Well, shit. Just yesterday the court said the death penalty for child rape was unconstitutional based on the fact that it wasn't popular across the several States. In Heller we have a right that is listed explicitly in the federal constitution, explicitly in most state constitutions, and is overwhelmingly popular. And we could barely get five justices to sign up for the "it says it right there in the constitution" argument.
I hope I'm being too pessimistic. I'm printing out the whole thing now (how much of that 156 pages is boilerplate? hopefully a lot). I'll let you know.
Reading ..and live blogging (all typos likely mine)
Introduction A short description of the case.2nd Amendment 5+ pages about what the words of the 2nd Amendment meant at the time with lots of cites. Short version: it meant what it said. Long version: to read it not as an individual right you have to start by pretending that no historical context survived, that it was written with a 21st century dictionary in mind, and even then you have to squint really hard. Here is Scalia sticking it to the dissent's tortured reading:
It would be rather like saying "He filled and kicked the bucket" to mean "He filled the bucket and died." Grotesque.More linguistics Two sets of grammarians submitted friend-of-the-court arguments. The dissent relies on the side that said "bear arms" always had a military context and that all examples to the contrary were flukes. Scalia sides with the other set of language lawyers who said "bear arms" just means "carrying weapons" which neatly explains why it was used in both military and non-military contexts (Occam's Razor).
[media note: CNN is interviewing a gun store owner in Atlanta. They have him nicely framed by 100+ guns in the background. The anchor wanted to know if there has been a "run on guns" in the wake of the ruling. Then he pointed out that this particular gun store owner was sued by and lost a case brought by New York Mayor Bloomberg. Gee, I wonder why they picked this store?]
Contemporary Sources Scalia spends several pages quoting law from the time leading up to the 2nd Amendment. All of which support an individual right to own weapons and most of which rely on the natural right to self defense. He chastises the dissent for ignoring them.
Prefatory Clause Nothing new here. The 2nd starts "A well regulated Militia being necessary to the security of a free State..." and this doesn't restrict the individual right. For one the militia included all free males, for another you would have to believe that nearly identical contemporary state constitutions meant very different things because they were worded only slightly differently (by reordering the clauses or adding a couple words).
More State Constitutions Scalia accuses the dissent of cherry picking from state constitutional clauses that have more martial language to bolster the idea that only organized militia service is allowed - and with a heavy reliance not on the passed constitutions but on versions that were rejected!.
[media note: CNN just had a graphic that equated Obama and McCain on gun control. CNN promises to follow up with a segment on online gun sales. I'm sure that won't be a scare piece. Hint: buying a gun online doesn't exempt you from any laws; the gun must be shipped by a federally licensed gun dealer and you still have to undergo background checks and all other applicable legal hoops.]
Founders' Statements The private views of the people who wrote or endorsed the 2nd amendment have no legal weight - they can't because the law would be useless if it had a "secret meaning" different than what it said. But if you are arguing, as the dissent does, that the law means something other than what it says then the Founders' views are in play. As it turns out their private views matched the law so the dissent gets no points, we are all dumber for having listened to them, and may God have mercy on their souls [who says Adam Sandler isn't relevant to the law?].
[media note: CNN's internet gun sales peice was short and content free. They said that the same laws apply but no one knows how many illegal sales occur. That's some fine police work, Lou.]
Pre/Post Civil War Scalia cites many judicial rulings from the early-mid 1800s that talk about the individual right in relation to slaves. Many Southern states worry that freed blacks will have access to weapons because local laws prohibiting blacks from owning guns are unconstitutional.
Miller
Justice Stevens places overwheling reliance on this Court's decision in United States v. Miller.Miller approved Weapons Scalia punts. If Miller is to be obeyed then only weapons used in military service should be allowed but this would make machine guns legal (definitely) and sawed off shotguns illegal (maybe). There is no way Justice Kennedy would sign on to a decision that allowed fully automatic weapons to be legal so Scalia changes the Miller standard to weapons popularly owned by the militia (that is, civilians). This is a big deal because as in the death penalty for child rapists case what is "popular" is heavily influenced by the courts. Illegal weapons will never be popularly owned. So this decision has the possibility of being a feedback loop: regular citizens don't own illegal weapons so laws that make some weapons illegal will cause those weapons to be unpopular and then it is constitutional to ban those weapons by law. Any law that goes unchallenged long enough becomes constitutional. Yuck.
