The following is drawn from Justice Breyer’s forthcoming book Making Our Democracy Work: A Judge’s View, to be published by Knopf in September. In that book Justice Breyer uses examples drawn from the Court’s history to show how its members have approached decisions in difficult cases. In this excerpt concerning a 2008 case, District of Columbia v. Heller, Justice Breyer seeks, as he has written, “to explain why judges who interpret the Constitution cannot rely simply upon history. They must also examine values and reconcile competing values by determining whether a restraint is proportionate to need.” The excerpt is based solely on the written record of the case, which can be found in full at www.supremecourt.gov.
The Second Amendment says, “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.” Meanwhile, the District of Columbia passed a law in 1975 forbidding possession of handguns, loaded rifles, and loaded shotguns within the District. In 2008 the Court had to decide whether the District’s law violated the Second Amendment and held 5–4 that it did. The Court majority and the dissent disagreed both about the values that underlie the Second Amendment and about how they apply in today’s world.1
Second Amendment Values
What values underlie the Second Amendment? What is the amendment’s basic purpose? The majority found those values and purposes in the words “right…to keep and bear Arms.” To determine what our eighteenth-century founders might have thought about the nature of the right and its specific content, the majority examined early legal sources, including writings of the eighteenth-century legal scholar William Blackstone and books and pamphlets reporting fear among seventeenth-century English Protestants that an English Catholic king would disarm them.
This historical examination led the majority to conclude that in the eighteenth century an individual’s right to possess guns was important both for purposes of defending that individual and for purposes of a community’s collective self-defense. It then determined that the framers intended the Second Amendment to protect an individual’s right to keep and bear arms not only to effectuate the more general right to maintain a “well regulated Militia” but also independently as an end. For the majority, history, not militia-related purposes, would define the right’s scope.2
The dissenters (of which I was one) focused on the words a “well regulated Militia, being necessary to the security of a free State.” In our view, that language identifies the amendment’s major underlying value. Its purpose is to ensure the maintenance of the “well regulated Militia” that it mentions. The dissenters’ own examination of eighteenth-century American history convinced them that the framers wrote the amendment because Article I of the Constitution granted Congress extensive power to regulate state militias and to “employ” militia members in federal service. Some people feared at the time that Congress would use these regulatory powers to weaken or destroy state militias. The Second Amendment sought to assure the public that Congress would not be able to do so. That is to say, the amendment’s language granting a “right…to keep and bear Arms” sought simply to assure the people that Congress could not use its Article I authority to do away with “well regulated” state military entities.3
Justice Stevens wrote in his dissent:
Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well- regulated militia.
The majority and the dissent disagreed not only about the relevant values but also about the way in which judges should use values and purposes to help resolve a constitutional question. The majority, for example, looked primarily to history, not only to determine that the Second Amendment protected a right to armed self-defense but also to define the scope of that right, that is, to determine to what, and just how, that right now applies.4
The dissenters, however, even had they believed that the amendment sought in part to protect an individual’s right of self-defense, would not have looked to history alone to determine the scope of that right. They would have asked: What are the basic values—values related to personal security—that the amendment seeks to protect? And how do today’s laws promote or interfere with those basic values? Thus the dissenters, after identifying the relevant values, would have gone on to consider relevant differences between an eighteenth-century, primarily rural America, where frontier life demanded guns, and the present, primarily urban America, where gun possession presents a greater risk of taking innocent lives. While seeking to maintain the basic values underlying a constitutional provision, they would place greater weight than did the majority on changing circumstances.5
In other words, despite their differences, both majority and dissent agreed that they must ask a final question: In light of the values and purposes that underlie the amendment, was the District’s handgun prohibition constitutional? For the dissent, the question was not difficult. The amendment’s basic purpose concerned the maintenance of a well-regulated state militia. The District’s civilian handgun ban did not significantly interfere with that objective. Hence the ban was constitutional.6
Neither did the majority find the question difficult. In its view, the amendment’s central “value” concerned “the inherent right of self-defense.” Handgun possession is important, perhaps necessary, to secure that value. Handguns are easy to “store in a location that is readily accessible in an emergency.” They are easy to “use for those without the upper-body strength to lift and aim a long gun.” They are capable of being “pointed at a burglar with one hand while the other hand dials the police.” They are not “easily…redirected or wrestled away by an attacker.” They are “the quintessential self-defense weapon,” particularly in the home. Yet the D.C. law bans that “entire class of ‘arms.'” Few gun laws in the nation’s history have been so restrictive. Hence the law “fail[s] constitutional muster.”7
Second Amendment Proportionality
Although the result in this case turned primarily upon the identification and application of values, the case also illustrates how the Court might use proportionality—a tool that the majority did not use but that the dissenters considered. If we assume, for argument’s sake, that the majority was right in believing that the Second Amendment protects the right of armed self-defense, would that right trump the District of Columbia’s handgun ban?
