Thursday, June 26, 2008

A Human Right, A Civil Right: Fundamental, Pre-existing, Strictly Scrutinized, Universal, and Incorporated

This morning, I'm noting a lot of ill informed ...or perhaps just informed by misunderstanding of the text... opinions and statements regarding the historic Heller ruling on the scope and applicability of the 2nd amendment.

This of course is unsurprising when many people of varying levels of knowledge about law, history, and firearms have just a short time to digest a 90 page majority opinion and another 70 pages of dissents and cites.

In the table below, I've selected out the critical passages, and highlighted some of those I consider most instructive or important.

Briefly, I need to specifically address some points:

1. Incorporation: Scalia makes it clear in his majority opinion that the second amendment is a fundamental right, that must be treated the same as other fundamental rights such as the first amendment. He specifically notes it in respect to the 14th amendment NUMEROUS times. This decision will be applied universally within the domain of the court, and should be considered controlling upon the states (this is clarified in the later references by the way).

2. Universality: This decision applies to all within the jurisdiction of the court. Excepting prohibited persons (and there is a clear definition under federal law of who those persons are by the way), all individuals under the jurisdiction of U.S. law, have the right to keep and bear arms.

3. Scrutiny: Again, this issue is clear. Though in the opinion itself Scalia does not explicitly state that second amendment issues should be reviewed with strict scrutiny, this is made clear in the text by equating the 2nd amendment with the first, 4th, 14th etc... Further, Scalia explicitly dismisses Stevens call for a "balance of interests" standard of medium scrutiny. This is in effect strict scrutiny, with certain well defined exceptions (such as for felons, the insane, and weapons of mass destruction).

4. Class III (machine guns and other): This one is mixed. Although the majority expresses that some restrictions are permissible, it also explicitly denies outright bans. It is clear that weapons that are in the common usage and available to citizens, are protected. That includes machine guns (machine guns are not illegal for the general public to own, they are just very expensive and tightly restricted). Although Scalia points out that Miller said it was OK to ban short barreled shotguns, he also noted that the decision is flawed, because it only took judicial notice of what was presented to the court, and the apellant (Miller, though technically he was the respondent for the appeal to the supremes) never presented a case (he died before the date set for arguments, and his attorney didn't bother to show up).

Based on my reading, I would say that the current law prohibiting the new manufacture of machine guns for civilian sale after May of 1986 (actually that's not what it says, but that is how the ATF chose to interpret it) is out; after some long and difficult litigation. However, the door is open for other laws restricting such weapons, if properly written to pass constitutional scrutiny.

This of course applies to other weapon types specifically targeted for bans; for example the requirement that all weapons imported into the United States have a "sporting purpose", and that certain shotguns are considered "destructive devices" simply by arbitrary features; are also disallowed (again with the caveat that new laws could be written to pass a constitutional standard).

5. Scope: I think it is clear, though it will require significant litigation to hash out details; that no outright ban on any type of weapon (including machine guns as currently construed), excepting weapons of mass destruction, can stand muster. This means that all state "Assault weapons bans" will be struck down... eventually; along with magazine capacity bans, hollowpoint bullet bans etc... (though likely the ban on "armor piercing" handgun ammunition will continue).

I also think it is clear that there is significant room for licensing programs, and standards (including standards for weapons features and functionality)to be set, so long as the requirements for licensing are not discriminatory, arbitrary, capricious, or onerous. Of course, again, that is going to require years of litigation to define better.

I do think that clearly this means the end of Chicago gun laws, and most likely the radical reformation of laws in Massachusetts, New York, California, Hawaii, and New Jersey.

I should note that this does not mean universal "shall issue" concealed carry, but it almost certainly DOES mean that all states which allow concealed carry must allow it on a "shall issue" basis; using those standards as a guideline. Unless someone is a prohibited person, as spelled out under law since 1968, you MUST license them (presuming licensing exists).

Additionally, I believe this actually DOES set a requirement for lawful OPEN carry throughout the country; in that self defense is a recognized lawful, and traditional purpose of the bearing of arms.

And of course, this ruling does specifically allow for the restriction of carry of firearms in some ways, and some locations. As Scalia repeatedly says, no constitutionally protected rights are absolute (under the law).

Finally, any legislation that does not EXPLICITLY violate the above prohibitions, but would have the effect of doing so, is certainly disallowed. This means that standards for licensing, firearms design, dealer sale regulations etc... cannot be set so as to constitute an effective ban, or an onerous burden.

