The Heller Opinion -- Please Comment:
Sorry our comments were down most of the day; if you'd like to comment about the opinion, please comment here. If you'd like to comment about the legal implications and political implications of the opinion, please comment on those threads above.
Also, though I won't pretend I'm stirred by the issue (despite being a 20 yr. gun owner), one couldn't help notice how emotional a stake seemingly everyone else around here had in this outcome. So congratulations to all of you.
Also, though I won't pretend I'm stirred by the issue (despite being a 20 yr. gun owner), one couldn't help notice how emotional a stake seemingly everyone else around here had in this outcome. So congratulations to all of you.
Overall, this opinion is a small legal step, but it's also the first step in the right direction on this issue in the history of the Supreme Court, and that's no small feat.
One quibble: at about p 52, Scalia gets a fact wrong.
Of course, Miller was never convicted. Also a bit later Scalia reads Miller as saying sawed-off shotguns aren't militia weapons, when Miller merely said that an evidentiary hearing would be required since the court wouldn't take judicial notice.
Kudos to Emerson's lawyer, for bringing the case that created the split that the court resolved today.
Scalia's argument that the 2nd ammendment protected an individual right to keep and bear arms by the people in general (as opposed to only members of a formal state fighting force) was quite persuasive but where the majority opinion fell down was in extending the protections of the 2nd ammendment to personal self-defense. And even assuming such an extension taking it to protect handgun ownership.
The citations Scalia made in support of the claim that the second amendment included a right to personal self-defense seemed to be only a couple sources who, shortly after the passage of the second amendment, wanted to interpret it in such a fashion. The fact that some lawyer said self-defense was an important provision of the second amendment is hardly compelling when weighed against the text of the amendment itself which emphasizes the concerns of common defense. Moreover, it seems unbelievable to me to suppose that at the time of ratification people were even worrying about the situation where the federal government let the people keep weapons suitable to warfare but barred them from keeping them available to fend off burglars. Given the understanding of the relation between the state and federal government at the time I doubt this was even on the radar so it surely can't be uncontroversially assumed that an ammendment designed to give citizens the right to carry infantry weapons extends to handguns.
Any weight that Scalia's quotes suggesting the second amendment included a right to weapons for personal self-defense might have carried is more than countered by Breyer's example of a ratification era law doing just what was supposedly unconstitutional in the DC law: barring the possession of loaded weapons inside the home. Scalia's rejoinder that such a law would have allowed the homeowner to load a weapon when attacked doesn't rebut the point. While I admit that one law is hardly conclusory it is at least as persuasive as the citations Scalia makes.
But even granting a right to own weapons for personal self-defense why does this protect handgun ownership? The fact that handguns are the most popular personal defense weapons seems wholly irrelevant to the issue. Maybe people buy them because they are cheaper, or because it makes them feel cool, or because they saw them in a movie. Unless long guns can be shown to be ineffective weapons for defending the home I see no justification that the DC ban on handguns was a violation of the 2nd amendment.
Also what categories of weapons does the majority opinion protect? Are tasers constitutionally protected? What about mace? Would they be constitutionally protected if they were more popular?
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Of course the way I read the 2nd amendment would lead to the most unpopular results imaginable. I would take the 2nd amendment to not protect handgun ownership but to protect the ownership of M16s, AK-47s and other equivalent weapons used by the average infantry soldier. Thus angering both the pro and anti gun forces.
So when Justice Scalia says that even if commonly held weapons would no longer suffice to fight an army, that "the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right" he's only begging the question. Even originalists like Justice Scalia agree that when you have a new form of medium crossing against the values of a core right, the right protects the new medium, such as free speech on the internet or the fpurth amendment in Kyllo. Indeed, Justice Scalia said so himself earlier in the opinon. Now that we have a new class of weapons, similar to historically unprotected ones in that they are not in common use (although largely do to congressional restriction thereof), but similar to historically protected ones in that they are absolutely essential to fighting tyranny should the constitutional social order breakdown, the only answer to the how to apply the second amendment to this new class of weapons is to turn back to its core values, including the right of citizens to defend themselves from against a regime set on tyranny. So why in the world does Justice Scalia hold M-16's aren't protected?
I'm going to guess so he could get a majority. As the no-death-penalty-for-child-rape decision showed, prudentialism can trump originalism as a way to interpret the Constitution (rapists would just as soon kill their victim, victim would hesitate to say they were raped as well as to finger the rapist if it meant "kindly Uncle Al" was going to be euthanized.)
