Friday, June 27, 2008

An amatuer's reading of Heller

No, I'm not a lawyer and I've never played on on TV (thank your lucky stars). However, I believe I'm a reasonably intelligent and well-educated individual, I've been reading the text of the Heller decision, and I'm going to tell you what I think of it.

First and foremost, the justices take us through a very through parsing of the Second Amendment, complete with a linguistic history lesson. It's long, it's complete, and I believe reading it gives you a lot of insight into their thought process during the decision. For these justices, it was their chance to literally carve out a place in history, since the Second was the only amendment to the Constitution that has not been thoroughly litigated. I think it's clear that they understood the historical nature of this case, and they damn well weren't going to muck it up.

The justices start by examining the operative clause of the Second Amendment first: "...the right of the people to keep and bear Arms, shall not be infringed."

The first phrase examined is "right of the people". They look at its use in other places in the Constitution, along with the use of closely related phrases, and reach a conslusion that mirrors what most of us have always thought--the Second Amendment refers to an individual right.

The second phrase examined is "keep and bear arms". What is an arm? It's important, since a "wrong" (from our viewpoint) definition of arm could leave us with the right to keep and bear Brown Bess muskets or some similar travesty. The justices note that "The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity." I would read that to say that the arm may or may not have been military in nature, and that the nature of the arm is not of great consequence. The also specifically slap down the idea, floated by many anti-Second activists, that the only arms protected were those of the 18th Century. There goes that worry about the Brown Bess!

And what do "keep" and "bear" imply? Well, according to the justices, "“Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone else." And bear? Well, it seems that Justice Ginsberg, in her descent, gave them their working definition:

...that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment . . . ndicate[s]: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ”

At the end of all this examination, the justices arrive at this:

Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v.Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed . . . ."

Folks, that's about as clear as you can make it. It's an individual right, unconnected with service in anything and it existed before the Constitution. But note this as well--the justices specifically did not address the phrase "shall not be infringed". I think that that's a crucial thing to note, as we'll see later.

Next, they move to the prefatory clause, “A well regulated Militia, being necessary to the security of a free State ....” and examine it in detail. It's important because it could act as a modifier to the operative clause.

First, the phrase "well regulated Militia" is examined. In the days of the founders, the militia was "comprised all males physically capable of acting in concert for the common defense". This was codified in the 1939 Miller decision, noted the justices. (Can you say "settled"? I thought you could.) And well regulated? "Finally, the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training."

The second phrase, "security of a free state" is tackled next, and delt with quickly.

The phrase “security of a free state” meant “security of a free polity,” not security of each of the several States as the dissent below argued...

Tie all that together, and things aren't looking to good for the DC side of the argument. At this point, the examination of the relationship between prefatory and operative clauses, is pretty matter-of-factly handled:

We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above.

Man, that's going to leave a mark on history. No way the anti-gunners can work their way around that one. Alan Gura and company accomplished their goal--a totally unambiguous declaration of the Second Amendment as codifying an individual right to keep and bear arms in the plain sense of the words.

At this point, the justices launch into one heck of a lesson on how the Second Amendment rights have been important in the history of this country, including discussion of various case law surrounding it through the years. But this lesson isn't just for the heck of it. It's used to lay the groundwork for Second Amendment rights to be limited by government.

To be honest with you, this really pisses me off. Alone among the individual rights, the Second Amendment has the phrase "shall not be infringed" attached to it. Not even the First gets that treatment. And my personal belief, unsupported by any scholarship on my part, is that was a deliberate act of the Founders. They meant for this particular right to stand inviolate, acting as the guardian of all the rest.

The justices disagree, I think. The subject isn't discussed anywhere in this opinion, and I suspect deliberately so. Going back to the oral arguments, it was clear that none of the justices were interested in a blanket tossing out of all firearms related law in this country. Alan Gura played quite readily to that in his arguments. Many of us were incensed with that at the time. Gura explained that if he had pushed for a highly literal interpertation, he would have lost the entire case.

Was he correct? Maybe, maybe not--there's no way to know with certainty. But one way or the other, the justices have laid out the law of the land--individual right or not, there can be restrictions placed on it, just as there are with the freedoms of speech and religion. If we want to change it, we're in the same boat as our opponets if the want to overcome this case--ammend the Constitution. Somehow, I don't think either side will pull that off any time soon.

The justices quite clearly state this for us:

Although we do not undertake an exhaustive historical analysis today of the full scope of theSecond 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.

Ouch.

Continuing, the justices state:

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

Man--when you first read that, your gunny heart sinks. There go machine guns and maybe even military-pattern semi-automatic rifles. But then they throw us a lifeline, and incidently set the stage for the full employment of thousands of lawyers and clerks for the next couple of generations:

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

Boy howdy.

And then we get to the case at hand--Dick Heller's desire to have a handgun at home for his defense. DC is issued a smack down. NO, you can't ban an entire class of firearms. NO, you can't force people to render them inoperable, thus making "impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional." NO, you can't forbid the movement of the firearm in one's home.

But...

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.” Tr. of Oral Arg. 74–75. We therefore assume that petitioners’ issuance of a license will satisfy respondent’s prayer for relief and do not address the licensing requirement.

Aru-u-u-u-gh! Dammitall Dick, why did you have to go say that in court? Now licensing and it's attendant evils are going to be with us forever. I'm sure that many of the more august members of the gun culture will tell me that I don't understand, and that we'll go after this one in due time. Well, may I don't and maybe we will, but I'll predict today that we'll lose, and licensing will be allowed in any jurisdiction that wants to enact it. Be prepared to fight them a million times on this one, winning some and losing others.

But let's not be too ungrateful. We got this, and realistically, it's a lot:

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 Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

We also go this, and I think it may be the best (partial) line in the decision:

...it is not the role of this Court to pronounce the Second Amendment extinct.

Thank God for that. And thank you, Justices Scalia, Roberts, Alito, Thomas and Kennedy. To some extent, you have restored my faith in our legal system.

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