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Abstract
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District of Columbia v. Heller1 involved a special policeman in the District of Columbia attempting to register a.22 caliber handgun for self-defense in the home.2 The Court's preliminary matter of constitutional interpretation was the Second Amendment's identification as the operative provision rather than the Ninth or Fourteenth Amendment.3 Even if one agrees with the majority opinion that the so-called "Operative Clause" of the Second Amendment, referring to the "right of the people to keep and bear Arms,"4 covers the class of personal weapons referred to as "handguns,"5 one must also agree that Heller attempted to only register a weapon he intended to keep in the home privately for self-defense.6 As seemingly conceded in Justice Scalia's majority opinion in Heller, the purpose of the Second Amendment relates, at least in part, to the regulated militia based on the so-called "Prefatory Clause," which might be more aptly named the "Purpose Clause."7 Accordingly, the Heller case involved principally a governmental restriction on privacy for a personal weapon kept for self- defense in the home and might have been evaluated under a right to privacy framework.8 The keeping of a handgun in the home could simply be another example of an unenumerated individual privacy right under the Ninth and Fourteenth Amendments,9 rather than a right to bear arms, because the class of personal weapon, including handguns, particularly the.22 caliber handgun in Heller, are not militia arms now and were not militia arms at the time of the American Revolution.
The Second Amendment was traditionally interpreted to involve a collective right to defense through the regulated militia.10 In historical terms, many federal and state courts have identified an individual right to keep or train with arms but attached it to the military purpose and the collective right to defense; the right applies only if the arms are related in some way to militia service, which in the present-day would resemble the National Guard.11 Professor Leider explained as follows:
The "collective rights view" of the Second Amendment--the idea that the right to keep and bear arms is contingent on service in an organized state militia--was first adopted by the Kansas Supreme Court in 1905. But it became the predominant view in the federal courts from 1935 until Heller.12
The arms of the militia were expected to be provided by the citizens themselves and in common use at the time.13 Courts have disagreed throughout the centuries about the philosophical relation of guns to militia service.14 Yet, the late Justice Scalia in Heller, and other scholars, noted that no amicus filing or journal article had previously suggested that handguns were not military grade weaponry at the time of the American Revolution-- a challenge that will be accepted here. 15
Although primitive handguns existed at the time of the American Revolution, they were simply not "ordinary military equipment"16 for any infantry unit in 1791.17 Handguns are generally grouped within the category of "other firearms," meaning they are not categorized as conventional infantry arms during the American Revolution or, more broadly, the Napoleonic Era.18 This runs directly contrary to Justice Thomas's approach in New York State Rifle & Pistol Association v. Bruen,19 which presented handguns as a weapon category unto themselves, as if it had always been...
1. District of Columbia v. Heller, 554 U.S. 570 (2008).
2. Id. at 575; Robert Leider, Our Non-Originalist Right to Bear Arms, 89 IND. L.J. 1587, 1642 (2014).
3. See Heller, 554 U.S. at 592 (explaining how the Second Amendment's historical background codifies a pre-existing right to possess and carry guns for self-defense).
4. U.S. CONST. amend. II.
5. See Heller, 554 U.S. at 584 (concluding the right to bear arms refers to carrying weapons outside an organized militia context).
6. Id. at 575.
7. Justice Scalia's majority opinion stated: The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be re-phrased, "Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed." Id. at 577; see N.Y. State Rifle & Pistol Ass'n. v. Bruen, 142 S. Ct. 2111, 2127 (2022) (citing Heller, 554 U.S. at 592) (discussing the Heller analysis regarding the Second Amendment's Operative Clause). But see United States v. Miller, 307 U.S. 174, 178 (1939) (concluding a weapon not relating to a well- regulated militia is not protected under the Second Amendment).
8. See U.S. CONST. amend. IX ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."). The right to privacy as further discussed is either in respect of the Ninth Amendment or Fourteenth Amendment as applied to the states, depending on the context. See infra Part III (explaining how the Court has analyzed right to privacy issues using certain constitutional provisions in certain situations).
