DC v. Heller: A Dismaying Performance By The Supreme Court
One can interpret today's decision in the Heller case from both "external" political perspectives or from a more "internal" legal one. I begin with the former: My own hope, which was spectacularly unrealized, was that the Supreme Court would unanimously accept the very well-written and -argued brief by the Solicitor General, in behalf of the Bush Administration, which argued both that the Second Amendment indeed protected an individual right to "keep and bear arms" and disagreed with the particularly rigorous test that the Court of Appeals for the District of Columbia had applied to the D.C. ordinance. Thus, according to the Solicitor General, the Court should remand the case back to the court below for reconsideration under a proper, somewhat looser, standard that would still have easily supported invalidating the ordinance.
Unanimous acceptance of his sensible view might have helped to diminish at least some of the culture war that has been waged now for at least four decades between advocates of "gun rights" and "gun control," who have their own interests in demonizing their opponents. Instead, the Court fractured along an all-too-predictable 5-4 axis, with the five conservatives supporting the rights of gun owners and the four liberals (or, more accurately, "moderates") seemingly supporting the most extreme version of gun "control," which is outright prohibition. The Solicitor General also offered a way for the Court to make sure that gun control would not become a key issue in this year's presidential race. Now there is no avoiding it, though, as a partisan Democrat, I confess to being relieved that the dissenters did not prevail, for the upholding of the D.C. ordinance would, in effect, have served as a massive in-kind campaign contribution to John McCain.
Then there are the "internal" features of the opinions, more interesting, no doubt, to lawyers (and law professors) than to pundits, but not without their broader interest. One of the most remarkable features of Justice Scalia's majority opinion and Justice Stevens's dissent (joined by Justices Ginsburg, Breyer, and Souter) is the view that the Second Amendment means only what it meant at the time of its proposal and ratification in 1789-91. Thus they spend a total of 110 pages debating arcane aspects of the purported original meaning of the Amendment.
If one had any reason to believe that either Scalia or Stevens were a competent historian, then perhaps it would be worth reading the pages they write. But they are not. Both opinions are what is sometimes called "law-office history," in which each side engages in shamelessly (and shamefully) selective readings of the historical record in order to support what one strongly suspects are pre-determined positions. And both Scalia and Stevens treat each other -- and, presumably, their colleagues who signed each of the opinions -- with basic contempt, unable to accept the proposition, second nature to professional historians, that the historical record is complicated and, indeed, often contradictory. Justice Stevens, for example, writes that anyone who reads the text of the Second Amendment and its history, plus a murky 1939 decision of the Court, will find "a clear answer" to the question of whether the Second Amendment supports a "right to possess and use guns for nonmilitary purposes." This is simply foolish. Neither Scalia nor Stevens pays any real attention to a plethora of first-rate historical work written over the past decade that challenges this kind of foolish self-confidence.
What is especially ironic is that the strongest support for Scalia's position comes from acknowledging that the Second Amendment, like the rest of the Bill of Rights, has been "dynamically" interpreted and has taken on some quite different meanings from those it originally had. Whatever might have been the case in 1787 with regard the linkage of guns to service in militias -- and the historical record is far more mixed on this point than either Scalia or Stevens is willing to acknowledge -- there can be almost no doubt that by the mid-19th century, an individual right to bear arms was widely accepted as a basic attribute of American citizenship. One of the reasons that the Court in Dred Scott denied that blacks could be citizens was precisely that Chief Justice Taney recognized that citizens could carry guns, and it was basically unthinkable that blacks could do so. Thus, in effect, they could not be citizens. Charles Sumner, who, unlike Taney is quoted by Scalia, strongly endorsed the rights of anti-slavery settlers in Kansas to have guns to protect themselves against their pro-slavery opponents.
If one reads only Scalia and Stevens, one would believe that there is no dynamism to the Constitution, which is both stupid as a theory of interpretation and, more to the point, completely misleading as a way of understanding the American constitutional tradition.
All in all, a dismaying performance by the Supreme Court, whatever one thinks of the actual result.
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In self-defense they teach that the first principle is non-resistance. So let us begin that way.
Accept the ruling and the principle of Scalia and Stevens that there is no dynamism. Simply that means that anyone can have as many guns as he wants it is just that they can only be single shot muzzle loaded weapons. Since the founders did not have an automatic weapon such weapons are not covered.
For example when Burr and Hamilton had a duel they did not walk ten paces turn and fire their MAC 10s and kill each other their seconds and do injury to the doctor. No these were stand up guys. They turned, aimed carefully and fired the only shot they had.
This is the weapon the founders envisioned. If there is not dynamism then this is the weapon that is being talked about in the Amendment. In fact the founders would have been horrified at the idea of the automatic weapon. They were horrified when a knife was affixed to the end of a rifle in warfare.
So Scalia and Stevens can't have it both ways. Re-write the law so that it says only single shot muzzle loaded weapons are covered. Force the gun lobby to take it right back and get these strict constitution people in a corner. OK you can have your muzzle loaded weapons but anything else has restrictions because we want to well regulate our individuals that are part of our militia.