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Nothing so clearly demonstrates the weakness of Justice Stevens case.
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It is entirely clear that the Court's basis for saying that the 2nd Amendment did not apply was not that the defendants were "bear[ing] arms" not "for ... military purposes" but for "nonmilitary use," Rather it was that the type of weapon at issue [a sawed off shotgun - ed] was not eligible for 2nd Amendment protection
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[Miller] reviews some historical materials dealing with the nature of the militia, and in particular with the nature of the arms their members were expected to possess. Not a word (not a word) about the history of the 2nd Amendment. This is the mighty rock upon which the dissent rests its case.
Reasonable Restrictions Scalia punts some more and probably for the same reason (to get a fifth vote). Everyone agrees that felons and the mentally ill don't have full rights either because they have disenfranchised themselves (felons) or because they can't understand and exercise them (mentally ill). Other than that the court refuses to say what is "reasonable" or by what test "reasonableness" should be construed.
Strict Scrutiny vs Rational Basis It pays to read the footnotes. "Strict scrutiny" is a term of art that means the courts have to give overwhelming weight to the idea that a law infringing a right is unconstitutional except in very narrow circumstances. "Rational Basis" means that courts can't strike down a law if the government presents a rational reason why the law is good. From the footnote
If all that was required to overcome the right to keep and bear arms was a rational basis, the 2nd Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.So does this mean strict scrutiny? He only says "not rational basis." Do footnotes count? I'm not a lawyer but I don't think they do as a matter of law.
[media note: CNN is back to the gun store and bookend every segment with the fact that it was sued by Mayor Bloomberg. Though they are no longer asserting that he lost the case but instead that it is "currently under litigation." And hey, now they are doing a segment on a gun shot victim in a wheelchair. No agenda here.]
DC ban is unconstitutional On page 56 we finally get to the start of the outcome. "Few laws in the history of our Nation have come close to the severe restriction of the District's hangun ban." [nice rhetoric but FDR's National Recovery Administration should count as more than a "few" all by itself]. I'll also note that Scalia repeatedly says that handguns are the overwhelming weapon of choice for home protection (err, sometimes he includes the "home" qualifier, sometimes not). This is almost certainly false in regards to home protection; pump-action shotguns and the Remington 870 in particular are wildly popular for home protection (shotguns are multi-purpose and more inexpensive than handguns). I think this was another compromise point to get five votes - handguns are popular because they are useful both inside and outside the home but the decision focuses on in-home use because the DC ban could be struck down on the more narrow grounds of in-home self defense use.
Handguns vs Longarms, Concealed Carry vs Open Carry More of a muddle. I think Scalia is doing the opinion a disservice to argue that handguns are useful as a practical matter. They are but what does that have to do with the 2nd Amendment? This is just a policy critique against DC law. Talking about concealed versus open carry isn't very useful either. This is one area where modern conventions are wildly different than Founder area ones. Many 18th century state constitutions explicitly left it up to the legislature to regulate concealed weapons (or not). In modern times the most restrictive states like Massachusetts have flipped the old rule on its head by making it illegal to open carry - you can lose your permit if someone notices you are carrying a gun. Meanwhile the majority of states (33?) are "shall issue" for concealed permits - that is they allow all non felons/mental ill citizens to get a permit by filling out a form. I agree that banning handguns is a violation of the right to keep and bear arms but there is no need to hedge that with a policy argument - unless the 2nd Amendment doesn't require "strict scrutiny" in which case we're proper fucked anyway, as Scalia himself noted.
Operable Firearms The majority argues that DC law which requires guns to be kept in an unusable state (disassembled or trigger locked and unloaded) is near enough to banning them that it doesn't pass constitutional muster. Scalia punts on licensing during this part of the brief
[DC's licensing] 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.I'll take "punting for five votes" Alex. This ruling explicitly does not address disparities in licensing ("shall issue" vs "do you know who I am?" licensing).
