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“Capitalism and communism stand at opposite poles. Their essential difference is this: The communist, seeing the rich man and his fine home, says: 'No man should have so much.' The capitalist, seeing the same thing, says: 'All men should have as much.'”     Phelps Adams

June 26, 2008

Supreme Court Upholds Individual Right To Keep And Bear Arms

by Doug Mataconis

After nearly two centuries of silence, the Supreme Court today struck down a District of Columbia gun ban and affirmed that the Second Amendment protects an individual right to keep and bear arms:

WASHINGTON — The Supreme Court ruled Thursday that Americans have a right to own guns for self-defense and hunting, the justices’ first major pronouncement on gun rights in U.S. history.

The court’s 5-4 ruling struck down the District of Columbia’s 32-year-old ban on handguns as incompatible with gun rights under the Second Amendment. The decision went further than even the Bush administration wanted, but probably leaves most firearms laws intact.

The court had not conclusively interpreted the Second Amendment since its ratification in 1791. The amendment reads: “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.”

The basic issue for the justices was whether the amendment protects an individual’s right to own guns no matter what, or whether that right is somehow tied to service in a state militia.

Justice Antonin Scalia, writing for four colleagues, said the Constitution does not permit “the absolute prohibition of handguns held and used for self-defense in the home.”

In dissent, Justice John Paul Stevens wrote that the majority “would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.”

Yes, that’s right Justice Stevens, they did. It’s called the Second Amendment.

While the devil is, as always, in the details and, as I noted in March, this is far from the end of the Constitutional debate about gun control, this is, all in all, a great day for individual liberty.

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15 Comments

  1. In dissent, Justice John Paul Stevens wrote that the majority “would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.”

    Usually Stevens isn’t too bad, but what the hell was he smoking when he reviewed this case? Of course the Founders had that in mind when they drafted the Constitution, they’d just fought a revolution against a government that used gun control as a tool to keep the population from being able to resist. That’s about as blatant an ignorance of history as you’re going to see from a government official.

    Comment by UCrawford — June 26, 2008 @ 8:15 am
  2. Someone needs to tell Stevens that the Framers created a lot of limits regarding elected officials tools of regulation. The Constitution is full of limits on elected officials. This just happens to be one of the last few that the court hasn’t figured out how to ignore.

    Comment by Brad Warbiany — June 26, 2008 @ 8:16 am
  3. Actually, Stevens has a point.

    Remember, the U.S. constitution was written in part as a backlash against Shay’s Rebellion. The rebellion freaked out the group that would later call themeselves Federalists since the Massachusetts government was unable to put it down (it was put down by a private army raised by the wealthiest merchants & bankers in Boston).

    From the outset, Madison was concerned with the question of how his proposed government could enforce its will upon the people. Unlike the looser confederation it replaced, this new government was going to have teeth to enforce its laws.

    It’s telling that in his first term in office Gen Washington led the U.S. army in the field against the citizens of Pennsylvania to try to force them to pay Hamilton’s arbitrary tax on whiskey.

    Many of the guys drafting the Constitution were not big fans of an armed citizenry that could hold off the government. They acceeded to the bill of rights only when they recognized that without it their new document was not going to be adopted.

    Comment by tarran — June 26, 2008 @ 10:11 am
  4. I managed to read almost all of Scalia’s opinion, though I haven’t read much of the dissents yet. But Stevens’ opinion strikes me as being exceptionally weak, particularly by his standards. What is scariest is that, in his attempt to justify a collective rights view of the 2nd Amendment, he argues that the 1st Amendment right to petition is ALSO a collective right. The dissenters would have been on much firmer ground if they had conceded the existence of an individual right, and then made an argument for a strict or intermediate scrutiny standard of review, and why the DC law may have met that standard.

    Still, there were definitely parts of Scalia’s opinion that were lacking, and Justice Breyer’s dissent was correct insofar as it criticized Scalia for not offering a standard of review (though Breyer’s proposed standard of review was way off base itself). There was also little to no discussion as far as I could tell regarding whether the 2nd Amendment is incorporated under the 14th Amendment, which struck me as odd.

    Comment by Mark — June 26, 2008 @ 10:24 am
  5. They acceeded to the bill of rights only when they recognized that without it their new document was not going to be adopted.

    But they did acceed to it, so Stevens is wrong.