Breyer's interpretation of those two ordinances seemed quite a stretch to me. The first one prohibited bringing a loaded firearm into a building, not possessing one once inside. The second one prohibited storage of gunpowder on certain floors of a building. To me, storage implies bulk, a keg or crate of gunpowder, not the trifling amount in a loaded muzzleloader, or even the few ounces in a powderhorn. (If you held a fishbowl over your head, could you be considered to be underwater?)
I fully agree with you there. The 1st amendment's freedom of the press and speech was designed primarily to protect political speech. But authors, filmmakers and strippers having don't have to justify their speech on political grounds to use the protections of the 1st amendment. It is their right, they can use it however they please.
I like to buy old TV's and watch Death Wish and shoot the bad guys along with Charles Bronson; that use of handguns isn't protected by the 2nd amendment. But it doesn't matter. Because I have the right to keep, bear, and shoot arms as long as I don't use the gun for an unlawful purpose, like robbing a bank, I can use my right however I want. It is a personal right, the government can't tell me how I can use it, within reason.
"Congress shall make no law ... or abridging the freedom of speech"
has never stopped the Court from OKing laws passed by Congress that abridge all kinds of speech.
Because "abridging" is not a synonym for "regulating".
"Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. "
Of course confrontations may occur outside the home, and you can carry arms to the expected or possible confrontation. It is interesting to read the later references to "carry" in the opinion with this meaning in mind.
"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."
The carry aspect has limitations.
The cases cited regarding carrying include Nunn, which struck down a law prohibiting open carry. Scalia opines "Its opinion
perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right..." Nunn also upheld a ban on concealed carry.
Another case cited is Chandler, which stated Louisiana citizens had a right to carry openly.
Elsewhere, "The understanding that the Second Amendment gave freed blacks the right to keep and bear arms was reflected in congressional discussion of the bill, with even an opponent of it saying that the founding generation “were for
every man bearing his arms about him and keeping them in his house, his castle, for his own defense.” "
Notice bearing arms about him _and_ keeping them in his house. This leaves the door open to bearing arms outside the house.
"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"
Note that only the laws regarding carrying weapons in "sensitive places' are mentioned. How about places that are not sensitive, including going about your business during the day?
Who on earth are you talking about; can you please identify "Flipper"? No justice in Bowers ever "flipped". Justice Powell later stated he regretted his vote, but he's not getting reappointed to the court any time soon. The Supreme Court still doesn't allow dead people to vote.
Or perhaps you mean Justice O'connor, who invalidated the Texas statute in Lawrence on equal protection grounds? Those grounds were left open in Bowers, so there was no real flip, and in any event, it's highly unlikely she's getting back on the court.
Don't say Justice Kennedy; not only wasn't he on the Bowers court, he didn't even ever serve with Justice Powell, the justice he replaced. If the "flipping" you're referring to is Justice Kennedy's change vis a vis. executing juveniles, remember that under the court's eighth amendment jurisprudence, what's constitutional today can become unconstitutional tomorrow when standards of decency change. This simply isn't the case with other constitutional rights, as Jsutice Stevens forcefully argued in a 7-2 opinion this year in Danforth v. Minnesota. While Justice Kennedy dissented there, the fact remains that, to my knowledege, he's never voted to reverse himself on a constitutional issue outside of the eighth amendment.
The four dissenters form today's decision are out, as they don;t have to "flip" to reverse course. And I doubt you can find me a case where Roberts or Alito reversed themselves on a constitutional issue.
I'm forced to conclude you mean Justice Scalia or Justice Thomas. Justice Scalia changed his mind about the double jeopary clause's application to successive punishments, and Jusitce Thomas chnaged his mind about the the right to have a jury determine the fact of a prior conviction.
Could you please tell me whether you think it will be Scalia or Thomas reversing himself, sending Heller the way of Bowers, and why?
For the same reason that Miller holds that the NFA is constitutional. That is to say, that the NFA is not a prohibition, as such, even if prohibition was the intended effect.
Selective fire weapons, "destructive devices", and AOWs (any other weapon) are not, as commonly believed, absolutely illegal in the United States. Yes, they are subject to strict federal and state rules, but not outright banned for the most part (except vis à vis the FOPA).
This is the same logic that leads the Court to find in favor of the Respondent in Heller. The Heller decision holds that outright prohibition is unconstitutional, reasonable regulation is not.
Now, I admit that under this line of reasoning, the NFA might indeed be found unconstitutional on the grounds that the requirements of the NFA do not meet a suitable standard of scrutiny as to their reasonableness, but now that we have 70+ years of inflation behind us, the tax requirements of the NFA amount to little more than an annoyance, rather unlike their original effect. The FOPA strictures, on the other hand, in my view *do* amount to a prohibition, and as a result, an argument can be made that the FOPA could be in more danger than the NFA.
