Balkinization  

Thursday, June 26, 2008

Some preliminary reflections on Heller

Sandy Levinson

There are many things that one can say about today’s today’s decision in the Heller case from both “external” political perspectives or from a more “internal” legal one. No doubt I (and others) will have more to say about Heller in coming days. But I begin with the following.

I begin with some “external” considerations. My own hope, spelled out in some prior Balkinization posts, 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.

The reason I so strongly supported the Solicitor General’s brief was certainly as much political as legal. 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. My hopes, of course, were spectacularly unrealized. 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. But 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. 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.

Just imagine what might happen if Justice Kennedy had joined his more moderate colleagues, as he did just the day before in providing the all-important fifth vote to invalidate the death penalty for rapists of children. One sudders at the prospect of Sen. McCain, or some 527group, saying the current Court both wants to protect child rapists and prevent parents from possessing handguns to defend themselves and their children against such marauders. Now all that Sen. McCain can say is that “only one vote” stands between the protection of gun rights and the ability of the state to “take away your guns.” I have no doubt that Sen. Obama, who has been eager to express his respect for the Second Amendment—and who quickly distanced himself from yesterday’s Louisiana decision—will try to reassure gun owners that he would certainly not appoint anyone who did not share his respect for the Amendment.

Perhaps Heller will play a role in the presidential debates, but I’d be more than a bit surprised if it really had significant effect. Justice Scalia’s opinion, if one cuts through some of the bluster, is really quite moderate—he goes out of his way to support the legitimacy of much current federal regulation—and could easily be endorsed by Sen. Obama without political cost, save for those who wish him to continue down the politically fatal path of endorsing extremely restrictive gun control.

Then there are the “internal” features of the opinions. I confess that I am equally dismayed by the Scalia and Stevens opinions (though, if absolutely forced to choose, I’d go with the Scalia opinion). One of the most remarkable features of Justice Scalia’s majority opinion (joined, of course, by Chief Justice Roberts and Justices Thomas, Kennedy, and Alito) 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. Justice Scalia, of course, has long been identified with “originalism,” even though some of his critics, both liberal and conservative, note that he has been a most inconsistent one. But Justice Stevens has certainly not embraced originalism. Yet 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 was a competent historian, then perhaps it would be worth reading the pages they write. But they are not. Both opinions exhibit the worst kind of “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. Justice Stevens pays no real attention to a plethora of first-rate historical work written over the past decade that challenges this kind of foolish self-confidence, as is true also of Justice Scalia. There is no serious discussion, for example, of Saul Cornell’s fine book A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control, but many other examples could be offered, from various sides of the ideological spectrum.

Both Scalia and Stevens manifest what is worst about Supreme Court rhetoric, which is precisely the tone of sublime confidence when addressing even the most complex of issues. The late Victoria Geng once wrote a marvelous parody of Supreme Court decisions in which, among other things, the Court announced that “nature is more important than nurture.” We wouldn’t take such a declaration seriously. It is not clear why we should take much more seriously the kinds of over-confident declarations as to historical meaning that both Scalia and Stevens indulge in.

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.

Comments:

"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. "

Oh, yeah, it would really have cooled the culture wars if our favorite amendment got declared to be a second class right, inferior to all the other enumerated rights.
 

This is a brilliant post.

I have a few comments on the Heller decision:

1. Even though Levinson is clearly right about the selective use of history by both Scalia and Stevens, this is actually one of Scalia's best opinions, in that he probably had to hold a tenuous majority of 5 and that meant he couldn't make the type of broad and repugnant pronouncements about the law that he sometimes likes to make in dissent.

Scalia's bottom line-- no handgun bans, most regulations are perfectly constitutional, and established ones get a presumption of constitutionality, and a definite maybe to incorporation-- seems a pretty fair interpretation of the Second Amendment to me. Certainly more plausible than Breyer's "balance the entire right away" approach.

2. I think the worst thing in Scalia's opinion is his stuff about the preamble. I know it's a big thing on the gun rights side to say that preambles "never change the substance of the right", but that's just silly. Statements of legislative intent (at least when they are actual statutory language-- I am not talking about legislative history here) are often used as indicators of what the operative language really means. Indeed, Scalia actually gives GREATER weight to legislative HISTORY (which he supposedly doesn't believe in using) than he does to the militia clause which is actually a part of the Second Amendment's TEXT. That seems mighty results-oriented to me.

3. Scalia dismisses "well regulated" in a single paragraph, saying (as the NRA says) that it means disciplined and trained. True enough, but of course, doesn't the government have plenty of regulatory power under the guise of disciplining and training the militia? It isn't that simple, Tony!

Again, though, these are really quibbles. This is a pretty good opinion and I suspect it will make a modest, positive impact on the jurisprudence of gun rights, as draconian regulations get struck down and more narrowly tailored gun control laws get upheld.
 

So, prohibitionists are "moderates?" And those individuals who accept the legitimacy of some degree of government control over private ownership of firearms, as long as it is not extreme, are not moderates? Certainly the conservatives seem to be the true moderates in this case.

Marco
 

Speaking as a civil libertarian and a progressive, the inconsistencies expressed by those who share my positions on so many other political and constitutional issues can become overwhelming.

A few questions:

1) Why should we only be entitled to defend ourselves in our homes?

