Heller and the Individual Right
The Supreme Court’s decision in District of Columbia v. Heller is the central case in the excerpts’ treatment of the Second Amendment. Damon Root, senior editor of Reason Magazine and author of Overruled: The Long War for Control of the U.S. Supreme Court, described the case as presenting a clear division between local gun control laws enacted by accountable city officials and the constitutional text. Root said a majority of the court found that the amendment protected an individual right, and that D.C.’s ban on handguns within the home for self-defense violated the historical meaning of that right. The decision was 5 to 4, and Root said the side that put the text of the Constitution ahead of what local officials wanted triumphed Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
Bob Zadek framed the public reaction to Heller as a category error. He said that when the media asked the lay public whether they agreed with the decision, the question was absurd, because people were voicing an opinion on policy rather than on whether the decision was supportable under constitutional law. Zadek argued that the Supreme Court does not set policy and that gun control exemplifies the clash between setting policy and interpreting the few words of the Second Amendment Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
David Harsanyi, author of First Freedom: A Ride Through America’s Enduring History with the Gun, said Heller was important in codifying that the right of gun ownership is an individual right, not a collective right, and that it is not just about militias but about people defending themselves. He said the idea that a person should have to go to the state to ask permission to have guns within the scope of legality cuts against everything the Constitution is about [[episodes/entrepreneurs__outlaws__and_the_right_to_bear_arms|Entrepreneurs, Outlaws, and the Right to Bear Arms – David Harsanyi on First Freedom (2018)]].
Josh Blackman, in a later episode, described Heller as perhaps the greatest example of liberals and conservatives fighting on the same battlefield. He said the majority opinion by Justice Scalia found that the Second Amendment protects an individual right to keep and bear arms, while a dissenting opinion by Justice Stevens was thoroughly based in history, looking at founding era statements, the drafting history of the Second Amendment, and other statutes passed in the 1800s. Blackman called the outcome a victory for Scalia and for originalism Eight-Dimensional Chess (2020).
Historical Context and the Absence of Federal Legislation
Harsanyi offered a historical account of federal gun legislation, working backward from Heller. He said that before the 1930s there was not a single written federal law that limited gun ownership in any way he knew of. Occasionally there were statewide laws, and more likely city-level gun control laws, typically in the West where a red-light district might say you could not bring your guns in. But he said no law required someone to ask the state, city, or council for permission to carry guns, and no one had a license for a gun [[episodes/entrepreneurs__outlaws__and_the_right_to_bear_arms|Entrepreneurs, Outlaws, and the Right to Bear Arms – David Harsanyi on First Freedom (2018)]].
Harsanyi said the 1930s saw the first federal legislation, during FDR’s administration, when people became scared of criminals gallivanting around the countryside with fully automatic weapons and robbing banks. He named the National Firearms Act, in two different iterations, which led to the first Supreme Court ruling on gun ownership, Miller. He said the Court in that case found the government could limit the kinds of weaponry people owned, but nothing in common use, only exotic or military weapons. He added that until 1986 people could own fully automatic weapons simply by paying some money [[episodes/entrepreneurs__outlaws__and_the_right_to_bear_arms|Entrepreneurs, Outlaws, and the Right to Bear Arms – David Harsanyi on First Freedom (2018)]].
Harsanyi said the modern debate over guns came to fruition and the distinction between Second Amendment advocates and gun controllers was framed in the 1970s and late ’60s, when urban areas had many criminals and roughly half of Americans who lived in those places said guns had to be taken off the streets while the other half said more guns were needed for self-protection. He said that is basically the debate that still exists today [[episodes/entrepreneurs__outlaws__and_the_right_to_bear_arms|Entrepreneurs, Outlaws, and the Right to Bear Arms – David Harsanyi on First Freedom (2018)]].
Self-Defense and Dependence on the State
Harsanyi tied the Second Amendment to the natural right of self-defense. He said he picked the title First Freedom for two reasons: historically, without the Second Amendment and the natural right to self-defense and a gun, we would not have any of the other rights; and the Second Amendment is a manifestation of the natural right to self-defense, which goes back farther in Western history and British law than the right to freedom of religion or freedom of speech. He said how one feels about an individual’s ability to protect themselves, their family, and their property tells us a lot about how one feels about the Constitution and individualism rather than collectivism [[episodes/entrepreneurs__outlaws__and_the_right_to_bear_arms|Entrepreneurs, Outlaws, and the Right to Bear Arms – David Harsanyi on First Freedom (2018)]].
