Even if the lobbyists who oppose gun-control regulation actually do endorse the dubious proposition that the Second Amendment was intended to limit the federal power to regulate the civilian use of handguns—that Burger incorrectly accused them of “fraud”—I find it incredible that policy makers in a democratic society have failed to impose more effective regulations on the ownership and use of firearms than they have.
And even if there were some merit to the legal arguments advanced in the Heller case, all could foresee the negative consequences of the decision, which should have provided my colleagues with the justification needed to apply stare decisis to Miller. At a minimum, it should have given them greater pause before announcing such a radical change in the law that would greatly tie the hands of state and national lawmakers endeavoring to find solutions to the gun problem in America. Their twin failure—first, the misreading of the intended meaning of the Second Amendment, and second, the failure to respect settled precedent—represents the worst self-inflicted wound in the Court’s history.
It also represents my greatest disappointment as a member of the Court. After the oral argument and despite the narrow vote at our conference about the case, I continued to think it possible to persuade either Justice Anthony Kennedy or Justice Clarence Thomas to change his vote. During the drafting process, I had frequent conversations with Kennedy, as well as occasional discussions with Thomas, about historical issues, because I thought each of them had an open mind about the case.