FWIW here's the statement that most closely reflects my own position on the SC guns decision.
D.C. v. Heller
By Pejman Yousefzadeh Posted in D.C. v. Heller | Law | The Second Amendment —
Today, the Supreme Court issued its decision in D.C. v. Heller, which affirms that the right to keep and bear arms is an individual right and not one that depends upon membership in a militia. This is a landmark and historic case--the first of its kind to affirm the plain meaning of the Second Amendment. It represents a tremendous and monumental victory for Second Amendment rights advocates and its ramifications will be instantly and broadly felt.
The Court's decision was 5-4, with Justice Scalia writing for the majority and with two dissents. To paraphrase John F. Kennedy, while the margin is thin, the Court's statement is clear. D.C. will now have to go back and significantly alter its weapons ban--a ban which dates as far back as 1976. In addition various other cities and states may find that their efforts to restrict guns will run afoul of the ruling in Heller; my hometown of Chicago has some of the most restrictive gun laws in the country and it may now have to change those laws to comply with the ruling in Heller. Of course, this all depends on whether Second Amendment rights are found to apply to state, county and municipal governments through the doctrine of incorporation. Lyle Denniston has some questions as to whether or not this is indeed the case and Brian Sagona agrees that Justice Scalia did not look at this issue in his majority opinion. Note the following from Tom Goldstein:
The opinion leaves open the question whether the Second Amendment is incorporated against the States, but strongly suggests it is. So today's ruling likely applies equally to State regulation.
This is an issue that will be more comprehensively resolved with the advent of litigation concerning restrictive gun laws that may now be found to violate the ruling in Heller should the Second Amendment be incorporated against the states (on this issue, see the end of this post for clues regarding how the Court may rule on this issue).
Read on . . .
There is a great deal of discussion in the opinion concerning the meaning of the prefatory and operative clauses and what is meant by "keeping and bearing arms." The majority wisely points out that the prefatory clause ("A well regulated Militia, being necessary to the security of a free State,") does not limit the rights to be exercised under the operative clause ("the right of the people to keep and bear Arms, shall not be infringed"). In the majority opinion, Justice Scalia actually relies quite heavily on an earlier opinion written by Justice Ginsburg on what is meant by "bearing arms" and adopts Justice Ginsburg's definition to find that "[a]lthough the phrase implies that the carrying of the weapon is for the purpose of 'offensive or defensive action,' it in no way connotes participation in a structured military organization." Slip op. at 14. Thus, one may "keep and bear Arms" without having to be part of "a structured military organization" like a "well regulated Militia." To illustrate this point, Justice Scalia expressly took on the dissent of Justice Stevens:
In any event, the meaning of "bear arms" that petitioners and JUSTICE STEVENS propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby "bear arms" connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving "bear Arms" its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war--an absurdity that no commentator has ever endorsed. See L. Levy, Origins of the Bill of Rights 135 (1999). Worse still, the phrase "keep and bear Arms" would be incoherent. The word "Arms" would have two different meanings at once: "weapons" (as the object of "keep") and (as the object of "bear") one-half of an idiom. It would be rather like saying "He filled and kicked the bucket" to mean "He filled the bucket and died." Grotesque.
Slip op. at 16. It should be noted as an aside that some of the more amusing portions of the majority opinion are found in the footnotes at the beginning in which Justice Scalia takes on Justice Stevens's absurd argument that the First Amendment rights to assemble and to petition for a redress of grievances is a collective right and that similarly, the Second Amendment right to keep and bear arms can be found to be collective. Slip op. at 8-9 n.5. That this argument actually had to be addressed demonstrates the lengths the dissent sought to go to in order to deny and undercut the opinion of the majority and its practical application in the realm of Second Amendment jurisprudence. In any event, the discussion of the language of the Second Amendment and the finding that an individual right to bear arms exists that does not depend on membership in a militia is long, scholarly and quite masterful. I could quote from it all day but that would create a post almost as long as the opinion itself, so I would urge readers to examine the opinion themselves.
Justice Scalia also points out that the right to keep and bear arms is "a pre-existing right" and that the Second Amendment only serves to declare that the right "shall not be infringed." "As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), '[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed . . . .'" Slip op. at 22. Note as well the effort Justice Scalia goes through to correct Justice Stevens's mischaracterization of the holding in Miller. Slip op. at 52-56.
Taking the entire history of the Second Amendment, its wording, its interpretation, its plain meaning pursuant to the rules of grammar and language and the precedents of the Court and various lower courts, Justice Scalia then turns to analyzing the constitutionality of the D.C. handgun ban:
As the quotations earlier in this opinion demonstrate,the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of "arms" that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute.Under any of the standards of scrutiny that we have applied to enumerated constitutional rights,27 banning from the home "the most preferred firearm in the nation to `keep' and use for protection of one's home and family," 478 F. 3d, at 400, would fail constitutional muster.
Slip op. at 59-60. Justice Scalia goes on to note the severity of the D.C. handgun ban when analyzed in historical context. The following is important to note as well:
We must also address the District's requirement (as applied to respondent's handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional. The District argues that we should interpret this element of the statute to contain an exception for self-defense. See Brief for Petitioners 56-57. But we think that is precluded by the unequivocal text, and by the presence of certain other enumerated exceptions: "Except for law enforcement personnel . . . , each registrant shall keep any firearm in his possession unloaded and disassembled or bound by a trigger lock or similar device unless such firearm is kept at his place of business, or while being used for lawful recreational purposes within the District of Columbia." D. C. Code §7-2507.02. The nonexistence of a self-defense exception is also suggested by the D. C. Court of Appeals' statement that the statute forbids residents to use firearms to stop intruders, see McIntosh v. Washington, 395 A. 2d 744, 755-756 (1978).
Slip op. at 61. Of note as well is Justice Scalia's rebuttal to Justice Breyer's dissent, which finds the D.C. handgun ban to be constitutional under an "interest-balancing approach." As Justice Scalia points out, no other exercise of constitutional rights is subject to this vague and arbitrary "interest-balancing approach" and "[t]he First Amendment contains the freedom-of-speech guarantee that the people ratified,which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people--which JUSTICE BREYER would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding,responsible citizens to use arms in defense of hearth and home." Slip op. at 66.
Those are some of the key passages from the majority opinion. Again, I would encourage everyone to read the majority opinion and the dissents, but it is probably high time to stop the quotations from the opinion lest this post grows any longer. Of course, SCOTUSblog is a key resource; start from this post and scroll up/work your way forward chronologically. The Volokh Conspiracy is a key resource today--as it is all days. Start here and scroll on up. It should be noted that Eugene Volokh's scholarly writings on the Second Amendment received multiple citations in the majority opinion--something of which he is doubtless and justifiably quite proud. Note especially this post concerning speculation about future rulings of the incorporation of the Second Amendment against the states. Orin Kerr finds the majority opinion to be relatively narrow. This may be the case, but that doesn't detract from the landmark and hugely consequential nature of the ruling; the first to expressly recognize that the right to keep and bear arms is an individual right that does not depend on membership in a state militia. Professor Kerr blogs on the limitations of the ruling here (Jim Lindgren rightly and helpfully notes that while "much is left for later cases, that is simply old-fashioned case-by-case judicial decisionmaking.").
More legal commentary to come, I am sure. But Second Amendment advocates got just about everything they could have reasonably expected to get out of the Court's majority opinion. This is as big a win as they |
