I’ve finally finished reading D.C. v. Heller, the 157-page monster Supreme Court ruling regarding possession of handguns in DC. Now for my comment (please excuse the poor citation form; all cites refer to the slip opinion):
Gun rights supporters far and wide have hailed this opinion as the cornerstone for a move toward eliminating unconstitutional and oppressive gun laws. They have pointed to a variety of solid principles espoused by the majority including the all-important “individual right” to keep and bear arms. Unfortunately, I am unconvinced, and I think that everyone should read the opinion a little more carefully before celebrating any sort of victory. The opinion is largely a language lesson, but along with the lesson and interpretation, the court lands a few principles that are bound to prove troublesome to gun owners.
The Court begins by recognizing that the right to keep and bear arms is not only an individual right, but is also a right that pre-exists the Constitution. This is important because the Court recognizes that since the right pre-exists the Constitution, it is not dependent upon the Constitution but is based upon self-defense, a basic human right that cannot and “shall not be infringed.” [19]. This is all based upon a well-reasoned and historical argument that I believe is 100% correct, however, the Court then goes on to do exactly what it argues cannot be done: infringe upon the right.
Despite Scalia’s fantastic justification and explanation, he decides that it can’t be good for people to have an unlimited and uninfringed right to keep and bear arms. You can be sure that the Court is not prepared to overturn centuries of gun laws in one fell swoop. With that in mind, Scalia compares the right to keep and bear arms to the right of free speech:
There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not . . . [t]hus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. [22].
From there on out, infringement ensues.
Even though it is not part of the question before the court, Scalia yields to temptation and begins to enumerate just a few of the ways that the federal government can “reasonably” infringe this “limited” right to keep and bear arms. He states that,
[f]rom Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose [cites withheld]. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. [54, emphasis added].
He then goes on to support laws preventing the possession of firearms by felons and the mentally ill, laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, laws imposing conditions and qualifications on the commercial sale of arms, and laws preventing the possession of dangerous and unusual weapons. [54-55].
Breyer smells blood in the water and, in his dissent, asks the question that jumps to my mind:
I am similarly puzzled by the majority’s list, in Part III of its opinion, of provisions that in its view would survive Second Amendment scrutiny. These consist of (1) “prohibitions on carrying concealed weapons”; (2) “prohibitions on the possession of firearms by felons”; (3) “prohibitions on the possession of firearms by . . . the mentally ill”; (4) “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings”; and (5) government “conditions and qualifications” attached “to the commercial sale of arms. Why these? Is it that similar restrictions existed in the late 18th century? The majority fails to cite any colonial analogues. [42-43].
Breyer is asking why in the world the Court would begin by stating that the right pre-exists the Constitution and shall not be infringed, turns around to make all those exceptions, and then rules that restrictions on handguns are off limits? It seems arbitrary at best. The Court tries to justify the discrepancy by pointing out that “[t]he handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for th[e] lawful purpose [of self-defense].” [56]. Breyer and I both find the distinction to be unconvincing.
Breyer sums it up like this:
Nor is it at all clear to me how the majority decides which loaded “arms” a homeowner may keep. The majority says that that Amendment protects those weapons “typically possessed by law-abiding citizens for lawful purposes.” This definition conveniently excludes machineguns, but permits handguns, which the majority describes as “the most popular weapon chosen by Americans for self-defense in the home.” But what sense does this approach make? According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machinegun. On the majority’s reasoning, if tomorrow someone invents a particularly useful, highly dangerous self-defense 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. [42].
I completely agree with the reasoning, but I anticipate a far different outcome than the relaxation of machine gun laws. The limitation on machine guns is predicated on the fact that most Americans do not use them for self defense. However, this is not because machine guns are ineffective for self-defense, but because the federal government made them so hard to obtain in the first place. The reasoning is circular, and therefore undermines the opinion. Worse yet, it creates an opportunity to eliminate possession of entire classes of firearms simply by taking advantage of an unwillingness or inability to exercise the right to keep and bear arms to its fullest, either because of laziness or red tape. Basically, if most of the American people don’t own, and use for self-defense, every possible firearm allowed under this “uninfringed” right, then the right is able to be infringed.
What a disaster. The argument Scalia is advocating arises from nothing more than a reluctance to eliminate what he feels are important limitations on the Second Amendment. Everyone should be worried when the Court’s feelings determine how deep infringement will cut into rights that pre-exist and are not dependent upon the Constitution.
Stevens does not ignore this inconsistency in his dissent either. He notices that “[i]f use for self-defense were the relevant standard, why did the Court not inquire into the suitability of a particular weapon for self-defense purposes?” [43, emphasis added]. I wondered the same thing. How can the Court spend so much time stating that individual self-defense is the reason for the Second Amendment, and then allow limitations on the right that significantly restrain such self-defense i.e. concealed carry, machine guns, possession by certain individuals, etc.? In fact, the Court supports limitations on certain weapons simply because they are not popular for self-defense, not because they are unsuitable for self-defense.
Scalia has not only undercut his own well-reasoned argument, but he has also set the starting point for government interference. Think about it. When has the government ever taken a Supreme Court opinion and not stretched it to it’s very limits? Never. They continue to chip away, piece by tiny piece, at individual rights, and this opinion leaves the door wide open by stating that “[a]lthough we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions . . . . [54]. The stage is set.
For gun owners, we now have an affirmed right to have handguns in our home; a right that the vast majority of us possessed already. In return, we now have a Supreme Court opinion that justifies and supports limitations on concealed carry, location of carry, possession by individual classes of people, possession of certain classes of weapons, and increased commercial red tape. While these laws were already in place, they were essentially unchallenged at the Supreme Court level, and most states have made their own interpretations until now. To put it mildly, I don’t think the trade-off will benefit gun owners at all. What may not have ever been a problem for most gun owners may now come back to bite us all. The danger is clear, and the limitations are coming. Mark my words.