9. Cf. Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 286-87 (1990) (citing Jacobson v. Massachusetts, 197 U.S. 11, 24-30 (1905)) (affirming the person's unenumerated right to refuse unwanted medical treatment under the Fourteenth Amendment).
10. Leider, supra note 2, at 1594; Burton v. Sills, 248 A.2d 521, 526 (1986). Since state militias were formally dissolved some time ago, the military purpose relates today to the hypothetical scenario where militias are re-formed by the states upon some military necessity such as a foreign invasion, insurrection, plague, drought, or similar catastrophic event. See generally Alan Gura, Briefing the Second Amendment Before the Supreme Court, 47 DUQ. L. REV. 225, 248-63 (2009) (providing the portion of Respondent's Brief in Heller detailing the history surrounding state militias and their purpose).
11. See Don B. Kates Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH. L. REV. 204, 249-50 (1983) (arguing the Miller Court held that the Second Amendment protects an individual right, meaning defendants do not have to prove they are military servicemembers, but at the same time held that the arms protected by the Second Amendment are only those in "common use" and proven to be "part of the ordinary military equipment" (internal quotation marks omitted)); Cases v. United States, 131 F.2d 916, 922 (1st Cir. 1942) (explaining how the federal government cannot limit weapons having a "reasonable relationship to the preservation or efficiency of a well regulated militia"); United States v. Warin, 530 F.2d 103, 106 (6th Cir. 1976) (quoting Stevens v. United States, 440 F.2d 144, 149 (6th Cir. 1971)) (agreeing the Second Amendment is a collective right, and thus an individual cannot claim the right to possess a firearm).
12. Leider, supra note 2, at 1594 (footnote omitted).
13. United States v. Miller, 307 U.S. 174, 179 (1939) ("[Citizens] were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."); Kates Jr., supra note 11, at 217, 251 (quoting Miller, 307 U.S. at 179
14. See, e.g., Miller, 307 U.S. at 178 (holding a sawed-off shotgun had no relation to militia service).
15. See Gura, supra note 10, at 266-67 ("No court has questioned that a handgun, generally, is an arm 'of the kind in common use' by the public and is either 'ordinary military equipment' or otherwise useful in a manner that 'could contribute to the common defense.'"); Heller, 554 U.S. at 587 ("And the phrases used primarily in those military discussions include not only 'bear arms' but also 'carry arms,' 'possess arms,' and 'have arms'--though no one thinks that those other phrases also had special military meanings." (emphasis omitted)). The thesis of this Article is to the contrary: "bearing" of arms referred to military training or drilling using muskets, and the term "Arms" referred to weapons suited to the militia that may vary under a dynamic interpretation.
16. The reference is to the Miller standard that was in force in the United States for almost a century before Heller and roughly a millennium before that in England as a feudal society. Miller, 307 U.S. at 178; see Leider, supra note 2, at 1647 (2014) ("The tradition in England was that individuals would possess ordinary military weapons. This tradition dated at least from the Assize of Arms in 1181."). According to Professor Leider: Miller's holding is as clear as day. Justice McReynolds was explicitly following Aymette, which held that only those weapons that constitute the "ordinary military equipment" are constitutionally protected. The sawed-off shotgun was never ordinary military equipment. The whole essence of the sawed-off shotgun was that it was an ordinary shotgun specially adapted for concealment and criminal purposes, giving the user the destructive power of a shotgun and the portability of a handgun. . . . Leider, supra note 2, at 1632 (footnotes omitted) (quoting Aymette v. State, 21 Tenn. (2 Hum.) 154, 158 (1840)).
17. See, e.g., Revolutionary War Weapons, HIST. AM. WARS, http://www.history-of-american- wars.com/revolutionary-war-weapons.html [https://perma.cc/HA4F-Z8DU] (depicting war weapons used by infantrymen during the revolutionary war, none of which are handguns).
18. PHILIP J. HAYTHORNTHWAITE, WEAPONS & EQUIPMENT OF THE NAPOLEONIC WARS 28 (1979).
19. N.Y. State Rifle & Pistol Ass'n. v. Bruen, 142 S. Ct. 2111 (2022)
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