Reason Magazine - Topics > Supreme Court

Excuse Me While I Get My Gun

jsullum@reason.com (Jacob Sullum) — Wed, 23 Jul 2008 07:00:00 EDT

Last month the U.S. Supreme Court ruled that the District of Columbia had violated the Second Amendment by making armed self-defense in the home impractical and banning the most popular weapons used for that purpose. Last week the D.C. Council responded by unanimously approving a law that makes armed self-defense in the home impractical and bans the most popular weapons used for that purpose.

D.C.'s political leaders know they are inviting another Second Amendment lawsuit, but they are determined to defy the Supreme Court and the Constitution for as long as possible.

The new law "clarifies that no carry license is required inside the home" to move a gun from one room to another. It also "clarifies" the District's firearm storage requirements, saying a gun may be unlocked and loaded "while it is being used to protect against a reasonably perceived threat of immediate harm to a person" in the home.

Much hinges on what counts as a "reasonably perceived threat." If you're awakened in the middle of the night by a crash, may you carry a loaded gun with you as you investigate? Evidently not. The Washington Post reports that D.C.'s acting attorney general, Peter Nickles, "said residents could neither keep their guns loaded in anticipation of a problem nor search for an intruder on their property." According to Nickles, if you see an armed criminal charging your home, or in the event of "an actual threat by somebody you believe is out to hurt you," you're allowed to get your gun, unlock it, and load it.

How long will that take? The new law lets people use a gun safe instead of a trigger lock, which, depending on the type of safe, could allow faster retrieval. But even a gun in a safe has to be kept unloaded, which will tend to slow down the owner's response to a "reasonably perceived threat," assuming he can figure out what that means.

The delay will be even longer because of the District's ridiculously broad ban on "machine guns." The Metropolitan Police Department says the ban covers all handguns except revolvers, which are more cumbersome to load than semiautomatics with detachable magazines.

Under D.C. law, "machine guns" include not only guns that fire continuously but also guns that fire once per trigger pull if they can fire more than 12 rounds without reloading or "can be readily converted" to do so. According to the District's interpretation, even a pistol that fires 12 or fewer rounds counts as a "machine gun" if it could accept a bigger magazine.

That's why Dick Heller, the man who successfully challenged D.C.'s handgun ban, was not allowed to register his seven-shot .45-caliber pistol, which in the District's view might as well be an Uzi. Instead he applied to register a .22-caliber revolver.

Speaking of registration, the District has established a burdensome 12-step process that involves multiple trips to gun dealers and government offices, fingerprinting, a written exam, and ballistic testing. How long does all this take? "Up to 14 days," according to one police department publication. "Approximately eight weeks," according to another. "There are circumstances where it could take months," says Police Chief Cathy Lanier.

Registration easily could turn out to be so onerous or capricious that it effectively denies D.C. residents the right to keep and bear arms. The District's revised firearm storage requirements are even more clearly unconstitutional, since they unreasonably interfere with the very function, self-defense in the home, that the Supreme Court said is protected by the Second Amendment. Likewise the arbitrary ban on semiautomatic handguns, the most commonly used self-defense weapons.

"I am pretty confident that the people of the District of Columbia want me to err in the direction of trying to restrict guns," D.C. Mayor Adrian Fenty told Washington Post columnist Marc Fisher. How about erring, just this once, in the direction of respecting civil liberties?

"Unfortunately, his jurisprudence is likely to be anything but conservative"

info@reason.com (Damon W. Root) — Fri, 18 Jul 2008 12:34:00 EDT

In yesterday's Wall Street Journal, Bob Barr took John McCain to task for his lousy judicial philosophy, arguing that conservatives shouldn't get too excited at the prospects of a McCain-appointed Supreme Court. For one, McCain doesn't think that the First Amendment protects all forms of political speech, which is only a problem, I suppose, if you hold the quaint opinion that the Constitution means what it says. Then there's McCain's sweeping view of presidential power:

In fact, if Mr. McCain nominated someone in his own image, the appointee would disagree with not only the doctrine of enumerated powers, which limits the federal government to only those tasks explicitly authorized by the Constitution, but also the Constitution's system of checks and balances, and even its explicit grant of the law-making power to Congress.

Mr. McCain has endorsed, in action if not rhetoric, the theory of the "unitary executive," which leaves the president unconstrained by Congress or the courts. Republicans like Mr. McCain believe the president as commander in chief of the military can do almost anything, including deny Americans arrested in America protection of the Constitution and access to the courts.

Interestingly, Barr suggests that cats and dogs won't start living together under an Obama Court:

Nor is it obvious that Barack Obama would attempt to pack the court with left-wing ideologues. He shocked some of his supporters by endorsing the ruling that the Second Amendment protects an individual right to own firearms, and criticizing the recent decision overturning the death penalty for a child rapist. With the three members most likely to leave the Supreme Court in the near future occupying the more liberal side of the bench, the next appointments probably won't much change the Court's balance.

Finally, after some throat clearing about the risk of "judge-made rights," Barr makes a great point about the judiciary's duty to check the other branches:

However, the Constitution sometimes requires decisions or action by judges—"judicial activism," if you will—to ensure the country's fundamental law is followed. Thus, for example, if government improperly restricts free speech—think the McCain-Feingold law's ban on issue ads—the courts have an obligation to void the law. The same goes for efforts by government to ban firearms ownership, as the Court ruled this term in striking down the District of Columbia gun ban.

Whole thing here.

The Brady Center and Heller

info@reason.com (Damon W. Root) — Wed, 16 Jul 2008 16:28:00 EDT

The Brady Center to Prevent Gun Violence's Dennis Henigan has written a very interesting response to Robert Levy's Cato Unbound essay on the future of gun rights after D.C. v. Heller. Essentially, Henigan argues that the Court's conservatives have mangled the Constitution in order to reach a preferred outcome that will have little real world impact:

Although we will no doubt see an avalanche of Second Amendment claims (most by criminal defense lawyers on behalf of their clients seeking to avoid indictments and convictions for violations of gun laws), generally the lower courts are likely to interpret Heller as giving a constitutional green light to virtually every gun control law short of a handgun ban. Regardless of whether the Heller majority's newly discovered right eventually is incorporated as a restraint on the states, its significance may well prove more symbol than substance.

