District of Columbia vs. Heller (opinion) is in the books, and the Second Amendment now protects a elementary individual right to keep and bear ordinary firearms for self defense without federal interference. The decision leaves open the question of whether the Second Amendment is “incorporated against the states” (DC being a federal enclave). I logged some background earlier, here and here.

DC’s gun ban permitted no hand guns (pistols) in the District, nor any “long guns” (rifles, shotguns) unless kept disassembled and unloaded or trigger-locked. The 5-4 decision in Heller threw out these restrictions as violative of the Second Amendment’s command that:

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.

Justice Scalia wrote for the majority, joined by crucial swing voter Kennedy and fellow conservatives Alito, Thomas and Chief Justice Roberts. Opposed were the more liberal Justices Stevens, Breyer, Ginsburg and Souter, with Stevens and Breyer writing separate dissenting opinions joined in by all dissenters.

The opinions are exquisitely lawyered arguments. Both sides go into minute detail crafting their justifications and expend considerable ink refuting the opposing position and rebutting those refutations. This isn’t necessarily unusual in Supreme Court opinions, but in reading these I was struck that this must be the finest example of the genre. I was left with the strong impression that it’s impossible, objectively, to tell who is right.

Scalia treats the “Militia” portion (the first half) as an irrelevant ”preamble”:

But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.

…

‘It is nothing unusual in acts . . . for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.’

…

[I]n America “the settled principle of law is that the preamble cannot control the enacting part of the statute in cases where the enacting part is expressed in clear, unambiguous terms.”

Then he argues that according to the documents of the time, “people” meant all able men. And ”Timothy Cunningham’s important 1771 legal dictionary defined “arms” as”:

“any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.”

“Useth in wrath.” Gotta love that.

Scalia dwelt at length upon what seems to me to be the very Lockean, liberal (rather than Hobbesian ultra-conservative, subjection to sovereign authority, rejection of checks and balances, tolerance of abuses of power) idea (ideal?) of armed rebellion against government tyranny quoting many fine thoughts:

“This may be considered as the true palladium of liberty . . . . The right to self-defence is the first law of nature: in most governments it has been the study of rulers to confine the right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.”

…

It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.

…

There are many reasons why the militia [ie: an armed populace, according to Scalia’s view] was thought to be “necessary to the security of a free state” … when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.

An interesting choice of support by this particular Justice in the current political climate. In a hypothetical scenario one wonders if millions of armed citizens marching on Washington D.C. to “resist tyranny” would be hailed by Scalia as heroes or snubbed as traitors. Sign Scalia up for the rebellion!

Of course, the idea of widespread armed rebellion in the United States is so far beyond the pale as to be laughable - which begs the question as to why Scalia repeatedly cites it. The answer is his reliance on “originalism” as his chief interpretation tool. Trying to give effect to what the Founders meant at the time, regardless of changes wrought in the following 2+ centuries. However, Justice Stevens also takes an originalist approach in his opinion, and comes to an opposite conclusion. In the vast amount of heady commentary written on Heller at Balkinization, I noted one scholar’s opinion that Stevens did this on purpose to contest Scalia’s philosophy that only originalism could lead to a correct view of our Constitution.

It’s funny to me that the Ninth Amendment isn’t specifically used to support an individual right to self defense:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Scalia repeats several times that self defense is a right that predates the Constitution. I agree, and I think the right of self defense is the most basic and fundamental human right - a natural right from which all other rights flow. Arms are necessary for self defense because without adequate arms, we would be at the mercy of the physically strong in a confrontation. Our minds have been the key to our success as a species, and the technology (firearms) that is a product of our minds and extension of ourselves ought to be reasonably available to anyone in order to “level the playing-field” when self defense is necessary.

So I agree with the decision, but on Ninth Amendment rather than Second Amendment grounds. It still bears repeating (because it’s funny) that the late Mr. Conservative Strict Constructionist Chief Justice Burger said of an “individual right to bear arms”:

In 1991, former Chief Justice Warren Burger even described the “individual rights” view of the Second Amendment as “one of the greatest pieces of fraud—I repeat the word ‘fraud’—on the American public by special interest groups [the National Rifle Association] that I have ever seen in my lifetime.”

Must be the ”living Constitution” in action, the strict constructionists of today seeing things so differently. I can enjoy the irony while appreciating that the conservative justices ”discovered” a “new right” for us that I approve of. They will of course protest that the right has been there all along. But Burger would disagree.

