Much ado about ... something else: D.C. v. Heller, the racialized mythology of the Second Amendment, and gun policy reform.

I. Introduction

In late 2007, the National Rifle Association and the Brady Campaign to Prevent Gun Violence shared a rare moment of agreement. The U.S. Supreme Court's grant of certiorari in District of Columbia v. Heller, both organizations declared, brought before the Court the most important Second Amendment case in history. (1) For the first time since its 1939 decision in United States v. Miller, the Court squarely confronted the scope and meaning of the Second Amendment, and did so by reinterpreting this once-neglected area of constitutional law. For the District of Columbia itself, the case introduced a watershed moment--a determination of whether its longstanding handgun ban and regulation of other firearms would stand or fall, and thus a determination of its autonomy to legislate for the health and welfare of its citizens. Yet for the rest of the nation, I contend, Heller simply does not represent the transformative moment in constitutional interpretation that both sides of the gun policy debate may hope it to be.

Whether the "right to bear arms" guaranteed by the Second Amendment is an "individual" right or a "collective" right (2)--the constitutional issue before the Court in Heller (3)--makes little practical difference in states' and local governments' ability to regulate firearms. The Second Amendment has never been incorporated against the states, and that issue was not before the Court in Heller. Yet even if the Heller holding were to apply to the states, gun policy would continue to be created by the political decisions of state and local legislative bodies, relatively unconstrained by acts of judicial constitutional interpretation. (4)

Indeed, as recent scholarship makes clear, those decisions ultimately are not anchored in the Second Amendment at all, but rather derive from intensely embraced cultural values and cultural myths. Proponents and opponents of gun control essentially are arguing not so much about policy as about the preservation--or, in some cases, the generation--of venerated ways of life. In its most basic incarnation, this argument takes the form of a clash between a strongly avowed reverence for the nation's individualist frontier spirit and an equally strongly expressed desire for a communitarian approach to American public life and policymaking. (5)

While recent scholarship has taken a critical first step toward gun policy reform by making clear that debates over gun control have always been, at their heart, debates over competing cultural values, that scholarship has stopped short of its most valuable conclusion. The competing cultural values at stake in the gun debate have, at their core, an often unrecognized racial conflict that extends back to the very founding of the nation. A look at the story of the Second Amendment from the African American perspective reveals not only the greater complexity of the cultural conflicts undergirding the gun policy debate, but also lays bare the deep structure of gun policy that has aided black repression from the slavery epoch to today. The cultural mythology that undergirds the commitment to the right to bear arms has long gained force from and been perpetuated by a perennial struggle between white and black America. These myths pit white commitment to gun ownership against a counter-narrative in the African American community, which has simultaneously looked to guns as a defense against white oppression, to gun control as a means of disenfranchisement and dispossession, and to the contemporary prevalence of firearms as a threat to its livelihood.

To date, most scholars have failed to analyze the way in which gun policy has historically been deployed not to regulate gun ownership by white men--the primary locus of the gun rights movement--but rather to disarm or generally disempower African Americans. In the culture wars over gun policy, therefore, it is not enough to highlight racial tension; the debate must also recognize the link between firearms and white control. By doing so, true resolution of the divisive gun debate may be achieved.

Heller's most critical legacy thus will lie not in its interpretation of the constitutional right to bear arms, but rather in its potential to generate a renewed and reformed conversation about gun policy in light of these powerful underlying cultural inputs. At its most productive, that conversation will illuminate the powerful American mythology of gun ownership, a mythology the origins and continuing vitality of which are ineluctably bound up with racial conflict and with notions of true citizenship. Tracing that mythology from its colonial roots through the present will elucidate the motivations attached to the much-trumpeted cultural value of defending home, hearth, and the free state in the American context.

Part II of this Article examines what was at stake in Heller, both for the District of Columbia and for the nation as a whole, arguing that the case will have a limited impact at most on actual gun policy, While the "ideological, visceral, polarized, ad hominem--and, often, ugly" (6) rhetoric of the "great American gun debates" (7) might suggest otherwise, actual decisions about gun ownership and use will be made not by judicial fiat, but rather by legislative action at the state and local level. Even though the Heller Court held that the Second Amendment protects an individual right, state and local governments will still have significant freedom to craft gun policy.

