Thursday, June 26, 2008

The Second Amendment (Updated)

The case of District of Columbia v. Heller has been decided by the Supreme Court in a bare 5 to 4 decision with a majority opinion authored by Justice Scalia. The opinion is seminal in establishing that the Second Amendment provides Americans with an individual right to keep and bear arms, leaving open for future cases the outer contours of the right. The holdings of the opinion are:

1. The right to keep and bear arms is an individual right related to the right of self defense.

2. The right protects against any absolute prohibition of handguns held and used for self-defense in the home.

3. The right protects against any law that would require a lawfully owned firearm to be rendered unfireable in the home, or otherwise not immediately firable for self defense.

4. The right protected by the Second Amendment is the right to keep and bear arms that were “in common use at the time” of the Second Amendment's passage. The Court interprets this to mean there can be limitations imposed on possession of modern advanced weaponry and does nothing to disturb the holding in the 1939 case of Miller v. that upheld federal law restricting possession of classes of weapons, such as automatic weapons and sawed off shotguns.

5. Prohibitions on carrying concealed weapons are lawful.

6. This case leaves open the door for federal regulation of guns in certain aspects. Quote: "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."

[Update - should have included this: 7. The Court makes clear that licensure and registration requirements are acceptable so long as they do not otherwise infringe on the right to keep and bear arms.]

8. The critical issue of whether states must respect the Second Amendment is still an open issue. The Heller Case involved the District of Columbia - an area subject to federal law and without the rights of a state. The Bill of Rights protects against federal law encroachment on rights enumerated in the Bill of Rights, but at the time it was written did not clearly apply stop state law encroachment on the same rights. It wasn't until passage of the Fourteenth Amendment after the Civil War that at least some of the rights enumerated in the Bill of Rights were held to apply equally to limit state interference. The relevant part of the 14th Amendment is the "privleges and immunities" clause:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

U.S. Const., 14th Am., Sec. 1.

This clause has been held at various time to "incorporate" protections against fedral law encroachment articulated in the Bill of Rights against similar state law encroachment. You can find a good discussion of this legal issue here.

The Court in Heller does not decide whether the Second Amendment limitation against federal infringement of the right to individually keep and bear arms similarly limits the right of a state to do so. The Court intimates that it will. As the explained at the Volokh Conspiracy:

The majority doesn't clearly signal its view on the question, but it does suggest that simply citing some late 1800s cases which rejected incorporation (at a time when incorporation was generally being rejected as to nearly all of the Bill of Rights) will not suffice. Here's footnote 23, on page 48 of the majority oinion:

With respect to 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, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

Cruikshank's judgment that the First Amendment wasn't incorporated was of course reversed by "later cases" starting in the 1920s.

Read the entire post.

A final parting thought. How much in danger are our rights from an activist Court? But for one vote, the right of an individual to keep and bear arms could have been taken away from us. By the skin on our collective teeth, we dodged that bullet today. But we are in every bit as much danger from an activist court as we are from external enemies.

Update: The very first rabid Moonbat siting was by Confederate Yankee:

. . . within moments [of the decision], a commenter to the liberal blog Crooks and Liars said Justice Antonin Scalia, who wrote the majority decision on the case, should be murdered. . . .

Update: As noted by a sharp-eyed "Jabba the Tutt" in the comments, this is the same David Ehrenstein that created the meme of Barack the Magic Negro.

The NYT carries a story on the reaction of gun control advocates:

Gun-control advocates across the country reacted with shock and outrage at the Supreme Court’s decision to strike down the District of Columbia’s ban on handguns today, saying the ruling would threaten gun-control measures in other states. . . .

Read the entire article. Shock and outrage? Whether the Second Amendment was written so as to provide an individual right to gun ownership is not a policy decision to be made by an unelected supra-legislature of activists. The mindset of the left is a clear and present danger to the continued freedoms of this country and our viability as a nation.


KG said...

"But we are in every bit as much danger from an activist court as we are from external enemies"
Indeed. Perhaps even more so, GW.
And that's true of most Western countries.

Mjolnir said...

yes, a narrow victory but we need to be alert and move forward. we cannot afford to become complacent and let those who would disarm us win.

Molon Labe!

Ymarsakar said...

If not for Iraq, many more would have been fooled by Leftist antics before fighting back. Imagine the history had Iraq or Afghanistan not occured. Had we not seen tyranny and true freedom loving people face to face, word to word, hand to hand.

America would have fallen a long time ago without fresh blood. It's a reminder that America's foreign entanglements is necessary for America to get the best extracts from the world, or else it will fall like Rome did.