Now we just need to spend the next 15 years suing to define what constitutes an onerous burden.
Summary of Impact: So you can't ban guns, or any particular types of guns; you can't keep anyone not a prohibited person from buying, owning, keeping, bearing, and using guns for all lawful purposes (including self defense); you can license and set standards for guns to be sold, and for persons to purchase, own, keep, and bear them; but those standards cannot be discriminatory, arbitrary, capricious, or onerous.

Oh and of course, that doesnt get into the halo effect this has on other cases dealing with fundamental rights issues (remember how many times they state that this is simply protecting a pre-existing right).

Excerpts from the text of the majority decision:

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...

... 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.
Pp. 54–56.

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, 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.


* * *
We turn first to the meaning of the Second Amendment.

The Second Amendment provides: “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

In interpreting this text, we are guided by the
principle that “The Constitution was written to be understood
by the voters; its words and phrases were used in
their normal and ordinary as distinguished from technical

Normal meaning may of course include an idiomatic
meaning, but it excludes secret or technical meanings that
would not have been known to ordinary citizens in the
founding generation.

* * *

“Right of the People.” The first salient feature of
the operative clause is that it codifies a “right of the people.”

The unamended Constitution and the Bill of Rights
use the phrase “right of the people” two other times, in the
First Amendment’s Assembly-and-Petition Clause and in
the Fourth Amendment’s Search-and-Seizure Clause. The
Ninth Amendment uses very similar terminology (“The
enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by
the people”). All three of these instances unambiguously
refer to individual rights, not “collective” rights, or rights
that may be exercised only through participation in some
corporate body...

...This contrasts markedly with the phrase “the militia” in
the prefatory clause. As we will describe below, the “militia”
in colonial America consisted of a subset of “the people”—
those who were male, able bodied, and within a
certain age range.

Reading the Second Amendment as
protecting only the right to “keep and bear Arms” in an
organized militia therefore fits poorly with the operative
clause’s description of the holder of that right as “the

We start therefore with a strong presumption that the
Second Amendment right is exercised individually and
belongs to all Americans.

* * *

... in the course of analyzing the meaning of
“carries a firearm” in a federal criminal statute, JUSTICE
GINSBURG wrote that “[s]urely a most familiar meaning is,
as the Constitution’s Second Amendment . . . indicate[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.’ ”

We think that JUSTICE GINSBURG accurately captured the
natural meaning of “bear arms.” Although the phrase
implies that the carrying of the weapon is for the purpose
of “offensive or defensive action,” it in no way connotes
participation in a structured military organization.

* * *

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), This 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"

* * *

There seems to us no doubt, on the basis of both text
and history, that the Second Amendment conferred an
individual right to keep and bear arms. Of course the
right was not unlimited, just as the First Amendment’s
right of free speech was not, see, e.g., United States v.
Williams, 553 U. S. ___ (2008). Thus, we do not read the
Second Amendment to protect the right of citizens to carry
arms for any sort of confrontation, just as we do not read
the First Amendment to protect the right of citizens to
speak for any purpose.

* * *

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.

That history showed that the way
tyrants had eliminated a militia consisting of all the ablebodied
men was not by banning the militia but simply by
taking away the people’s arms, enabling a select militia or
standing army to suppress political opponents. This is
what had occurred in England that prompted codification
of the right to have arms in the English Bill of Rights.

The debate with respect to the right to keep and bear
arms, as with other guarantees in the Bill of Rights, was
not over whether it was desirable (all agreed that it was)
but over whether it needed to be codified in the Constitution.

* * *

We may as well consider at this point (for we will have
to consider eventually) what types of weapons Miller

Read in isolation, Miller’s phrase “part of ordinary
military equipment” could mean that only those
weapons useful in warfare are protected. That would be a
startling reading of the opinion, since it would mean that
the National Firearms Act’s restrictions on machineguns
(not challenged in Miller) might be unconstitutional,
machineguns being useful in warfare in 1939.

We think that Miller’s “ordinary military equipment” language must
be read in tandem with what comes after: “[O]rdinarily
when called for [militia] service [able-bodied] men were
expected to appear bearing arms supplied by themselves
and of the kind in common use at the time.” 307 U. S., at
179. The traditional militia was formed from a pool of
men bringing arms “in common use at the time” for lawful
purposes like self-defense. “In the colonial and revolutionary
war era, [small-arms] weapons used by militiamen
and weapons used in defense of person and home were one
and the same.”

