Akhil Amar’s analysis of Heller is unlikely to persuade any justices doctrinally, but it captures the cultural point that will decide this case.
According to Amar, the Second Amendment had to do with militias, so it doesn’t create an individual right. However, he doesn’t think that ends the question. The Ninth Amendment states that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In other words, the Constitution’s list of rights is not exhaustive, which is to say that there are unenumerated rights. Sidebar: I’ve always wondered why progressives don’t make more use of the Ninth Amendment. Yes, it proves too much, but it’s at least a helpful textual reminder that text isn’t everything.
I nonetheless doubt any of the justices will go for Amar’s approach. Justices detect (or invent) unenumerated rights as a last resort. Justice Peckham finds the freedom to contract in Lochner in the due process clause because he can’t find it anywhere else (precedent having gotten in the way of him using the Contracts Clause). Poor Justice Douglas comes up with his penumbra theory in Griswold to escape the charge of Lochner -izing. And yes, Amar’s hero Justice Harlan probably deserves our respect for baldly stating that there are unenumerated rights. But we should sympathize with the fact that justices—then or now—are not lightly going to cast aside their best shield against the countermajoritarian difficulty—the text of a supermajoritarian document.
Unlike the word privacy , the word arms does occur in that document. Better still for those with who fear the great silences of the Constitution, contrary interpretations of that text can pass the laugh test. The amendment consists of a prefatory clause, “A well regulated Militia, being necessary to the security of a free State,” followed by an operative clause, “the right of the people to keep and bear Arms, shall not be infringed.” The collectivist argues the prefatory clause limits the scope of the operative one. The individualist says the former provides a sufficient, but necessary, ground for the latter. This is not to say Amar is wrong (always a dangerous thing to do). But he’s not so right that he can stop fish from swimming, birds from flying, or textualists from parsing.
While I doubt a single Justice will be swayed by the Ninth (or 14 th ) Amendment arguments Amar makes, I think the analysis suggested by Justice Harlan holds the key to this case. Using Harlan’s approach, Amar correctly argues, would direct us to “the actual pattern of lived rights in America—what the people have, in fact, done.” This is a question of constitutional culture. It would have to be, if Harlan’s approach were not to be hopelessly open-ended.
Because the swing justices have enough textual cover to argue in either direction, their decision-making will turn on constitutional culture. Specifically, it will turn on whether we have a national gun culture or not. If we do, the individualists will win; if we don’t, they will lose.
I’m reminded here of the opinion in Dickerson v. United States , in which the court held the Miranda warning had a Constitutional dimension. I was surprised to see Chief Justice Rehnquist penning that opinion until he just broke down and said that the warning had become “part of our national culture.” Then it made sense—there is no way that we could get rid of the warning after so many seasons of Law and Order and shoot-’em-up movies. Even without text to cover their tracks, the court capitulated to the inevitable. This was not Congress as a co-equal constitutional interpreter. It was Hollywood.
Of course, the court doesn’t always use its magic to transform what people think is true about the Constitution into reality. Lots of people think they can assert free speech rights against private actors, like employers, but I’m not expecting a 13 th Amendment approach to the First Amendment anytime soon. But I expect Heller to win, with a majority of the court holding that there is an individual right to bear arms with a moderated level of scrutiny.
Maybe that’s because I’ve logged significant time in countries—like Japan and England—with gun control. In Japan, police officers don’t say, “Stop or I’ll shoot!” They say, “Stop or I’ll yell ‘Stop’ again!” (That’s a joke, but it might even work.) As for Britain, here’s the former head of the fire arms intelligence unit at Scotland Yard: “In America, you have a gun culture. You can’t deny it. It’s written into your Constitution. In Britain … it’s a very small subculture now.”
What’s at issue in this case is whether he’s right.