While it certainly makes rhetorical sense for Henigan to downplay the victory (and link it to criminals and their shady attorneys), it's not at all clear that the lower courts will see (or will continue to see) things his way. As David Kopel noted in reason after Heller came down, "Rome was not built in a day, and neither is constitutional doctrine."

For most of our nation's history, the U.S. Supreme Court did nothing to protect the First Amendment; it was not until the 1930s when a majority of the Court took the first steps towards protecting freedom of the press. It would have been preposterous to be disappointed that a Court in, say, 1936, would not declare a ban on flag-burning to be unconstitutional. It took decades for the Supreme Court to build a robust First Amendment doctrine strong enough to protect even the free speech rights of people as loathsome as flag-burners or American Nazis.

Moreover, the importance of the Court finally recognizing that the Second Amendment secures an individual right—not a collective one—shouldn't be minimized. And I must say, I find it pretty hard to believe that Henigan and his associates at Brady are really so lackadaisical about the incorporation of the amendment against the states. Chicago officials, on the other hand, are gearing up to protect the city's handgun ban in court. As deputy corporation counsel Benna Solomon told the Chicago Tribune, "We are prepared to aggressively litigate this issue and defend this ordinance."

Cato Unbound debate here. reason.tv's interview with Heller attorney Alan Gura here.

Into the Thicket

info@reason.com (Damon W. Root) — Tue, 15 Jul 2008 12:00:00 EDT

In a celebrated 1958 lecture delivered at Harvard University, federal appeals court judge and noted legal scholar Learned Hand famously likened the United States Supreme Court to a "bevy of Platonic Guardians," an untouchable elite whose growing influence threatened to undermine the separation of powers and compromise the very idea of democratic rule. "When I go to the polls," Hand observed, "I have a satisfaction in the sense that we are all engaged in a common venture." Were the Supreme Court to have the final say on every political question, "I should miss the stimulus of living in a society where I have, at least theoretically, some part in the direction of public affairs."

Fast-forward half a century to the recent conclusion of the Court's 2007-2008 term, and you'll find Hand's complaint is still alive and well on both sides of the aisle. For instance, former Republican Rep. Tom DeLay (R-Texas) responded to Boumediene v. Bush, which recognized habeas corpus rights for prisoners held as enemy combatants at Guantanamo Bay, by arguing that the Court "has declared itself the final authority on making war, incarcerating enemy combatants, and, indeed, on the American people's right to self-government." In short, "this is not judicial activism. It is judicial tyranny."

Though he employed a necessarily lighter touch, Chief Justice John Roberts took much the same line, criticizing the Boumediene majority in his dissent for needlessly and arrogantly substituting its "unelected, politically unaccountable" views for those of "the people's representatives." According to Roberts, "one cannot help but think...that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants."

On the other side of the ideological divide, Justice John Paul Stevens was busy chastising the Court's conservatives for entering the "political thicket" of gun control in District of Columbia v. Heller, where the majority struck down Washington, D.C.'s sweeping handgun ban and held that the Second Amendment protects an individual right to keep and bear arms, a decision that Stevens found deeply troubling. "No one has suggested that the political process is not working exactly as it should," he wrote, employing language long associated with the case against judicial activism. "It is, however, clear to me, that adherence to a policy of judicial restraint would be far wiser than the bold decision announced today."

As it happens, Roberts and Stevens each have a valid point. In both the habeas corpus and Second Amendment decisions, the Supreme Court did nullify popularly enacted legislation, overruling the expressly stated preferences of lawful representatives and other public officials. And it's a good thing that the Court did. With the Bush administration asserting the "inherent" authority to wage war and detain certain prisoners indefinitely without trial, and with Congress apparently more than willing to cede these and other war powers to the executive branch, it was the Court's basic constitutional duty to act as a check against such abuse.

By the same token, with Washington, D.C.'s notoriously inept local government perfectly willing to leave law-abiding residents unarmed and thus unable to defend their own homes, the job of restoring the Second Amendment's lost liberties necessarily fell to the judiciary. In both cases, the Court simply undertook what James Madison had in mind when he described the judicial branch as "an impenetrable bulwark against every assumption of power in the legislative or executive." Judges, in other words, are supposed to strike down unconstitutional laws and to discipline overreaching officials. That's true whether such laws are popular with a majority of people or not. And dangerous laws only get worse when they're embraced by the population.

If anything, the courts today should be striking down far more laws than they do. Indeed, if there is one common thread to the Supreme Court's history, it's the fact that its worst decisions have centered on deference to government action, not on hostility to the will of the majority. For instance, there was Plessy v. Ferguson (1896), where the Court upheld Louisiana's Jim Crow railroad regulations; Korematsu v. United States (1944), where the Court upheld Franklin Roosevelt's wartime internment of Japanese Americans; and Kelo v. City of New London (2005), where the majority upheld that Connecticut municipality's abuse of its eminent domain powers. A little judicial activism in such cases would have gone a long way towards protecting individual liberty.

Which brings us back to the present. One of the most important things to take away from the Court's most recent term, evident in decisions ranging from Boumediene and Heller to Davis v. Federal Communications Commission, where the majority struck down parts of the Bipartisan Campaign Reform Act for restricting political speech, is that the vigorous use of judicial review isn't just legitimate, it's necessary to help safeguard our rights.

Damon W. Root is an associate editor of reason.

Is Justice Antonin Scalia a Judicial Activist?

info@reason.com (Damon W. Root) — Mon, 14 Jul 2008 17:59:00 EDT

In the latest edition of the Cato Institute's excellent Cato Unbound, Robert Levy has a fascinating article on the future after D.C. v. Heller. It's a great piece, examining both the likely fate of various gun control laws, the legal and political ramifications of the ruling, and the perennial question of whether the Court's actions count as judicial activism or judicial restraint. As Levy notes, Justice John Paul Stevens chastised Scalia in his dissent for entering the "political thicket" of gun control, the sort of charge normally made (at least these days) by conservatives against liberal judges. Is Stevens right? Did Scalia arrogantly and inappropriately substitute his views for those of the people of Washington, D.C. (via their local officials)? Here's Levy:

Judges have a responsibility to invalidate all laws that do not conform to the Constitution. Courts would be derelict if they endorsed unconstitutional acts merely because our elected representatives passed them. In that respect, overturning the D.C. gun ban was a clear example of principled judicial engagement.