Put in terms of constitutionality, the proportionality question is the following: Does the handgun restriction disproportionately interfere with the values that underlie the Second Amendment? This question encompasses several subsidiary questions: To what extent does the restriction interfere with the protected interest? To what extent does it further a compelling interest? Are there superior, less restrictive ways to accomplish the statute’s important competing objective? The answers to the subsidiary questions help answer the ultimate question: Does the statute disproportionately restrict the value or interest that the Constitution protects? The Court has frequently asked these kinds of balancing questions, sometimes using different language, where similar constitutional conflicts—say between free speech and privacy—are present.8
The District’s law, while restricting possession of handguns, does so in order to advance a compelling interest, namely, an interest in life itself. The Court has held that this interest can justify interference even with very important competing constitutional interests. Consider, for example, laws that forbid speech where speech would reveal important military secrets. Consider also laws that would forbid religious practices that threaten individuals with physical harm.9
It is less clear whether the District’s handgun law significantly furthers a lifesaving interest. On the one hand, in 1975, when the District enacted its ban, there were in the United States about 25,000 gun-related deaths annually and about 200,000 injuries. In the District, 155 of 285 murders, 60 percent of all robberies, and 26 percent of all assaults involved handguns. But twenty years after the District enacted its law, the nation’s gun-related death figure had risen to 36,000. More than 80 percent of all firearm homicides were committed with handguns. And the District’s violent-crime rate had increased, not diminished. Moreover, some social scientists had found that strict gun laws are generally associated with more, not less, violent crime. Others found a positive empirical relationship between gun ownership and legitimate self-defense. Still others found that there are so many illegal guns in the United States that the D.C. law could not have any significant positive effect.10
On the other hand, without a handgun ban, D.C. crime rates and crime-related deaths might have been still worse. Handgun laws cannot promise to take guns from criminals, but they might help. And D.C.’s laws might lead other communities to adopt gun restrictions of some kind. One cannot be certain whether D.C.’s gun law worked. To answer the overall question—to what extent did the D.C. law achieve its objective?—requires facts and fact-related judgments. Legislatures are better equipped than courts to try to find the answer. Thus the Court should accept the legislature’s judgment about gun possession and saving lives—as long as that judgment is reasonable. (I thought it was.)11
What about the other side of the coin? To what extent does the District’s handgun ban burden the gun-related interest that the amendment seeks to protect? To answer this question, we must return to the values that underlie the second amendment. Because the justices disagree about that matter, we can examine all plausible values in turn. If the value is that of preserving a “well regulated Militia” or protecting sportsmen or hunters, the handgun ban imposes little or no burden. Those who seek training in the use of guns, target practice, or hunting can join gun clubs in nearby Virginia or Maryland and, for the price of a subway ride, join their fellows for training, recreation, and sport. But if the value is that of using handguns for self-defense, we must recognize that the statute imposes a burden. The handgun ban interferes significantly with the homeowner’s possession and use of a handgun kept in the home for the purpose of self-defense.12
The Court then must try to balance the statute’s efficacy, in maintaining community safety, with the obstacle it imposes to self-defense. We might try to avoid the need to balance by looking for a superior, less restrictive way to achieve the District’s lifesaving objective. But probably there is none. The very characteristics that make a handgun a particularly good choice for self-defense include the fact that it is small, light, and easy to hold and control and leaves one hand free for maneuvering. Those very same characteristics make handguns susceptible to misuse, by children for example, easy to steal and to hide, and a good choice for a criminal intent on committing, say, a robbery.13
So far, proportionality has helped frame the question. The handgun ban burdens (what the majority found was) an important Second Amendment objective. At the same time, it does so in order to further (and the legislature could reasonably find it tends to further) a competing and compelling interest, namely, saving innocent lives. There is no obvious, less burdensome, similarly effective way to further that objective. We therefore cannot escape the need to decide the balancing question, namely, whether the District’s handgun law, in its efforts to save innocent lives (a compelling interest), disproportionately burdens the interest the amendment seeks to protect, namely, “self-defense.”14