Personally, I wonder why Scalia decided to hang his hat on "in common usage" rather than "suitable for militia usage" when referring to Miller.
I disagree with your characterization of the strength of the dissent's arguments, but there is an interesting question that needs to be asked about the majority opinion:
Why, if the majority finds it acceptable to discuss possible self-defense exception to the historical ordinances, do they not find it acceptable to allow for the Petitioner's insistence that self-defense exceptions exist to the current District ordinances? In both cases, such exceptions were not explicitly stated, so where is the difference?
Now, that's a bold argument to make on a site like this!
I would think that the more proper method would be to say:
Unless handguns can be shown to be inherently less acceptable weapons than long arms for defending the home, I see no justification that the DC ban on handguns does not violate Amendment II.
So, carrying swords and pistols, for the purpose of dueling, will likely remain illegal? I for one, am disappointed.
The citation is: Clayton E. Cramer and Joseph Edward Olson, "What Did "Bear Arms" Mean in the Second Amendment?", 6 Georgetown Journal of Law &Public Policy 511 (Summer 2008). It is cited [in its forthcoming version] by Justice Scalia on page 15 of the Supreme Court's opinion.
In addition, majority opinion footnotes 7 and 9 refer to a number of items that first appear in print in the Cramer/Olson article. And, on page 38, the opinion cites Johnson v. Tompkins (CC Pa. 1833), a case that the Cramer/Olson paper first brought into the RKBA discussion.
The duo have another article on -- "Pistols, Crime, and Public Safety in the Early Republic" -- coming out in the next issue of the Willamette Law Review as well.
Professor Olson is also the author and lead lobbyist behind the Minnesota Carry Permit Law (one on the least restrictive). See: Joseph E. Olson, The Minnesota Citizen’s Personal Protection Act of 2003: History and Commentary, 25 Hamline Journal of Public Law &Policy 21 (2003).
Ohh really? So if the government passes a law banning the possession of poison blowguns it would be presumptively unconstitutional until we had reason to believe they were less effective for defending the home? Surely that can't be right.
So let me put the question this way. What distinguishes something like say some neurotoxic poison necessary for poison darts that allows the government to forbid it but not handguns? It seems to me that the general rule we use when evaluating whether a law is constitutional is whether someone's constitutionally protected right has been seriously burdened. So long as long guns are not substantially less effective (should have worded it this way) than pistols at defending the home then no one's constitutionally protected right has been seriously burdened even if you assume personal self defense is protected by the second amendment.
Kazinski:
The difference between the 1st and second amendments is that the 1st amendment doesn't include an explicit clause emphasizing it's relation to the specific intent in question. I think it's reasonable to take the explanatory clause in the 2nd amendment to guide the type and sort of armaments protected by the 2nd amendment.
Besides, we do make use of the motivations and considerations underlying the 1st amendment when we decide it's scope. Consider the various arguments deployed as to whether the 1st amendment protects certain kinds of factually false speech.
Ultimately the question with the second ammendment is this. Practical revolvers did not exist at the time of ratification. Nor did practical machine guns or SAMs. We have to decide how to extend the underlying principles behind the 2nd amendment to these new technologies (just as we have extended the 1st amendment to digital communications).
Now if you really believed your absolutist analogy with the 1st amendment presumably you would take the 2nd amendment to protect SAMs and machine guns. You might try to argue that these aren't 'arms' but they are man portable infantry weapons. Thus it's simply impossible to offer a reasonable interpretation of the 2nd amendment without going back and trying to extend the underlying principles you take it to be protecting.
Or alternatively explain how your interpretation of the second amendment makes a principled distinction between the types of weapons that receive protection and those that don't. My interpretation does this easily but I don't see such an account for other interpretations.
I don't recall when dueling with a sword and a pistol was considered sporting.
The showing is trivial. Which are preferred by their users? If I felt the need to keep a firearm in a dresser drawer beside the bed, I would greatly prefer a handgun over a long gun. On the other hand, if I were a shop owner looking to keep a firearm under the counter for defense against armed robbers, I would prefer a shotgun.
There is no need for an evidentiary showing regarding stopping power or other details primarily of interest to professionals. The question is answered simply by the preference of the public at large.
Ohh really? So if the government passes a law banning the possession of poison blowguns it would be presumptively unconstitutional until we had reason to believe they were less effective for defending the home? Surely that can't be right.
So let me put the question this way. What distinguishes something like say some neurotoxic poison necessary for poison darts that allows the government to forbid it but not handguns? It seems to me that the general rule we use when evaluating whether a law is constitutional is whether someone's constitutionally protected right has been seriously burdened. So long as long guns are not substantially less effective (should have worded it this way) than pistols at defending the home then no one's constitutionally protected right has been seriously burdened even if you assume personal self defense is protected by the second amendment.
