Justice Stevens's Heller dissent, stated fairly and answered point by point

Our side wins a case, and the temptation is to read only the majority opinion, the way a man who has just won a bet reads only the half of the newspaper that has his horse in it. Resist it. The dissent in District of Columbia v. Heller was written by a serious jurist, John Paul Stevens, who served on the Court for almost thirty-five years, and it is the best statement of the opposing view that the law has produced. If our reading of the Second Amendment cannot beat it, we should want to know.

So this post does something unfashionable on the internet. It states the other side's case first, in words its defenders would accept, and only then takes it apart.

What Heller decided

On June 26, 2008, the Supreme Court decided Heller by a vote of five to four. The District of Columbia banned handguns in the home and required any lawful firearm in the home, rifles and shotguns included, to be kept unloaded and disassembled or bound by a trigger lock. Justice Antonin Scalia, writing for the majority, held that the Second Amendment protects an individual right to possess firearms unconnected to service in a militia, and to use them for traditionally lawful purposes such as self-defense within the home. The ban on handguns and the trigger-lock rule, as applied to the home, were unconstitutional.

Justice Stevens wrote the principal dissent, joined by Justices Souter, Ginsburg and Breyer. Justice Breyer wrote a second dissent, joined by the same three, that accepted for argument's sake that the Amendment protects some individual interest and then argued the District's law was constitutional anyway. We will take them in turn.

The text under dispute

Here is the Second Amendment in full:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Everyone agrees on the words. The fight is over what the first clause does to the second.

The Stevens dissent at its strongest

Here is the case, stated as Justice Stevens's defenders would state it.

First, the preamble. The Amendment announces its purpose: a well regulated Militia is necessary to the security of a free State. The people who wrote it were worried about the new federal government, which under Article I, Section 8 had the power to organize, arm and discipline the militia. Anti-Federalists feared that Congress would neglect the state militias or disarm them, leaving the states at the mercy of a standing army. The Amendment was the answer. A purpose clause that opens a legal text is not decoration, and I will not insult it by calling it decoration, even though that would be convenient. It tells a reader what the operative words are for.

Second, the phrase "bear arms." Stevens argued that in founding-era usage the phrase had a military meaning. To "bear arms" was to serve as a soldier, to carry weapons in an organized force. When Congress wrote about men "bearing arms," it was writing about soldiers and militiamen. Read in that light, the right to "keep and bear arms" is a right connected to militia service, and it is odd to say that the Framers used a military idiom to protect a right to hunt ducks or defend a bedroom.

Third, the drafting history. James Madison's original proposal in the House of Representatives had contained a clause providing that "no person religiously scrupulous of bearing arms shall be compelled to render military service in person." That clause, which protected conscientious objectors from being drafted, was dropped before the Amendment emerged from Congress. Stevens read the proposal as evidence that "bearing arms" was about military service, since a clause about being excused from military service would make no sense attached to a purely private right. The language of the amendment, in his reading, was a deliberate choice to protect state militias from federal interference, and to do no more.

Fourth, the precedent. In United States v. Miller (1939), the Court upheld a federal prosecution under the National Firearms Act for transporting an unregistered short-barreled shotgun across state lines. It reasoned that the Second Amendment does not protect a weapon unless it has some reasonable relationship to the preservation or efficiency of a well regulated militia. Until the Fifth Circuit's Emerson decision in 2001, every federal court of appeals to consider the question read Miller as tying the right to the militia. Stevens argued that Heller swept away settled law, and that the majority had done so by acts of selective history that a judge who cared about restraint would have refused.

Fifth, the restraint argument. Stevens argued that the Court should let the elected branches decide how to balance public safety against gun ownership. The District's handgun ban was a response by a city government to a real problem of violence, and judges had no business replacing the judgment of the people's representatives with their own.

Notice what a careful reader will concede: the Anti-Federalist fear of federal disarmament of the militia is real history, the "bear arms" idiom did have military uses, and Madison did draft a conscientious objector clause. Each of the dissent's premises has a true core. That is why the dissent was worth writing. And it is why the answer has to be made on the evidence, not by sneering.