2) What makes a semi-automatic pistol much more dangerous to the public than a revolver? (In my experience, I'm apt to discharge six shots much more quickly with the latter than the former when you account for jams.)

3) Why do many Democrats find it more tolerable to shoot a deer than an armed aggressor? In an era of supermarkets, shouldn't we prioritize our immediate survival over rural recreation?

4) Was this, in actuality, the perfect test case during this political season in that it allowed the Court to make a landmark ruling on an individual right in a limited way, passing judgment on the ordinance of a federal enclave rather than, say, Chicago's ordinance (and, therefore, sparking an incorporation firestorm)?

5) Why do many progressives rightly fear a police state while at the same time argue for a disarmed populace and a policeman on every corner?
 

Sandy:

The Scalia opinion (which I was utterly pleased to see Kennedy sign onto without his usual quibbling concurrence) expressly rejected the rational basis test (p. 56 n. 27) as well as Breyer's suggested "interest balancing inquiry," which appears to be the Solicitor General's suggested intermediate scrutiny dressed in slightly different clothing. Rather, the Court strongly suggests that the core Second Amendment right should be treated like the core First Amendment right with strict scrutiny (p. 62-63):

JUSTICE BREYER moves on to make a broad jurisprudential point: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering “interest balancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.” Post, at 10. After an exhaustive discussion of the arguments for and against gun control, JUSTICE BREYER arrives at his interest balanced answer: because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED.

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. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people—which JUSTICE BREYER would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.

 

Bart:

No doubt some NRA types will interpret the opinion as requiring strict scrutiny. But the same opinion says that numerous well-established regulations of gun ownership should be PRESUMED constitutional AND further holds that gun registration and licensing is specifically constitutional as long as a law abiding citizen cannot be denied a license arbitrarily.

In true strict scrutiny, all regulations are presumed unconstitutional. This is pretty clearly NOT that, despite the hints Scalia may have dropped otherwise.
 

Prof. Levinson -

I've only begun to read the case, but I think I agree that Scalia's and Stevens' opinions "exhibit the worst kind of '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." But given that, do you think the exercise of having both opinions purport to survey the historical record, yet come to such different conclusions, should or will have any impact on the supposed legitimacy of originalism as a mode of constitutional interpretation? That is to say, if both Justices can engage in an originalist/historical inquiry, yet come to such differing conclusions, doesn't that show that originalism is not a neutral, judge-constraining way to decide cases, but instead just as much a mask for policy preferences that originalists accuse others of employing? Sure, the "choose your history" phenomenon has been present in other cases, but Heller appears presents the issue pretty starkly, since the Court was writing on close to a clean slate.
 

Sandy:

Now all that Sen. McCain can say is that “only one vote” stands between the protection of gun rights and the ability of the state to “take away your guns.”

This is precisely the party line which was being repeated across conservative talk radio as I was commuting back and forth to court this afternoon. The theme was the four liberal justices came within one vote of permanently removing the Second Amendment from the Bill of Rights and Mr. Obama has promised to nominate more liberals in the mold of Ginsberg and Breyer.

This line has the virtue of being essentially correct. If the Court's liberals were willing to ignore the plain textual meaning and original intent of the Second Amendment to advance a absurd state's rights argument that many liberal professors including yourself admit has no merit, is there any real doubt that a majority of five liberals would gut and ignore the Heller opinion to advance that agenda?

I have no doubt that Sen. Obama, who has been eager to express his respect for the Second Amendment—and who quickly distanced himself from yesterday’s Louisiana decision—will try to reassure gun owners that he would certainly not appoint anyone who did not share his respect for the Amendment.

Perhaps Heller will play a role in the presidential debates, but I’d be more than a bit surprised if it really had significant effect. Justice Scalia’s opinion, if one cuts through some of the bluster, is really quite moderate—he goes out of his way to support the legitimacy of much current federal regulation—and could easily be endorsed by Sen. Obama without political cost, save for those who wish him to continue down the politically fatal path of endorsing extremely restrictive gun control.


Actually, the GOP researchers have Obama's actual opinions on gun control well documented. The conservative talk radio folks were playing audio clips of Obama stating just last month that he thought the DC handgun ban was perfectly constitutional and comparing it with Obama's contrary and largely incomprehensible statement in support of Heller today. Moreover, Obama actively supported Chicago's firearm prohibitions and claims that they are still allowed under Heller.

Mayor Daley was more honest and went into a rant against the Heller decision, which he can plainly see places Chicago's gun control laws at severe risk. The Court telegraphed its intent to incorporate the the Second Amendment as it has done the First Amendment and distinguished the Reconstruction Era Cruikshank decision holding that the Second Amendment does not apply to the States on the ground that it did not apply the Court's subsequent incorporation analysis. (p. 48, n. 23).

I am unsure whether Obama's pledge to appoint more liberal judges and his obviously insincere claim to support the Second Amendment right as defined in Heller will affect the election, but I am sure that the NRA will be working its members to vote for McCain.
 

The Court telegraphed its intent to incorporate the the Second Amendment as it has done the First Amendment and distinguished the Reconstruction Era Cruikshank decision holding that the Second Amendment does not apply to the States on the ground that it did not apply the Court's subsequent incorporation analysis. (p. 48, n. 23).

