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.
He shows that this is not an issue. In those cases where the
court has considered the Second Amendment, it has done so under the
assumption that it protects an individual right.
Most important, Scalia makes official what is obviously the
correct interpretation of 1939’s U.S. v. Miller. Gun
controllers have claimed this decision found the Second Amendment
to confer only a collective right. Here is the ruling’s most
debated passage:
In the absence of any evidence tending to show that
possession or use of a [sawed-off shotgun] at this time has some
reasonable relationship to the preservation or efficiency of a well
regulated militia, we cannot say that the Second Amendment
guarantees the right to keep and bear such an instrument. Certainly
it is not within judicial notice that this weapon is any part of
the ordinary military equipment or that its use could contribute to
the common defense.
It’s clear the issue is what kind of gun the individuals had, not
what kind of people the individuals were. If the problem was that
men were bootleggers and not militia members, the court would have
said that instead of debating whether a sawed-off shotgun is
“ordinary military equipment.”
What’s interesting here is that many appellate courts have
upheld gun-control laws based on a profound misreading of
Miller. With Scalia’s interpretation in a Supreme Court
majority opinion, these decisions will be particularly vulnerable
to new legal challenges.
In the future, the Court will have to decide where the
Amendment’s practical limits are. Scalia by no means solves the
issue in toto, but he does much to alleviate concerns
about everyday folks running through the streets with machine
guns.
The opinion continues the “common use” standard set forth in
Miller — the Second Amendment will not protect unusual or
particularly dangerous weapons (sorry,
guys). Likewise, the justice explicitly directs courts not to
construe Heller as striking down restrictions on felons
and the mentally ill owning guns, and notes that historically,
American courts have often upheld bans on concealed carry.
With such an evenly divided court, conservatives and liberals
each win their fair share of victories. But rarely is an opinion on
such a controversial topic so incisive, and joined by a majority
without a muddle of confusing concurrences.
