A Somewhat Skeptical Take on Heller
Radley Balko | June 26, 2008, 4:37pm
I hate to pee in the pool, here, but I'm having a hard time getting too excited about today's decision.
Justice Antonin Scalia's opinion avoids any decision on incorporating the Second Amendment to the states, and his history suggests a strong reluctance to incorporate individual rights. Scalia's opinion does interpret the Second Amendment as an individual right, but only for self-protection, and only in the home. The concept of the Second Amendment as a bulwark against an overly oppressive government seems dead.
In the past, when Scalia's limited government principles have conflicted with his law-and-order instincts, law and order has won handily. He's been a happy federalist when it comes to allowing states to infringe on individual rights, but will bring down the hammer of the federal government on states that defy the feds by giving their citizens a bit more freedom.
As Jacob Sullum noted earlier, Scalia also goes out of his way to note that the "individual right" the Court found today doesn't undo onerous regulations on the sale of guns, leaves untouched bans on "unusual or dangerous" weapons, and doesn't overturn existing bans on concealed carry.
So what's the real practical effect of today's ruling? Seems to me, it's limited to the following:
• A future Congress is barred from passing a uniform federal ban on handguns or rifles in the home. Just about any other federal regulation would probably still be okay, provided it meets the minimal Commerce Clause test in U.S. v. Lopez.
• The 600,000 residents of Washington, D.C. and residents of other federal protectorates now have the constitutional right to own a handgun, provided they meet a set of conditions put forth by the city council—the limits of which will be litigated at a future date. Also, even this right for this small group of people extends only to handguns or rifles kept in the home.
Any other city, state, or locality may still pass a gun law just as restrictive as the one struck down in D.C. And even the D.C. city council can still make its citizens jump through a number of hoops before allowing them to own a handgun.
Today's ruling gave the right a rhetorical victory (remember, elections are "all about the judges!"), but I'm not sure what it accomplished in actually protecting Second Amendment rights. To be fair, Scalia explains that Heller was basically a case of first impression, and there's much to still work out through litigation. But given the narrow reach of his opinion, I guess I'd just caution against too much optimism that any new litigation will come out the right way.
Dan | June 26, 2008, 6:48pm | #
As for incorporation, it wasn't an issue presented. The majority opinion does reference the issue however, in their discussion of Cruikshank, an 1875 case that said that the Second Amendment only applied to Congress, and not to the States. Most notably in Footnote 23:
"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."
And they did set it up for incoproration by noting that it is a historical fundamental right (such rights are generally incorporated via the 14th Amendment:
"By the time of the founding, the right to have arms had
become fundamental for English subjects. See Malcolm
122–134. Blackstone, whose works, we have said, “constituted
the preeminent authority on English law for the
founding generation,” Alden v. Maine, 527 U. S. 706, 715
(1999), cited the arms provision of the Bill of Rights as one
of the fundamental rights of Englishmen."
Michael B Sullivan | June 26, 2008, 8:10pm | #
In regards to a right to resist a tyrannous government:
1. First of all, you've got to understand that the notion that an armed populace could rise up and fight the US Army to a standstill is ludicrous, with or without a legal right to own tanks. The US army is worth trillions of dollars, and features not just tanks, but fighters and bombers, cruise missiles, satellite reconnaissance, laser target painting, battleships, not to mention, you know, nuclear weapons. Even if the 2nd Amendment were interpreted to mean, "Have at it, kids!" there's no way that the people could rise up, whup the Armed Forces in a fair fight, and install a new government, as some people seem to fantasize about.
2. Point number 1 is
more true today than it was in 1776, perhaps, but it was pretty true in 1776, as well. To beat the British, the colonials didn't need a few muskets they kept in their homes, they needed cannon, cavalry, ships... Perhaps more so, they needed a well-trained military. The idea that the Colonial army was a bunch of rednecks hiding in the woods performing sniper attacks and that they won is fantasy.
3. What you could do with muskets kept in your home in 1776 was start an insurgency: a group of people who could fight just convincingly enough that they couldn't be ignored, and so they could, while visibly fighting, get foreign support and public opinion on their side, and then actually make the military break out those big guns, the cannon and whatnot, in order to deal with them. They didn't need a state of the art circa 1776 army to do that, and you don't need a state of the art circa 2008 army to do that now. The Iraqi insurgency is proof that with just rifles and some improvised explosive devices, you can fight the US Army well enough that they can't just make you instantly vanish, and you have a chance to make your case to people who might back you (including, as it happens, the Army itself). No, you don't have tanks, but if the Army has to deploy their tanks to shoot you, that's a whole different ballgame.
4. Thus, the 2nd Amendment as a bulwark against tyranny is best understood not as the way to prevent the US Army from deploying in your home town and shelling the place from a mile off, but as a way to prevent the government from sending a couple of policeman into your house late at night and just straight up disappearing you with your neighbors never being the wiser. If the Army has to deploy, then you've got some kind of a chance to make your case to your fellow citizens, to the world at large, to any elements of the army or the government who aren't tyrannous.
5. The above is a pretty shitty way to make your case, so it is best understood as a real last resort. Probably, even if your cause is just, nobody will believe you. But you've got slightly better odds than if you just disappear one night and spend the rest of your miserable life in Gitmo, held without due process or any visibility.