I suspect in the end you will be right about incorporation, Bart, but you are also overreading that footnote. It says (a) Cruikshank already held it isn't incorporated, but (b) Cruikshank was decided before the Court's modern incorporation jurisprudence, and (c) the issue isn't before the Court.

There's another way to read this, which is that Scalia is writing this footnote because it is the only footnote that he could get five votes for, and that when it comes to incorporation, he may not have the five votes yet.
 

dilan said...

Bart: No doubt some NRA types will interpret the opinion as requiring strict scrutiny. But the same opinion says that numerous well-established regulations of gun ownership should be PRESUMED constitutional AND further holds that gun registration and licensing is specifically constitutional as long as a law abiding citizen cannot be denied a license arbitrarily.

A correction first...

The Court allowed DC to proceed to license Heller under the express assumption that the licensure was simply to determine that Heller was not disqualified to exercise the right as a felon or because he was mentally insane. Otherwise, the Court expressly declined to rule on licensing.

I do not believe that Roberts and Kennedy want to even venture into the thicket of different levels of scrutiny. Roberts made that point a couple times in oral argument. Rather, they appear to desire to define the scope of the right on a case by case basis and then enforce it absolutely. This is the same as strict scrutiny.

However, I think the Court is going have to relent and apply time, place and manner rules with differing levels of scrutiny for the public carry of firearms similar to those used to apply the First Amendment. Indeed, the Court's repeated comparison of the First and Second Amendments makes this even more likely.
 

Bart:

1. I don't read the licensing discussion the way you do. It seems to me Scalia is saying the license is fine as long as the criteria for licensing are permissible criteria (i.e., no felons, no insane people). It certainly was put at issue in the case. I suspect there more than 5 votes (perhaps a lot more) for upholding licensing / registration.

2. Sorry, but a fundamental aspect of strict scrutiny is a presumption of unconstitutionality for all regulations. Under this decision, extant federal regulations are presumed constitutional, and licensing / registration IS constitutional. Case by case adjudication under such a framework isn't strict scrutiny.

There's no way in the world that gun rights advocates can get from Scalia's measured opinion today to the broad invalidation of gun regulations as well as prohibitions that they would like to see. If Scalia had 5 votes for strict scrutiny, he wouldn't have been shy about putting it in the opinion. He has a bare majority to strike down only the most onerous of gun control regulations, something that will become even more clear in the future.
 

I fail to understand how if the Second Amendment was "understood across the political spectrum
that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down," that Scalia can then later just brush off the lack of parity between the modern-day citizen militia (shotguns, handguns) and the well-funded, high-tech, and highly partisan professional military (not to mention the many small armies, like the NYPD).

At this point he abandons any focus on this central, anti-tyranny principle on the grounds that "the degree of fit between the prefatory clause and the
protected right" has become "limited" by "modern developments." So what? The parity required to resist tyranny doesn't matter anymore? Why has it become limited?

Certainly it's because most of us can't imagine repealing the federal bans on civilian possession of modern weapons technologies. And Scalia certainly wants to avoid acknowledging any realistic chance of actual tyranny in this country of the sort the Framers worried about.

If anti-tyranny survives, it will be because people take to heart Scalia's claim that the right pre-dated the Constitution (and certainly this opinion) and resolve to ignore any laws, however "reasonable," that interfere with it.
 

One of the most pleasant surprises is how the normally prickly Scalia molded his opinion to form a five vote majority without modifying concurrences.

I am pretty sure that the dicta about not overturning basic regulations disqualifying felons and the insane from exercising the right and limiting concealed carry or carry in public buildings was meant to get Kennedy on board.

Also, the refusal to establish a standard of review was probably meant to get Roberts and Kennedy on board.

The best part is that none of these concessions fundamentally altered the scope of the core right.

Felons and the insane are routinely denied civil rights. However, notice that misdemeanants and those accused but not convicted of domestic violence are not included.

Regulations on the manner and place of carry were as inevitable as reasonable time, place and manner restrictions on speech. However, the opinion makes it clear that government will have to allow some manner of carry for lawful purposes.

Not expressly offering a level of scrutiny is meaningless when the result of holding the DC ban to be facially unconstitutional is the same a strict scrutiny.

I am extremely thankful that Scalia checked his ego at the door for once and finally worked at getting the five votes he needed to make this opinion stick.

I get the feeling that he values the Second Amendment as much as I and did not want to miss the exceedingly rare opportunity to define a fundamental constitutional right.
 

'That is to say, if both Justices can engage in an originalist/historical inquiry, yet come to such differing conclusions, doesn't that show that originalism is not a neutral, judge-constraining way to decide cases, but instead just as much a mask for policy preferences that originalists accuse others of employing?'

Or perhaps it shows that one (or more!) of the sides was only pretending to apply originalist reasoning.

You shouldn't expect consistent originalist reasoning in Supreme court decisions: Consistent originalists don't get nominated to the Court.
 

Not expressly offering a level of scrutiny is meaningless when the result of holding the DC ban to be facially unconstitutional is the same a strict scrutiny.

This is plain wishful thinking. You really think that no level of scrutiny other than strict could result in an overturning of the DC gun ban? It couldn't be overturned under intermediate scrutiny as not sufficiently narrowly tailored? That it couldn't be overturned under a reasonableness standard as unreasonable? That it couldn't be overturned under a categorical standard that prohibitions of commonly possessed arms are unconstitutional but regulations are permissible?
 