That's the crucial point: The Court has a duty to nullify unconstitutional laws, regardless of what the majority has to say about it.

Whole thing here.

Truth and the Gitmo Detainees

schapman@tribune.com (Steve Chapman) — Mon, 07 Jul 2008 07:00:00 EDT

"Islamic terrorists have constitutional rights," lamented one conservative blog when the Supreme Court said Guantanamo inmates can challenge their detention in court. "These are enemy combatants," railed John McCain. The court, charged former federal prosecutor Andrew McCarthy of National Review, sided with foreigners "whose only connection with our body politic is their bloody jihad against Americans."

The operating assumption here is that the prisoners are terrorists who were captured while fighting a vicious war against the United States. But can the critics be sure? All they really know about the Guantanamo detainees is that they are Guantanamo detainees. To conclude that they are all bloodthirsty jihadists requires believing that the U.S. government is infallible.

But how sensible is that approach? Judging from a little-noticed federal appeals court decision that came down after the Supreme Court ruling, not very.

The case involved Huzaifa Parhat, a Chinese Muslim who fled to Afghanistan in May 2001 to escape persecution of his Uighur ethnic group by the Beijing government. When the U.S. invaded after the Sept. 11 attacks, the Uighur camp where he lived was destroyed by air strikes. He and his compatriots made their way to Pakistan, where villagers handed them over to the government, which transferred them to American custody.

You might think you would have to do something pretty obvious to wind up in Guantanamo. Apparently not. The U.S. government does not claim Parhat was a member of the Taliban or al-Qaida. He was not captured on a battlefield. The government's own military commission admitted it found no evidence that he "committed any hostile acts against the United States or its coalition partners."

So why did the Pentagon insist on holding him as an enemy combatant? Because he was affiliated with the East Turkistan Islamic Movement, a separatist Muslim group fighting for independence from Beijing. It had nothing to do with the Sept. 11 attacks but reputedly got help from al-Qaida.

But the Court of Appeals for the District of Columbia Circuit, after reviewing secret documents submitted by the government, found that there was no real evidence. It said the flimsy case mounted against Parhat "comes perilously close to suggesting that whatever the government says must be treated as true." And it ruled that, based on the information available, he was not an enemy combatant even under the Pentagon's own definition of the term.

Is this verdict just another act of judicial activism by arrogant liberals on the bench? Not by a long shot.

Of the three judges who signed the opinion, one, Thomas Griffith, was appointed in 2005 by President Bush himself. Another, David Sentelle, was nominated in 1985 by President Reagan—and had earlier joined in ruling that the Guantanamo detainees could not go to federal court to assert their innocence (a decision the Supreme Court overturned).

The administration could hardly have asked for a more accommodating group of judges. Yet they found in favor of the detainee on the simple grounds that if the government is going to imprison someone as an enemy combatant, it needs some evidence that he is one.

Parhat may not be an exceptional case. Most of the prisoners were not captured by the U.S. in combat but were turned over by local forces, often in exchange for a bounty. We had to take someone else's word that they were bad guys.

A 2006 report by Seton Hall law professor Mark Denbeaux found that only 8 percent of those held at Guantanamo were al-Qaida fighters. Even a study done at West Point concluded that just 73 percent of the detainees were a "demonstrated threat"—which means 27 percent were not.

The Parhat case doesn't prove that everyone in detention at Guantanamo is an innocent victim of some misunderstanding. But it does show the dangers of trusting the administration—any administration—to act as judge, jury, and jailer. It illustrates the need for an independent review to make sure there is some reason to believe the people being treated as terrorists really deserve it.

If any particular detainees are as bad as the administration claims, it should have no trouble making that case in court. But there is nothing to be gained from the indefinite imprisonment of someone whose only crime was to be in the wrong place at the wrong time. Keeping innocent people behind bars is a tragedy for them and a waste for us.

COPYRIGHT 2008 CREATORS SYNDICATE, INC.

Scalia's Not Half-Bad—More Than You Can Say for Most Justices

jsullum@reason.com (Jacob Sullum) — Thu, 03 Jul 2008 14:39:00 EDT

Supreme Court Justice Antonin Scalia has been receiving a lot of criticism around here lately, much of it deserved and some of it from me. I did not like the way he bent over backward in D.C. v. Heller to reassure gun control supporters that existing federal restrictions on firearms are not in danger. His position that the Second Amendment covers only weapons "in common use...for lawful purposes," as opposed to the "unusual and dangerous weapons" that can be banned without violating the Constitutution, is a circular argument that seems designed to uphold the status quo. Neither the federal machine gun ban nor any other form of national gun control was before the Court, so Scalia should have left such issues for another day.

By the same token, however, I don't think it's fair to criticize Scalia, as Radley Balko does, for failing to describe the exact parameters of the right to keep and bear arms (whether it extends beyond self-defense in the home, for example) or for refraining from deciding whether states and cities are bound to respect it by the 14th Amendment. Those questions were not before the Court either. The most important thing Scalia did in Heller (and did quite well, I thought) was to settle the question of whether the Second Amendment protects an individual right to arms and to lay out the reasons for concluding that it does.

More generally, some of the stronger libertarian attacks on Scalia obscure the fact that, from both an originalist and an anti-statist perspective, he is substantially better than the average Supreme Court justice. Although he does not consistently apply his professed principles, he does stand up for a more eclectic mix of individual rights than any other justice, with the possible exception of Clarence Thomas. For the average self-styled progressive, the fact that Scalia upholds property rights in cases involving eminent domain and regulatory takings fits the profile of a reactionary Republican, confirmed by his position on the Second Amendment. But Scalia's wide-ranging defenses of free speech, in cases involving issues such as online "indecency," commercial speech, campaign finance restrictions, and flag burning (which the "liberal" Justice John Paul Stevens wanted to exclude from the protection of the First Amendment), does not jibe with that stereotype.