The answer, in numbered points

One. A purpose clause cannot shrink the right it introduces. The Amendment has a prefatory clause and an operative clause. The operative clause says "the right of the people to keep and bear Arms, shall not be infringed." Justice Scalia's point, and it is a sound one, is that a statement of purpose may illuminate an ambiguous operative clause but cannot limit a clear one. Statutes and constitutions are full of examples. A law might say "to promote education, the people's right to use the public library shall not be denied." No sensible reader would infer that only students may enter. The preamble gives one reason for protecting the right, and the right is held by "the people."

Two. "The people" is not a synonym for "the militia." The Constitution uses the phrase "the people" in the First Amendment, which protects "the right of the people peaceably to assemble"; in the Fourth Amendment, "the right of the people to be secure in their persons, houses, papers, and effects"; and in the Second. In the first two, no one thinks "the people" means a select group in a state's service. The same words should mean the same thing in the Second. I have gone further into this in The right of the people means the same thing in the First, Second and Fourth, and the argument holds.

Three. "Keep arms" never meant "serve in the militia." The Amendment protects the right to "keep and bear" arms. The Stevens reading takes "bear arms" in its military sense and then has to do something with "keep." You cannot "keep" arms as a soldier in an organized force. To keep arms is to own and hold them. The majority noted this and was right to. The Amendment protects two things, keeping and bearing, and the first of them is a plainly private act.

Four. "Bear arms" was not exclusively military. Of course the phrase was used of soldiers. It was also used of individuals carrying weapons for their own purposes, and the founding-era state constitutions show it. Pennsylvania's Declaration of Rights of 1776 said "the people have a right to bear arms for the defence of themselves and the state," which names self-defense before the state. Vermont's 1777 constitution used almost the same wording. Those texts, and the others I treat in What Pennsylvania and Vermont wrote about arms before the Second Amendment, put an individual purpose and a collective purpose in the same sentence. The Pennsylvania minority, in its dissent after the 1787 ratifying convention, proposed protecting the people's right to bear arms for the defense of themselves and their own state or the United States, and also "for the purpose of killing game." The people who wrote these provisions were not confused about the difference between a soldier and a householder.

Five. The ratifying conventions asked for a right of the people. When Virginia, New York, North Carolina and other states proposed amendments, their language spoke of the people's right, and Virginia's proposal pointed to a well-regulated militia "composed of the body of the people." The militia, in the founding generation's mind, was not a separate institution from the armed citizenry. It was the armed citizenry, organized. George Mason wrote the 1776 Virginia language that the convention repeated, and I have gone through the sources in George Mason and the well regulated militia composed of the body of the people and What the ratifying conventions demanded before Madison drafted an arms right. If the militia is the people, then protecting the people's arms and protecting the militia's arms are two descriptions of one thing.

Six. The conscientious-objector clause proves less than the dissent says. The dropped clause concerned compulsory service. It addressed what a drafted man could be forced to do. That the drafters thought of the armed citizen as a possible militiaman is no surprise, given that the militia was the whole body of able-bodied men. But a clause protecting objectors from the draft does not show that the right to keep arms was only for the draft. Madison's draft placed the right of the people to keep and bear arms first and the militia observation second. The reason it was removed is a matter of speculation, and neither side can rest a case on a deletion. Silence in a drafting record is a weak thing to build a theory on, a bit like proving what a man ate for dinner from the dishes he did not wash. The text that survived is what the states ratified.

Seven. Founding-era commentary read it as a personal right. St. George Tucker, in his 1803 edition of Blackstone's Commentaries, treated the right to keep arms as a safeguard of personal liberty and, in his notes, described it as the true palladium of liberty. Joseph Story's Commentaries of 1833 called the right "the palladium of the liberties of a republic." I have collected the commentators in St. George Tucker and Joseph Story, the first great commentators on arms, and Blackstone's fifth auxiliary right and how it shaped American thinking on arms explains where the English background fits. None of them regarded it as a right that evaporated when a man left the militia.

Eight. Miller never said what the dissent says it said. Miller was a thin decision. The defendants made no appearance before the Court and filed no brief, so the Court heard only the government's argument. The opinion asked whether a short-barreled shotgun was the kind of weapon protected, finding no evidence that it had a reasonable relationship to a militia's efficiency. That is a question about the type of arm. It did not hold that only militia members have rights. Scalia read it that way, and the text of the opinion supports him. The fuller story is in United States v. Miller, the one-sided 1939 case that muddled gun law for years. For decades the lower courts leaned on a reading of Miller that the opinion itself did not compel.