Part III explores the more crucial reason for Heller's ultimately limited impact: The debate over the right to bear arms is not grounded in constitutional interpretation, but in cultural values and cultural myth. This Part demonstrates that political fights over gun control are more accurately understood as tights over the ability to protect or construct revered ways of life. As a result, any significant policy reform can only derive from an understanding of and appeal to those ways of life.

Part IV delves into the specific cultural mythology that Richard Slotkin has called the "Cult of the Colt," (8) with a detailed focus on the myth's racialized underpinnings and effects, and on the elements of American culture that enable its persistence. This Part develops my contention that the debate over gun control is steeped in and propelled by a larger, four-century-old tension between white and black America, a tension that must be addressed--and ultimately eliminated--for meaningful reform to be possible.

Finally, Part V responds to recent scholarly calls for reframing and reforming the debate over gun policy. Solving the problem of gun violence means crafting both policy and cultural attitudes that will make it possible for those who embrace the values associated with gun ownership as well as gun control to protect and revere their ways of life without any need or motivation for quarrelling about armament. Systemic reform will require far more than illusory compromises between advocates and opponents of gun control, and it will be enacted on the ground by communities unwilling to "stand by while [their] citizens die." (9)

II. D.C. v. HELLER

In Parker v. District of Columbia, the D.C. Circuit held that the Second Amendment "protects an individual right to keep and bear arms." (10) The court went on to hold that this individual right is violated by both the District's ban on handguns and its regulation of the manner in which lawfully held firearms may be kept." (11) Because the latter regulation "allow[ed] only for the use of a firearm during recreational activities," the court reasoned, it "amount[ed] to a complete prohibition on the lawful use of handguns for self-defense" and thus was per se unconstitutional. (12) In so holding, the D.C. Circuit became the first federal appeals court in the nation's history to strike down a law because it offends the Second Amendment. (13)

Parker was most immediately remarkable for its break from the seemingly settled Second Amendment jurisprudence of the Supreme Court and the vast majority of the circuit courts of appeals. (14) Those courts have almost uniformly held that the Constitution contains no individual right to bear arms, but rather a right that is protected only in furtherance of the militia's objectives. (15) And it was precisely the potential for the Supreme Court to resolve what Respondents referred to, somewhat expansively, as a "profound split of authority among the federal appellate courts on the question of whether the Second Amendment secures individual rights" (16) that has generated claims of the Heller's momentousness. (17)

This section explores Heller's significance for gun policy in the United States. To provide context for the "profound split of authority" created by the D.C. Circuit's constitutional interpretation, the section begins with brief summaries of competing visions of the right to bear arms in recent decades and of Supreme Court and circuit court holdings on the Second Amendment. It then turns to a discussion of Heller's finding that there is an individual right to bear arms and that D.C.'s handgun ban and firearm regulations exceed the city's authority to regulate for the health and welfare of its citizens. The section concludes by arguing that, in terms of the nationwide debate over policy, the case will have practical effect not because of its holding, but because the Supreme Court's examination of the issue has the potential to generate a renewed and reformed conversation about guns.

A. Competing Visions of the Right to Bear Arms

Battles over the meaning of the constitutional "right to bear arms" often have focused exclusively on the Second Amendment's sentence structure and punctuation, (18) which, like that of many other constitutional provisions, are not "marvel[s] of clarity." (19) Because of the framers' punctuational license, there has been uncertainty as to whether the first clause regarding the militia directly relates to and defines the second clause regarding the "right of the people to bear arms." (20) As a result of this ambiguity, three distinct visions of the right to bear arms have emerged: the collective right in furtherance of the militia, the individual right, and the republican theory of the militia's role in maintaining the well-being of the state.