You've misconstrued my argument, so let me try to be a little more clear. A ban on handguns (or any other entire class of weapons) is presumptively (or in this case, now clearly) unconstitutional, at least in part because there is no compelling governmental interest or demonstration that handguns carry with them an inherent risk to the public, especially when used in defense of one's person or home, that is substantially greater than the risk posed by a long arm.
In fact, if there is greater risk to anyone at all, it is that the use of a long arm rather than a handgun may pose a greater risk to the defender himself, as well as innocent bystanders, in many respects. Your seeming lack of consideration for this point clearly indicates to me that you have less familiarity with firearms and/or their ballistic properties than you may need to make such a determination.
There is a reason why increasing numbers of jurisdictions are proscribing the usage of rifles for hunting in or near urbanized areas. It is an unfortunate, but necessary, stricture to prevent accidental injury.
Please note that I did not use the term "less effective" for a particular reason. The term I used was "less acceptable", because this term potentially encompasses more situations than your "less effective". I mean "less acceptable" in the sense that it would apply to a clear and compelling governmental interest in public safety to ban the usage of a particular class of weaponry. Certainly, it requires little effort to envision situations where a handgun would be less effective than a long arm for the purposes of defense. This is one of the reasons why we have different types of arms available to us in the first place.
As far as poisons are concerned, aside from their regulation under other statutes, there is no substantial difference between a poisoned blowgun and a conventional firearm, except that it is likely that the survival rate of those hit by bullets may be larger than those hit by poisoned darts. In any case, use of poison would likely cause a conventional projectile weapon, be it firearm or blowgun, to fall under the purview of the NFA, or other such legislation designed to proscribe extraordinarily destructive weapons.
As Heller demonstrates, the Court contemplates at least some regulation, and the tone of the opinion leads one to believe that the Court has no intention of allowing private possession of such extraordinarily destructive weapons.
The showing is trivial. Which are preferred by their users? If I felt the need to keep a firearm in a dresser drawer beside the bed, I would greatly prefer a handgun over a long gun. On the other hand, if I were a shop owner looking to keep a firearm under the counter for defense against armed robbers, I would prefer a shotgun.
There is no need for an evidentiary showing regarding stopping power or other details primarily of interest to professionals. The question is answered simply by the preference of the public at large.
I disagree. The preference of the public is not evidence; however, "stopping power or other details primarily of interest to professionals" is not the sort of information that we need to examine.
What we need to examine is whether or not there is any substantial and compelling public benefit to be derived from limiting usage of a particular class of arms. In the case of handgun v. long arm as pertains to defense within one's home, there is not only no clear benefit to society to be obtained by banning handguns, there is a clear detriment imposed upon the defender by such a ban in some respects, as detailed by the majority opinion in describing various benefits to the defender in choosing a handgun over a long arm.
I thnk the clear answer (according to a proper interpetation of the second amendment) is that the second amendment guarantees the right to own anything that could reasonably be necessary to use against an opposing tyranical force. In the absence of evidence that poison blowdarts are necessary, they'r unprotected. Same for nuclear and biological weapons. But unquestionably machine guns, tanks, armor piercing bullets, and anti aircraft missles should get and need constitutional protection. And there's little reson to fear and doomsday scenario with private ownership of those weapons unless one has an unreasonable (and not consistent with that of the founding generation)belief that government has the right to a monopoly on effective use of force.
If a judge has a strong "feeling" or personal preference about how a case should resolve (results-based adjudication), but knows what the "right" answer should be are there occassions where they will decide based on their feelings and write a dissenting opinion that way, simply because they KNOW that the "right" side has enough votes to win without them? Essentially, that they can indulge themselves when it won't have any practical effect?
I see that in Heller. Stevens's and Breyer's dissents are so poorly conceived and intellectually dishonest that I hardly believe those two justices could actually believe that that is the right way of approaching the constitutional question, so I wonder if they just decided to vent and put something out there that they believed, regardless of how irrational it was, because it wouldn't change the outcome.
If the plain text of the 2nd amendment were given as part of a reading comprehension test there would be four justices who would certainly fail.
The only alternative to this interpretation is that they understood what they read and decided to ignore it. In either case it is difficult to see how they are fit to continue sitting on the court.
I'm going to guess so he could get a majority.
