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 (bold for important, red for critical).
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 original 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, fi 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). To learn more about concealed carry laws in other states, such as Kentucky, search online for “kentucky concealed carry” or alternatively visit gunlawsuits.org.
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).
The increase of technology such as improved firearm analysis should mean that carrying a weapon for self-defense is more acceptable today than ever before. While there are issues with firearm analysis, for the most part, they are able to prove that a weapon was shot in self-defense rather than in cold blood. This should be used to defend my right to carry a weapon rather than prohibit it.
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 doesn’t 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
… 2. Like most rights, the Second Amendment right is not unlimited.
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
3. The handgun ban and the trigger-lock requirement (as applied to
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
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
In interpreting this text, we are guided by the
* * *
“Right of the People.” The first salient feature of
The unamended Constitution and the Bill of Rights
…This contrasts markedly with the phrase “the militia” in
Reading the Second Amendment as
We start therefore with a strong presumption that the
… in the course of analyzing the meaning of
We think that JUSTICE GINSBURG accurately captured the
* * *
Putting all of these textual elements together,
This meaning is strongly confirmed by the historical background
We look to this because it has always been widely understood
The very text of the Second Amendment implicitly recognizes
* * *
There seems to us no doubt, on the basis of both text
* * *
We reach the question, then: Does the preface fit with
That history showed that the way
The debate with respect to the right to keep and bear
* * *
We may as well consider at this point (for we will have
Read in isolation, Miller’s phrase “part of ordinary
As for the “hundreds of judges,” who have relied on the
In any event, it should not be thought that the cases decided by these judges
The amendment’s operative clause furthers the purpose announced
* * *
It should be unsurprising that such a significant
Other provisions of the Bill of Rights
invalid under the Establishment Clause, see Illinois ex rel.
Even a question as basic
It is demonstrably not true that, as JUSTICE STEVENS
Like most rights, the right secured by the Second
…Although we do not undertake an
Miller said, as we have explained, that the sorts of weapons protected were those
It may be objected that if weapons that are most useful
It may well be true today that a militia, to be as
* * *
We turn finally to the law at issue here.
As we have
The prohibition extends, moreover, to the home, where the
Under any of the standards of scrutiny that we have applied
It is no answer to say, as petitioners do, that it is permissible
There are many reasons that a
* * *
After an exhaustive discussion of the arguments for and against
We know of no other enumerated constitutional right
Constitutional rights are enshrined with the scope they
We would not apply an “interest-balancing” approach to the prohibition
The First Amendment contains the freedom-of-speech guarantee
The Second Amendment is no different.
* * *
In sum, we hold that the District’s ban on handgun
* * *
We are aware of the problem of handgun violence in this
The Constitution leaves the District of Columbia a variety
Undoubtedly some think that the Second Amendment
We affirm the judgment of the Court of Appeals.
–It is so ordered.