Neither do Scalia's defenses of the Fourth Amendment. Although he has joined the majority in whittling away at the guarantee against unreasonable searches and seizures, especially in the name of the war on drugs, he also has occasionally resisted that trend, both in the majority and in the minority.

Radley writes that Scalia "has a history of prioritizing his law-and-order instincts over his allegiance to limited government principles and originalism, as he did when he sided with the Court's liberal justices in the medical marijuana case Gonzales v. Raich." Joining the majority in Raich is one of the worst choices Scalia has ever made, hammering what may prove to be the final nail into the coffin of the "federalism revolution" he ostensibly supported. But Scalia's law-and-order instincts have not prevented him from standing up for the rights of defendants, despite his reputation as pro-government. In a pair of recent cases, for example, Scalia joined Thomas in narrowly construing the federal definition of money laundering, thereby overturning two convictions. Together with Thomas, he has led the charge against mandatory federal sentencing guidelines, insisting that the Sixth Amendment right to trial by jury means judges may not determine facts that automatically trigger harsher punishment. And in Hamdi v. Rumsfeld, the 2004 case involving an American citizen detained in the United States as an "enemy combatant," Scalia took the most radical position against the Bush administration, saying the government had to try Hamdi in civilian court or let him go.

In short, Scalia is in many ways more liberal (in the classical sense) than the allegedly liberal members of the Court, and we should not lose sight of that fact when we criticize him for his inconsistencies. On balance, I'd much rather see more justices like Scalia than more justices like Stevens.

Mark Moller tries to figure out what Scalia was thinking when he took the wrong side in Raich. Cathy Young reviews Scalia's deviations from judicial restraint. Damon Root asks what's so great about judicial restraint anyway.

Habeas Half-Truths

info@reason.com (Robert A. Levy) — Wed, 02 Jul 2008 15:00:00 EDT

In a key decision at the close of its term, the Supreme Court held that 270 detainees at Guantanamo Bay have a constitutional right to habeas corpus, by which they can petition a federal court for a hearing to challenge their detentions. Regrettably, that narrow holding has been misinterpreted and exaggerated by defenders of Bush administration policies to suggest that federal courts will replace military courts in conducting criminal-like trials of alien battlefield detainees. That is not what the Court said. Let's see if we can dispel some of the half-truths and untruths regarding the Court's holding in Boumediene v. Bush.

Writing for a 5-4 majority, split along liberal-conservative lines, swing Justice Anthony Kennedy reached the following conclusions: First, Guantanamo is "technically not part of the United States," but it is under our "complete and total control." Therefore, second, Gitmo detainees have habeas rights that are secured by the U.S. Constitution. Third, Congress can suspend those rights only "when in Cases of Rebellion or Invasion the public Safety may require it." Fourth, Congress's attempt in the Military Commissions Act to suspend habeas rights for alien detainees did not establish the pre-conditions required by the Constitution. Fifth, the existing procedures by which detainees can contest their detentions—Combat Status Review Tribunals—are not adequate substitutes for habeas. Accordingly, sixth, the relevant provisions of the Military Commissions Act are unconstitutional and Gitmo detainees may exercise their habeas rights in federal court.

Significantly, the Court did not resolve the question of whether habeas rights attach to alien detainees held outside the United States, other than Guantanamo. Neither did the Court indicate that specified detainees must now be released; nor did it address the effect, if any, of its ruling on military trials currently scheduled.

What, then, gives rise to the confusion and hyperbole surrounding the Boumediene opinion? In part, the problem can be traced to selective excerpts from dissenting opinions by Chief Justice John Roberts and Justice Antonin Scalia. Roberts, for example, wrote that the administration currently offers "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants." Scalia was similarly blunt: "Today, for the first time in our nation's history, the court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war."

Both of those characterizations can be read to suggest, erroneously, that the Court has mandated changes to the procedures now extended to all alien detainees. In fact, the Court carved out a narrow exception, applicable only to Guantanamo because of its unique status under our treaty with Cuba. Although Cuba is the legal sovereign, the question whether U.S. territory is involved turns on "objective factors and practical concerns, not formalism," wrote Justice Kennedy. Traditionally, U.S. constitutional rights vest when the challenged governmental acts take place on U.S. territory.

Equally important, administration backers such as former Justice Department lawyer John Yoo argue, "A judge's view on how much 'proof' is needed to find that a 'suspect' is a terrorist will become the standard applied on the battlefield. Soldiers will have to gather ‘evidence,'...take statements from ‘witnesses,' and probably provide some kind of Miranda-style warning upon capture." That characterization is misleading on several fronts.

First, habeas is not about proof of war crimes or other terrorist acts, but about the designated status of detainees. They may be designated as lawful combatants (i.e., POWs), unlawful enemy combatants (e.g., al Qaeda), or innocent non-combatants. If innocent, they should be released. If POWs, they may not be interrogated and must be released when hostilities end. If unlawful combatants, they may be interrogated, then tried by military tribunal. Habeas rights are not extended to persons adjudicated to be enemy combatants; they are extended to persons accused of being enemy combatants but entitled, as a threshold matter, to dispute that accusation.

The criteria for unlawful combatant designations are straightforward: They do not wear uniforms or other insignia of a command structure, do not openly possess weapons, and will not commit to abide by internationally recognized laws of war. Those criteria were applied by screening tribunals during the Persian Gulf War: 1200 detainees were screened and more than 800 were released. The same process, if applied during the Iraq and Afghan wars, would have eliminated the need for the Supreme Court to resolve unchartered questions about habeas for alien detainees at Gitmo.

Second, Boumediene does not establish Gitmo habeas procedures—not for granting or conducting hearings, not for applying rules of evidence, not for defining the burden of proof. Perhaps the Court should have addressed those points, but it did not. The Court simply afforded a federal civil court remedy for unjustified detention. If Congress wants to establish reasonable rules, it may do so—just as Congress enacted the Uniform Code of Military Justice and approves the Federal Rules of Evidence. What Congress may not do is wait five years, then cave in to administration proposals that effectively pre-determine the outcome of detainee hearings in the government's favor.

