The Column, No. 37:
U.S. Supreme Court: The Heller Case, a Victory for Gun Owners?
You’ve no doubt heard the news of the gunowner’s “victory” in the US Supreme Court ruling on the Heller v. D.C case, with all kinds of folks claiming credit. It is a win for our cause, but hardly breaking the new ground you might think. It took 32 years for the D.C. law to be overturned.
Despite a lot of the rhetoric, what matters the most is “what is held.” The many, many pages of opinion may be of interest to some, but what is held is clear:
1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.
(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.
(b) The prefatory clause comports with the Court’s interpretation 2 DISTRICT OF COLUMBIA v. HELLER Syllabus of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.
(c) The Court’s interpretation is confirmed by analogous armsbearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28–30.
(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.
(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.
(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.
2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.
3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this Syllabus prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.
478 F. 3d 370, affirmed. SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.
The court found the 2nd Amendment right; a good thing. However, mandatory registration of handguns is in force, and “infringement” of the 2nd Amendment is not just tolerated, but loudly supported by the ruling. Of particular note from the above is:
“Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Imposing “conditions and qualifications” on the sale of arms is a broad topic. While a bit of overzealous back-slapping is going on, it might be wise to reflect that “giving” D.C. residents a “right” after 32 years that most Americans feel they already had is not wake the President material. We still just can’t understand why gun crimes don’t happen at the shooting range, but call schools “sensitive” places. This sounds as if those bent on harming themselves or others automatically announce it or really care to follow laws.
Again, as we have seen over and over again, gun laws don’t work. Those residents of D.C. that decide to exercise their “new” right to keep a pistol at home better register it (a prelude to confiscation) or guess what, the citizen becomes a criminal yet again. A pity we don’t have “reasonable registration” of steak knives, hammers and baseball bats. Should felons be allowed to brandish steak knives and clubs?
For those who might think we don’t need to vote, we don’t need the NRA, and “we won,” winning mandatory gun registration, winning one-gun-per-month, winning week-long waiting periods, winning paperwork riddled, red-tape filled laws like we now see in California is hardly a great victory.
The Court should be congratulated for hearing the matter. Their ruling is welcome in the narrow sense and perhaps common sense. The effect of the ruling, as time will show, will be small. It should take care of the most radical, outrageous, invasive violations as practiced by Mayor Daley, the city of Chicago and Cook County, Illinois.
It does nothing to dissuade government from infringing, hassling and taxing our individual rights. Instead, it clearly gives a nod of the head to limits on rights and “reasonable” infringements of them.
We darn well better join the NRA, and we darn well better vote. To do less is a betrayal of a fundamental responsibility that goes with anything we call a right, rather than a privilege.
Copyright 2008 by Randy Wakeman. All rights reserved.