The collective right theory understands the Second Amendment to protect state militias exclusively. The then-president of the American Bar Association elaborated upon this theory in 1990, explaining that according to case law, "the Second Amendment relates merely, solely, totally and only to the unhampered regulation of a state militia. It does not confer an individual right." (21) By contrast, the individual rights theory understands the Amendment to protect the individual right to keep arms for the purposes of self-defense, hunting, and other "legitimate" purposes. (22) Thomas Moncure, Jr., the former Assistant General Counsel of the National Rifle Association of America (NRA), adopted this theory in describing the Second Amendment as wholly concerned with preserving the liberty of individual Americans. (23)

Finally, the republican militia theory understands the Second Amendment as providing the classic check on the national government--an armed citizenry organized into militias for the common good. (24) Consistent with this theory, the "[u]ltimate 'checking value' in a republican polity is the ability of an armed populace, presumptively motivated by a shared commitment to the common good, to resist governmental tyranny." (25) It bears emphasizing, however, that at the time the Second Amendment was drafted, the very notion of a "republican polity" was vexed. "To be sure," gun-rights advocate Steven Halbrook has explained, "colonial authorities sought to disarm blacks and Indians ..." (26) Citizenship itself was complicated by the existence of the racial hierarchy, and republicanism in America necessarily manifested itself as a reflection of this hierarchy. Within the prevailing racial order, in other words, any republican right to take up arms against tyranny was far from universal. (27)

B. The Second Amendment in the Supreme Court and. Circuit Courts of Appeal

Until Heller, the Supreme Court had said relatively little about the right to bear arms. In its notorious Dred Scott decision, (28) the Court suggested in dictum that the Second Amendment protected an individual right. Considering whether African Americans were citizens, Chief justice Taney focused on the putatively frightening implications of granting blacks the privileges and immunities of citizenship:

 
  It would give to persons of the Negro race, who were recognised as 
  citizens in any one State of the Union, the right to enter every 
  other State whenever they pleased ..., and it would give them the 
  full liberty of speech in public and private upon all subjects upon 
  which its own citizens might speak; to hold public meetings upon 
  political affairs, and to keep and carry arms wherever they went. (29) 

While Taney's reflection seems to imply that the right to bear arms is comparable to the freedoms of movement, speech, and association, it derived not from an interpretation of the Constitution itself, but rather from an apparently fearful analysis of the social consequences of black access to arms.

The Court turned to actual constitutional explication of the Amendment in the 1875 case United States v, Cruikshank, (30) holding that the Constitution does not create a right to keep and bear arms. (31) While such a right may exist independent of the Constitution, according to Cruikshank the Second Amendment's protection of that right extends only "as against Congressional interference." (32) The Court expanded on the latter idea a decade later, holding in Presser v. Illinois that "the amendment is a limitation only upon the power of Congress and the National government, and not upon that of the state[s]." (33)

The Court's most influential and oft-cited decision on the right to bear arms, United States v. Miller, (34) held that the National Firearms Act and its registration requirement did not violate the Second Amendment. (35) In an opinion written by the conservative Justice James McReynolds, (36) the Court analyzed the constitutionality of restrictions on gun ownership solely by considering the relationship of the firearm at issue to the potential activity of the organized Militia. Constitutional protection of the right to bear arms, Miller suggested, is limited to arms having "some reasonable relationship to the preservation or efficiency of a well regulated militia." (37) The unanimous Court reasoned that "[w]ith obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view." (38)

Finally, in a 1980 case, Lewis v. United States, (39) the Court used the rational basis test to determine the constitutionality of the 1968 Gun Control Act. Examining the Act under an Equal Protection challenge, the Court did not apply strict scrutiny, the test it applies when considering limitations on fundamental constitutional rights. (40) Indeed, as Justice Blackmun explained, rational basis analysis was appropriate because the Act's "legislative restrictions on the use of firearms ... do not trench upon any constitutionally protected liberties." (41) Under Lewis, in short, the right to bear arms is not a fundamental right. (42) Among the circuit courts of appeals, only the Second Circuit has not directly construed the Second Amendment; it has, however, held that the Amendment does not create a fundamental right. (43) The Tenth Circuit held in 2004 that the right to bear arms is limited to an individual's "direct affiliation with a well-organized state-supported militia," (44) and cases in the First, Third, Eighth, and Eleventh Circuits have reached similar conclusions. (45) In a somewhat different vein, the Fourth, Sixth, Seventh, and Ninth Circuits have concluded that the Second Amendment's protections may be invoked only by the states themselves, not by individuals (who lack standing because the constitutional right is collective). (46) Until the D.C. Circuit decided Parker, the outlier among the circuits was the Fifth, which had suggested in dictum that the Second Amendment does protect an individual right apart from any connection between the arms at issue and service in a militia. (47)