Third, under the Geneva Conventions and Defense Department regulations, each detainee whose initial designation as an unlawful combatant is disputable has an opportunity to challenge that designation before a screening tribunal. The Boumediene case arose in the first instance because the Bush administration tried to circumvent those procedures. Instead of convening screening tribunals, the president unilaterally declared all of the detainees at Gitmo to be unlawful enemy combatants, thus entitled to little or no rights. Those declarations might have been correct for many of the detainees, but not all of them.

If President Bush had followed prescribed procedures, several Gitmo habeas cases over the past few years would never have been litigated—or would have been resolved in the administration's favor. In other words, this is a problem of the president's own making. Forty detainees have been held for more than six years without charges filed against them. Some detainees who deny being enemy combatants have never been given an opportunity to show their detention is unwarranted. To its credit, the Supreme Court has finally said "enough."

Robert A. Levy is senior fellow in constitutional studies at the Cato Institute and co-author of The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom.

A Hollow Victory?

rbalko@reason.com (Radley Balko) — Wed, 02 Jul 2008 12:00:00 EDT

For all of the hype, last week's Second Amendment ruling by the Supreme Court won't have much practical effect, at least in the short term. And we likely won't know it's long-term implications for years.

D.C. v. Heller wasn't so much a victory for gun rights as it was a deft aversion of defeat. The Supreme Court addressed its first broad gun rights case in decades and came away finding that the Constitution confers an individual right to bear arms, not a collective right. A 5-4 decision the other way would have been devastating.

Still, this victory seems hollow. Perhaps that's in part because of the narrow way the case was argued by the plaintiff, D.C. security guard Dick Anthony Heller (disclosure: I have several friends and former colleagues who worked on Mr. Heller's case).

Heller's lawyers' strategy (a wise one, in my opinion) was to argue the case narrowly enough that courts couldn't throw it out, forcing the federal court system once and for all to determine whether the Second Amendment's right to keep and bear arms applies strictly to militias or to each of us as individuals.

Writing for the majority, Justice Antonin Scalia ruled for the latter, but with some broad exceptions.

And there's the rub. Scalia's opinion says the Second Amendment's "individual right" to bear arms extends only to self defense and, even then, only in one's home. Perhaps in part to help secure a five-vote majority, Scalia seems to have gone out of his way to explain that the Court wasn't invalidating laws against concealed carry, laws against "unusual or dangerous" weapons, licensure and permit laws, or laws against possessing weapons in "sensitive areas."

Second Amendment scholar Nelson Lund writes that Scalia's exceptions could be significant: Should white-collar felons guilty of nonviolent crimes such as tax evasion or insider trading be barred forever from possessing a gun for self-defense?

Scalia's "sensitive areas" might well include the likes of post-Katrina New Orleans—places where the government is striving to preserve order but where the citizens are in most need of arms for self-defense.

Scalia's opinion also neglected to embrace the Second Amendment as a bulwark against government tyranny, an argument that may at first blush seem anachronistic and impractical but that history shows ought not be taken lightly.

One needn't be a modern-day mountain militiaman to observe that authoritarian regimes often become tyrannical after first disarming the citizenry. As Thomas Jefferson put it, "When the people fear their government, there is tyranny; when the government fears the people, there is liberty."

Most significantly, Scalia's decision neglected to incorporate the individual right to gun ownership to the states through the Fourteenth Amendment. That means that for practical purposes, the only people directly affected by the ruling are the 600,000 residents of Washington, D.C., and the handful of others living in protectorates of the federal government.

To be fair, the plaintiff in the case was a resident of Washington, D.C., and didn't ask the Court to address incorporation. Still, Scalia broached the matter in a footnote but was vague and ambivalent about his intentions, leading to competing interpretations over whether he would or wouldn't be amenable to incorporation.

Scalia has tended to be skeptical of the idea of broadly applying the Bill of Rights to the states. He also has a history of prioritizing his law-and-order instincts over his allegiance to limited government principals and originalism, as he did when he sided with the Court's liberal justices in the medical marijuana case Gonzalez v. Raich.

There, Scalia's fondness for the drug war trumped his alleged federalist principles. His and Justice Anthony Kennedy's vote to validate the federal government's efforts to subvert state laws allowing for the use of medical marijuana essentially halted the Court's incremental, 10-year "federalism revolution," which some speculate may have resulted in overturning Wickard v. Filburn, the 60-year-old Commerce Clause case that broadly expanded the power of Congress to intervene in the most minute of personal affairs.

Until the incorporation issue is resolved—which likely will take years—last week's decision, while symbolically significant, has limited practical effect. It means only that the citizens of Washington, D.C., and other federal protectorates have the right to own a handgun for the purpose of self-protection.

But that right only extends to gun ownership in the home, and even then, it's subject to all sorts of restrictions and licensure requirements. Just how strict those requirements can be (could D.C. pass a six-month waiting period for handgun purchases?) will need to be resolved by litigation.

Outside of D.C., nothing has changed. The Heller decision won't affect other cities with gun restrictions as severe as those in D.C. So-called "assault weapon bans" still are valid. All Heller did outside the nation's capital was remove the possibility that Congress might one day pass a blanket federal ban on all firearm ownership, which seemed like a remote possibility, anyway.

Pan back a bit and the cause for skepticism grows. The Bill of Rights never was intended to be a list of the only rights we have; in fact, the founders worried that future generations might interpret it that way, which is why they included the Ninth and Tenth amendments.

Rather, the Bill of Rights includes the rights the founders considered most important, those necessary to secure and preserve all of the others.

The right to bear arms appears second on the list. And yet even here, on an issue that's become a central tenet of conservative philosophy, we have a decision written by the Court's most conservative justice that can't even uphold the second addition to the Bill of Rights without a series of caveats, exceptions, and asides. And it's a ruling that, practically speaking, applies that right to only a sliver of the country's 300 million residents.

