In the first major Second Amendment case since the bizarre Miller case in 1939, the Supreme Court has narrowly voted to avoid eviscerating the constitution, has struck down DC’s 1976 gun ban, and:
has ruled that the Second Amendment protects an individual right to have a gun, at least in one’s home.
Source: Scotus Blog.
I should hope so!
The opinion (in the unlikely event any readers are interested) is here. [pdf file]
More commentary to follow, if I’ve time.
Certainly, on the face of it, it’s a shame it was such a close decision. It’s hard to imagine the court splitting 5-4 on a major First Amendment case that was equally clear cut.
Update:
Interesting. The opinion’s by Justice Scalia and it seems surprisingly cautious (so far at least).
The court has struck down the gun ban, struck down the DC in-home disassembly and trigger lock requirements, held that the Second Amendment protects an individual’s right to bear arms, irrespective of any service in or membership of a militia, and to use firearms for lawful purposes including self-defense in the home.
The court has recognized the legitimacy in barring felons and the mentally ill from gun ownership, and upheld the ability of the government to ban weapons in “sensitive” places such as government buildings and in schools. It’s legitimate to ban unusual or exceptionally dangerous weapons, and perhaps most surprisingly, the court is silent on the issue of gun licensing, merely ordering the District to grant Mr. Heller a license.
Much of the decision so far is simply a logical analysis of English grammar, and the plain meaning of words, then and now. Scalia sensibly tweaks Justice Stevens for apparently arguing in dissent that this is a collective right.
Update2: Ha! On the bizarre approach of some to construe “bearing arms” as meaning solely “carrying arms in the service of a militia”, Scalia drolly notes:
Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.
Alice makes an appearance:
A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics).
More on history, the Stuart attempts to disarm those who opposed them, the foundation of a Protestant right to keep and bear arms in England. The Miller decision of 1939 and what it meant.
Interestingly, the careful originalist interpretation actually limits gun rights in part:
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.
Hmm. An interesting point. I’m not sure I like it, and I’m not sure I agree, but it is well-reasoned.
And this is why I like the originalist school of thought: even when it leads to conclusions that are ideologically undesirable, it remains intellectually coherent and rigorous. Contrast the liberal tendency to go through the looking glass, and declare that words mean whatever they are wished to mean.
So alas, no howitzers, no nuclear weapons in private hands for household defense. How terribly sad.
The majority opinion continues, noting that the tiny fines imposed by Colonial statute for things like dangerously discharging a firearm on New Years Eve or improperly storing gunpowder were akin to speeding or jaywalking tickets of today. Even if one accepts these Colonial-era statutes as somehow magically binding on the US, it’s a stretch to suggest that DC’s one year sentences conform to this approach.
It ends with:
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.
A well-reasoned, and in my perhaps naive view, a surprisingly narrow judgment. I’d speculate Justice Scalia had to write narrowly to keep Justice Kennedy fully onside.
Of course, I am not a lawyer.
-wolfe