In discussions of last Thursday’s District of Columbia v. Heller ruling, Justice Antonin Scalia’s majority opinion has, naturally, been front and center. But the two dissents are important as well. They show the four liberal justices’ complete willingness to subordinate the Constitution to their own policy preferences.
Justices John Paul Stevens and Stephen Breyer wrote the dissents. All four justices signed both opinions, more or less making them one opinion with two sections. Stevens argues that the Second Amendment protects a militia-based right, and Breyer claims that, even if the amendment does protect an individual right, D.C.’s laws — which effectively banned handguns, and required that long guns be stored in non-functioning states — constituted “reasonable” regulations.
Stevens’s dissent is the more substantive, though it does contain some rather embarrassing factual errors. Stevens concedes the amendment “can be enforced by individuals” and “protects an individual right” before going on to argue around what he just theoretically conceded. His opinion echoes the theory, put forth by scholars such as Jack Rakove and Saul Cornell, that the Second Amendment protects an individual right to use arms in conjunction with militia service.
(In recent years, this militia-based-right theory has supplanted the collective-right view — the Second Amendment protects the right of states to have militias, not the right of individuals to do anything, whether in conjunction with these militias or not — among anti-gun activists and scholars.)
Here is the text of the amendment, which Stevens tackles in order: “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.”
The absurdity begins with his interpretation of “the right of the people.” One major tenet of the individual-right theory is that “the people” appears numerous times in the Constitution, and it’s always assumed to mean “the people of the United States.” Therefore, the same reading of these words should apply to the Second Amendment.
Stevens claims the majority itself doesn’t read the amendment the same way it reads the First and Fourth (which also use “the people”) — Scalia says a ban on felons owning guns is OK, but obviously a felon still has free-speech rights.
Apparently, for Stevens, reading “the people” as “the people of the United States” is an all-or-nothing proposition. An exception for violent criminals demolishes the whole idea.
IT ONLY GETS more ridiculous. Stevens notes that within the First Amendment, “the people” is used only to refer to two rights, the peaceable-assembly right, and the right to petition the government for redress.
He writes: “These rights contemplate collective action. While the right peaceably to assemble protects the individual rights of those persons participating in the assembly, its concern is with action engaged in by members of a group, rather than any single individual. Likewise, although the act of petitioning the Government is a right that can be exercised by individuals, it is primarily collective in nature. For if they are to be effective, petitions must involve groups of individuals acting in concert.”
From there he claims that in the Second Amendment, “the people” simply refers back to the earlier mention of “Militia.”
Here, it seems Stevens is trying to strike at David Konig’s notion of an individual right exercised collectively (another way to state the militia-based-right view), but the examples simply don’t fit.
In the First Amendment, all individuals have the right to engage in the behavior described, even if that behavior is typically collective in nature. In neither case does the First Amendment exempt from protection those acting alone, or those acting outside a specific collective organization like the militia.
Stevens then claims that “bear arms” was a term of art used, at the time of the Constitution, to refer only to military action. To prove this he points to a friend-of-the-court brief giving some examples where the term happened to be used in this way, and as Justice Scalia notes in the majority opinion, “every example given…either includes the preposition ‘against’ [as in, ‘bear arms against’] or was not clearly [meant to refer to the military only].” Scalia also notes that Stevens thinks “arms” means something different as applied to “keep” instead of “bear.”
Follow the bouncing ball here: “keep arms” obviously refers to weapons, but “bear arms” is a term of art restricted to the military. “It would be rather like saying ‘He filled and kicked the bucket’ to mean ‘He filled the bucket and died,'” Scalia writes.
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.
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