Since its controversial pair of gun-rights decisions—District of Columbia v. Heller (2007) and McDonald v. City of Chicago (2010)—the Supreme Court has refused to take another Second Amendment case. Heller and McDonald cast aside more than 75 years of established precedent to hold that individual citizens have a right to bear arms for personal use. Scholars and judges on the left and right have attacked the two decisions as incoherent and historically dishonest. And lower courts have now heard more than a thousand cases generated by the confusion Heller wrought.
One such case was Friedman v. City of Highland Park. At issue was whether an Illinois city could maintain an ordinance banning the possession of military-style assault weapons and large-capacity magazines within city limits. In April, the Seventh Circuit upheld Highland Park’s assault-weapons ban, and the case was submitted for Supreme Court review. In October, the Court rejected the case despite a vigorous dissent by Justices Clarence Thomas and Antonin Scalia. That dissent attacked the Seventh Circuit’s “crabbed” reading of Heller as an attempt to “eviscerate” the Second Amendment and consign it “to a second-class right.”
The opinion they condemned was written by Judge Frank Easterbrook, a highly regarded conservative jurist. But then there is nothing conservative about Thomas and Scalia’s vision of the Constitution. Their theory of gun rights is downright radical—and would have shocked the framers of the Second Amendment.
Thomas and Scalia write that the government is essentially powerless to prohibit or restrict weapons in “common use.” “The right to keep and bear arms,” they wrote, “is defined not by what the militia needs, but by what private citizens commonly possess.” This common-use formulation has no foundation in the text, structure, or history of the Second Amendment. In fact, this view gives gun makers—not legislatures, or even courts—the power to determine public policy on guns. Which is exactly why the Founders would have spurned it.
What’s more, Scalia and Thomas define “common use” so broadly as to be virtually meaningless. In the Friedman dissent, Scalia and Thomas argue that “[r]oughly five million Americans own AR-style semiautomatic rifles.” But the stock of weapons in United States likely exceeds 300 million—meaning that if a specific style of weapon constitutes less than 2 percent of the weapons in circulation, it is “common.”
The larger problem with a market-driven theory of gun policy is that it is the opposite of the Founders’ intent as well as the plain meaning of the text. The Second Amendment was not designed to hobble government regulation. At the time, men arrived for military service already armed with guns the government required them to purchase. Contrary to Thomas and Scalia, the law did not countenance Americans simply showing up with whatever weapons they owned—that is, what was in common use. Without specific regulations and instead following common use or preference, most Americans would likely have shown up for active duty with fowling pieces, which were more like shot guns than muskets, because these were better suited for putting food on the table. In other words, the Founders recognized that if left to the free market and people’s own preferences, America’s militias would be prepared to hunt turkeys, not fight a powerful European standing army. A reliance on the market could have cost America its freedom. The various militia regulations enacted by states in the colonial period and after the adoption of the Second Amendment specified what weapons were required to meet the legal obligation of citizens to serve in the militia. Failing to report to the militia properly armed with the right weapon could result in fines. If the Founders had understood the Second Amendment in the way Scalia and Thomas suggest, the United States would likely have lost the American Revolution.
What’s more, if the Founders had espoused a common-use theory of the Second Amendment, one would expect early American legislatures to have carved out some type of broad immunity protecting ordinary gun possession from the normal and robust regulatory authority of the state. In fact, the evidence shows that the opposite case was true. In nearly every state, legislatures carefully differentiated between militia weapons and personal arms. When early Americans defaulted on debt or fell behind on taxes, the law exempted militia weapons from seizure. Every other weapon—no matter how “common”—was subject to seizure or sold to satisfy private debts or to pay back taxes. There was never an unlimited right to own whatever guns a person desired.
In the decades after the adoption of the Second Amendment, gun regulations only became more stringent. As guns became cheaper and more reliable, they posed an ever-greater threat to public safety. In response, the first modern-style gun-control laws were passed. To be sure, some of these laws were challenged in court, and some courts, particularly those in the slave-holding South, struck them down. In his Heller opinion, Scalia ignored the history of cases upholding new gun regulations—that is, the vast majority of cases—and focused instead on the few slave-state cases that struck them down.
Fortunately, it appears that the current majority of justices do not accept that the Scalia-Thomas common-use theory is central to the Heller holding. Instead, most courts and scholars have read Heller as limiting the right to own a gun to self-defense and have noted that this right is greatest in the home. The state, Heller acknowledges, has a much greater interest in limiting the proliferation of guns in public squares and thoroughfares. In England, such restrictions date back to the 14th century; they were then transplanted into U.S. law in many states by the Founding generation. The history of the Second Amendment does not supplant the government with the market; it supports a robust public power to regulate guns for reasons of public safety.
The good news is that those on the Court who see any attempt to regulate guns as unconstitutional are a small and isolated minority. For now.