Suit has been filed in Chicago to overturn that city’s gun regulations similar to the ones thrown out in Heller. This will be the next big battleground in the ongoing Second Amendment litigation. Will watch this one and update as information comes out.

B

The District of Columbia is appealing the cancellation of its handgun ban by the D.C. Circuit Court of Appeals (opinion, background). If the Supreme Court agrees to hear the case (deemed likely), it will be the High Court’s first statement on the Second Amendment since 1939, the Washington Post reports.

The Second Amendment states:

“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.”

A split in interpreting the Amendment’s meaning has developed among the federal Circuit Courts of Appeal, with the 5th Circuit, and now the D.C. Circuit focusing on the second clause (right of the People to keep and bear arms) and various other Circuits focusing on the first clause (well regulated militia). This conflict among the Circuits makes it more likely that the Supremes will take the case.

We may know by next summer whether the government (the Feds, at least) may ban the possession of certain “arms” by citizens. It is interesting to note that per a 1876 Supreme Court decision (U.S. v. Cruikshank - opinion text), the Second Amendment was not “incorporated against the States” by the Fourteenth Amendment - a matter of some debate in Constitutional Law circles. There is a good summary of this interesting case at BillofRightsInstitute.org: 

In Cruikshank, the Court acknowledged the right to keep and bear arms, and explained that the right was older than the Constitution. “The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.”

However, the Court declined to force Louisiana to protect that right to keep and bear arms, because the Bill of Rights only served to limit the actions of the federal government and not the state government. Although the Fourteenth Amendment has been interpreted many times since its passage to apply parts of the Bill of Rights to actions of state governments, Cruikshank did not make this determination. In fact, the Second Amendment remains one of the few portions of the Bill of Rights that the Supreme Court has not applied (or “incorporated”) to state governments.

Will be watching this case, hoping SCOTUS grants cert.

B

Thoughts on police-chase case Scott v. Harris. Watch the police videos here.

The crucial question is whether the Deputy Scott’s act (running Harris off the road) was a reasonable seizure under the 4th Amendment, or whether it was unreasonable and therefore violated Harris’s 4th Amendment rights. The case is a short education on “summary judgment” - which the Supreme Court majority renders in favor of Scott by reversing the judgment of a three judge panel of the 11th Circuit and the original District Court Judge, all of whom denied summary judgment.

The reasonableness of an act is a question of fact for the jury - until a judge takes the determination out of the jury’s hands by deeming that “no reasonable jury” could find the act reasonable/unreasonable. When a judge makes that determination, he is deeming the act reasonable/unreasonable as a matter of law.

This is the only way to win by summary judgment - the evidence viewed in the light (with the inferences) most favorable to the nonmoving party must be such that no reasonable jury could find in favor of the nonmoving party. Thus, there being no genuine issue (relevant disputed fact) for trial, summary judgment is appropriate.

Justice Scalia concludes his summary judgment discussion, writing:

When opposing parties tell two different stories, one of which is blatantly contradicted by the record [the video], so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Slip Opinion, Opinion of the Court @ 7.

But whether a party’s “story” is “blatantly contradicted by the record” is a determination of fact - Scalia’s own determination of fact. Disagreeing with Scalia’s decisive personal feelings about the facts are the District Court Judge, the Eleventh Circuit’s three judge panel, and Justice Stevens. Based on their differing view, these judges conclude that summary judgment is inappropriate and the jury should decide the case.

Justice Stevens, in his solo dissent, skewers Scalia and the majority perfectly, writing:

If two groups of judges can disagree so vehemently about the nature of the pursuit and the circumstances surrounding that pursuit, it seems eminently likely that a reasonable juror could disagree with this Court’s characterization of events. Slip Opinion, Dissent @ 8.

The majority Justices seem too comfortable with their own fact-finding prowess, branding fellow sitting judges and potential jurors unreasonable for their actual and potential disagreement. You are unreasonable, I am not.

Isn’t this is exactly the sort of disagreement of perception that should make denial of summary judgment automatic: eminently reasonable people steeped in the law have already disagreed in interpreting the facts?

What’s your opinion?

B

Dissociative identity disorder or pattern of parens patriae?

Garrett Epps and Dahlia Lithwick speculate.

An interesting read.

B