Like any conservative legal enthusiast, I can’t pass up the chance to comment on the recent Supreme Court decision in DC v. Heller. This landmark case in one sweep vindicated the conservative position on the 2nd Amendment and forever destroyed the hopes of those who wished to render a critical part of the bill of rights meaningless and disarm the American populace. It’s not often one gets to see such a historic precedent set in modern times in a totally unexplored area of constitutional law, and the importance of this decision to American case law can surely not be overestimated. I only wish I had actually been able to see the oral arguments for it in March like I tried to.
Anyway, the actual decision is what I think what Dr. Farris would call a perfect example of the way an original intent decision is supposed to look. Scalia does an incredible job analyzing the historical basis for the 2nd Amendment and the conditions surrounding its passage, even going all the way back to English common law and the Glorious Revolution. His common sense analysis of the plain meaning of the amendment is particularly brilliant, and I loved the way he mercilessly rips apart the ridiculous views of the dissent, almost downright mockingly in some parts.
The decision starts by pointing out, “In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” It then goes on to point out what we knew all along, that yes “the people” means “the people” and not some nebulous collective entity or militia. And “keep and bear arms” means that individuals can keep weapons and bear them for purposes of self defense. I especially loved Scalia’s witty refutation of the linguistic contortions the dissent is forced to resort to in order to construe “bear arms” as referring only to militia service, in which he states:
“Giving “bear Arms” its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war—an absurdity that no commentator has ever endorsed. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.”
Almost as good as the snide comment in the 9th Cicuit case Silveira v. Lockyer that, “The military meaning is certainly among the meanings of “bear,” as is “large, heavily built, furry, four-legged mammal,” and “investor pessimistic about the stock market.” Really, you would think all this should be self-evident, and it’s kind of a pity we need the Supreme Court to tell us this.
The rest of Scalia’s analysis of the meaning and scope of the amendment was equally gratifying. I was glad the Court put to rest the illogical idea that taking an originalist interpretation of the 2nd amendment requires limiting the exercise of the right to 18th century weapons, commenting: “Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”
As expected, the Court took a relatively moderate position on what kinds of restrictions are permissible under the 2nd amendment, only outright invalidating laws banning people from keeping legitimate self-defense weapons in their house or rendering such weapons useless for defense. The Court left wide open the possibility for legitimate restrictions on excessively dangerous or unusual weapons, and it was quite careful to point out nothing in the decision should be construed to invalidate “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.”
This does however raise one significant concern, since while the Court acknowledge the 2nd amendment is not an unlimited right and is subject to reasonable exceptions, it refused to define the appropriate level of scrutiny to decide whether such exceptions are legitimate. One would assume that as part of the Bill of Rights it would merit strict scrutiny and the compelling interest test, and indeed the Court seems to imply this with its repeated analogies to the first amendment and other rights, but we can’t be certain. The only place the Court addressed the level of scrutiny was in a footnote where it rejects applying the rational basis test to the 2nd amendment (that is a comfort at least), saying, “If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.”
It also quickly smacked down Justice Breyer’s attempt to invent a whole new level of scrutiny with a nebulous “interest balancing inquiry” that would have been even worse than the rational basis test and would have also rendered the second amendment effectively meaningless. Scalia is particularly biting here, stating, “The very enumeration of the right takes out of the hands of government—even the Third Branch of government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.” So I guess that means we’re left with either strict scrutiny or intermediate scrutiny. While I believe the Court favors the former, which one it is be will ultimately have to be decided later.
Another thing I was disappointed about was that because DC is not a state; the Court was unable to settle the issue of whether the 2nd amendment applies to the states under the incorporation doctrine through the 14th amendment. If the other individual rights in the bill of rights are considered “privileges and immunities” under the 14th amendment which the states may not infringe, it makes sense that the 2nd amendment will be too, but that ultimately must wait to be decided in a later case, perhaps the newly filed companion case to Heller in Chicago.
Finally, I can’t help but close with the final words of Scalia’s opinion, which I think is probably the best statement I’ve seen in a modern Supreme Court opinion:
“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.” Well said.