Thursday, June 26, 2008

A right to bear arms, if you can keep it

I wrote earlier that the Supreme Court's 5-4 decision (PDF) in D.C. v. Heller that the Second Amendment recognizes and protects a pre-existing individual right to bear arms is a "bit weak." I didn't mean that the reasoning is weak -- indeed, it picks up on decades of scholarship about the language, drafting and legal history of the Second Amendment. Linguists, historians and legal scholars had already done the hard work and Justice Scalia eagerly took excellent advantage of their efforts leading to the logical conclusion that the Second Amendment means what it says.

Instead, by "weak," I meant that the right recognized as constitutionally protected by the court is pretty tightly constrained -- relative to what I would have liked to see, anyway. But that "weak" right is better than I feared it might be and stands as a pretty satisfying victory under the circumstances.

Scalia starts off by comparing the Second Amendment to the finite limits of the First Amendment:

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

Well, all right. But what does that mean?

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should 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.26 We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

Those restrictions that Scalia finds consistent with an individual right to keep and bear arms go quite a bit further than any limits we'd consider reasonable on First Amendment rights. It's impossible to imagine the courts permitting bans on the mentally ill or convicted felons speaking their minds about matters of public policy. Nor is it possible to imagine, say, a requirement for background checks or waiting periods on anybody starting a blog passing constitutional muster. And there's no requirement that publishers refrain from using "unusual" or "dangerous" (especially powerful?) media, even in these days of campaign finance "reform."

The court also avoids the question as to whether the Second Amendment is incorporated through the Fourteenth Amendment -- that is, whether it protects Americans not just from federal laws, but also from state and local laws. It seems likely that it is incorporated, but that will have to be definitively established by future litigation.

But the right recognized by the Supreme Court isn't meaningless. For starters, the court finds that Americans have a right to possess handguns in their homes and "a complete prohibition of their use is invalid." It also finds that D.C.'s requirement that rifles and shotguns be stored in an inoperable condition, rendering them useless for self-defense, is unconstitutional. Scalia goes on to write, "the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home."

That means the Second Amendment now means, in terms of law, at least something like what it quite clearly says. That's probably the best we could have hoped for under the circumstances, given the reality of political pressures and the kamikazi passion of opponents of the right to keep and bear arms, even those on the Supreme Court.

Kamikazi passion?

Why sure. Try this on:

Framers used the phrase “the people” in these constitutional provisions. In the First Amendment, no words define the class of individuals entitled to speak, to publish, or to worship; in that Amendment it is only the right peaceably to assemble, and to petition the Government for a redress of grievances, that is described as a right of “the people.” These rights contemplate collective action. While the right peaceably to assemble protects the individual rights of those persons participating in the assembly, its concern is with action engaged in by members of a group, rather than any single individual. Likewise, although the act of petitioning the Government is a right that can be exercised by individuals, it is primarily collective in nature. For if they are to be effective, petitions must involve groups of individuals acting in concert.

Similarly, the words “the people” in the Second Amendment refer back to the object announced in the Amendment’s preamble. They remind us that it is the collective action of individuals having a duty to serve in the militia that the text directly protects and, perhaps more importantly, that the ultimate purpose of the Amendment was to protect the States’ share of the divided sovereignty created by the Constitution.

That's Justice Stevens arguing in his dissent that the use of the phrase "the people" indicates a collective right -- even in the First Amendment. In his zeal to prevent the recognition of an individual right to bear arms, Stevens was willing to surrender constitutional protections for individual rights to assemble and to petition the government. Think of it as a constitutional scorched-earth policy, with Stevens tossing long-established rights on the burning barricades.

Even if Stevens' side was destined to lose, the right we got from the court could have been a lot weaker. In a separate dissent, Justice Breyer wrote:

[T]he District’s law is consistent with the Second Amendment even if that Amendment is interpreted as protecting a wholly separate interest in individual self-defense. That is so because the District’s regulation, which focuses upon the presence of handguns in high-crime urban areas, represents a permissible legislative response to a serious, indeed life-threatening, problem.

Such reasoning suggests the outcome that I actually feared in this case: a "right" to bear arms that provided no protection against government action at all.

So, just how vigorous is the protection provided by the Supreme Court's recognition of an individual right to keep and bear arms? We should start finding out soon. The National Rifle Association has already announced plans to file lawsuits on constitutional grounds against restrictive laws in Chicago, some Chicago suburbs and San Francisco.

The Heller decision was only the beginning of a long process of hammering out just how far courts are willing to go in defending gun rights.



Anonymous Anonymous said...

^^ nice blog!! ^@^

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March 19, 2009 1:01 AM  

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