The Midnight Hour

Today the Supreme Court of the United States (SCOTUS) delivered its ruling on District of Columbia v. Heller. This case challenged Washington D.C.’s ban on the possession of handguns and its requirement that guns be stored locked or disassembled. In a 5-4 split decision the court affirmed Heller and ruled the ban unconstitutional. Justice Scalia delivered the court’s opinion which went on to clarify many disputed attributes of the Second Amendment while leaving others open to litigation. Justices Stevens and Breyer delivered separate dissenting opinions. The entire text of the opinion is available here.

 

This ruling is a huge victory for those who interpret the Second Amendment like the other nine in the Bill of Rights: an individual and inalienable right. Among other things the court held:

 

 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.

 

One of the few things the court clarified without room for interpretation is that the Second Amendment is an individual right. Justice Scalia delivered an impressive argument for the ruling consisting of textual criticism, historical precedent, and context within the Constitution.

 

Comparing the phrase “right of the people” to its usage in other parts of the Constitution, he writes

 

Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.

 

Addressing concerns about the Second Amendment’s application to modern weapons he writes:

 

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment.  We do not interpret constitutional rights that way.  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. 

 

Examining individual state interpretations from history he cites this example:

 

A Report of the Commission of the Freedmen’s Bureau in 1866 stated plainly: “[T]he civil law [of Kentucky] prohibits the colored man from bearing arms. . . .  Their arms are taken from them by the civil authorities. . . .  Thus, the right of the people to keep and bear arms as provided in the Constitution is infringed.”

 

After this Justice Scalia sets out to address what types of weapons are protected under this individual right. This is where the rubber meets the road. For years vague and nonsensically written laws have left interpretation of this up to the BATF. This has created the ridiculous situation where letters of opinion from the BATFE have essentially served as law in determining allowable configurations of imported weaponry and so-called “assault rifles” (the latter case until the “Assault Weapons” ban expired in 2004). Check out the below jewel of an example. Are my shoelaces machineguns?

 

With much anticipation and hanging upon every word I read:

 

This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia”). 

 

Whoa…what happened there? He confirms that the Second Amendment applies as an individual right, but the types of weapons permissible are tied to the prefatory clause (A well regulated Militia, being necessary to the security of a free State…)? Who is going to decide what this “reasonable relationship” consists of?  He goes on, referencing US v. Miller:

 

We 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.  That accords with the historical understanding of the scope of the right…

 

What in the world is “typically possessed by law-abiding citizens for lawful purposes?” The only concrete definition we have here is that short-barreled shotguns and machineguns (from text not quoted) are definitely not protected. However, the opinion seems to indicate that these are only not protected because the National Firearms Act (NFA) of 1934 that made them illegal. Does anyone else see the irony here? How can the SCOTUS make a decision about law based upon an existing law that it has not examined?  The reasoning is circular, as Justice Breyer points out in his dissent:

 

In essence, the majority determines what regulations are permissible by looking to see what existing regulations permit.  There is no basis for believing that the Framers intended such circular reasoning.

 

I would have preferred a much more thorough examination of protected weapons. I think this would have necessitated a thorough scrub of the NFA, and possibly resulted in an enumeration of generally protected weapon types. I believe that strictly interpreted this would have resulted in enumerating weapons as protected (such as machineguns) with which even the majority Justices might be uncomfortable. I won’t go so far as to call the omission cowardly, but it is indeed disappointing, and the reasoning used to avoid the issue if flawed.

 

Another minor loss for advocates of individual rights was the failure of Heller to press the issue of licensing. The court opinion states:

 

Respondent conceded at oral argument that he does not “have a problem with . . . licensing” and that the District’s law is permissible so long as it is “not enforced in an arbitrary and capricious manner.”  We therefore assume that petitioners’ issuance of a license will satisfy respondent’s prayer for relief and do not address the licensing requirement.

 

We could have had an opinion rendered on gun licensing, and likely an opinion that views licensing unfavorably, but the issue will have to wait for another day.

 

Shortly after this Justice Breyer began his dissent. He began by examining the idea that we can use historical precedent of English common-law to help discern the intent of the Framer’s:

 

Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.

 

Justice Stevens admits that the right to individual self-defense existed in English common-law. It is also widely known that our Constitution was heavily influenced by English common-law. That leaves us with the notion that the Framers knew of this cherished individual right but chose to exclude it from our Constitution. That is quite unlikely.