As for the “hundreds of judges,” who have relied on the
view of the Second Amendment JUSTICE STEVENS claims we endorsed in
Miller: If so, they overread Miller. And their erroneous reliance upon
an uncontested and virtually unreasoned case cannot nullify the
reliance of millions of Americans (as our historical analysis has shown) upon the true meaning of the right to keep and bear arms.

In any event, it should not be thought that the cases decided by these judges
would necessarily have come out differently under a proper interpretation
of the right.

The amendment’s operative clause furthers the purpose announced
in its preface. We therefore read Miller to say
only that the Second Amendment does not protect those
weapons not typically possessed by law-abiding citizens
for lawful purposes, such as short-barreled shotguns.

* * *

It should be unsurprising that such a significant
matter has been for so long judicially unresolved.
For most of our history, the Bill of Rights was not thought
applicable to the States, and the Federal Government did
not significantly regulate the possession of firearms by
law-abiding citizens.

Other provisions of the Bill of Rights
have similarly remained unilluminated for lengthy periods.
This Court first held a law to violate the First
Amendment’s guarantee of freedom of speech in 1931,
almost 150 years after the Amendment was ratified, see
Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931), and
it was not until after World War II that we held a law

invalid under the Establishment Clause, see Illinois ex rel.
McCollum v. Board of Ed. of School Dist. No. 71, Champaign
Cty., 333 U. S. 203 (1948).

Even a question as basic
as the scope of proscribable libel was not addressed by this
Court until 1964, nearly two centuries after the founding.
See New York Times Co. v. Sullivan, 376 U. S. 254 (1964).

It is demonstrably not true that, as JUSTICE STEVENS
claims, post, at 41–42, “for most of our history, the invalidity
of Second-Amendment-based objections to firearms
regulations has been well settled and uncontroversial.”
For most of our history the question did not present itself.

* * *

Like most rights, the right secured by the Second
Amendment is not unlimited. From Blackstone through
the 19th-century cases, commentators and courts routinely
explained that the right was not a right to keep and
carry any weapon whatsoever in any manner whatsoever
and for whatever purpose...

...Although we do not undertake an
exhaustive historical analysis today of the full scope of the
Second 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 ofarms.26
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

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

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 amendment

* * *

We turn finally to the law at issue here.

As we have
said, the law totally bans handgun possession in the home.
It also requires that any lawful firearm in the home be
disassembled or bound by a trigger lock at all times, rendering
it inoperable. 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,27 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....

... See also State v. Reid, 1 Ala. 612, 616–617 (1840) (“A
statute which, under the pretence of regulating, amounts
to a destruction of the right, or which requires arms to be
so borne as to render them wholly useless for the purpose
of defence, would be clearly unconstitutional”).

It is no answer to say, as petitioners do, that it is permissible
to ban the possession of handguns so long as the
possession of other firearms (i.e., long guns) is allowed. It
is enough to note, as we have observed, that the American
people have considered the handgun to be the quintessential
self-defense weapon.

There are many reasons that a
citizen may prefer a handgun for home defense: It is easier
to store in a location that is readily accessible in an emergency;
it cannot easily be redirected or wrestled away by
an attacker; it is easier to use for those without the upperbody
strength to lift and aim a long gun; it can be pointed
at a burglar with one hand while the other hand dials the
police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.

* * *

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

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

* * *

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 are aware of the problem of handgun violence in this
country, and we take seriously the concerns raised by the
many amici who believe that prohibition of handgun
ownership is a solution.

The Constitution leaves the District of Columbia a variety
of tools for combating that problem, including some measures
regulating handguns,see supra, at 54–55, and n. 26.
But the enshrinement of constitutional rights necessarily
takes certain policy choices off the table.
These include the absolute prohibition of handguns held
and used for self-defense in the home.

Undoubtedly some think that the Second Amendment
is outmoded in a society where our standing army is
the pride of our Nation, where well-trained police forces
provide personal security, and where gun violence is a
serious problem. That is perhaps debatable, but what is
not debatable is that it is not the role of this Court to
pronounce the Second Amendment extinct.

We affirm the judgment of the Court of Appeals.

--It is so ordered.