At this point he abandons any focus on this central, anti-tyranny principle on the grounds that "the degree of fit between the prefatory clause and the protected right" has become "limited" by "modern developments." So what? The parity required to resist tyranny doesn't matter anymore? Why has it become limited?

It isn't that surprising that Scalia didn't go off to far on the anti-tyranny rationale. The Supreme Court, after all, is still part of the Washington Establishment, and I doubt that you will ever see it endorse an explicitly insurrectionist view of the Second Amendment (or any other constitutional provision).
 

For those who are interested, I provided a basic breakdown of the Second Amendment right as defined by Heller with cites and quotes here.

Beyond personal interest, I am going to attempt to use Heller to convince the local DA or if need be the district court to dismiss a charge of possession of a firearm by an offender, which is based on a civil juvenile adjudication which does not qualify as a felony under Colorado law.

It should be fun!
 

You're right -- I wouldn't expect them to go insurrectionist either. But as an non-faint-hearted originalist...

I lost a lot of respect for Scalia with Gonzales v. Reich, and I don't even smoke dope.
 

Dilan:

You and I both know that getting a court to find a statute to be facially unconstitutional is extremely difficult. To start, the right must be fundamental and the level of scrutiny usually strict.
 

Another interesting item about the Heller decision is that it affirmed the DC Circuit without any significant narrowing language. The DC Circuit decision was a very aggressive view of the scope of the Second Amendment. I am taking another look at the Circuit opinion to see if it beefs up Heller.
 

Bart:

This wasn't a facial challenge. It was as applied. Heller was personally denied his right to keep and bear arms, and argued the statute that prohibited him from doing so was unconstitutional. The opinion never mentions the words "facial challenge".

That said, I can think of plenty of recent Supreme Court cases that struck down statutes without applying strict scrutiny. E.g., United States v. Virginia (VMI), Lawrence v. Texas, Romer v. Evans. And those are just off the top of my head.

The two issues-- striking down the statute and level of scrutiny-- aren't necessarily related.
 

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So much for Chief Justice Roberts's ambition to unify the Court. At least Stevens did not throw Scalia's Boumediene oracle about how we're going to die back at him. But then why should he have since the disagreements are almost all theoretical. And over what? What is the holding beyond the proposition that guns are somehow here to stay?

I lost patience with each of the main opinions before getting through either. The real considerations fly in every direction; historical ones can always be made to do this. To cope, each justice invoked ad hoc principles of construction to make his arguments look dispositive and the other's bankrupt. It was a battle for goal posts while the football stayed in midfield.

One other note: Each opinion reads like it was vying to be the Opinion of the Court, suggesting a war to win an undecided fifth justice. From the outside it looks like an internal battle carried on for its own sake.
 

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What is the RKBA?
 

Dilan:

The statute was not found unconstitutional on the facts of the case. Rather, it was found to be unconstitutional under any set of facts. Regardless, of whether the phrase "facial challenge" was used, the statute was found to be effectively facially unconstitutional [p. 56-57]:

As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster.

***

That said, I can think of plenty of recent Supreme Court cases that struck down statutes without applying strict scrutiny. E.g., United States v. Virginia (VMI), Lawrence v. Texas, Romer v. Evans. And those are just off the top of my head. The two issues-- striking down the statute and level of scrutiny-- aren't necessarily related.

Those cases are outliers where the Court wanted to reverse the law, but did not want to create a new suspect class. So they dishonestly applied strict scrutiny standards under an alleged rational basis or intermediate scrutiny cloak. Scalia called the majorities in all of those cases on their dishonesty.

The majority repeatedly made it clear that they consider the core Second Amendment right to be on par with the core First Amendment right and that the two should be applied the same. The appropriate level of scrutiny follows, whether declared or not.

Breyer is upset because it is clear that the majority is applying de facto strict scrutiny even though they refuse to state they are doing so. Breyer had probably hoped to swing Kennedy if Scalia openly declared he was using strict scrutiny, but Scalia for once out maneuvered the liberals in majority building. I can live with de facto strict scrutiny.
 

It is utterly unnecessary for the Court to address the issue of insurrection, as insurrection is by its very nature, extralegal. There is no such beast as a legal insurrection, there are only justifiable insurrections, which are held by every person who subscribes to the rule of law and the natural rights of man to be the method of last resort to return Liberty to the People.
 

The statute was not found unconstitutional on the facts of the case. Rather, it was found to be unconstitutional under any set of facts. Regardless, of whether the phrase "facial challenge" was used, the statute was found to be effectively facially unconstitutional

Bart, we're deeper in the weeds than we need to be here. You are not wrong about the effect of the decision (the Court found that the handgun ban was unconstitutional in its only application, which is to ban handguns; same with the trigger lock in the home provision), but technically, the Court's judgment just means that Heller will have to be issued a handgun permit. Whereas a facial challenge enjoins enforcement of the statute against anyone.

As for strict scrutiny, again, if Scalia had 5 votes for it, you would have seen it. You didn't, because he doesn't have 5 votes for it. Instead, he has 5 votes for invalidating handgun prohibitions and upholding lots of regulations. That's not strict scrutiny (in the First Amendment context, or the Fourteenth Amendment with respect to race discrimination, regulations are presumed unconstitutional, not constitutional), much as you might like it to be.
 