Let's have some fun on pages 59-60 Scalia dismisses Breyer's reliance on laws that mandated the storage of gunpowder in fire-safe containers and imposed a fine for inappropriately discharging a weapon in city limits:
The New York law levied a fine of 20 shillings on anyone who fired a gun in certain places (including houses) on New Year's Eve and the first two days of January [boxing day? -ed]That it was a misdemeanor for our fore-fathers to get drunk and shoot into the air a-la Baghdad is no principle to hang the abolition of fire arms on. More:
The Pennsylvania law to which Justice Breyer refers levied a fine of 5 shillings on one who fired a gun or set off fireworks in Philadelphia without first obtaining a license from the Governor.Technically these laws were about public safety but that is a far cry from "lets ban guns in the name of public safety" - these laws were more along the lines of "don't be an asshole."
[unrelated: Hello to the Chicagoboyz reader who is refreshing every ten minutes]
Scalia address Strict Scrutiny
Justice Breyer .. criticizes us for declining to establish a level of scrutiny for evaluating 2nd Amendment restrictions [so do I -ed]. He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather "interest-balancing inquiry" that "asks whether the statue burdens a protected interest in a way or to an extent that is out of proportion to the statue's salutary effects upon other important governmental interests."Allow me to paraphrase "If you want the constitution changed feel free to petition for an amendment. Until then - go screw"
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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. A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all. [boldface mine]
Majority's Conclusion
In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of 2nd Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.Note the repeated "in the home" phrase. Clearly there wasn't five votes that were willing to extend the ruling past castle doctrine.
[unrelated: holy s**t this thing is long]
The Dissent
The Dissent was authored by Justice Stevens and joined by Souter, Ginsburg, and Breyer.Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The 2nd Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes. Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case. The text of the Amendment, its history, and our decision in United States v Miller provide a clear answer to that question.I am aware of no Constitutions that allow robbing banks (with or without guns) and only one that restricts the military; that Constitution is Japan's and we added the military restrictions as part of their unconditional surrender. It would be extraordinary if the judges didn't think the 2nd amendment was somewhere between the two. One half-point to the dissent for using a tautology.
Militia, Militia, Militia The dissent argues that the 2nd amendment only applies to State militias, full stop. [boldface mine]
Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature's authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.That is a very lawyerly statement. Presumably "the arguments advanced by its proponents" is tightly worded to only include surviving records of the debate at the constitutional convention and exclude all other statements by the Founders (and forget about what people assumed it meant). Likewise the dissent feels free to ignore the "common-law right of self-defense" because it wasn't explicitly mentioned in the 2nd Amendment. Oh sure, as the majority pointed out it was widely assumed to be an inherent right (they don't call it "common-law" for nothing) and assumed that the 2nd Amendment endorsed it, but but but there is no smoking gun in those two sentences that includes it so therefore the dissent can pretend it is not relevant.
Miller, Miller, Miller
this Court held that "[in] the absence of any evidence tending to show that possession or use of a [sawed off shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the 2nd Amendment guarantees the right tot keep and bear such an instrument."The second paragraph is a non-sequitur. The quote from Miller simply states that a sawed off shotgun is not fit for military service (arguably wrong, but still). It does not state that every gun is not fit for militia service and therefore not covered under the 2nd Amendment. The opening statement of the dissent is a failure that relies on dishonest reading of just one court decision in the history of the US and it got four votes. Blimey.The view of the Amendment we took in Miller -- that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature's power to regulate the nonmilitary use and ownership of weapons -- is both the most natural reading of the Amendment's text and the interpretation most faithful to the history of its adoption.
As Scalia pointed out in the majority opinion the weasel words "the history of its adoption" is also tightly worded so as to include as little history as possible so the dissent can say "we don't know much about it so let's spitball a little..."
For what it's worth the dissent uses the phrase "we" when referring to past decisions of the Supreme Court. This use of the "royal we" is not prevalent in the majority decision and feels a lot like stealing bases.
