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The Plural of Person is People

Jun 26, 2008
By .
Law

As in:

A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear Arms, shall not be infringed.

The Supreme Court has ruled in favor of respondent Dick Anthony Heller in District of Columbia v. Heller, finding that the rights protected by the Second Amendment to the United States Constitution are individual rights. In other words, the Constitution protects your right to keep and bear arms, not that of some nebulous or non-existent militia, from federal encroachment.

The opinion was written by Justice Scalia, joined by Chief Justice Roberts, and Justices Kennedy, Thomas, and Alito. Justice Breyer dissented, joined by Stevens (with a separate dissent), Souter, and Ginsburg. It's a 5-4 opinion, on an ideological split, with the usual suspects lining up where we'd expect them to be.

Congratulations are in order to respondent Dick Heller and his attorney, Alan Gura, who whatever one thinks of the outcome, has beaten the government and a former solicitor general of the United States in a career-defining civil liberties case. Quite an achievement for both.

It's too early to say what the Court has decided on the important questions of scrutiny level (practically speaking, the extent to which the federal government can legislate on arms possession) and incorporation of the right into the guaranties of due process and privileges and immunities due to citizens (which it isn't called upon to decide here, but on which it may provide hints to guide future cases involving state laws), but I'll try to address that as I have an opportunity to read the decision.

Scotusblog is providing live web coverage of all of today's decisions, and as always will have good analysis and commentary on the Court's holding. I'm sure that the Volokh and Instapundit blogs will also have good interpretations of Heller. If you want to know about what the case means, stick to the law blogs rather than big media, who if past performance is a guide will focus on human interest, scaremongering, and election analysis over the extent of the legal right, which is what's most important here.

Update: I've made a copy of the full opinion, majority and both dissents, available for download (in .pdf format) by clicking here: scalia-heller

Update 2: It's a slam dunk for the respondents, but those who stay up at night worrying about particle accelerator hand-cannons in our schools can take comfort in this passage from the syllabus:

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.

Still reading it. More to come.

Last 5 posts by Patrick Non-White

13 Comments
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13 Comments

  1. Ken  •  Jun 26, 2008 @7:49 am

    Starting to read it. A few quick impressions from the dissents:

    1. Stevens is not a credible defender of stare decisis.

    2. This is incredibly stupid:

    In my view, there simply is no untouchable
    constitutional right guaranteed by the Second Amendment
    to keep loaded handguns in the house in crime-ridden
    urban areas.

    Because the right should only be protected in safe neighborhoods.

    "The law, in its majesty, prevents both the rich and the poor from sleeping under bridges."

  2. Grandy  •  Jun 26, 2008 @7:55 am

    Volokh getting hammered right now I presume; I can't even get the site to load.

    I don't read High-Lawyerish very well, alas. Still, skimming the early parts has been interesting.

  3. Stephen  •  Jun 26, 2008 @8:01 am

    Patrick's link actually gives all 3 opinions. I was worried when I saw 157 pages and thought is was just the majority opinion…

    I always think it is interesting to see how the different Justices write. Makes it easier to remember these are just normal people (granted, very smart normal people) trying to explain themselves.

  4. Patrick  •  Jun 26, 2008 @8:01 am

    My pro-respondent bias aside, Scalia's textual interpretation of the amendment, where he's generally at his most impressive, is far more compelling than that of the dissent, who seem to be arguing about something written in another document.

  5. RobF  •  Jun 26, 2008 @8:06 am

    I caught that sentence from Ken's #2 in other coverage and did a double take as well. What an odd sentence. It can be read as stating that keeping loaded handguns in the house is one of the contributing factors to high-crime parts of the city and implying that doing so will only make the problem worse. Strangeness.

  6. Grandy  •  Jun 26, 2008 @8:09 am

    I agree, Patrick. And I'll note I don't precisely have a dog in this fight. I prefer this outcome/environment, but I don't own any guns and probably won't ever and don't get that worked up about it (I grew up close to a couple of overly obnoxious die hard NRA types. It didn't turn me off of the position, but it's left me weary over the years).

    I particularly agree on the whole "first amendment enumerates collective rights, except where it doesn't, which is places that have no bearing on the 2nd amendment" argument from the dissent. Which seems like a really weak stab at trying to justify a platform position. I fail to see what good the right to petition the government for a redress of grievances does if it's only a collective right. It wouldn't help me if I got screwed by the government and nobody else in my community did. Petitions might be more meaningful when they come from groups, but it seems clear to me that they weren't intended to come soley from groups, and that the inherent merit of said petition is not based on the number of people bringing it.

  7. Patrick  •  Jun 26, 2008 @8:15 am

    I don't believe Stevens does his moral position any favors by discussing Ku Klux Klan violence against unarmed black people at length.

  8. Patrick  •  Jun 26, 2008 @8:39 am

    One of the key issues the case presented is left undecided: that of the level of "scrutiny" to be used in evaluating gun laws. Scalia doesn't say, though in a footnote attacking Breyer he makes clear that it isn't "rational basis" scrutiny, meaning that if there's any rational basis for the law it survives. In other words, rational basis is an "I win" button for the government.

    So it will be intermediate (a balancing test weighted against the government in favor of the individual) or strict scrutiny (where the government almost always loses, in layman's terms), or some hybrid, but that remains to be decided.

    Scalia in essence invites further litigation of the question.

  9. Ken  •  Jun 26, 2008 @8:53 am

    The dissenters worrying that this casts all sorts of laws into doubt is almost as comical as Stevens worrying about stare decisis.

  10. Patrick  •  Jun 26, 2008 @9:02 am

    Scalia's response to those who fret about, and those who want, the right to own a machine gun is here:

    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.

    No machine gun for you!

    It's as though he's baiting a generation of internet trolls with his common sense.

  11. Ezra  •  Jun 26, 2008 @9:19 am

    I'm sad that they struck down the trigger locks as well. Doesn't the NRA support trigger locks?

  12. dbt1949  •  Jun 26, 2008 @10:14 am

    Mentally ill people have constitutional rights too!

    If mentally ill people cannot have guns how come I'm so well armed?

  13. Nickgb  •  Jun 26, 2008 @3:31 pm

    I'm still working on this one (I don't want to say anything too substantive until I've read it three times, which is usually good when Scalia or Stevens gets his teeth into something), but I wanted to make one point. Trigger locks are not per se unconstitutional under this decision. The problem is that the statute required trigger locks at all times within the home, so you couldn't take the lock off if an intruder broke in. The District concedes that such an exception existed in the common law, but Scalia declines to find such and invalidates the requirement for lacking that exception. A trigger lock requirement that allows use of the firearm in the home for self-defence might be Constitutional (and I think Scalia can't get five votes to the contrary, so he argued there was no exception).