Thursday, June 26, 2008

Lock and Load

Just kidding, but today's landmark decision in District of Columbia v. Heller (2008) did affirm an individual's right to bear arms under the 2nd amendment, in addition to striking down the 30 year-old strict ban on handguns in the D.C. area. While the outcome of the case wasn't particularly unexpected, the closeness of the 5-4 decision was.

From the New York Times:

The Supreme Court declared for the first time on Thursday that the Constitution protects an individual’s right to have a gun, not just the right of the states to maintain militias.

But the court held that the individual right to possess a gun “for traditionally lawful purposes, such as self-defense within the home” is not unlimited. “It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” Justice Scalia wrote.

The ruling does not mean, for instance, that laws against carrying concealed weapons are to be swept aside. Furthermore, Justice Scalia wrote, “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.”
So while recognizing the fundamental right to keep and bear arms, the majority opinion (Scalia, Kennedy, Thomas, Roberts, C.J. and Alito) does not sweep away all gun-control legislation throughout the country. Just as the 1st amendment doesn't guarantee us the right to total free speech without limitation, "like most rights, the right secured by the Second Amendment is not unlimited,” Scalia noted.

Here's more from his majority opinion (and I'm quoting just from the section pertaining to the 2nd amendment, not the striking down of the D.C. ban).
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. The Amendment’s prefatory clause [“A well regulated Militia, being necessary to the security of a free State,"] announces a purpose, but does not limit or expand the scope of the second part, the operative clause ["the right of the people to keep and bear Arms, shall not be infringed."]. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.

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.
And he concludes:
We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.
Writing for the dissenters (Stevens, Souter, Ginsburg & Breyer) on the issue of the meaning of the 2nd amendment, Justice Stevens argued (while "reading his dissent from the bench, an unmistakable signal that he deeply disagreed,") :
The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.

The view of the Amendment we took in [United States v. Miller (1939)]—that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons—is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption.

The Court today tries to denigrate the importance of this clause of the Amendment by beginning its analysis with the Amendment’s operative provision and returning to the preamble merely “to ensure that our reading of the operative clause is consistent with the announced purpose.” Ante, at 5. That is not how this Court ordinarily reads such texts, and it is not how the preamble would
have been viewed at the time the Amendment was adopted.
Stevens not only read from the bench but "he spoke dismissively of the court's 'newly discovered right' and said decisions about gun control should be made by legislatures." Justice Breyer addressed the D.C. ban itself and chastised the majority:
On the majority’s reasoning, if tomorrow someone invents a particularly useful, highly dangerous selfdefense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so. In essence, the majority determines what regulations are permissible by looking to see what existing regulations
permit. There is no basis for believing that the Framers intended such circular reasoning.
As Lyle Denniston notes at SCOTUSblog, despite the length of the opinions (154 pages combined), much is still up in the air after this decision. A flood of litigation from pro-gun advocates such as the NRA will undoubtedly follow, but having clarified what the 2nd amendment "means" still leaves open the question of what to do with the plethora of laws concerning gun control that are already on the books. Other than a big pay day for lawyers, we really don't know what will come next.

Nevertheless, the Heller decision is one of those "landmark" decisions criminology and law students will be discussing decades from now, and the issue of gun control will almost certainly become a political hot potato in the general election.

Both presidential candidates issued statements, and with the next president possibly getting two or three appointments to the court in their first term (and given how close this decision was to going the other way), the Court itself could become a political issue this fall as well.

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