    Comment by Jeff Molby — June 26, 2008 @ 11:24 am
  6. [...] Jeff Molby: They acceeded to the bill of rights only when they recognized that without it their new document was not… [...]

    Pingback by The Liberty Papers »Blog Archive » Presidential Candidates Respond to Heller vs. D.C. Ruling — June 26, 2008 @ 11:39 am
  7. 5-4… was it expected to be so close given what we knew about the judges views prior to the ruling? I wonder how close we were to 5-4 the other way? Any thoughts anyone?

    Comment by Ryan — June 26, 2008 @ 12:43 pm
  8. Ryan,

    When I listened to the oral arguments in March, it was clear that there were 5 justices — Kennedy, Roberts, Alito, Scalia, and Thomas — who were inclined to rule that the 2nd Amendment protects an individual right. At the time, it seemed like Justices Breyer and Souter might be persuaded to join in at least that conclusion based on the questions they asked, but, apparently, that wasn’t the case.

    Comment by Doug Mataconis — June 26, 2008 @ 1:33 pm
  9. Justice Breyer’s dissent was correct insofar as it criticized Scalia for not offering a standard of review

    My guess is that this may have been a deliberate effort on Scalia’s part to keep together a 5 Justice majority. He, along with Roberts, Alito, and Thomas, might have been willing to reach the conclusion that strict scrutiny applies, but perhaps he couldn’t persuade Anthony Kennedy to go along with it. So, he wrote the opinion in a way that leaves the standard of review for another day and another case.

    Comment by Doug Mataconis — June 26, 2008 @ 1:35 pm
  10. There was also little to no discussion as far as I could tell regarding whether the 2nd Amendment is incorporated under the 14th Amendment, which struck me as odd.

    Well, since this case involved the District of Columbia which is not a state, meaning that the 14th Amendment doesn’t apply at all, any discussion of incorporation would have been dicta anyway.

    I have skimmed through, but not read entirely, Scalia’s opinion and I seem to recall some discussion of incorporation and the idea that the 2nd Amendment should be interepreted to protect the same type of fundamental rights as the 1st Amendment, meaning that, under previous case law, incorporation would be a foregone conclusion.

    But that, like the standard of review, will have to wait for another day and another case.

    Comment by Doug Mataconis — June 26, 2008 @ 1:37 pm
  11. I didn’t hear the oral arguments, but I was a little surprised that Breyer didn’t at least find an individual right, but then determine that the DC law met whatever standard of review Breyer chose (his “balancing test” is bizarre, though). Frankly, I almost wonder if Scalia’s majority opinion didn’t change Breyer’s mind on the individual right question. I may need to read the opinion again, but in my first read, I thought the second part of Scalia’s opinion was rather tortured at times, at least in the way he tried to rescue Miller, with him making arguments about what types of firearms could be permitted that largely undermined his argument about individual rights. I dunno – I’ll have to look at the opinion again.

    Comment by Mark — June 26, 2008 @ 3:02 pm
  12. tarran,

    You’re right that the Constitution was written by people looking to strengthen the central government, and the bill of rights was a compromise with the anti-Federalists who were wary of that government.

    But I think even Hamilton would be appalled at the size and scope of the central government today. Just because some Federalists were enamored with central government power, I think those same people would be in our shoes crticizing a government that is disregarding our rights on so many levels.

    Comment by Brad Warbiany — June 27, 2008 @ 10:19 am
  13. Adam,

    I don’t know about that: Alexander Hamilton wanted the United States to have a king after all. I find his appaling actions regarding the Whiskey Rebellion quite telling.

    Comment by tarran — June 27, 2008 @ 10:54 am
  14. Don’t you mean Brad? I started to comment, but decided not to. I think it is inherently impossible to declare that Jefferson would have been a Libertarian today or Hamilton would have been a Democrat, or whatever. These men were formed by the time and place. How they would approach politics today is indeterminate since they have no context for comparison. It would be like suggesting that Caesar would be murdered by the US Senate if he were alive today. We don’t know what would happen and certainly the circumstances today would not make them the same people.

    What I do think is that EVEN Madison, Hamilton and Washington finally chimed in to support the Second Amendment in the context of their day and age.

    Comment by Adam Selene — June 27, 2008 @ 10:58 am
  15. Yes, I meant Brad, the threads start to blur after a while (the 18 hour marathon coding sessions don’t help either).

    Comment by tarran — June 27, 2008 @ 11:22 am

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