Carefully crafted words
The [majority] opinion the Court announces today fails to identify any new evidence supporting the view that the Amendment was intended to limit the power of Congres to regulate civilian uses of weapons.Well yes, all that commentary was "available" to the Miller court and isn't "new evidence" since then. Also "available" to the Miller court was the role of Lollipops in interstate commerce but Miller didn't hear it, decide on it, or use it in its ruling either. The dissent is dishonestly suggesting that "old" information has been heard, argued, and decided on so they only have to look at the post-Miller time frame. In short they want to exclude all the evidence that goes against their desired outcome.
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[instead the majority relies on] the 1689 English Bill of Rights, and in various 19th-century State Constitutions; postenactment commentary that was available to the Court when it decided Miller; and, ultimately, a feeble attempt to distinguish Miller that places more emphasis on the Court's decisional process than on the reasoning in the opinion itself
[For fuck's sake: Miller wasn't even a real case. As the majority points out the defendant didn't show up and the public defender didn't even present a case. Only the prosecutor said anything and then the court made a ruling, and a narrow one at that.]
Stare Decisis The dissent makes an argument that previous decisions are controlling (Stare Decisis). By "previous decisions" they mean just Miller. Miller was short and awkward. As the majority points out it said civilians could only own weapons fit for militia use. The dissent agrees, kinda
In this dissent I shall first explain why our decision in Miller was faithful to the text of the 2nd Amendment and the purposes revealed in its drafting history. I shall then comment of the post-ratification history history of the amendment, which makes abundantly clear that the amendment should not be interpreted as limiting the authority of Congress to regulate the use or possession of firearms for purely civilian purposes.Another non-sequitur. Miller said very little (much less than Stevens has so far suggested) so it isn't hard to believe it was faithful to the 2nd amendment. As for the ratification history of the 2nd I'll read on ... but hey, I thought we weren't including "old" information!
"A" Purpose or "The" Purpose
The text of the 2nd Amendment is brief. It provides: [full amendment]. Three portions of that text merit special focus: the introductory language defining the Amendment's purpose, the class of persons encompassed within its reach, and the unitary nature of the right that it protects.As the majority points out the "well regulated Militia, being necessary to the security of a free State" was a single purpose included in the preamble but that doesn't support the dissent's notion that it was the sole purpose of the right. In a footnote Stevens includes selected state constitutions "roughly contemporaneously with the Declaration of Independence":
The Virginia Declaration of Rights provided: "That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free State...I'm not sure how quoting a right that defines a militia as "the body of the people" can help the dissent. It is also questionable why Stevens would choose a time frame contemporaneous with the Declaration of Independence when discussing the Constitution. j/k I know perfectly well why he does it - because moving the time frame forward a bit would include too much evidence contrary to his desired outcome. For instance the Pennsylvania constitution (1790) which is more "roughly contemporaneous" with the US Constitution (1787) is less friendly than the Pennsy version "roughly contemporaneous" with the Declaration of Independence (1776). Here is the 1790 version:
The right of the citizens to bear arms in defence of themselves and the State shall not be questioned.How inconvenient. For what it's worth the pre-1790 version was almost identical to the Federal Constitution.
Purpose, What Purpose? Hmm, I just turned the page and now I'm confused. He now sites the Pennsy pre-1790 constitution in support after omitting it on the page before (I jumped the gun - remember that I am reading and writing at the same time).
The parallels between the 2nd Amendment and these state declarations, and the 2nd Amendment's omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense, is especially striking in light of the fact that the Declarations of Rights of Pennsylvania and Vermont did expressly protect such civial uses at the time. [PA's] 1776 Declaration of Rights announced that "the people have a right to bear arms for the defence of themselves and the state," [and also that] "the inhabitants of this state shall have the liberty to fowl and hunt in seasonable times on the lands they hold, and on all other lands therein not inclosed."Wow Stevens just stole several bases. You can read it yourself. In the section titled "Declaration of Rights" is the "defence of themselves and the state" as right XIII (rights were enumerated with roman numerals) and in a the later section "Plan or Frame of Government for the Commonwealth" the "hunting fowl" item appears as section 43. These two items are miles apart and unrelated except for the fact that they use guns.