Except that I thought the whole point of American was to be this new sparkling vehicle that contained within itself the means of purging tyranny. Free men on free land. We ran out of at least one of those a hundred years ago.
 

RKBA ?? that'd be the Right to Keep and Bear Arms .. in my estimate ..

i don't mind if everyone has a gun .. but i note the caveat to "well trained" .. that's a definite requirement ..

would you scholars say that the groundwork has been laid to require purchasers and owners to complete some form of firearms training as a requisite.. [pre or otherwise] to own and operate a firearm ..

i've always been of the school of thought that "gun control is hitting what you aim btw .." but that's pretty common among those of us who have served the profession of arms ..
 

Ok, this is not my night. Third time's a charm:

Even though Levinson is clearly right about the selective use of history by both Scalia and Stevens, this is actually one of Scalia's best opinions, in that he probably had to hold a tenuous majority of 5 and that meant he couldn't make the type of broad and repugnant pronouncements about the law that he sometimes likes to make in dissent.

Apropos of this, a friend of mine who teaches statutory construction, and reads a lot of Scalia opinions, called me today to tell me that he thought it read like a dissent or concurrence which had been converted to the majority opinion.

I don't agree, but thought it was worth sharing.

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.

It's always been remarkable to me that people who feel so strongly about the RKBA absolutely refuse to use the best argument in its favor. I guess the 14th A truly does scare them.
 

Why not also have minimum competency requirements just to have children? You know, preemptively weed out the screw ups who would misuse their guns. If we're gonna do it for the "RKBA" (thank you, btw) -- which is explicitly mentioned in the Constitution -- why not for amorphous privacy rights? (I'm also asking the scholars)
 

Interestingly, NRA's LaPierre just announced that NRA's first wave of lawsuits will challenge Chicago's firearm prohibitions.

Simultaneously, the conservative Fox News as well as the entire conservative talk radio circuit and blogosphere spent all day detailing Obama's flip flops on the issue. Of particular interest in view of his sudden support for Heller was Obama's 2004 vote in the Illinois legislature against allowing a state self defense exception to being prosecuted under local gun control ordinances like those of Obama's Chicago.

Does anyone think that this coordinated response is an accident?

Somehow, I think the "bitter" folks at the NRA "clinging to their guns" have long memories and are not fooled by the opportunistic Obama flip flops.
 

complete some form of firearms training as a requisite [for ownership]

Why? You can buy a car without having to demonstrate proficiency. You can even drive one, assuming you don't wish to leave your own property. You need a drivers license only to drive on the streets.
 

I too find the utter predictability of the split here depressing. Dilan is right to suggest it is a decent opinion over all, but it is surely flawed.

First off, how can case in which the core result was to overturn a handgun ban not cite the ONE relatively recent federal appellate case on that issue? The Morton Grove case that Caroline Kennedy wrote about on the book she co-authored on the BOR?!

Well, maybe because of the originalist focus of the opinion (lucky not as 1790 focused as the lower court!). The opinion in effect thought the result obvious, even though it clearly is not.

[This is clearly the case on the handgun ban, which it deals with rather quickly -- the people (though see DC and Morton Grove) generally consider it a fitting weapon. That's reasonable. QED. Or something. Breyer hits a nerve on the little space used to apply the 80% of the opinion on history.]

Admittedly the "collective rights" view developed over the last century or so, but perhaps the opinion could deign to deal with those years a bit more.

To be fair, it DID cover more ground than 1790 ... it reached the Civil War and then briefly covered its own precedents.

BTW, the opinion suggests the use at issue here is "unconnected with service in a militia" ... this ignores the idea that crime control is a type of militia function. This underlines the lack of nuance simplistic either/or reasoning leads to.

As to scrutiny, see F27, where the right is compared to freedom of speech. So, how can we allow all those regulations? Maybe, apropos to a former discussion by Dilan, the nature of the 2A itself. Cf. free exercise of religion over mere belief.

Stevens btw underlines the problem of 2A focus with a comment like "there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution."

The 9a and 14a simply cannot be fairly so interpreted. e.g., free blacks having guns for self defense (see also, Dred Scott). Not that his somewhat pathetic covering of the English Bill of Rights etc. is that "fair."

BTW, another reason to cite the Quilici decision was that the dissent focused on the importance of home defense, which the majority assumed was particularly important. The dissent there, however, expressed more support of privacy rights than S. might like.
 

An Open Letter to Those Who Wonder Why Citizens Would Want to Carry Guns in Public

http://hubpages.com/hub/An-Open-Letter-to-Those-Who-Wonder-Why-Citizens-Would-Want-to-Carry-Gun-in-Public
 

uhhh ..FLS . i didn't express a dictate .. i asked a question ..

i'd also note you don't have to have a pilots' license to buy a plane .. but you'd be ill advised to take off without knowing how to land ..

and felons can own and operate cars ..but not guns .. and crazy people as well [cite: LA-NYC Traffic]

i am also aware some states require both proficiencey and training to obtain a concealed carry permit .. hence ..my query ..
 

