Thursday, June 26, 2008

Heller Is In And...

It disappoints in many areas. While it affirms that the right to keep and bear arms for defence of self and property, it also leaves intact an array of infringements on the right.

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 of the operative clause. The “militia” comprised all males physically
capable of acting in concert for the common defense. The Antifederal-
ists 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 arms-
bearing 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 interpre-
tation. 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, con-
cealed 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 fire-
arms 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 scru-
tiny the Court has applied to enumerated constitutional rights, this 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 arbi-
trarily 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.
There you have it. The decision that affirms an individual right that most of us already knew existed. Unfortunately, in affirming that right it leaves intact certain provisions which are clearly infringements upon that right. Things such as licensing and registration are allowable under this ruling, as are weapons bans like the assault weapons ban.

While I applaud the decision, I cannot help but be concerned about certain clarifications in the decision.
Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.
This one sentence undoes everything which went before, as it presents the Amendment as something which does not apply to the states, only to the Feds. Whether is will be applied in that fashion is an unknown which will obviously play out over the coming months and years. If Heller is allowed to stand, as is, then we will undoubtedly see the challenges mount in places such as Chicago, New York and Los Angeles. I can't wait to see them, either. These cases will likely see their day before the SCOTUS, just as Heller did and will serve to further clarify the issue. Not that it needed clarification for some of us. I'm still going to have to sit and think about this one for awhile and then see how it plays out.

Dave Codrea, over at War On Guns has some insight, as well. The War on Guns: HELLER AFFIRMED.

Congratulations to the Heller team and all those who supported them from the outset, (that would not be the NRA, for those who have paid attention).

UPDATE: Radley Balko wades in and touches on the incorporation issue in the Heller decision. Or really the lack of incorporation.
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KipEsquire said...

You're misreading the passage. Scalia is NOT saying that these PAST "reaffirmations" are still good law. Indeed, he goes on to note that Cruikshank, upon which Presser and Miller were based, also held that the First Amendment did not apply to the states. But today it obviously does.

Incorporation jurisprudence is completely different from what it was in 1894. Those cases are not dispositive -- or even particularly relevant.

Michael said...

He didn't say they were "bad" law, either, Kip. As Balko points up, Scalia isn't a fan of incorporation in any case, otherwise why include the comment?