That philosophy is no different than saying the First Amendment protects only quill pens and hand-cranked presses, or that the Fourth Amendment protects only against unassisted physical searches and not sniffer dogs, backscatter X-ray, or electronic surveillance.
This ruling merely preserves the status quo in most of the nation. We OWN guns in this country---mostly nonhunting guns---and we will keep them. I know that riles a lot of conservative authoritarians and some corporatist DLC'ers, but this ruling is long overdue, and will help Dems immensely in November.
Personally, I don't care if people own guns or not. I know plenty of people across the political spectrum who own guns, whether for protection, collection, or enjoyment. Is it their constitutional right to own them? In my opinion and interpretation of the second amendment, I don't believe so. I feel that the amendment is clear that the right exists to create militias that were necessary at the time of our forefathers because they didn't have a standing army as we do today. However, guns were used commonly for defense and hunting then. So, I think the amendment and the everyday use really cause a lot of conflict in trying to compromise the meaning with respect to our rights. While I don't believe private guns ownership should subject to complete control, I do care about gun violence and responsible ownership. Unfortunately, in this day and age, both of those issues seem irrelevant to organizations such as the NRA.
". . . I do care about gun violence and responsible ownership. Unfortunately, in this day and age, both of those issues seem irrelevant to organizations such as the NRA."
That is demonstrably incorrect. The NRA has repeatedly called for strict enforcement of existing gun laws. The NRA supports multiple training programs to teach gun safety, including one that teaches schoolchildren that the proper way to treat guns is "STOP! Don't Touch. Leave the Area. Tell an Adult."
http://www
"From beginner to developing competitor, the NRA Training Department develops safe, ethical, responsible shooters . . ."
http://www
Neocons in the administration and right wing somethings in the Supreme Court. Hell, the court elected the president.
Dare you to approve this: Selfish Al Gore decided to put himself before the good of our country and started the entire legal mess in Florida. Be careful what you ask for…
Gun ownership is a defense against tyranny. Bush is a tyrant. Very easy to understand.
So since he is about the finish 8 years in office - how well has this defense worked for you??
This issue is not over - perhaps you would be able to assist in writing briefs for the upcoming set of related suits.
The briefs already submitted in this case will be edited, revised and submitted.
http://www
It's good to read a law professor's assessment of this decision. If it were an elegant decision, I would take the trouble to read it, but your description persuades me that it would not be very enlightening.
It is a shame that the court could not reach a concensus, and that Scalia seems to have treated the militia clause as wasted verbage. Some of the justices are too interested in advancing their agendas and not enough interested in writing coherent opinions worthy of stare decisis.
Two constitutional amendments turned on their heads this week, second and fourth. Different concepts, issues, but still. One by court crazies, one by house/senate elected office holders. WHO ARE THESE PEOPLE?
Great article Mr. Levinson. Thank you.
Today I listened to the full KPFA coverage of Yoo/Addington, the mafia guys.
What a depressing week.
Good post, but it changes nothing in my mind. I will choose my weapon over promises of a protector. Every jackman citizen in Switzerland owns a rifle because it is required. I see no high crime rates. The Swiss have the enviable position of never being invaded, in recent times (1000 years). A part of it is geography, but a lot of it has got to do with everyone being armed to the teeth. And as someone commented here, earlier, this government offers me no solace. Nah, thanks, but no thanks.
I always figured the Germans did not invade Switzerland because that's where they kept their money.
The Swiss are also a homogenous population, unlike the USA.
Umm, actually Switzerland is made up from three large groups, German, French and Italian. They also have smaller groups as well. They do have a history of democratic participation. (Referendums for everything) As for being armed, look at the countries and thier histories which surround them. And yes Switzerland has been invaded, they lost so badly to Napoleon that they decided to become a nuteral country (Same happened to Sweden) As for being armed, it is a part of your citizenship, the government supplies your arms and equipment and you will commit a certain number of days to the military under military law. You can escape your military commitment by doing non military service, but you have to pay a higher rate of income tax. (Now there is an idea to deal with the chickenhawks in the US. Don't go to Iraq or Afghanistan? OK you are now at a higher rate of tax!)
Careful, the Swiss have to pay almost 50% in taxes. They enjoy a Democratic Socialist lifestyle of free heathcare and education. They also don't require a standing army. We wouldn't want to trade our upward mobility just to keep our guns now would we?
This is the most thoughtful piece I have read on the huffingtonpost in a long time.
I really appreciate that the author can see both sides of the 2nd ammendment argument have merit. It's refreshing to read the thoughts of a man who doesn't believe that those who disagree with him evil or stupid or both.
In reading through parts of today's decision including both the majority and the dissent, I was dismayed by both sides selective and horrible use of history to support their views. I noticed how Scalia gave a lot of note of Stevens' dissent, which I found to be very unusual and quite conterversial.
