Thursday, June 26, 2008

Heller decision

This morning the Supreme Court released its opinion in the case of D.C. v. Heller, which I've discussed a bit before. At issue was whether the District of Columbia's ban on privately held pistols and strict limitation on long guns and the manner in which long guns are stored violated the Second Amendment of the Constitution. I'm sure the legal and gun blogs will be full of this for the rest of the day and a while. In any event, did the Court find an individual right protected by the Second Amendment?

Shortly, by a 5-4 vote of the Supreme Court, the answer is "yes". You can find the opinion (unfortunately, right now only in the form of a 157 page pdf) here.

Lots of good, chewy stuff in the majority opinion (authored by Justice Scalia)for those who have been following Second Amendment scholarship for a while. Much historical and grammatical review. For example, the majority first notes that the initial clause of the Amendment ("A well regulated militia, being necessary to the security of a free state,")is a prefatory clause and does not limit or expand the operative clause ("the right of the people to keep and bear arms, shall not be infringed."). Hurrah for logic and the hope that the pernicious-but-silly argument that the Second Amendment protects only the right of the states to arm militias has seen its end. Lower courts have been writing "the people" out of this section of the Constitution for too long.

No, wait. Based upon the dissent, the argument is not over and that idea still has legs. From Justice Scalia's footnote (footnote 3) on this section: "JUSTICE STEVENS says that we violate the general rule that every clause in a statute must have effect. But where the text of a clause itself indicates that it does not have operative effect, such as the "whereas" clauses in federal legislation or the Constitution's preamble, a court has no license to make it do what it was not designed to do. Or to put the point differently, operative provisions should be given effect as operative provisions, and prologues as prologues."

Amazing how some arguments and sentiments come up again and again. From the majority opinion (slip op. at 18) referring to the early American edition of Blackstone's Commentaries (pretty much the most important early legal compendium and commentary) which came out in 1803 "...Americans understood the 'right of self-preservation' as permitting a citizen to 'repe[l] force by force' when 'the intervention of society in his behalf, may be too late to prevent an injury'". Of course (and not in the opinion) today the same sentiment is common and popularly phrased as "when seconds count, the police are only minutes away."

Bad news:
with respect to U.S. v. Miller, the last case (circa 1937) when the Supreme Court considered a constitutional challenge to a firearms law. First, at page 49, the majority notes that "Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons." At page 52-53, the majority concludes that Miller's "ordinary military equipment" language (which was where that opinion concluded that short-barreled shotguns were not protected by the right to keep and bear arms, as they did not constitute ordinary military equipment such that the militia might use) must be read with the understanding that, when called to militia service, citizens brought with them arms in common use at the time for lawful purposes such as self defense. The majority concludes "[w]e 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."
This interpretation is repeated and expanded a bit on page 55 of the slip opinion. I'd look for the statement to be heavily relied upon in future court decisions regarding restrictions on the type of weapons which can be possessed. In this effort to preserve the Miller case, the majority's opinion is disappointingly circular and ahistorical. As to the first, the law bans short-barreled shotguns, then a court relies upon the fact that short barreled shotguns are not typically possessed by law abiding citizens to conclude that the law is ok. As to the second, Ithaca Auto & Burglar? H&R Handy-gun? (To clarify for those who don't follow or understand the links, I refer to two moderately popular short-barreled shotguns manufactured expressly for personal defense and rendered illegal by the National Firearms Act of 1935.)

Apart from the very important recognition (by the majority only) that the Second Amendment preserves a historical right, I find the meat of the policy portion of the decision and the guarantee of years of future litigation here- from the majority opinion, page 54: "Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose....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."

On the other hand, when examining the actual DC law at issue, the majority rejects the "rational basis" test. (Slip op. at 56). Further, there is some nice language that ought to lead to reconsideration of statutes in places like Morton Grove. From p. 57-58 "Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid." and "We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional."

In an earlier post (also linked above) I mentioned professor Lawrence Tribe's suggestion that the individual right to keep and bear arms would not prohibit banning arms in certain locales, such as urban areas. Interestingly, this comes up in the Heller decision and dissent. In his dissent (there are two) Justice Breyer proposes that an interest balancing test be used to determine whether laws unconstitutionally infringe the right to bear arms, suggesting that such a test would allow the D.C. statute. Here is a big quote from the majority opinion that I find generally appealing and that I also find the perfect answer to the proposition in Tribe's article and Justice Breyer's dissent:

The majority, slip op. at 62-63: "JUSTICE BREYER arrives at his interest-balanced answer: because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED. We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. 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. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people-which Justice Breyer would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home."

I've read a bit of commentary suggesting that the Court is less adversarial under Chief Justice Roberts, but that is not evident in this opinion. For example, in discussing a construction of "to bear arms" that limits the meaning of the phrase to military service Scalia writes- "The right 'to carry arms in the militia for the purpose of killing game' is worthy of the mad hatter" (Slip op. p. 16).From footnote 14 "Faced with this clear historical usage, JUSTICE STEVENS resorts to the bizarre argument....". Justice Stevens in response, (Slip op., Stevens Dissent at 17) "Indeed, not a word in the constitutional text even arguably supports the Court’s overwrought and novel description of the Second Amendment". Not terribly collegial, but rather strong debate.

More, perhaps, later.


Matt Mullenix said...

Excellent commentary counselor! So, does this mean DC homeowners can pack legal heat??

mdmnm said...

Thanks, Matt!

Not yet, and maybe not for a long time. The mayor of DC has said that the city is working on new restrictions, apparently to be as strict as they think they can get by with. The decision is actually pretty narrow in terms of striking down only the out-right prohibition on hand guns and the absolute requirements that guns be kept locked, unloaded and inaccessible in the home, but leaving open the question of what other restrictions are permissible.

My guess? DC bans the carry (concealed or open) of firearms in the streets and leaves in place the current zoning ordinance forbidding gun stores. Hard to pack legal heat when you can't buy it and can't get it home. After litigation, such ordinances will also be struck down, but that will take years and $$$.