Telling Miller’s Tale: A Reply to David Yassky

Abstract

I INTRODUCTION Only in recent years (1) have those opposed to the individual rights interpretation of the Second Amendment, which one of us dubbed the "Standard Model," come forth with theories attempting to harmonize text, history, and structure to show that the Amendment is the Constitution's version of Oakland--that there is no "there" there. Earlier "theories" had tended to be merely makeweight arguments whose implications were never probed in depth by their proponents. (2) A recent article by Professor David Yassky suggests that there is a segment of legal academia that dissents from the Standard Model and has started to generate alternatives to the Standard Model. (3) In this brief essay, we critique that part of Yassky's theory dismissing United States v. Miller (4) as providing the basis for an individual rights interpretation of the Second Amendment. In his provocative response to the Standard Model, Yassky argues that, if the dramatic changes to our constitutional regime since the time of the Amendment's drafting are taken into account, the Standard Model proves inadequate. (5) One question that Yassky addresses is why the Supreme Court has continued to underenforce the Amendment, treating it as a "constitutional pariah, barred from associating with other 'high caste' civil liberties that [the Court] has labored to protect" (6) in the years since the so-called Constitutional Revolution of 1937. Yassky provides this answer: The Supreme Court of the late 1930s and 1940s saw [civil liberties like freedom of speech] as both ameliorating dangers of the new administrative state, while also being rooted in key New Deal themes [such as Roosevelt's famous "Four Freedoms"]; accordingly it revitalized the First Amendment. The court could not, however, envision a similar role for the right to keep and bear arms. (7) This, Yassky argues, is key to understanding what he terms "the failure of the courts" to enforce the Amendment and accounts for its virtual repeal at all levels of the federal judiciary. (8) Indicative of this failure is the United States Supreme Court's only case this century squarely addressing the Second Amendment, United States v. Miller. (9) Yassky, however, devotes only a few pages to Miller, a decision he defends only with the observation that the opinion "says very little." (10) What he does say is that "the Miller opinion... plainly rule[s] out" what he terms "the revisionists' Libertarian Approach" to the Second Amendment. (11) Yassky's reading of Miller is mistaken. When the decision is read closely and the arguments available (and not available) to the Court are taken into account, the decision is best understood as leaving open the opportunity for courts to adopt the Standard Model reading of the Second Amendment. What Miller plainly does not do is deny that an individual's right to keep and bear arms is protected by the Second Amendment--the holding ascribed to it by most federal courts since 1939. (12) Yassky's error on this subject requires correction. At the outset, we admit that we are focusing on a small part of Yassky's argument, but we think that this focus on Miller is justifiable on several grounds. First, any subsequent Supreme Court interpretation of the Second Amendment will have to take Miller into account. It is Miller, after all, that lower courts have cited to maintain that the Second Amendment did not create an individual right to keep and bear arms. If Yassky is correct and the Standard Model or "Libertarian Approach" finds no support there, then that would likely end the matter for courts. They would have no need to resort to Yassky's elaborate arguments that dramatic shifts in military posture, begun in the nineteenth century and completed in the twentieth, from state militia to a federally controlled, professional military apparatus constitute a temporally extended "constitutional moment" that has drained the Second Amendment of enforceable content. …