It appears that it took Washington DC less only a couple hours to give the Heller Court the bird and start violating the Second Amendment again. The NY Times reports:

Adrian M. Fenty, the mayor of Washington, said the city was taking steps to comply with the court’s ruling. Officials here are considering an amnesty period in which handgun owners can register them without penalty, Mr. Fenty said at a news conference.

Mr. Fenty emphasized that it remains illegal to carry handguns outside the home and that only registered guns may be kept at home. Automatic and semiautomatic weapons will generally remain illegal, he said.


Which part of the Second Amendment guarantee that the individual has a right to possess and carry weapons in self defense did DC not understand? Indeed, under the new rules which prohibit the carry of firearms outside of the home, how exactly is the owner supposed to transport the firearm from store to his or her home?

Which part of the Second Amendment guarantee that extends to all arms in "common use for lawful purposes" did DC not understand? Semiautomatic firearms are even more commonly used than handguns.

I wonder how long it will take Heller to take this back to Court?
 

To those of you who think a training requirement is incompatible with a constitutional right: Scalia specifically says that a "well regulated militia" refers to the state's role in disciplining and training the militia. And surely, as a historical matter, the state had the power to organize the unorganized militia and call its members up for training.

Now, you don't HAVE to be so tied to history in interpreting the Second Amendment, but that's the route Scalia took and it is the route most gun rights advocates take. And if you take that route, it seems to me that "well regulated" suggests that the state has the power to instill discipline and training among gun owners.
 

Bart:

In fairness to DC officials, the Heller litigation team deliberately raised a "keep" challenge and not a "bear" challenge, because they thought it was easier to win. And the opinion does state that concealed carry regulations are presumptively constitutional.

That said, I don't doubt that the DC officials-- who, whatever else you want to say about them, SINCERELY believe in their gun control regulations-- are going to try and enforce the strictest control regime possible that will pass muster under Heller. And that means that yes, they are probably going to take a few trips through the courts in which the extent of the limitations of Heller will be clarified.
 

jkat and dilan: Militia membership and its associated training cannot be either a prerequisite or corequisite to either the possession or carrying of arms, unless women were historically forbidden the possession and use of arms, because women have never been part of the militia, except for those who joined the National Guard in recent years. Thus laws regarding the militia can apply only to a small fraction of the fairer sex.

To have the body of the citizenry trained to arms, voluntary training is sufficient. The necessary prerequisite to proficiency is access to and experience with firearms. Ownership, and the ability to take guns to the range, facilitate access and experience.

Although, prudentially courts might find the drivers license model reasonable, where training and testing apply only for those who wish to carry firearms in public.
 

To have the body of the citizenry trained to arms, voluntary training is sufficient.

That's a policy argument, contrary to the text of the Second Amendment, which specifically refers to the militia as being "well regulated".

One of the simplest ways to determine if you have a principled view of the Second Amendment is as follows: if you believe that every gun regulation that you disapprove of is prohibited by the provision and every gun regulation you approve of is permitted, you do not have a principled view of the Second Amendment.

There's plenty of reasons why one might not favor training requirements. But if a state says "we need to train firearms owners so that we can have an effective militia if one is necessary", it seems to me there's no way the courts could strike that down given the text and history of the Second Amendment, even if you are right that it is a bad idea.
 

to the text of the Second Amendment, which specifically refers to the militia as being "well regulated"

What does "well regulated" mean to you? "Well regulated" originally meant something that worked like clockwork, because a well regulated clock kept good time. Metaphorically, "well-regulated" meant "properly functioning," here a militia that meets the standards of efficiency and effectiveness one expects of it. While this might require training, notice there is no suggestion of governmental control over the well-regulated balls, bodies politic, young women, minds, ships, children, young men, or households in the following excerpts I was able to google:

Near the end of the evening, in a well regulated ball, it is customary to have a supper; -- Victorian Dancing Etiquette

In a well-regulated body politic this natural desire [to receive good emoluments without trouble or responsibility] on the part of a spirited young gentleman so highly connected would be speedily recognized,--
Dickens in Bleak House

he would presently place these advantages at the disposal of some well-regulated young woman of his own "set."
Henry James in The Europeans

a well brought up young woman, you know—with a well-regulated mind --
Thackeray in Vanity Fair (similar expression in Le Fanu's Uncle Silas)

This young ladies' seminary business ... ought not to be permitted on any well regulated ship. --
Robert Barr in A Ladies Man

“There’s nothing a well-regulated child hates so much as regularity.
Lewis Carroll in Sylvie and Bruno

“Mr. Swinney!”...“when you came into this office... you found three-and-twenty as pious and well-regulated young men as ever laboured together—as ever had confided to them the wealth of this mighty capital and famous empire. You found, sir, sobriety, regularity, and decorum; no profane songs were uttered in this place sacred to—to business; no slanders were whispered against the heads of the establishment. --
Thackeray in Samuel Titmarsh

THIS work was first designed and undertaken at the earnest solicitations of two young ladies who were about to enter upon the important duties of married life, and, at their suggestion, the book proposed was to serve as a Counsellor, from the outset of their career, through all the various arrangements of a well-regulated household.
Mrs. Mary Mason in The Young Wife's Counsellor and Friend.
 