In my view the burden was proportionate, not disproportionate, and the statute is constitutional. The District’s law was properly tailored to the urban life-threatening problems that it sought to address. It involved only one class of weapons, leaving District residents free to possess shotguns and rifles along with separately kept ammunition. The amendment’s first clause, the “Militia” clause, indicates that even if self-defense is one protected interest, it was not the exclusive or primary interest that the framers had in mind. Perhaps most important, changes in the nature of society during the last two hundred years, such as the development of the urban police force, the nature of modern urban crime, the movement of population away from the frontier, with frontier life’s particular dangers and risks, all have made gun possession less important in terms of the amendment’s objectives—even if those objectives include the value of personal safety.15
Whether one agrees or disagrees with the proportionality analysis just presented, the underlying approach focuses the Court’s attention on the practical underlying constitutional considerations, namely, harm (to protected interests) compared with need. The Second Amendment example shows that proportionality is complex and difficult to apply in practice. But what is the alternative? Today’s Court should not base an answer to a question about an issue such as gun control on the facts and circumstances of eighteenth- century society. Nor should a judge base an answer to that question on the judge’s own intuitive balancing of harm versus need—without saying how that balancing works. Why should the Court simply announce that handguns are important and imply that the answer is consequently obvious? Why should the public find acceptable such complete reliance on either an eighteenth-century alternative or an unexplained judicial intuition?
Those who disfavor the use of a proportionality approach, or similar approaches, criticize them as “judge empowering.” But a judge who uses such an approach must examine and explain all the factors that go into a decision. The need for that examination and explanation serves as a constraint. It means that the decision must be transparent and subject to criticism. Because the approach just illustrated can require the judge to accept reasonable legislative determinations of empirical matters, it is “legislator empowering”; not “judge empowering.” In the democratic society that the Constitution creates, legislative empowerment is a virtue.
In sum, the Second Amendment example shows how the use of values and proportionality can help produce constitutional interpretation that allows the Constitution to adapt its permanent values to fit society’s changing needs. The use of values and proportionality introduces its own complexities. But those complexities often arise out of the underlying problem itself—a problem that requires a court to determine how much protection a right warrants when it conflicts with another right or critically important interest. Other, simpler approaches come with costs attached, such as the difficulty of explaining to the public why it should accept a decision that embodies eighteenth-century factual assumptions or pure judicial intuition. To use values and proportionality is to promote transparent opinions, to rely heavily on rational explanation, and to protect the individual rights that underlie constitutional provisions.
In McDonald v. City of Chicago, No. 08-1521, June 29, 2010, which was decided after this article was prepared for press, the Supreme Court extended the Second Amendment right of armed self-defense, applying it through the Fourteenth Amendment to state laws. The vote was 5–4. Justice Breyer was again in dissent.
District of Columbia v. Heller, 128 S. Ct. 2783 (2008). ↩
Id. at 2797–2799.· ↩
Id. at 2826–2827, 2831–2836 (Stevens, J., dissenting); id. at 2847 (Breyer, T., dissenting); US Const. art. 1, § 8. ↩
Heller, 128 S. Ct. at 2801–2802. ↩
Id. at 2870 (Breyer, J., dissenting). ↩
Id. at 2846 (Stevens, J., dissenting). ↩
Id. at 2817–2818. ↩
Cf id. at 2865 (Breyer, J., dissenting). Compare also the approach of Eugene Volokh, “Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda,” 56 UCLA Law Review 1443 (2009), who attempts to translate the right to keep and bear arms into “workable constitutional doctrine.” ↩
Heller, 128 S. Ct. at 2865–2866 (Breyer, J., dissenting). ↩
Id. at 2854–2859 (discussing the empirical studies provided in amicus briefs). ↩
Id. at 2859 (“The question here is whether [the empirical arguments] are strong enough to destroy judicial confidence in the reasonableness of a legislature that rejects them”). ↩
Id. at 2861–2864. ↩
Id. at 2864. ↩
Id. at 2865. ↩
Id. at 2865–2867. ↩