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D.C. v. Heller

The Supreme Court has issued an additional couple of important 5-4 decisions in the past week. The bigger one is the District of Columbia versus Heller [PDF], in which the Court (through Scalia) officially rules that the Second Amendment says what it does.

Held:

1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.

(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.

The Second Amendment is quite clear that the right to bear arms is held by the people for the reason of having a militia of high quality, a militia being that set of able-bodied men who can take up their arms to defend the country in the event of war. The reason may have become quaint in the age of paid professional armies and expensive military hardware, but the active part of the law stands.

Despite Scalia declaring that the first clause "does not limit or expand the scope of the second part", he sees the Court as bound by the unanimous precedent of U.S. v. Miller which saw the first clause as actionable. Specifically, Miller found a regulation of sawed-off shotguns to be allowed under the Constitution because sawed-off shotguns are of little use on the battlefield. Scalia goes on to weave his interpretation with Miller and explain how the second part may indeed be limited by the first clause; I will discuss this later.

What is as interesting as the case is to observe the popular reaction to the Heller decision as compared to Boumediene. In general, the people who cry safety in Heller will be found to have supported Boumediene on the matter of law, while those who cried safety to oppose Boumediene will support this decision on the matter of law. It is not just the whimsical public who follows this pattern. Eight of the nine Supreme Court justices also ruled in one of these two ways. Only Kennedy ruled on both cases in what may be considered a strict constructionist manner.

The majority five include the supposedly conservative group of Alito, Kennedy, Roberts, Scalia, and Thomas, while the four opposed are the supposedly liberal set of Breyer, Ginsberg, Souter, and Stevens. I say supposedly because the more expansive reading of the Second Amendment that is supported by the majority is the more liberal one, while the more restrictive reading of the dissenters is the more conservative.

There has been no notable Supreme Court activity on the issue since U.S. v. Miller in 1939 upheld the National Firearms Act of 1934 which taxed certain types of weapons to discourage their trade. In this void there has somehow become a widespread notion that the Second Amendment only applies to the right of the government to own guns under the authority of a regular force that the government names a "militia". This is ridiculous on its face -- why would we need a Bill of Rights to let the army have weapons? -- but that did not stop it from becoming a mainstream opinion in the late 20th century.

Knowing how much the media will simplify this issue, it is important to note that the Heller decision is not a gun nut's dream. Scalia makes a declaration which explicitly allows for gun regulation like the Brady Bill. Regulation has to pass the sort of test laid out in Miller, such as a restricted weapon not being in common military use.

Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those "in common use at the time" finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.

Ironically, the Miller test goes against the safety trend in gun legislation. The more assault in an assault weapon, the more likely it is to be constitutionally protected; it is the less lethal weapons, those that one would not see on a battlefield, that risk failing Miller. Scalia sees this as a problem, noting for example machine guns that the Firearms Act of 1934 also regulated. That part of the legislation has never been tested, as Miller only considered a sawed-off shotgun. Scalia decides to settle the issue:

The traditional militia was formed from a pool of men bringing arms "in common use at the time" for lawful purposes like self-defense. "In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same." ... We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.

So now we have what might be dubbed the Scalia test. Weapons usually used for criminal purposes may be regulated, as may be weapons not suitable for use in defense of person and home. Regulations on ammunition and clip size might also be allowed. He does not say (or I skipped over it if he did), but it seems to follow from the logic so far.

Now as for the part of the ruling relevant to the case at hand -- so much has gone on that one can be forgiven for forgetting that there ever was a case at hand -- there are two main issues with the District of Colombia law that Scalia et al struck down. One is the ban on all handguns. This fails the Scalia test because handguns are so popular for self-defense.

The handgun ban amounts to a prohibition of an entire class of "arms" that is overwhelmingly chosen by American society for that lawful purpose.

Scalia adds that handguns have special utility for this purpose that long guns do not, such as being easier to carry and handle in close quarters.

The second matter is the requirement that guns be disassembled or held by a trigger lock. Under the Scalia test, I do not see a problem with a local requirement that guns be locked or disassembled when not in use. However, the D.C. law requires guns be locked or disassembled at all times, with the only exceptions for policemen or recreational use. Since self-defense is not a permitted use, Scalia finds this part of the law to also be unconstitutional. I cannot disagree with this logic. If the bill had only said "when not in use", it might have stood.

Scalia also cites the little-known case of Nunn versus the State of Georgia where in 1846 the Supreme Court of Georgia found a ban on carrying handguns in public to be "contrary to, and in violation of the Constitution of the United States of America." The Nunn decision also upholds a ban on the concealed carry of weapons "inasmuch as it does not deprive the citizen of his natural right of self-defence, or of his constitutional right to keep and bear arms." Like Heller, it recognizes an expansive right to bear arms but is not an absolute ban on all regulation.

Stevens's dissent, signed onto by Breyer, Ginsberg, and Souter, is a repetition of the belief that the Second Amendment only protects the right of state governments to own arms.

As used in the Second Amendment, the words “the people” do not enlarge the right to keep and bear arms to encompass use or ownership of weapons outside the context of service in a well regulated militia.

The foundation of Stevens's argument seems to be that since some state Constitutions explicitly spelled out protections for civilian uses of firearms such as hunting, the lack of such explicit mention in the Second Amendment must mean these uses are not protected. For all that Stevens argues that what is not explicitly spelled out in the Second Amendment is not a protected right, I direct him to the Ninth Amendment, Griswold, and Roe. Stevens also says that the phrase "bear arms" can only mean to carry weapons into war, citing its Latin root ferre as having this meaning, to argue that the Second Amendment only refers to government-directed military activity in discussing a right to "bear arms". The word "bear" today also means to simply carry, and while I am no expert on Latin, some googling brings up sites saying "ferre" had both meanings.

The flow of Stevens's logic is that people may own firearms but may not use them for self-defense or any cause other than state-mandated military activity. The result would be a militia made of people who have never trained with the weapons they are supposed to go to war with. This would not be a well-regulated militia in the sense of the times, and would be at odds with the stated reason for the amendment. If Stevens were correct in his argument that the Second Amendment only allows for the government to arm and direct a militia, the Second Amendment would also be completely redundant with Article 1, Section 8 of the Constitution which grants Congress the power "To provide for organizing, arming, and disciplining the Militia" and to call forth the militia into battle. The Amendment would add no meaning, yet people saw a need for it and it survived after other prospective amendments were edited out of the Bill of Rights. It clearly protects something more than that.

Stevens's argument also rests upon the belief that the rationale given in the Second Amendment for the Amendment's existence is a restrictive clause rather than a mere explanation. Scalia, rebutting Stevens in his decision, cites research by UCLA law professor Eugene Volokh showing that explanatory clauses were commonplace in state Constitutions of the time. Yes, it was that Volokh who got cited in a major Supreme Court decision. He's sure to have some good discussion on his blog about it.

E.J. Dionne had an essay in today's newspaper citing Miller as support for Stevens's argument. Perhaps he should read it. Miller points out that the state-authorized standing armies viewed by Stevens as "the Framers’ single-minded focus in crafting the constitutional guarantee to keep and bear arms" were explicitly forbidden by the Constitution in Article 1, Section 10. Miller is rather clear in siding with Scalia's interpretation of the Second Amendment, not that of Stevens. It even points out that early on in the Colonies' existence, people were required to own weapons.

In summary, Heller was a surprisingly moderate decision from Scalia. While on the one hand declaring the Second Amendment inviolate, it opens up avenues to weapons restrictions that would not have been allowed under the precedent of Miller unless one were to severely misread that precedent, as Stevens and three other judges do.