The American Spectator

Special Report

Uneven Stevens

By Robert VerBruggen on 6.30.08 @ 12:08AM

(Page 2 of 2)

In addition, there are historical documents, including state constitutions, where a right to "bear arms" for self-defense or hunting is explicit. As Scalia states, under Stevens's absurdist definition of "bear arms," "to bear arms for the purpose of killing game" translates as "to carry arms in the militia for the purpose of killing game."

Stevens also spends pages arguing that the Supreme Court's ruling in U.S. v. Miller interpreted the amendment as a militia-based right, making this interpretation a precedent worth more deference than Scalia gives it.

This is funny, because the anti-gun line used to be that Miller proved the collective-right theory. Neither proposition is true, as I detailed in this space Friday.

MOVING ON TO Breyer's dissent, the justice dooms himself by assuming the majority's interpretation of "keep and bear arms" -- when a city severely limits every citizen's right to keep arms (the handgun ban), and bars all citizens from bearing arms (the simultaneous requirement that all long guns be stored non-functional), how can that be a "reasonable" restriction on the right to keep and bear arms?

Because it passes Breyer's so-called balancing test. Sometimes, of course, such tests are necessary in jurisprudence. There really isn't a way to say why yelling "fire" in a crowded theater, or inciting violence, doesn't deserve First Amendment protection without weighing the value of the speech against the government's legitimate interest in regulating it.

But Breyer's reasoning is such a blatant stretch that he actually argues the law is "limited," as in limited to D.C., a high-crime urban area, and limited to handguns, the type of weapon most commonly used in crime. He forgets about the long-gun restriction whenever it's convenient to, and assumes this law wouldn't apply in self-defense cases, though D.C. law contains no such exception.

Also, since every handgun available for self-defense is also available for crime, Breyer reasons that any less restrictive law wouldn't control crime as well. (Breyer defers to the city that handgun regulations help with crime, which is fair for a judge to do, even though the city is dead wrong.)

When a test finds that a handgun ban is compatible with the right to keep arms, and that a handgun ban coupled with a ban on functional long guns jibes with the right to bear arms, it's a useless test.

There is no other constitutional right that state and local governments can carve up at will, with the excuses that the law is "limited" to their territory, and that any less restrictive law will, in their analysis of the evidence, hurt a governmental interest to some unknowable degree.

Scalia's opinion won the day, but the dissenters remain four of the most important figures in American life. It's sad to read the faulty logic they find compelling, or more likely, claim to.

Letter to the Editor

topics:
Constitution, Law, Supreme Court, Military