It’s not much of a surprise to see the Supreme Court strike down the District of Columbia’s gun laws, which had effectively banned handguns and required that any long guns be stored in non-functioning states.
But until the opinions in this closely watched case became public yesterday, it was not clear how emphatically the justices would do so, how much they’d disagree amongst themselves, or how sound their reasoning would be.
During oral argument, Justice Anthony Kennedy worried people when he, apparently seriously, posited that the framers must have had in mind a “remote settler” who needed to “defend himself and his family against hostile Indian tribes and outlaws, wolves and bears, and grizzlies.” However, the decision in District of Columbia v. Heller is good news all around.
Justice Antonin Scalia’s majority opinion forthrightly states that 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.” It strikes down both the gun ban and the requirement of non-functionality.
Equally encouraging is that, while the majority comprised only the bare minimum of five justices, Scalia’s opinion speaks for all of them, with no concurrences. A 6-3 decision would have provided more cushion for the fight ahead, but this is about the best pro-gunners could hope for at this point in the game.
And there is a fight ahead. Since D.C. is a federal enclave, the court didn’t have to decide whether the Second Amendment applies to state and local laws, or just to the national government. Also, we don’t yet know exactly what forms of gun control will fly.
BUT THE OPINION itself, a thorough, well-written, impeccably argued, 64-page mountain of evidence, is most impressive of all.
It accomplishes four important things: It examines the text of the Second Amendment itself; it sifts through the historical record; it parses the language of past Supreme Court decisions; and it makes clear that the Amendment has its limits.
The Amendment’s wording is where most debates start: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Some have looked at “Militia” and claimed that only militia members have Second Amendment rights, or that all individuals have Second Amendment rights, but only for militia-related purposes. Others have seen “the people” — elsewhere in the Constitution, when “the people” have a right, all the people have the right — and stopped right there.
There are two ways to resolve the apparent contradiction, and Scalia employs both. The first is to remember that, in the Founding era, the militia and the people were basically the same entity.
The second is to put the Amendment’s two phrases into a hierarchy. “A well regulated Militia, being necessary to the security of a free State” simply states a purpose, and can be used for clarification. “[T]he right of the people to keep and bear Arms, shall not be infringed” is what actually describes the right, and should take precedence. Both approaches lead to the conclusion that individual Americans have a right to own guns.
Another way to ascertain the Amendment’s meaning is to look at the historical record, and find clues as to how the Framers’ successors interpreted the words. Scalia provides example upon example of historical documents discussing the Second Amendment in clearly individual-rights terms.
To wit, in 1825, William Rawle wrote, “The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give to congress a power to disarm the people.” Antislavery advocate Joel Tiffany wrote that “the right to keep and bear arms, also implies the right to use them if necessary in self defence.” And so on, ad infinitum.
OF COURSE, on many constitutional issues, the Supreme Court has conveniently “evolved” away from the original meaning. So it became necessary for Scalia to examine the relevant precedent, and look for any inconsistencies with the historical interpretation.
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