As the short-lived "federalism revolution" demonstrates, an incrementalist approach to winning back the liberties we've lost over the years isn't likely to be successful. Indeed, the general trajectory of the Court over American history has—with some exceptions—been toward more power for the government at the expense of individual liberty, not the other way around.

Heller was a symbolic victory, and the lawyers who brought the longshot case should be commended. But time will tell if this symbolic victory evolves into a practical one.

For now, we're still a long way from a blanket, real-world right to keep and bear arms.

Radley Balko is a senior editor of reason. A version of this article originally appeared on FoxNews.com.

Individual Rights and the Supreme Court

info@reason.com (Damon W. Root) — Tue, 01 Jul 2008 18:25:00 EDT

George Mason's David Bernstein wrote a great article for the Cato Institute last week making the necessary point that the Supreme Court's liberals aren't necessarily its most reliable defenders of individual rights. As Bernstein notes, the dissents in D.C. v. Heller presented "the remarkable spectacle of four liberal Supreme Court justices tying themselves into an intellectual knot to narrow the protections the Bill of Rights provides." As he notes, there's also liberal malfeasance on cases dealing with election-related speech, eminent domain abuse, racial classifications, and "hate speech" to keep in mind.

The only thing I would add is that the Court's conservatives aren't exactly eager to take up the slack. As Radley Balko pointed out, Chief Justice John Roberts and Justice Samuel Alito are

judges who defer to police and prosecutors on criminal justice issues, who would put broad restrictions on your ability to sue government agents who have wronged you, and who embrace the Unitary Executive, essentially the belief that when it comes to foreign policy and national security (and a number of other issues), the president's powers are unlimited, absolute, and unchecked by either Congress or the courts. That isn't an exaggeration.

Justice Antonin Scalia, of course, voted the wrong way in Gonzales v. Raich, siding with the majority against California's medical marijuana law. And in his ugly Boumediene v. Bush dissent, Scalia viciously asserted that recognizing habeas corpus for enemy combatants held at Guantanamo Bay "will almost certainly cause more Americans to be killed."

Perhaps it goes without saying, but wouldn't a few genuine libertarians be a nice improvement?

How Gun Control Lost

schapman@tribune.com (Steve Chapman) — Mon, 30 Jun 2008 07:00:00 EDT

Thomas Jefferson once wrote, pessimistically, "The natural progress of things is for liberty to yield and government to gain ground." He would probably not have been surprised to see the proliferation of gun control laws in our time. But he might not have anticipated that the water would run back uphill.

Thursday's Supreme Court decision affirming that the Second Amendment recognizes an individual right to own firearms for self-defense was a vindication of those who have long argued that position. But it was an even more stunning defeat for advocates of gun control, who not so long ago seemed to have history, law, and public sympathy on their side. Back then, they couldn't have dreamed that the Supreme Court would say, "You know what? The National Rifle Association is right."

In the 1980s and 1990s, as violence raged at epidemic levels, the preferred remedy of policymakers was to restrict the manufacture, sale, and ownership of firearms. Washington, D.C. had banned handguns in 1976, and in 1982, Chicago did likewise, prompting several of its suburbs to follow suit.

New York required anyone who wanted a handgun to acquire a special permit, which was expensive and hard to get. Meanwhile, the federal government and several states outlawed "assault weapons"—semiautomatic guns with a military appearance.

It looked as though ever-stricter gun control was the wave of the future. But the future had different ideas. What happened? Three main things:

Gun control didn't work. In the 1990s, despite its draconian ban, Washington became the murder capital of the United States. Chicago's homicide rate, which had been declining in the years before it banned handguns, climbed over the following decade. Gun control didn't work.

During the time the federal assault weapons law was in effect, the number of gun murders declined—but so did murders involving knives and other weapons. When the law was allowed to expire in 2004, something interesting happened to the national murder rate: nothing.

Laws allowing concealed weapons proliferated—with no ill effects. In 1987, Florida gained national attention—and notoriety—by passing a law allowing citizens to get permits to carry concealed handguns. Opponents predicted a wave of carnage by pistol-packing hotheads, but it didn't happen. In fact, murders and other violent crimes subsided. Permit holders proved to be sober and restrained.

People elsewhere took heed, and today, according to the NRA, 40 states have "right-to-carry" laws. As those laws have spread, the homicide rate has fallen sharply from the peak reached in 1991.

The Second Amendment got a second look. In 1983, a San Francisco lawyer named Don Kates published an article in the University of Michigan Law Review arguing that, contrary to prevailing wisdom in the judiciary and law schools, the Constitution upholds an individual right to keep and bear arms.

Numerous legal scholars, spurred to examine the record, reached the same surprising conclusion. Before long, even some liberal law professors were coming around.

In 2000, Harvard's Laurence Tribe published a new edition of his influential constitutional law textbook, asserting that the Second Amendment had an undeniable meaning: "The federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes..."

The majority opinion last week, written by Justice Antonin Scalia, drew heavily on this stack of scholarship to argue that the framers did not limit the right to the context of service in a state militia. Without the stimulus provided by these contrarian thinkers, the decision would never have come to pass. And the Second Amendment would have remained what it was for so long: a curious irrelevancy.

Instead, the right to keep and bear arms has finally taken its rightful place with our other fundamental liberties. It may be the natural course of things for government control to expand and freedom to shrink. But as Jefferson knew, America was founded to reverse that process.

COPYRIGHT 2008 CREATORS SYNDICATE, INC.

Arming America

info@reason.com (Damon W. Root) — Fri, 27 Jun 2008 18:00:00 EDT

For the past 32 years, law-abiding residents of Washington, D.C. have been at the mercy of one of America's most unforgiving gun control laws: a total ban on the possession of handguns in the home, as well as strict trigger lock and disassembly requirements for rifles and shotguns. Taken together, these restrictions have left Washingtonians unable to mount any sort of meaningful defense of themselves, their families, and their homes from armed intruders.

But things changed on Thursday. In a landmark 5-4 decision in the case of District of Columbia v. Heller, the Supreme Court held that D.C.'s gun ban was unconstitutional under the Second Amendment since it deprived individuals of their right "to use arms for the core lawful purpose of self-defense." In a forceful, tightly argued opinion, Justice Antonin Scalia declared that the amendment protects an essential individual right, one that is "unconnected with service in a militia."