Nine. "Judicial restraint" is not a license to ignore a clause. Stevens's last argument is about humility, and humility is a virtue. But the Constitution is not a menu from which the political branches choose. Scalia's reply, in a passage that every conservative ought to know by heart, is that "the very enumeration of the right takes out of the hands of government, even the Third Branch of Government, the power to decide on a case-by-case basis whether the right is really worth insisting upon." A right that holds only when a legislature agrees it should is a permission. The Framers wrote a prohibition.

What Heller left alone

Here I want to be fair to the other side again. The majority did not say the right is unlimited. Scalia wrote that nothing in the opinion should be taken to cast doubt on longstanding prohibitions on possession of firearms by felons and the mentally ill, laws forbidding carrying in sensitive places such as schools and government buildings, or conditions and qualifications on the commercial sale of arms. He recognized a historical tradition of prohibiting dangerous and unusual weapons. The right the Court found is a right to a handgun in the home for self-defense and a general individual right whose edges later cases would work out. Critics who say Heller made every gun law unconstitutional have not read it.

That caution is also a reply to the dissent's fear that the decision would throw the country into chaos. It did not, and the Court's later decisions applied the right to the states in McDonald v. City of Chicago (2010) and set a method for deciding future cases in New York State Rifle & Pistol Association v. Bruen (2022).

Breyer's separate dissent

Justice Breyer's dissent deserves its own paragraph because it asks a different question. He did not rest on the militia reading. He asked whether the District's law was a reasonable way to deal with a serious problem, handgun violence in a dense urban area, and said it was. His method was interest balancing: weigh the government's interest in public safety against the burden on gun owners, and uphold the law if the balance is reasonable.

It is an appealing method, the way a sliding scale is appealing to the person who gets to decide where the scale slides. It is also the method courts reach for whenever they are tempted to shrink a right. The answer is the one Scalia gave. A balancing test applied to an enumerated right turns it into whatever the judges think is a sensible rule, and the judges of one era differ from the judges of the next. A right that is balanced away when it is inconvenient is a right only in name. The text did the balancing in 1791. The people who wrote the Amendment knew guns were dangerous. They chose to protect the right anyway, and the proper response to a policy disagreement with that choice is an amendment, not a balancing test. Bruen made this explicit in 2022 by rejecting means-end scrutiny for Second Amendment cases and requiring the government to show that a modern regulation is consistent with the nation's historical tradition of firearm regulation.

There is a tidy epilogue, and I offer it without gloating. In 2018, Justice Stevens, by then retired, wrote that the Second Amendment should be repealed. One can read that as a candid admission that, to a man who disagreed with the policy, the amendment stood in the way. Whatever he meant, it is the right place to take the argument. If you think the text is a mistake, make the case to the people and run the Article V process. That is how a republic changes its mind.

Where the dissent deserves credit

I do not want to leave you thinking the dissent was foolish. It got three things right. The militia mattered enormously to the founding generation. The Amendment's opening clause is part of the text and should be read. And the Court should be careful about reshaping law that has stood for generations. What it got wrong was the step from "the militia mattered" to "the right belongs only to the militia." The founders' militia was the people in arms, and their right to arms was the foundation of the militia, not the reverse.

Notice, too, how the dissent's best argument actually ends up helping the individual-rights case. If the Amendment exists because the founders feared a federal government that could disarm the citizen-soldiers of the states, then a right of citizens to keep their own arms is exactly what a free state needs. The preamble supports the operative clause.

The case in brief

1. The Stevens dissent argued that the Amendment protects only militia service, resting on the preamble, the idiom "bear arms," Madison's dropped conscientious-objector clause and Miller.
2. A preamble cannot shrink the operative clause, and "the people" means the same in the First, Second and Fourth Amendments.
3. "Keep arms" is plainly private, state constitutions such as Pennsylvania's of 1776 spoke of bearing arms for the defense of "themselves and the state," and the founding-era militia was the body of the people.
4. Miller was a decision about a kind of weapon, and balancing tests such as Breyer's turn an enumerated right into a policy preference, which is why Bruen required history and tradition instead.
5. Heller left room for longstanding limits, and if the text is wrong, the cure is Article V, not a seminar.

What you can do: read the Second Amendment aloud next to the First and the Fourth, then read Justice Stevens's dissent and Justice Scalia's opinion for yourself on the Supreme Court's website and decide who read the words better.