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The Debate is Over

A signal victory for free men is won this day. Let the enemies of liberty snarl, whine and sulk; this day, by a narrow margin, the creeping totalitarianism of the modern age has been pushed back half  a step, and made to hesitate. Rejoice! The night still comes, but the twilight will last an hour longer, perhaps.

DISTRICT OF COLUMBIA ET AL. v. HELLER

Held:

1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

 (a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.

(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved.

 (c) The Court’s interpretation is confirmed by analogous armsbearing rights in state constitutions that preceded and immediately followed the Second Amendment.

(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms.

 (e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion.

(c) The Court’s interpretation is confirmed by analogous armsbearing rights in state constitutions that preceded and immediately followed the Second Amendment.

(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms.

(e) Interpretation of the Second Amendment by scholars, courts  and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion.

(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes.

2. Like most rights, the Second Amendment right is not unlimited.

It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home..

 478 F. 3d 370, affirmed.

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined.

STEVENS, J., filed a dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.

My comment:

I am pleased, not a little, that the ambiguous holding in Miller has been clarified. Miller is a curt and unhelpful case, and not a stellar piece of legal reasoning.

I notice with shock and surprise that the dissent by Justice Stephens lists no precedent aside from Miller for his militia-only interpretation. He cites dozens of cases holding that Miller does not support an individualist interpretation–a matter not in dispute. Miller neither said yea or nay– but offered not one case supporting his position regarding the actual argument before the court.

Had I offered a paper in a first year law course citing NOTHING in support of my position, I would have received an F. I contrast the windy void of logic unfavorably with the opinion in Fifth Circuit’s decision in United States v. Emerson, 270 F. 3d 203 (2001), which affirmed the individualist interpretation, that had page after page of authority in support. If you have not read Emerson, please do, starting with paragraph V: the clarity and thoroughness are refreshing.

This dissent is the poorest piece of legal reasoning I have ever read. Roe v. Wade likewise did not present precedent in support of its conclusion. Would you write a proof in geometry without citing your axioms?

For those of you not familiar with the basics of legal reasoning, the reason why law is based on Stare Decisis is to allow reasonable men to use law as a guide to their conduct.

If  a reasonable man cannot, by examination of previous cases, know what is expected and what is forbidden in his current case, then the law is arbitrary, which is to say, no law at all.

Law without precedent, activist law, judge-made law, legislation from the bench, the law of a so-called Living Constitution, is like facing the Roulette Wheel of Justice in Mad Max’s Thunderdome: just a wild spin, and you get whatever consequences random chance throws up.

About

John C. Wright is a practicing philosopher, a retired attorney, newspaperman, and newspaper editor, and a published author of science fiction. Once a Houyhnhnm, he was expelled from the august ranks of purely rational beings when he fell in love; but retains an honorary title.

June 26, 2008 @ 3:41 pm
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