One major thing the decision didn't do, however, was directly address a crucial question going forward: whether the constitutional right to keep and bear arms is applicable against the states as well as the federal government (which administers Washington, D.C.). Under what's known as the incorporation doctrine, the Supreme Court has gradually ruled that the Fourteenth Amendment applies many of the protections contained in the Bill of Rights against infringement by state and local governments. The Second Amendment, however, has been glaringly absent from this process. Did Heller change that, too?

Technically no. But since the Court wasn't asked to settle that matter, the fact that it didn't do so is no cause for alarm. In fact, the decision offers cause for some real hope. Justice Scalia's extensive reliance on historical sources and scholarship sends a very promising signal to those who'd like to see the Second Amendment enforced against the states. If history matters, and Heller certainly says that it does, then strong evidence for incorporation is likely to carry real weight in future litigation.

So let's consider the origins of the Fourteenth Amendment, which states in part, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." As legal historian Michael Kent Curtis makes clear in his definitive book, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights, the radical Republicans who drafted and then spearheaded the 1868 ratification of the amendment clearly intended and understood it to apply the entire Bill of Rights to the states.

In short, these legislators, most of whom had been active in the anti-slavery and abolitionist movements, wanted to secure the life, liberty, and property of the recently freed slaves and their white allies in the former Confederate states. This quite obviously and quite necessarily included the right to keep and bear arms for purposes of self-defense. Ohio Rep. John Bingham, for instance, the author of the Fourteenth Amendment's crucial first section, which was quoted above, declared that "the privileges and immunities" it refers to "are chiefly defined in the first eight amendments to the Constitution." Similarly, Sen. Jacob Howard of Michigan, who presented the amendment to the Senate, described its object as "to restrain the power of the States and compel them at all times to respect these great fundamental guarantees," including "the right to keep and to bear arms." For a state or federal judge following the methodology laid out in Heller, such information could prove very persuasive.

In modern-day Chicago, meanwhile, gun rights activists have already seized the initiative. Within hours of Heller's announcement, the Second Amendment Foundation and the Illinois State Rifle Association filed a lawsuit in federal court challenging the city's draconian handgun ban, a law that has deprived Chicagoans of the right to self-defense for the past quarter of a century. Benna Solomon, deputy corporation council for the city, responded by telling the Chicago Tribune that "the 2nd Amendment does not apply to state and local government," adding: "We are prepared to aggressively litigate this issue and defend this ordinance."

Alan Gura, the attorney who successfully argued Heller before the Court, and who is now representing the plaintiffs in the Chicago case, is more than ready. As he told reason this week, "The next step is obviously 14th Amendment incorporation. I'm looking forward to leading that fight."

Damon W. Root is an associate editor of reason.

Now Playing at Reason.tv: Brian Doherty Responds to D.C. v. Heller

Fri, 27 Jun 2008 17:00:00 EDT

...

The Second Amendment Goes to Court

Fri, 27 Jun 2008 07:00:00 EDT

For the past three decades, Washington, D.C. has enforced one of America's most draconian gun control laws—a total ban on the possession of handguns, not to mention strict gun lock provisions for rifles and shotguns, that has left law-abiding citizens unable to legally defend themselves and their homes. In March, the U.S. Supreme Court heard oral arguments in the case of District of Columbia v. Heller, in which seven D.C. residents challenged the constitutionality of the ban. At the center of the case is the question of whether the Second Amendment protects an individual or collective right to keep and bear arms.

Yesterday, the Court issued its long-awaited opinion, ruling 5-4 in favor of an individual right to own guns. reason assembled a panel of 8 leading civil libertarians to help make sense of what the Court said, what it means, and what's likely to come next.

***

Alan Gura: Yesterday’s decision is a huge victory for liberty. First, we saved the Second Amendment. That much should be obvious from the opinion. Yesterday, federal courts in 47 states were telling Americans they had no Second Amendment rights. The score is now 50-0, plus the capital, in the other direction. For budding lawyers, “individual right” is now the correct answer on the Multi-State Bar Exam. The movement to end private firearm ownership in America is dead and buried. Yes, we’ve got some work to do to make sure it stays that way. It will.

The case is “narrow but broad.” Narrow, in the sense that our objective was merely to secure the individual nature of Second Amendment rights, and demonstrate—with a judgment—that the right has substance. Broad, in the sense that this simple principle can now be applied in other contexts. This is not just about flat-out gun bans in Washington, D.C. homes. All regulations that touch upon Second Amendment rights will get a well-deserved constitutional look. Instant background checks and felon-in-possession laws will survive. Laws meant to harass gun possession, while at best advancing only a hypothetical public benefit, will not. The Second Amendment is now a normal part of the Bill of Rights. It’s not realistic to expect one Second Amendment case to answer all right to arms questions for all time, just as we have no one decision telling us what a Fourth Amendment “reasonable search” in all circumstances. We may not win every case. We’ll win a good amount of them. The next step is obviously 14th Amendment incorporation. I’m looking forward to leading that fight. Learn more at www.chicagoguncase.com.

Libertarians can be impatient. Would anyone prefer the quick certainty of Kelo? Or McConnell v. FEC? It may be a tough slog to restore the Takings Clause and free political speech. Restoring the Second Amendment will take time, too. Today, with the right to keep and bear arms, we start from a position of strength.

Alan Gura argued District of Columbia v. Heller before the Supreme Court. He is a partner at Gura & Possessky.

***

Glenn Reynolds: My first thought on Heller is that many gun-rights supporters never thought they'd live to see a Supreme Court opinion to the effect that "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home." Bob Levy, who brought the case against the advice of many gun-rights supporters, should feel very good about that.

My second thought is that this is a gift to the Obama campaign. While this won't take the gun issue off the table, it also won't energize the gun-rights crowd (which cost Al Gore the election in 2000 when he failed to carry Tennessee, largely because of his support for gun control) the way a contrary opinion would have. Obama's record of strong support for sweeping gun control would hurt him much more if gun owners felt more vulnerable.