Zadek built on that point, saying that gun control starts with an accepted right, the right of self-defense, and then limits the effectiveness of the ability to exercise it by taking away the most valuable tool in self-defense, the gun. He compared it to saying you can have self-defense but cannot use a closed fist. Harsanyi agreed, saying that if someone has an inherent right to protect themselves, their families, and their property, and you do not give them the means to do it, then in practice you are not allowing people to defend themselves, which is an attack on the Second Amendment and the ideas behind it [[episodes/entrepreneurs__outlaws__and_the_right_to_bear_arms|Entrepreneurs, Outlaws, and the Right to Bear Arms – David Harsanyi on First Freedom (2018)]].
Zadek also argued that to the extent one limits or makes ineffective the right of self-defense, the individual must get protection from the government, so gun control inherently builds extreme dependency upon the state. Harsanyi agreed, saying most of the Bill of Rights are individual rights, and that the idea a person should have to go to the state to ask permission to have guns within the scope of legality cuts against everything the Constitution is about. He said government should have a very limited business in those freedoms [[episodes/entrepreneurs__outlaws__and_the_right_to_bear_arms|Entrepreneurs, Outlaws, and the Right to Bear Arms – David Harsanyi on First Freedom (2018)]].
Text, Commas, and Original Meaning
Zadek read the Second Amendment aloud as one sentence with three commas: “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.” He said discussing what the founders meant with those commas is not very satisfying, because the debate on gun control always starts with the Second Amendment but would occur irrespective of what it says. He said those who favor gun control do not do so because of the wording of the Second Amendment; they do it because they do not want guns. He characterized the national debate as a social debate about whether to ban guns and make society dependent on the government for protection [[episodes/entrepreneurs__outlaws__and_the_right_to_bear_arms|Entrepreneurs, Outlaws, and the Right to Bear Arms – David Harsanyi on First Freedom (2018)]].
Harsanyi said the Second Amendment is not particularly well-written, and that the wording came from a long edited process that had much to do with revisions meant to make it clearer, which ironically did not. He said there is not a single quote from a single founder anywhere contending that owning a weapon is not an individual right, and that many quotes show the founders believed the Second Amendment was so important it was not even really debated. He said the only debate around the Second Amendment between the Federalists and the anti-Federalists was who would control the militias, and it had nothing to do with whether individuals would hand back their weapons. He said the militias existed because of individuals, not the reverse, and that most of the 13 colonies had something similar in their own constitutions that was clearer and outright about it being an individual right [[episodes/entrepreneurs__outlaws__and_the_right_to_bear_arms|Entrepreneurs, Outlaws, and the Right to Bear Arms – David Harsanyi on First Freedom (2018)]].
Blackman placed Heller within the broader contest between originalism and a living constitution. He said liberals historically said they could not get what they wanted from history, so they ignored it, but that there has been a modern trend among progressives to ground arguments in originalism because a majority of the court is inclined to look to text and history. He said the Second Amendment context is perhaps the greatest example of this dynamic, with Scalia’s majority opinion and Stevens’s historically based dissent fighting on the same battlefield Eight-Dimensional Chess (2020).
Across episodes: no development
The topic is touched in three episodes: Damon Root in 2014, David Harsanyi in 2018, and Josh Blackman in 2020. The excerpts show no development between the earlier and later treatment; each guest treats Heller as the pivotal case and the individual-rights holding as settled, with the later episodes adding historical and philosophical context rather than revising the earlier account.
What the sources do not cover
The excerpts do not state the outcome or reasoning of McDonald, which Harsanyi mentions only to say it is not too important to dive into. They do not describe the Sullivan Law beyond its appearance in a topic list, and the section bearing its name breaks off before any speaker addresses it. The excerpts do not state what Miller held beyond Harsanyi’s summary, nor do they give the text or provisions of the National Firearms Act. They also do not cover any state constitutional provisions beyond Harsanyi’s general remark that most of the 13 colonies had something similar.