Prior to Heller, then, the Supreme Court and the courts of appeals seemed to have settled two core propositions about Second Amendment jurisprudence with only minor disagreement. First, the Amendment protects a collective and not an individual right. Second, the Amendment applies to the federal government but has not been incorporated by the Fifth Amendment to apply to state and local governments.

Predictably, (48) the Heller majority departed from earlier precedent and found, unequivocally, an individual right to bear arms for "traditionally lawful" purposes, such as self-defense within the home. (49) Most notably, the Court found that this individual right was unconnected to militia service and extended not only to self-defense but also to such lawful purposes as hunting. (50) The Court's reasoning focused disproportionately on the structure of the Amendment, finding that the Amendment is "naturally" divided into two parts--a prefatory clause and an operative clause. (51) Importantly for the Court, the prefatory clause regarding the militia docs not limit or expand the operative clause, regarding the right to keep and bear arms, but simply "announces a purpose." (52) After an historical review of the militia in America--to identify "a purpose" the prefatory clause is meant to announce--and an examination of the use of key phrases in the operative clause of the Amendment over the past two centuries, the Court had "no doubt, on the basis of both text and history, that the Second Amendment confer[s] an individual right to keep and bear arms." (53)

The Heller court did concede that there are limitations to this right, (54) all of which are already codified in federal, state, and local laws. However, the Court offered no indication of the full scope of these limitations. It was clear to the Court that the District had overstepped the ill-defined boundaries. (55)

C. Heller and Gun Policy in the District of Columbia

For a number of reasons that the next subsection explores, (56) Heller's resolution of the circuit split will have little practical effect, nationwide, on the gun policy debate. (57) It could have dramatic effect, however, in the District itself, where the Court's decision has restricted the city's level of autonomy in regulating for the health and welfare of its citizens. In its petition for certiorari, the District explicitly linked the gun policies at issue in the case to its autonomy as a government: The city adopted those policies "soon after being granted home rule authority." (58) The 1976 City Council made findings regarding handgun use in accidents causing the death of children, violence against women, criminal activity in general, and murders of law enforcement officers, and concluded that because "handguns present a singular danger, the solution was to stop the introduction of more handguns into the District." (59) Exercising its new power of self-government, the Council declared that adopting a handgun ban in the city code '"reflects a legislative decision' that handguns 'have no legitimate use in the purely urban environment of the District of Columbia.'" (60)

While Heller was most closely watched nationwide for what it would say about an individual as opposed to collective right to bear arms in the Second Amendment, (61) its most crucial holding for the District was whether the city's handgun ban and other firearm regulations are unreasonable restrictions on any constitutionally protected right. (62) The Parker court reasoned that the handgun ban and the requirement for disabling other firearms within the home amounted to "a complete prohibition on the lawful use of handguns for self-defense," and thus were per se unconstitutional. (63) The District asked the Supreme Court, then, to state that because the Bill of Rights does not create or protect rights that are absolute, courts should defer to sound legislative judgment in regulating those rights that are protected. (64) Even if the Court recognized an individual right, the District hoped to have the power to trump that right by identifying compelling state interests. (65) Practically speaking, the city sought affirmation of its autonomy to legislate for the health and welfare of its residents, based on its understanding that "[w]hatever right the Second Amendment guarantees, it does not require the District to stand by while its citizens die." (66) The District, however, did not prevail on the question of the handgun …