D.C. vs. Heller

Posted on Friday, July 11, 2008 at 12:03 AM

The Supreme Court recently ruled on the D.C. vs. Heller case.  Heller, a special policeman living in Washington D.C. challenged the handgun ban in the district.  He tried to register to keep a handgun in his home for self-defense, and was denied.  It is also illegal in D.C. to keep a long gun in the home unless it is disassembled, or secured with a trigger lock.  These laws have done little to limit crime seeing as how D.C. has among the highest murder rates in the country.

This ruling by the Supreme Court was HUGE!  It's the first time the Court has ever officially determined that the Second Amendment is an individual right and not tied to service in a militia.  Some people are skeptical about just how much this is really going to help reducing gun restrictions and ensuring gun rights.  They may be right, but it effectively ends the debate between the militia right vs. individual right camps.  What it doesn't do is say definitively how much power the states have to regulate guns within their own borders.  It addresses federal power only.  States are still free to restrict guns as much as they can get away with under their own constitutions.

I had a friend give me a copy of the majority opinion.  It was a long read, but an excellent one.  It beautifully lays out the historical arguement for an individual right to keep and bear arms, and shoots down Justice Stevens' dissenting opinion point by point.  Below are some points that I thought were outstanding:

1.  The right the keep and bear arms is a natural (God-given) right, not a privilige given by the Constitution.

"The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it "shall not be infringed".  This is not a right granted by the Constitution.  Neither is it in any manner dependent upon that instrument for its existence."

2.  The whole reason the militia is mentioned in the Second Amendment is because citizens needed to use their natural right to bear arms to form militias that could oppose threats, even from their own government.  If the federal government disarmed the people, they could not form militias to oppose it.

"That history showed that the way tyrants had eliminated a militia consisting of all able-bodied men was not by banning the militia but simply by taking away the people's arms, enabling a select militia or standing army to suppress political opponents.  This is what occured in England that prompted codification of the right to have arms in the English Bill of Rights"

"The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right.  Most undoubtedly thought it even more important for self-defense and hunting.  But the threat that the new Federal Government would destroy the citizens' militia by taking away their arms was the reason that right was codified in a written Constitution."

Self-defense was the central reason for the right's existence.  The fact that the militia is mentioned in the Second Amendment is only because the right of self-defense had little to do with the reason the amendment was written.

3.  In challenging the district's assertion that long guns are sufficient for home defense, and hence handguns can be banned, Justice Scalia writes:

"It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon.  There are many reasons that a citizen may prefer a handgun for home defense.  It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other dials the police.  Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home and a complete prohibition of their use in invalid."

4.  Legislatures or judges cannot change the interpretation of a Constitutional amendment simply because they think it's original meaning no longer applies.  In this case, Justice Stevens (dissenting) proposed that since gun violence in America is a problem, and because the D.C. law is limited to an urban area, and because there were similar restrictions in the founding era (Scalia shoots down these supposed "similar restrictions" earlier) the "interest-balancing" inquiry results in the constitutionality of the handgun ban.  Here's Scalia's response:

"We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding "interest-balancing" approach.  A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all.  Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad."

And then my favorite quote:

"Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem.  That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct."

Amen.