Gun ruling was an easy call
The Supreme Court's conclusion yesterday in the D.C. gun case was a no-brainer, which is a sad commentary about dissenters Stevens, Ginsburg, Souter and Breyer.
But the argument that the Second Amendment invokes an individual right to keep and bear arms was so obvious that even wishy-washy Anthony Kennedy had to side with the common-sense faction of Scalia, Roberts, Thomas and Alito.
The court's principal finding is this: "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."
Any other interpretation would have been unthinkable in early America, where frontier defense and hunting for food required the handy use of firearms.
Not many people rely on hunting to feed their families these days, but the defense imperative is every bit as relevant. The ban on private ownership of firearms in the District of Columbia, with very limited exceptions, has made honest citizens more vulnerable to attack in their own homes by criminals unlawfully armed.
The amendment's reference to a well-regulated militia has been an eternal source of confusion but should be separated from the individual right plainly stated, Scalia wrote in the majority opinion.
From the court's summary: "The handgun ban and the trigger-lock requirement (as applied to
self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the
home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional."
The opinion was fair and reasonable, acknowledging limitations:
"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."
Above all, it was correct -- an easy call. Too bad some justices refused to go along.
In terms of presidential politics, the ruling has put Barack Obama on the spot.
Worth reading: Georgetown law prof Randy Barnett's commentary in the Wall Street Journal.
One interesting sentence: "Believe it or not, Heller was a case of nearly first impression, uninhibited by any prior decisions misinterpreting the Second Amendment."
And another: "In the future, we should be vetting Supreme Court nominees to see if they understand how Justice Scalia reasoned in Heller and if they are committed to doing the same."
Comments (11)
To report abuse of the comment feature on this site, please use the feedback form at the bottom of any page.
Obama will remain "hazy" on his comments until his people run a poll and determine what most people want to hear. They he'll tell them what they want to hear, whether he believes in it or not. He's a Democrat, it's what they do.
Posted on June 27, 2008 9:41 AM
No brainer? By what bizarre logic could the phrase "well-regulated militia" possibly be referring to an individual? If it's such an easy call why has the court consistently ruled since 1939 up until now that it did not refer to an individual right? I think it's a no brainer, but the other way. This decision is completely wrong.
Posted on June 27, 2008 9:51 AM
I should add though, that the ruling was no surprise. This is one issue that liberals have totally and completely lost, which is why it's been years since the Democrats have actually raised the issue. A lot of issues are trending left such as capital punishment and gay rights, but this one is certainly not. I don't think it'll change soon.
Posted on June 27, 2008 10:00 AM
Andrew Clark, please cite the previous USSC cases (you said..."consistently ruled since 1939") in which they decided the Second Amendment did not apply to individuals. I don't think the Court has EVER made that declaration.
Most Americans understand that the Bill of Rights is about individual rights. It restricts the government's power over the citizenry; it doesn't give the government power over the citizens.
Yesterdays decision just clarifies it for those who were confused or mislead.
Posted on June 27, 2008 10:00 AM
From the syllabus of yesterday's ruling:
"None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather
limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54."
Posted on June 27, 2008 10:07 AM
Andrew, your phrasing, "This is one issue that liberals have totally and completely lost" seems to bemoan the fact that the Democrats haven't been successful in denying American citizens the rights guaranteed by the US Constitution and the Bill of Rights. Are you proud of the Democrats despicable quest to trample the rights of law-abiding citizens and make a mockery of the Constitution millions of Americans have fought for and died to preserve? Perhaps that's why the Dems have "lost" touch with common Americans.
Posted on June 27, 2008 10:09 AM
In the 1939 case US vs Miller the court unanimously ruled that a sawed-off shotgun had no "reasonable relationship to the preservation ... of a well-regulated militia" and was thus not protected by the Second Amendment. They went on to talk about how sawed-off shotguns would not be helpful in collective, not individual, defense. Lower courts have been using this ruling since then to justify gun control laws.
Like I said this is a lost issue, but it is true that it's only the last few decades that this was seen as an individual right. Through most of our history it was viewed as a collective one.
Posted on June 27, 2008 10:11 AM
Obviously Dems haven't "lost touch" jaycee because as I said, they don't push the issue anymore. Did Al Gore call for more gun control? Did Kerry? Is Obama? The answer to all of them is no. NO ONE IS TRYING TO TAKE AWAY YOUR GUNS! I wish we could have more gun control, but I admit I'm in the minority on this one. However, Democrats are in the majority opinion on almost every issue right now, so I wouldn't call them out of touch.
Funny how the Second Amendment is the only one conservatives seem to care about, only they don't care about the first 13 words of it.
Posted on June 27, 2008 10:21 AM
As I said in my original post, it would have been unthinkable at the time the Bill of Rights was adopted to deny an American's individual right to keep and bear arms, and not only because citizens could be called on to form a militia. The right of defense of home and family was basic.
Forward to today. The right of individuals to defend their homes remains. This ruling leaves room, however, to limit the types of firearms permitted. Exactly how probably will be argued forever.
Posted on June 27, 2008 10:30 AM
Andrew, US v. Miller does not restrict the rights of individual to keep and bear arms. It's merely a regulatory issue, as Doug pointed out in his quote of the opinion: "It is not a right to keep and carry any weapon whatsoever..."
Andrew, do you fully understand the purpose of the Second Amendment? Here's a clue...it has nothing to do with hunting.
Posted on June 27, 2008 10:35 AM
If anybody is still worried about the right to bear arms being limited to militia service, I'm thinking about starting a Greensboro militia. I'd like to start small--perhaps with an invasion of High Point--but from there, who knows?
Besides the sacking of and spoils from smaller, weaker, militia-less municipalities, we'll rest secure in our second amendment rights.
Posted on June 28, 2008 1:51 AM