A close run thing: Life, liberty, and the pursuit of happiness

Without the first of these the second and third are problematic.

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.
– Second Amendment to the U.S. Constitution.

SCOTUS has narrowly, both in the margin and in the specifics of the ruling, affirmed that the Second Amendment describes an individual right. Some of the major points:

  • “… 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.”
  • “The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting.”
  • “Like most rights, the right secured by the Second Amendment is not unlimited.”
  • “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 of arms.”

What the Court found was narrow; that an absolute ban on possessing a working firearm in one’s own home is, if one is of sound mind and character, unconstitutional under the Second Amendment. The decision is remarkable mostly for the fact that only five out of nine Justices believe the Constitution protects so basic a right of self defense.

Another short summary of the majority opinion can be found at Of Arms and the Law. See also, SCOTUS.blog – DC v. Heller Round-Up – for many links to interesting commentary, pro and con.

What the Court has done is ensure that much litigation will result with the intent of forcing lower courts to fill in many blanks. It is clear that much remains to be decided: Commentary: So, what’s next on guns?

The gun-control lobby is not going to disappear, see Lessons For Gun Rights Supporters From the Property Rights Experience I – The Importance of Ideological Divisions on the Court: and Lessons for Gun Rights Supporters from the Property Rights Experience, Part II – A Narrowly Defined Right May Not be Much Better than No Right at All:

Despite years of propagandizing by the likes of the Brady Center, 73% of Americans agree that the individual right to possess a firearm is Constitutionally guaranteed. The Court is by no means obligated to follow the polls, but on a civil rights decision, lacking any real precedent and where both sides used originalist arguments (What was the intent of the Founders?), this is surprisingly out of step. Five to four is, in the words of Bill Dupray, “One Vote Away From Revolution.” If this seems hyberbolic you might want to consider this aspect of the decision:

One aspect of the Heller majority opinion that has not yet attracted the attention of commentariat, but may be greatly important of the long run, is the presence of natural law.

Heller reaffirms a point made in the 1876 Cruikshank case. The right to arms (unlike, say, the right to grand jury indictment) is not a right which is granted by the Constitution. It is a pre-existing natural right which is recognized and protected by the Constitution:

“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), “[t]his 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…”

This is consistent with Blackstone’s language, quoted by the majority, that the right to arms protects the “natural right of resistance and self-preservation.” The majority writes that “Justice James Wilson interpreted the Pennsylvania Constitution’s arms bearing right, for example, as a recognition of the natural right of defense ‘of one’s person or house’ — what he called the law of ‘self preservation.’”

[t]his 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…” What, then, would be the proper response to attempts to extinguish that right? Revolution is not too strong a reponse. Five/four the other way suggests, at the least, that secession is justified. Certain Montanans have already so argued.

I recommend exploring The Volokh Conspiracy generally on this decision, but here are two links I found particularly interesting in implications for the future:

Heller and incorporation of the Second Amendment: …the Supreme Court expressly left open the question whether the individual right to keep and bear arms in the Second Amendment should be incorporated into the Fourteenth Amendment to apply against the states. Here is the relevant passage reserving the issue:

With respect to [the nineteenth-century case of U.S. v.] Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois (1886) and Miller v. Texas (1894) reaffirmed that the Second Amendment applies only to the Federal Government.

This is not how the Liberals on the Court would have approached the opposite result, they would have “incorporated” the collective right interpretation even though they had not been asked to rule on it. The Justices in the majority are to be commended for their explicit restraint.

The collective rights argument was examined in the context of the Constitution as a whole and was found wanting. The Second Amendment, interpreted collectively, would be the only case where the Founders defined a collective right when using the term “the people.” The fallacy is even acknowledged, despite their explicit political preferences, by heavy duty liberal Constitutional experts such as Lawrence Tribe and Alan Dershowitz.

Supreme Court Adopts Individual Rights Interpretation of the Ninth Amendment:! Buried in Justice Scalia’s exegesis on the Second Amendment is a wonderful gift to those of us who study and care about the Ninth Amendment:

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.

Three provisions of the Constitution refer to “the people” in a context other than “rights”—the famous preamble (“We the people”), §2 of Article I (providing that “the people” will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with “the States” or “the people”). Those provisions arguably refer to “the people” acting collectively—but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.

The individual right interpretation was resisted vigorously by the dissenting Justices, including an attempt by Justice Stevens described, one might say ridiculed, in a Scalia footnote:

JUSTICE STEVENS is of course correct . . . that the right to assemble cannot be exercised alone, but it is still an individual right, and not one conditioned upon membership in some defined “assembly,” as he contends the right to bear arms is conditioned upon membership in a defined militia. And JUSTICE STEVENS is dead wrong to think that the right to petition is “primarily collective in nature.”

In fact, if Justice Stevens is to be taken seriously in this argument, it seems that the dictum “one man, one vote” describes a collective rather than an individual right.

Justice Breyer, hardly to be outdone, wrote an opinion which may well serve as “The Idiot’s Guide to what NOT to do as a dissenting SCOTUS Justice.” He agrees with Stevens that the right is collective, but goes even further to say that individual or collective doesn’t really matter anyway: The government is justified in arbitrarily curtailing possession of firearms if it sees an “imbalance” in not so doing. We don’t need to amend the Constitution, we merely need make it subservient to current political need. Unfortunately for Breyer, his argument is self destructive: Justice Breyer’s self-refuting dissent in Heller:

I suspect that it may go down in history as one of the strongest arguments AGAINST balancing tests. If the restriction on liberty were trivial, then it might be easy to use a balancing test to uphold the DC statute’s ban on handguns. Or if handgun bans were known to be spectacularly successful in reducing death and violence, then fair-minded judges might determine that even very substantial restrictions on liberty could be balanced away by the overwhelming benefit of gun control.

But gun control has very little effect on rates of violence or death (I think the evidence, while contradictory, points on balance to a small reduction associated with some gun controls.) Given this, the DC case should be an easy one for balancing: a major restriction of liberty (an outright ban) cannot be justified by a small or nonexistent gain in public safety.

That Justice Breyer reaches the opposite result from what should be a very easy case of balancing major restrictions of gun rights against minor net benefits suggests either that Justice Breyer is an unusually biased judge or – more likely – that the balancing test he posits is not workable in practice. Thus, Breyer’s own opinion may be the strongest possible refutation of his jurisprudential approach.

A third interpretation is that Breyer actually finds the right of self-defense trivial compared to the intent of the state to protect its citizens. This is no more ridiculous than any other reading.

Scalia had this to say about “balancing” a right enumerated in the Bill of Rights against legislative fads:

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 upon. 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.

So what has Heller changed? There is much litigation to follow, so the only immediate difference is a reversal of the burden of proof. The state now has to prove an individual does not qualify for the right to possess a working firearm under fairly limited rules. Before, individual qualifications did not signify because of an outright prohibition.

In practice, this will be a small difference. Do you remember the arbitrary CCW permit issuance rules Michigan observed under “may issue?” “Shall issue” is where SCOTUS took us.

I predict a the creation of a regulatory morass by jurisdictions such as D.C., Chicago and San Francisco – all intended to complicate the “fairly limited rules.” Many of these new regulatory attempts will eventually come before SCOTUS. Before Heller, they would not have.

This is a significant victory, but it is only the foundation against which future regulation will be measured.

Remember, “The same folks who can read the Constitution and Bill of Rights and find an unassailable right to abortion and gay marriage can’t find a right to possession of a firearm.”

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