A Law Student's Attempt to Understand It All.

Thursday, June 26, 2008


Full(er) discussion of DC v. Heller:

1. “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.”
2. “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.”
3. “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 prohibition—in the place where the importance of the lawful defense 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 first holding, that the Second Amendment is an individual right is fundamental. Had the court gone the way of the liberal justices, the second amendment would apply to the National Guard only. Scalia did a good job going through the history of the meaning of the purpose clause (“A well regulated militia…”), the operative clause (“the right of the people to keep and bear arms shall not be infringed”), and the relation between the two. Of particular note, Scalia does a good job of refuting the dissents’ contentions that the second amendment applied only to militias.

The first holding is so important because it gives the foundation on which to challenge/examine other gun laws. Not only does this case establish the individual right in the SCOTUS jurisprudence, it also gives a through justification for why it is a right. Also, the Court does not rely on “hunting” or “target shooting” as the rationale for the right, but one of personal security. That will be key in future cases.

The second holding, “Like most rights, the right secured by the Second Amendment is not unlimited,” troubles me a bit, but the rationales are actually pretty reasonable. Laws the prohibit felons and the mentally ill from possessing firearms and the like are expressly upheld (generally) by this ruling. I’m still bothered by Scalia’s upholding of banning guns at “sensitive places” like government buildings and schools only because the list of “sensitive places” keeps expanding. (Like I said, I’m an extremist in this area, and the discussion of which places should be able to ban guns is for another day.)

So too with the discussion of Miller, which was a case 70 years ago about a sawed off shotgun. The “unusual and dangerous” exception can make sense (really, the argument for allowing possession of RPGs, tanks, and claymores is on somewhat shaky ground). Historically speaking, the militia that won the Revolutionary War did so without the latest in military technology. While the language under this holding seems to indicate that the M-16 type tactical weapons may be banned, I think the language under the third holding may save the right to have “military looking/style” weapons (more on that later).

However, it is a real danger in the opinion’s language that modern military weaponry may be banned. It may come back as a back door ban on guns. For example, the Mexican Constitution allows for the right to bear arms that are not militarily useful. Since militaries use all sorts of calibers for various purposes, the end result of the Mexican law is that a Mexican citizen can only have a .22 which is useless in most self-defense situations. Most other calibers have been adopted by the Mexican military at one time or another and therefore are banned to the general populace. If we are not careful, that same reasoning could be applied under the language of the second holding in this case.

The third holding actually pertains to the Draconian gun ban in place by DC (Chicago and San Francisco have similarly harsh laws). It is important to note that DC is a federal district and therefore this ruling does not necessarily apply to states and normal cities.

Since the first holding established that the second amendment pertains to the right of self defense and guns are included in that right, then DC cannot outright ban handguns. What is interesting is that Scalia bases his rationale on the fact that handguns (as opposed to long guns) are overwhelmingly the choice for most Americans for self defense. This is where I think that the AR-15 and other “military style” semi autos will be found to be okay. Since so many people choose to buy them for home protection, then, under the reasoning of this third holding, the military style rifles cannot be banned (does not apply to full auto). This of course is reading into the text, but that is where I would start my argument in a future case to stop bans on semiautomatic rifles. This may be the saving grace from the problem that Mexican citizens face.

The third holding strikes down the outright ban on handguns in the home, the requirement that long guns be disassembled and have a trigger lock on at all times, and other nonsensical laws. One of the worst parts of the DC law was that a homeowner could not move his gun from room to room in the house. Wherever the gun was when the law was enacted in the 1970s, it must remain for all time.

I am bothered by the Court still allowing “licensing” of guns in DC. To license is the ability to restrict and ban. Indeed, DC had a licensing system—but NO ONE was ever granted the license. Thus, it was a practical ban. The court did not really address this problem and it should have. I suppose that’s another day’s litigation.

Scalia failed to explicitly state which standard of scrutiny the Court would take in examining gun laws. Of course, I want the strictest (“strict scrutiny”) that would make the government show a compelling state interest in the law-- which is a very difficult test to pass. The dissents wanted the lowest level of scrutiny: rational basis (asking, “Did the government have a rational reason for this law?”-- which almost any law can satisfy). Reading the tea leaves, it appears that the Court wants something higher than rational basis but I doubt the votes will be there for strict scrutiny. They may settle on something in between (intermediate scrutiny of some sort) in the future.

This was the best the pro-gun side could hope for. There is still going to be a lot of litigation to flesh out the limits of the right and or the limits of the government to regulate the right. The second and third holding in particular have some troubling caveats to the general rule. Yet, the opinion was well reasoned and fairly exhaustive and will provide a launching point to challenge other silly gun laws.

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