Thursday, June 26, 2008

SCOTUS hands down Heller

Today the supreme court handed down a landmark judgment in the DC v. Heller case, the first case heard by the court on the the Second Amendment, the right to bear arms, since a 1939 case was argued by only the prosecution, and the first comprehensive look at the meaning of the Second Amendment to the Constitution of the United States since it was ratified 217 years ago.

Heller is a security guard and special federal police officer living in DC who applied for, and was denied the license to have a handgun in his home. He then sued on the basis that he says that the second amendment guarantees his right to own an operational firearm, something the Federal District denied him. The judgement that came today, came as no suprise to most who had followed the case, and in fact the majority (by 2 to 1) of Americans asked to consider the same question.

In short: The Right to own, keep and bear arms is an individual right, protected by the second amendment.


“Nowhere else in the Constitution does a ‘right’ attributed to ‘the people’ refer to anything other than an individual right.” pg 6

This is the point in the opinion where a good number of freedom loving Americans set off fireworks and shouted Victory, and in fact this is a victory, as a opinionated and influential group of American'ts has long been trying to convince Rational America that the second amendment only applies to the militia, which, by some magical oversight of hierarchy and structure is considered to be the National Guard. There has been bickering and oppinion on both sides of the issue for years, as new gun control laws were debated, but never before have we heard a court state what the actual law is.

But I dont think that is where the story ends, as it is hardly all that the justices stated in the 157 page opinion, which, if you like, you can read here. It would not be an understatement to say that this is the most important and groundbreaking ruling of this courts session, and perhaps of the last two generations.

If the Supreme Court’s historic ruling on gun rights brings about, as the dissenters said, “a dramatic upheaval in the law,” it would be no suprise to many, and, in fact, Justice Scalia’s opinion for the Court conceded that the ruling in District of Columbia v. Heller was only a first step, saying: “Since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field.” This more than a valid disclaimer, as not only does it not clarify the whole field, it in fact greatly ignores a number of questions surrounding the full extent of protection offered by the second amendment, not to mention the matter of the court's jurisdiction, but what it does do, in its tightly tailored and narrow opinion, is leave a good number of doors wide open for any number of later suits.

In short, my understanding of a quick reading of the opinion states that the supreme law of the land concerning the right to bear arms is an individual right, 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 also recognized that the right is a pre-existing right, as well, not one granted by the constitution. (this might be important on a state level)

"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" pg 38.

The court did also find, however, that restrictions of the Right to Bear Arms are permissible. specificly refusing to look at licensing and registration, effectively upholding that they are permissible, but only when “not enforced in an arbitrary and capricious manner.” That would seem to disallow much of the discretion typically exercised by issuing officials in places like New York, and Chicago, and may later be of some great use in later cases in say "May Issue" CCW states.

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 second amendment protects an individual right, it only protects the right to keep and bear arms of a type common in use during the 18th Century. The second amendment did not grandfather in kentucky long rifles, it granted a right to the tools of the present day. specificly, and this judgement is very specific to Heller's case and circumstance, 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, left open the argument that the reason machineguns are not in common use is because they have been so heavily regulated since 1934. Again, room for future cases, though i do think it is too late for Wayne Fincher, it is possible that either the NFA of 1934, or the GCA of 1968 , as the origin of the majority of federal gun control authority, could come under future review. On the other hand, it said nothing of the right of an american to to own a semi-automatic rifle, which is of particular interest in the face of the introduction of the misnamed "Assault Weapons Ban Reauthorization Act of 2008".

“That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied 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 . . . During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Anti-federalist rhetoric.” pg 25.

The Court did not set a standard by which current or future laws can be reviewed, so again, they must be reviewed on a case by case basis, and I, for one, look forward to the creation of new cases and suits on behalf of the Right to Bear Arms.

As D.C. is a federal district, nothing in this case specificly applies to state laws, like Illinois which may forbid or control the ability to bear arms. Luckily more than a dozen states (Mine included) specificly, and clearly affirm a right for the individual to bear arms in defense of self or state. Does yours? The Court did not explicitly incorporate the Second Amendment against the states, but it did cite several state cases in its decision supporting the idea that the second amendment protects an individual right, as well as stating, as i mentioned above, that the right does not originate in the second amendment. This leads many to speculate that the Court would be open to incorporation in a future case where a state law is challenged, e.g., Chicago's handgun ban.

Also of small note, and something i was previously unaware of, but brought to my attention this morning by Jay, was the specific meaning of the word arms as cited by the court could also be read to protect the civilian sale of body armor, something periodicly contested by American'ts:

The 1773 edition of
Samuel Johnson’s dictionary defined “arms” as “weapons
of offence, or armour of defence.” 1 Dictionary of the
English Language 107 (4th ed.) (hereinafter Johnson).
Timothy Cunningham’s important 1771 legal dictionary
defined “arms” as “any thing that a man wears for his
defence, or takes into his hands, or useth in wrath to cast
at or strike another.”

When I read it, of course, I simply thought of my own long standing quest to get the state Nunchuka bans repealed. It does seem to me that the TMNT's looked pretty wrathful as they struck at the evil Shredder's men.

But, as thats neither here nor there, back to the case at hand. A landmark case for sure, as i already stated, probably the most important case heard by the court in generations, A victory? perhaps a small one. A starting point? a fantastic springboard for what could be the largest challenge to federal authority in at least my lifetime. I hope a number of good citizens press on.

As David J. Shenck wrote today on SCOTUSblog:

"...there is an overwhelming theme that to interpret the Second Amendment as not protecting an individual right would gut the amendment of meaning and defy logic. It is, after all, the Second Amendment, not the two hundredth. This is not an obscure line buried among thousands of pages of text. It is inconceivable that the framers would have given it the priority they did, placing it ahead of so many other critical rights, if they only meant it to apply to militias as the dissenting justices suggest."

So, today, go forthe and arma ferre (from the latin, “to bear [ferre] war equipment [arma].) Its always been your right, but now, for the first time, it is a right recognized by American jurisprudence as well as tradition and logic.

A Right is a Privilege you don't have to ask Permission for.

Even if you dont agree that you should own a firearm, you must recognize that the government has no right of its own to arbitrarily take any of your natural rights from you. Keep government out of your personal liberties.

Arma Ferre, indeed.


Jay21 said...

No real point in me writing any new text, you covered the bases, one of your best to date. But this was my favorite part:
"In any event, the meaning of “bear arms” that petitioners and JUSTICE STEVENS propose is not even the (sometimes)idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia."..."Grotesque."

To the next generation of "Americant's":
Molon Labe, for we definetively have the Constitution with us again.

Dan said...

I seem to remember someone telling me a couple years ago that "all hope is lost."

The glimmering light may be at the end of a very very long tunnel and we have a freight train of enormous proportions to push backwards. But, at least there's a light.