Dilan:

["Bart" DeDicta]: Not expressly offering a level of scrutiny is meaningless when the result of holding the DC ban to be facially unconstitutional is the same a strict scrutiny.

[Dilan]: This is plain wishful thinking. You really think that no level of scrutiny other than strict could result in an overturning of the DC gun ban? It couldn't be overturned under intermediate scrutiny as not sufficiently narrowly tailored? That it couldn't be overturned under a reasonableness standard as unreasonable? That it couldn't be overturned under a categorical standard that prohibitions of commonly possessed arms are unconstitutional but regulations are permissible?


Waste of time, Dilan. Don't expect our favourite trool to understand fine points of law, much less the taxonomy of constitutional evaluation.

Cheers,
 

The obvious historical reading of the 2nd Amendment? That it's a fudge to satisfy very different state constitutional models, dumped on future generations by the not-so-infallible Founders.

Of course, jurisprudence doesn't allow for such deliberate ambiguity, and that's one reason why 'originalism' is bunk: it leaves no room for an intention that is prima facie ambiguous.
 

former law student:

I'll direct you to the model of the 1777 New York State Constitution (or, more explicitly, the 1821 NY constitution, if you prefer) which expressly sets out the basis for a militia that's regulated top-down, as opposed to, say, the Virginia constitution with its bottom-up militia and its more absolute guarantee on the right to keep and bear arms.

(Heller is interesting from a historical perspective because it's a DC case, and Maryland and Virginia's state constitutions are markedly different on these questions.)

I don't think it's an interpretative overreach to read in the text of the Second Amendment -- an atrocious bit of prose in an otherwise well-written set of texts -- the desire to square the circle between top-down and bottom-up regulatory models. (It's less of an overreach than to say its plain meaning supports any model categorically.) As such, it's an abject failure.

But that's not an argument that either Scalia or Stevens are able to make, particularly given the later intrusion of the 14th Amdt., hence the BS hermeneutics in both opinions.
 

Let's have a pool on the time that the comments on this post will equal the number of briefs filed in Heller. This is number 50. 20 more to break Heller. Can we count on the usual suspects?
 

Dilan, it's the militia that's well regulated, it's the People who have the right to keep and bear arms. Distinct, though overlapping groups, the former is derived from the latter.

And under the Constitution, even without the 2nd amendment, the federal government has the power to require people to train with firearms. With the addition of the 2nd amendment, ownership of firearms cannot be conditioned on that training, because it's a right.

Rather akin to the way the NFA requires a tax stamp to purchase or transfer a new machine gun, but since 1986 the federal government no longer issues the tax stamp, if exercise of the 2nd amendment could be conditioned on training, the government could extinguish the right by either refusing to offer the training, or making passing it impossibly hard.

The 2nd amendment exists to prevent the government from disarming the people, not to merely require it to go through some pantomime in order to disarm them.

Or, short form, I'll agree with a training requirement to own a gun when 1st amendment boosters agree to require a GED before people can speak. That's not how fundamental liberties are treated.
 

This is a sadly partisan post, that itself is evidence of the culture wars it decries. The minority opinion is plainly the extremist one: urging acceptance of a wholesale ban on firearms based on a probably wrong understanding of the early history of the 2nd amendment, certainly wrong in its disregard of the subsequent history of firearms rights in the US, and out of sync with current public opinion which accepts the 2nd amendment as recognizing an individual right. That minority, called "moderate" by SL, proposes a reading of the 2nd amendment as extreme as it is ill-founded. Scalia's/the majority's opinion by contrast is a model of moderation and sobriety.
 

A 5-4 decision recognizing a right to keep and bear arms -- as they say, by a hair -- is a much greater boon to McCain than maintenance of the status quo. "One appointment by a President Obama can take your rights away."

Obama's flip-flop to supporting an individual right to bear arms will become a campaign issue, angering his supporters, while enabling Republicans to cast doubt on his truth-telling and character.

Obama's appointments are much more likely to believe what Ginsberg (former general counsel of the ACLU) believes than what Scalia believes. Simple questioning in any debate can make that clear.

His newfound "support for the 2nd amendment" just gives Republicans another method to deflate his candidacy.
 

the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service.

Sure. As the Second Amendment points out, being armed is a necessary prerequisite for a properly functioning militia. I notice in passing that NY has failed to live up to its commitment to distribute arms to depots in every county, proportionate to the population.

I amused myself by substituting the other well-regulated examples into the Second Amendment format:

A well regulated Ball, being necessary to the social life of a free State, the right of the people to buy and serve Refreshments, shall not be infringed. Note that this construction permits me to buy and serve all the rumaki I like without hosting any balls.
 

Applying strict scrutiny will not lead to absurd results. The State's compelling interest in keeping guns out of the hands of felons and children, as well as out of bars and sporting events, should be easy to establish. What will not pass muster is laws banning concealed carry. It would be difficult, if no impossible, for States to establish any benefit in prohibiting concealed carry in light of over 20 years of evidence showing that if there is any measurable effect of concealed carry, it is a slight decrease in crime. Moreover, even with the standard seemingly adopted by the Majority, it is hard to imagine how bans on concealed carry can be justified in the minority of states and cities where such bans still exist.
 

And under the Constitution, even without the 2nd amendment, the federal government has the power to require people to train with firearms. With the addition of the 2nd amendment, ownership of firearms cannot be conditioned on that training, because it's a right.