 

Justice Stevens goes on to offer textual criticism on the phrase “to keep and bear”:

 

The Amendment’s use of the term “keep” in no way contradicts the military meaning conveyed by the phrase “bear arms” and the Amendment’s preamble.  To the contrary, a number of state militia laws in effect at the time of the Second Amendment’s drafting used the term “keep” to describe the requirement that militia members store their arms at their homes, ready to be used for service when necessary.

 

Let’s assume he’s right for just a moment. The phrase “to keep and bear” is strictly military in meaning and only applies to militias.  First, what is a militia? Your state National Guard? Nope, SCOTUS ruled in US v. Miller and upheld today that at the time of the founding

 

“the Militia comprised all males physically capable of acting in concert for the common defense.”

 

According to Justice Stevens’ interpretation “militia members” should be keeping their weapons at home anyway. Yep, PFC Snuffy gets to take his M249 Squad Automatic Weapon home when he’s done with drill on the weekend. Look at the can of worms that opens! Neither Justice Stevens nor Justice Breyer addresses this fundamental problem with their arguments. The very same historical information and context that leads them to a “collective right of the militia” interpretation leads directly to the conclusion that the militia is essentially the entire population. Unsurprisingly, they remain silent on this.

 

In his footnotes Justice Stevens references the parable of the “Six Blind Men and the Elephant.” I thought this was particularly interesting because it is a flawed parable. The narrator of the parable can see everything that is happening. He can see that the blind men are, ahem, fondling an elephant. None of the blind men have the luxury of knowing this. The common use of this parable is to show someone that he cannot know a particular absolute, as it can be viewed differently from different perspectives. Unsurprisingly, the person who uses it to advocate a lack of absolutes is really saying that he indeed sees the entire elephant, but his opponent does not. If I close my eyes and you hand me a telephone I’ll handle it for a few minutes and then I’ll guaran-damn-tee that it’s a telephone. It’s not a snake, an elephant turd, or anything else. It’s a telephone, and I know it’s a telephone. A is A. Absolutes exist.

 

Another flawed idea advocated by Justice Stevens is that SCOTUS precedent should be respected except in light of new evidence. He writes:

 

“…respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself would prevent most jurists from endorsing such a dramatic upheaval in the law.”

 

 I’m guessing he doesn’t want to make that case for Dred Scott v. Sandford or Plessy v. Ferguson– both cases where the SCOTUS upheld egregious civil rights violations. What new information surfaced between those landmark decisions and the rulings that overturned them? Nothing. The court simply found the fortitude to render a more upright ruling. The court should never be afraid to correct itself when it finds a previous ruling in error.

 

Then Justice Breyer began his dissenting opinion:

 

I shall not assume that the Amendment contains a specific untouchable right to keep guns in the house to shoot burglars.

 

This struck me as odd simply because it came from a Supreme Court Justice and not mediocre North Alabama talk radio. “Keep guns in the house to shoot burglars???” You’re writing a dissent that will be read for ages and that’s the best wording you can produce? He then goes on to quote a volume of D.C. gun statistics, many of which he admits do not support the logic of a ban. I find recent statistics an interesting necessity for the interpretation of a 220 year old document.

 

The statistics do show a soaring District crime rate.  And the District’s crime rate went up after the District adopted its handgun ban.  But, as students of elementary logic know, after it does not mean because of it.  What would the District’s crime rate have looked like without the ban?  Higher? Lower? The same?  Experts differ; and we, as judges, cannot say.

 

Sure, “after therefore because” is a logical fallacy. However, ignoring the information altogether is similarly ridiculous. Ignoring the volumes of information on this phenomenon (banning guns increases violent crime) is simply sticking one’s head in the sand. Nothing can concretely cause anything, huh? I guess there are no absolutes. That’s a little too much elephant fondling for my tastes.

 

The SCOTUS actually got it right today. While it didn’t go far enough in defining the Constitutionality of the many nuances of America’s hippie-feel-good gun laws, it took an important first step in concretely removing the cornerstone of the anti-Second Amendment argument. In short, the court affirmed that our Second Amendment right does exist as an individual right. It is a travesty that today’s decision was necessary at all, but it could not be more welcome or timely. The Second Amendment states “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Today “the right of the people” was upheld.