Since when does a majority have to agree on every point in a single opinion? Most prognosticators seemed to expect that at least 6 or 7 justices would vote for some kind of individual right, but that the majority would be split among several opinions. I'm surprised that not a single justice wanted to state a more aggressive pro-liberty position than the "in common use" nonsense so easily ridiculed by Breyer.
starrydeceases:
For the same reason that Miller holds that the NFA is constitutional. That is to say, that the NFA is not a prohibition, as such, even if prohibition was the intended effect.
But the FOPA of 1986 does contain a prohibition, and many of us are concerned that Scalia's "in common use" argument will be used to uphold that outright prohibition of post-1986 machine guns, as well as the complete bans on all machine guns that exist in several states.
FantasiaWHT:
Stevens's and Breyer's dissents are so poorly conceived and intellectually dishonest that I hardly believe those two justices could actually believe that that is the right way of approaching the constitutional question, so I wonder if they just decided to vent and put something out there that they believed, regardless of how irrational it was, because it wouldn't change the outcome.
The one part of Breyer's dissent that shines is pointing out Scalia's intellectual dishonesty regarding the "in common use" portion of the majority opinion, which flies in the face of the earlier section discussing how the Second Amendment, like the First, is not limited to technologies that existed at the time of its adoption and prima facie applies to all bearable arms.
And it is also reasonable to limit a class of weapon? Machine guns for example? Are we not told to be in mortal fear because "if we do not fight them over there they will come here?" At least, if they come over here should we not be able to own, unencumbered, weapons with burst mode?
Is a sawed-off shotgun not a great weapon against home invaders? Who says it is not?
The SCOTUS decision says we have an individual right but a right afforded only with restrictions. Huh?
That hole needs to be plugged. Rights have no preconditions save one: conviction in a felony and, it seems more and more these days, everything is becomng a felony crime.
Only a partial victory, in my opinion.
I agree. I wonder if he had to include that to get Kennedy to come along?
I agree. I wonder if he had to include that to get Kennedy to come along?
If so, I just pray that the legal challenges to the 1986 machine gun ban wait until a new justice or two has been appointed by someone other than Barack Obama.
In the case of a majority opinion, I think since always. Unless you think one or more justices could strongarm the fifth one into signing on.
If you think majority justices should write separate concurrences ("My inspection of the historical evidence indicates Bazookas for everyone!"), perhaps those would have swayed AMK unfavorably. Piling on can be annoying. Judging by the lack of convincing originalist arguments in the dissent ("It's all about the militia! Militia militia militia!"), the minority simply rationalized their prejudices ("Guns are bad. Guns kill.") so Scalia could not risk pissing off the big guy.
But the FOPA of 1986 does contain a prohibition, and many of us are concerned that Scalia's "in common use" argument will be used to uphold that outright prohibition of post-1986 machine guns, as well as the complete bans on all machine guns that exist in several states.
True, but that didn't really impact what I was talking about, because the FOPA didn't exist at the time of Miller, which was the case to which my response pertained. In any case, I think that the Heller decision provides solid ground on which to overturn the FOPA. The FOPA constitutes an absolute prohibition, in my opinion. The NFA does not (even if I think that certain portions of the NFA might need relaxation).
True, but I didn't say "majority opinion," I just said "majority." As you noted, a majority can be made up of multiple minority opinions concurring in result. Similarly, five justices could have signed on to a narrowly written umbrella opinion, while one or more wrote separately to expand on their views, just like how all four dissenting justices signed both of the dissents.
Your response pertained to Miller, but you were saying that Scalia didn't say that M-16s were protected for the same reason. In any event, Scalia writes:
It looks like "in common use" defines the arms that the right extends to. Do you see anything in the opinion suggesting that absolute prohibitions are off-limits for weapons that are NOT "in common use" as Scalia defines it?
I don't think you understand their mindset. The view they had going in was, "they couldn't possibly have meant this!" So they looked long and hard for an alternative interpretation. Not to hate on my fellow liberals, but the law is the law.
Congrats to Eugene, by the way.
Short response. I would argue it isn't the role of the court to determine the best weapon for home defense purposes. So long as both long guns and handguns provide an effective defense of the home it is up to the political branches of government to weigh the harms caused by increased muzzle velocity and risk of greater penetration with the potential harms from accidents and use in criminal activities with respect to handguns.
I'm not arguing that it is the better policy to only allow long guns. I'm suggesting that so long as an effective means to defend the home is reasonably available then any supposed right to self-defense hasn't been violated.
Respondent:
Actually you are mostly agreeing with what I was saying. I think the class should be the arms deemed necessery to issue to generic infantry soldiers (like M-16s) but that is the direction in which I was arguing. Since handguns are neither necessary nor particularly effective in armed combat they shouldn't be protected.
We learn sentence construction (grammar) in 8th &9th grade.