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Heller Got His Gun: An Individual Right to Keep and Bear Arms

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.