Much like Bush v. Gore in 2000, this decision will be one of the most conterversial of the court's history. We know both sides will exploit this decision to lead to more confict and more cases coming to the US Supreme Court to define 'reasonable' regulation as to gun possession.
of course they are predetermined positions. The left gives these guys (the bush judges) too much credit, they have an ideology and care nothing about the constitution or the law. To fix this, we need to replace at least two of them. The supremes are just another wing of the political battle. I guess we need to look at this as a struggle on all fronts with no one neutral.
Of course they (Scalia in particular) are "another wing of the political battle," why do you think they were appointed in the first place?
Sorry Mr Levinson - with the Democrats too spineless to impeach the criminals Bush and Cheney - I'm happy that I have the liberty to protect myself from these thugs with my weapons.
Don't tread on me.
Sorry my friend. They won't be coming for you with the army. They will starve us out and overcharge us in ways we cannot yet even imagine.
Remember when we made stuff in this country and built highways, bridges and skyscrapers? Now we ship our raw materials over to our masters and get cheap trinkets in return.
The Multinationals and the foreign corporations own our airports, bridges and our skyscrapers. We have lost the battle already without even a single shot fired.
Good point about McCain using it---if it had gone differently--- as a wedge issue in the campaign. This "strict interpretation" of the Constitution strikes me as similar to taking the word of the Bible literally. Scalia would be the first to criticize Muslims for taking the Koran literally. I'm sure Scalia is a strict Catholic.
In any event, on this day, we have had Torture and Gun Ownership Politically and Legally Sanctioned. What a great day to be an American!
I don't think this is a strict interpretation of the Constitution. The militia clause was summarily dismissed by Scalia as if it weren't there. I'd like to see an opinion written by the only true strict constructionist, Hon. Hugo Black.
It is too bad a founder like John Jay on the first court didnt have the issue arise while on the court. I once tried to find out about the initial (founders) opinion on the exclusionary rule. I was surprised when I realized there are almost no federal 4th amendment cases until 1870's because there were so few federal crimes it just never came up in a federal court until after the civil war..
I'm a diehard east coast liberal, but I can accept private ownership of guns. (Mostly because I generally accept the world as I find it, not as I wish it to be.) However, I find it interesting that omitted from the debate is any extensive discussion on the distinction between long guns (rifles) and handguns (pistols). After all, the second amendment was written in an era when the milita was mostly armed with long guns (muskets probably). I think it we would all be more comfortable if unbridled ownership were allowed but limited to long guns, and (concealable) pistols were more restricted. Even the National RIFLE Association's name inadvertently points us in a more enlightened direction.
I believe that the City of Washington DC allows long guns. The issue was pistols. I agree with you 100%. Pistols are the problem in most cases. The issue of a "well regulated militia" seems to be lost on right wing judges. I wonder if we should bring back the draft in order to balance the 2nd amendment? All able bodied men can then own guns and show up on weekends for maneuvers.
This case is typically mischaracterized as involving a "handgun ban". The statute at issue does effectively ban handguns, but it also forbids keeping long guns in the home in operable condition (in order to comply with the law, they must be disabled, either by the removal of critical operating parts, or with some kind of lock). Thus, the law prohibits having any gun available for defense.
In addition, as the majority opinion notes: "There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upperbody strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police."
Not very accurate really. Dragoons were cavalry armed with pistols. Very common type of unit in the Revolution.
Apparently the Righties on the Supreme Court don't understand that the prefactory clause of "A well regulated militia being necessary to the security of a free State," clarifies the operative clause "the right of the People to keep and bear arms shall not be infringed.
so... now that the "originalists" have changed the original meaning, does that mean I can buy a gun and carry it around?... after all... it says "keep and bear"... and I want to "bear" it everywhere
Are you kidding me? A well regulated militia was everybody in the towns and villages who also used their firearms to put supper on the table for the next 100 years! And at 15$ a pound, my 1$ shotgun shell gets me a 1000$ worth of meat.. The Supreme Court also said that laws regulating guns aren't unreasonable, but you can't keep me from protecting myself in my own home. In case you haven't heard there's a term out there called "home-invasion" and if you live in DC, there's a good chance it can happen to you! Don't go spouting off terms like originalists unless you are willing to be honest with the issues and not talking points that are baseless.
No, I'm not kidding. The people of URBAN DC don't need guns to protect the state and they don't need them to "put supper on the table"... actually, I agree that they should have weapons to protect against "home-inva
I WILL go spouting terms like "originalists," because I am honest about those "justices" calling themselves "originialists," but when it suits them they are not...
and what "talking points that are baseless" am I using???..
FYI Jakester..
Jakester, you're not trying to say that handguns are the best defense against home invasion, are you? 'Cuz that's what this D.C. law outlawed. Anyone I have every talked to has agreed that shotguns are the best protection against home invasion because of the lack of aim needed during the groggy moments of just waking up, being startled & scared, or just lacking sharp-shooter skills. Handguns are designed to be portable and concealable. Have gun...will travel.
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