The second half of this is not true, Brett. If a state wants to enact a statute that says (1) all gun owners are part of the militia; (2) the militia shall be organized; and (3) the organized militia shall report for training twice a year, I am certain that statute is constitutional. Indeed, that's probably the closest thing to a slam dunk in Second Amendment law.
 

Dilan, was there a requirement or even a tradition that militia men disposed of their weapons when they aged out of service at 45? Because, as for women, that's another example of the decoupling of militia service as a prerequisite or corequisite for gun ownership.

While the government can require young(ish) men to serve in the militia, realize they can Constitutionally require them to serve in the regular military as well.
 

This militia member wants his rocket propelled grenade launcher. The only reason it is considered "strange and unusual" (per Scalia) is that it is chicken&eggishly currently banned here. It's not "strange and unusual" in Iraq.
Cowards don't have the courage of their interpretational convictions.
 

While the government can require young(ish) men to serve in the militia, realize they can Constitutionally require them to serve in the regular military as well.

I don't think it is limited to young males. That was how Congress defined the militia in the 18th Century, but if a state wanted to broaden its militia to females or older people, there's no evidence that the framers intended to foreclose that option.

My broader point is that it seems to me that one route for states who want to enact gun control measures is to do it by reviving the state militias. They clearly have the power to do so-- indeed, the one thing everyone agrees about the meaning of the Second Amendment, the collective rights and individual rights crowd, the Heller majority and the Heller dissenters, is that it was intended to ensure that the federal militia and raise and support armies powers would not be used to disarm state militias.

In fact, nothing would honor the original understanding of the 2nd Amendment more than for states to take this opportunity to create a new militia for the 21st century, and bring back the notion that gun owners not only provide for their own defense but also may be called on to provide for the common defense.

The Second Amendment protects an individual right to bear arms. But it doesn't enact an individualIST conception of gun ownership. Rather, gun owners were expected to stand ready to defend the free state.
 

"If a state wants to enact a statute that says (1) all gun owners are part of the militia; (2) the militia shall be organized; and (3) the organized militia shall report for training twice a year, I am certain that statute is constitutional. Indeed, that's probably the closest thing to a slam dunk in Second Amendment law."

I agree. What confuses me is that you think this contradicts what I said.

The government can demand that you own a gun, it can demand that you train with one, even extensively. What the 2nd amendment does is deny the government the converse of that power, the power to deny you a gun, or demand that you not train with it.
 

Brett:

And I agree that the Constitution forbids the states from denying citizens the right to own a gun. As I said at the very beginning of this thread, I thought (and still think) Heller is one of Scalia's best opinions.
 

Can the government really demand that you own a gun? Since the word gun is not referenced in the Second Amendment, can the government demand that you own arms? If so, would arms be defined as Scalia seems to have? If so, how many arms required to be owned would be reasonable? And what about conscientious objections of an individual concerning arms and their use? Might the Second Amendment clash with the First? (Or Ninth?) Scalia's arms are not long enough to embrace, restrict or control his version of originalism which has opened the barn door in what may become the individual arms race in America. Guns don't kill: people do. And the Justices are people.
 

As to forcing people to own guns, a conscientious objection clause was omitted during drafting.

The reason why is open to debate, but a full respect of liberty and so forth would be that they could not. And, there always was an understanding that conscientious objection was valid in various cases.

Also, from the beginning, requirements that everyone own a gun, even all members of the organizaed militia (see the First Militia Act) was just not enforceable anyway.
 

Joe and Shaq:

Yes, the government can demand that you own a gun and conscript you into the militia and train you.

The fact that these requirements were not enforceable doesn't mean that they weren't constitutional.

This reflects the point I made earlier, which is that the Second Amendment is individual, but it is not individualist. It recognizes a liberty, but that doesn't mean it is libertarian.
 

"Yes, the government can demand that you own a gun and conscript you into the militia and train you."

Are you (Dilan) talking about what a state government may do? What if a state does not make that demand, etc? Can the feds make that demand, etc, of residents of such a state?

Also, has SCOTUS ever ruled that such a demand is not violative of the 13th Amendment (perhaps the draft in WWI?) or the 5th (if required to shell out money - in effect a taking - to own a gun)?
 

"Also, has SCOTUS ever ruled that such a demand is not violative of the 13th Amendment"

Yes. Arver v. United States. I think they dealt with the 13th amendment argument a bit casually, but they did explicitly reject it.
 

"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."

I was going to ask how you could characterize the dissenting Justices as moderate rather than liberal in the same sentence you admit their support for the most extreme version of gun control.

Then I got to this:

"As a partisan Democrat..."

As I recall from law school, the faculty has exactly one non-liberal, Lino Graglia.

Does the uniformity of outlook affect the quality of education at all?
 

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The fact that these requirements were not enforceable doesn't mean that they weren't constitutional.

True enough. Didn't mean to imply otherwise.

As to Shag's question about the feds, I referenced the first federal militia act, which required self-arming pursuant to congressional militia power.

The feds have the power to call up the militia and also have the power to require it [us] to be armed to provide that function.
 

In true strict scrutiny, all regulations are presumed unconstitutional. This is pretty clearly NOT that, despite the hints Scalia may have dropped otherwise.
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