federal level since 1934, prohibited altogether in about half the states for decades, and prohibited from importation (for civilian use) since 1968, and are further restricted by the 1986 ban. Justice Stephen Breyer, in his dissent in Heller, correctly observed, “[T]he 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.”

Heller’s deliberate misinterpretation of Miller and its (Heller’s) hypocrisy—saying that “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them,” except when it comes to arms ideally suited for the purpose for which the amendment was adopted—are topics for another day. Also, not all fully-automatic firearms are equal, and a rational argument could be made that some are within the scope of the right to keep and bear arms, while others are not, and that topic might be worth exploring at some point too.

But for now, why didn’t Chief Justice Roberts file a concurring opinion in Heller, pointing out that it was unnecessary to get into fully-automatic firearms and a 1939 case about short-barreled shotguns, to decide whether D.C.’s handgun ban violated the Second Amendment? Why is it only in the context of Dobbs, that the Chief Justice believes that “it is necessary not to decide more?”

© 2022 Mark Overstreet