Thursday, June 26, 2008

Thoughts on the Heller Decision

Now that I've done a quick read-through of the Heller decision, I offer some observations:

1. The Court held that the 2A protects an individual right, one not dependent upon membership in an organized militia. The right exists for otherwise lawful purposes, specifically noting that self defense is one of the bases for the right. The Court recognized the pre-existing nature of the right, as well.

2. Some restrictions of the RKBA are permissible. E.g., licensing is not forbidden by the 2A, but only when imposed in a manner that is not arbitrary or capricious. That would seem to disallow much of the discretion typically exercised by issuing officials in places like New York.

3. Outright bans of classes of arms in common use by the people are forbidden. This is a key point because it disposes of the frivolous argument that even if the 2A protects an individual right, it only protects the right to keep and bear arms of a type common in use during the 18th Century. In particular, the Court notes that handguns are in common use and overwhelmingly chosen by Americans for self defense. In dicta, the Court noted that machineguns could possibly be banned. However, it left open the argument that the reason machineguns are not in common use is because they have been so heavily regulated since 1934.

4. The Court declined to specify a standard for review in 2A-based challenges to gun control laws. For example, it will leave the matter of whether gun control laws must pass rational basis or strict scrutiny to later challenges. This wasn't unexpected.

5. The Court did not explicitly incorporate the Second Amendment against the states. However, it did cite several state cases in its decision supporting the idea that the 2A protects an individual right. This leads me to believe that the Court would be open to incorporation in a future case where a state law is challenged, e.g., Chicago's handgun ban. Again, this isn't totally unexpected, since the D.C. law which was struck down was a Federal matter, not a state law. The Court tries to craft most decisions narrowly.

More comments later as I think of them.


Anonymous said...

The fact that four members of the Supreme Court found against the decision, and none have been impeached, shows I have no representation in congress.

Who is a freedom believer.

Kevin said...

The Court declined to specify a standard for review in 2A-based challenges to gun control laws. For example, it will leave the matter of whether gun control laws must pass rational basis or strict scrutiny to later challenges. This wasn't unexpected.

Err, no. Scalia is pretty explicit in footnote 27 that rational basis is right out:

JUSTICE BREYER correctly notes that this law, like almost all laws, would pass rational-basis scrutiny. Post, at 8. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. See, e.g., Engquist v. Oregon Dept. of Agriculture, 553 U. S. ___, ___ (2008) (slip op., at 9–10). In those cases, “rational basis” is not just the standard of scrutiny, but the very substance of the constitutional guarantee. Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. See United States v. Carolene Products Co., 304 U. S. 144, 152, n. 4 (1938) (“There may be narrower scope for operation of the presumption of constitutionality [i.e., narrower than that provided by rational-basis review] when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments. . .”). If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.

Dave Markowitz said...

Which still leaves open whether intermediate or strict scrutiny should be applied in 2A-based challenges to laws.

Francis W. Porretto said...

Why should it be necessary to "incorporate" a fundamental right, when the explicit recognition of that right says "shall not be infringed" -- ? I don't see an exception there for the states, or the counties, or the cities, or the villages, or my Aunt Sadie.

When the Framers wanted to restrict the federal government alone, they wrote "Congress shall make no law." When they wanted to restrict the states but leave the federal government some latitude, they wrote "No State shall." But when they were recognizing a right guaranteed against all political interference, they wrote "shall not be infringed" or "shall not be abridged," or "no Warrant shall issue" -- a formulation that omits the identity of any level of government. That should be clear from contemporaneous commentary, if nothing else.

Of all the losses we've suffered these past 200-plus years, the ability to understand simple English the one I find most ironic.

Dave Markowitz said...

It *shouldn't* be necessary to incorporate the amendments in the BoR against the states. The framers of the 14th Amendment intended to do that in one fell swoop, because before the Civil War, the BoR was generally held to apply only to the Federal government. However, the Supreme Court created the doctrine of incorporation to selectively apply portions of the BoR to the states as cases involving them arose. E.g., freedom of speech and religion.

I do not believe that it's correct under the 14th, but it's what we currently must work with.

Anonymous said...

The second amendment was a restriction on the powers of the federal government. The federal government cannot restrict the right to bear arms because the right to bear arms is a state issue. States haves "militias." The federal government has an army. The second amendment says nothing about the powers of states in regulating firearms. And, guess what, living in a densely populated city, I think it shows the wisdom of the framers in their recognition of what were federal concerns and what local.

Dave Markowitz said...

It's correct to state that the Second Amendment WAS a restriction on only the Federal government. The ratification of the 14th Amendment changed that.

If you read Scalia's decision, he very thoroughly demolishes the notion that the Second Amendment's right to keep and bear arms is limited to only militia members.

Those of us who live in cities and other highly populated areas (myself included) have just as much need for firearms as rural folks. Residents of high crime areas will benefit the most from Heller. Gun control does not equate to crime control. It never has.

Anonymous said...

Actually, there is a Federal Militia Statute. Note that active members of the armed forces are exempt from militia duty.

US Code Title 10, Ch 13

§ 311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are--
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

§ 312. Militia duty: exemptions

(a) The following persons are exempt from militia duty:
(1) The Vice President.
(2) The judicial and executive officers of the United States, the several States, the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.
(3) Members of the armed forces, except members who are not on active duty.
(4) Customhouse clerks.
(5) Persons employed by the United States in the transmission of mail.
(6) Workmen employed in armories, arsenals, and naval shipyards of the United States.
(7) Pilots on navigable waters.
(8) Mariners in the sea service of a citizen of, or a merchant in, the United States.

(b) A person who claims exemption because of religious belief is exempt from militia duty in a combatant capacity, if the conscientious holding of that belief is established under such regulations as the President may prescribe. However, such a person is not exempt from militia duty that the President determines to be noncombatant.

Dave Markowitz said...

I've been aware of the Federal militia statute for a long time. I didn't mention it because as Scalia noted, our individual RKBA is not dependent upon membership in the militia.

Anonymous said...

I don't think the Court said that licensing was okay; in fact, the decision suggests that licensing is NOT okay. However, since this was not presented in argument, the Court did not rule on that point.