My third thought is that whether this has much impact on the real world depends on how the next several cases proceed. In the 1990s the Supreme Court announced a major shift in Commerce Clause doctrine that offered the hope of paring back federal power considerably. But right-leaning public interest law groups didn't take up the challenge and bring carefully selected cases to advance the principle, leading it to be characterized by some (including me) as a constitutional revolution where nobody showed up. Gun-rights advocates are already talking about follow-on challenges in places like Chicago or Morton Grove. How well those are brought will have a lot to do with whether the Heller opinion is a milestone, or just a speedbump.

Glenn Reynolds is a law professor at the University of Tennessee. He blogs at Instapundit.com.

***

Randy Barnett: Justice Scalia's historic opinion will be studied for years to come, not only for its conclusion but for its method. It is the clearest, most careful interpretation of the meaning of the Constitution ever to be adopted by a majority of the Supreme Court. Its analysis of the "original public meaning" of the Second Amendment stands in sharp contrast with Justice Stevens' inquiry into "original intent" or purpose and with Justice Breyer's willingness to balance an enumerated constitutional right against what some consider a pressing need to prohibit its exercise. The differing methods of interpretation employed by the majority and the dissent also demonstrate why appointments to the Supreme Court are so important. In the future, we should be vetting Supreme Court nominees to see if they understand how Justice Scalia reasoned in Heller and if they are committed to doing the same. Now if we can only get a majority of the Supreme Court to reconsider its previous decisions—or "precedents"—that are inconsistent with the original public meaning of the text.

Randy Barnett is the Carmack Waterhouse Professor of Legal Theory at Georgetown University Law Center and author of Restoring the Lost Constitution: The Presumption of Liberty.

***

Brian Doherty: The Heller decision was exciting for fans of American liberty—even the dangerous and disreputable end of that liberty, where weapon possession and use rights abide in the minds of many good-hearted people who think guns are just ugly and awful and appeal to the worst aspects of human nature.

Scalia's opinion did a thorough job of fileting, layer by layer, the lame and unsupportable "collective right" beliefs about the Second Amendment—including lots of sadly necessary exegesis on how the word "keep" means that people have a right to, yes, keep arms in their homes.

But Heller represents no happy ending to our legal and public policy duels over guns. Scalia's opinion does admit that we do have a constitutionally protected right to some degree to defend ourselves and our property with weapons.

But the opinion also stresses that right is still regulatable in many, many ways. It leaves plenty of room (which you can be sure will be filled rapidly) for future court challenges and public policy fights to define the degree to which the government, at any level, can restrict or regulate the sale, possession, and use of weapons. It may well turn out that anything less severe than D.C.'s total ban will withstand scrutiny even under the newly revived Second Amendment.

The "eternal vigilance is the price of liberty" part: four members of the Supreme Court think that it's A-OK for the government to completely bar citizens from using guns for the protection of their lives and homes. That can't make sleeping at night any easier. That said, the Heller victory was a sweet one for the recognition that there are limits to what democracy can do to individual rights, and is worth celebrating for that.

Brian Doherty is a senior editor at reason and the author of This Is Burning Man and Radicals for Capitalism. He is currently writing a book about District of Columbia v. Heller.

***

Sanford Levinson: The majority obviously found that the Second Amendment does protect an individual right to bear arms, and they applied this right in the easiest possible case, i.e., a functionally absolute prohibition against handgun possession.

What cannot be determined from the opinion is what the future impact of Heller will be, beyond further litigation. I am reminded of a cartoon in the New Yorker several years ago, of a conversation at a suburban cocktail party where a woman says to a well-dressed man, who is carrying a rifle slung over his shoulder, “I've never met a Second Amendment lawyer before.” I suspect that there will be more such lawyers in the next few years, but this says nothing about the prospects of winning such cases. For all of the rhetorical bluster of Scalia’s opinion, it not only focuses on the extreme nature of the D.C. ordinance, but also goes out of its way in effect to legitimize a plethora of existing federal legislation regarding guns. And, of course, there is no way of knowing who will be appointing the all-important “inferior” federal judges, beginning in January 2009, who will play a far more important role than the Supreme Court in deciding the operational meaning of the Second Amendment.

Finally, Scalia should take a certain pleasure that Justice Stevens, by confining the entirety of his opinion to an “originalist” analysis of the Second Amendment (that obviously came to a completely different conclusion), seemed to concede the overarching importance of original meaning. Neither Justice was willing to pay any attention to the “dynamic” aspect of the Second Amendment. Scalia was presumably unwilling to cite Chief Justice Taney’s opinion in Dred Scott, but it’s the strongest single piece of evidence for the proposition that by mid-19th century an individual right to bear arms (at least if you were an American citizen) had become the conventional wisdom.

Sanford Levinson holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas Law School. His most recent book is Our Undemocratic Constitution.

***

Jacob Sullum: The most important aspect of D.C. v. Heller, of course, is the Supreme Court's recognition that the Second Amendment protects an individual right to arms. From that premise it almost inevitably follows that the District of Columbia's gun law—which, as the Court noted, "bans handgun possession in the home" and "requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable"—is unconstitutional. If such a law does not violate the right to armed self-defense, it's hard to imagine what law would. That's why the Court did not bother to specify what level of scrutiny is appropriate for purported violations of the Second Amendment. It concluded that the D.C. law is invalid "under any of the standards of scrutiny the Court has applied to enumerated constitutional rights."

By the same token, however, this decision does not give a clear sense of the line between constitutional and unconstitutional forms of gun control. The Court indicates that laws regulating the sale of firearms and prohibiting concealed carry, gun ownership by "felons and the mentally ill," possession of "unusual and dangerous weapons" (as opposed to weapons in common use for lawful purposes), and possession of firearms in "sensitive places" such as schools and government buildings are consistent with the Second Amendment. But it is not clear whether a law against openly carrying guns would pass muster, or what kinds of guns count as "unusual and dangerous," or how onerous licensing and registration requirements can be before they run afoul of the Second Amendment.

On that last point, the Court says licensing and registration are not necessarily unconstitutional, but it sounds like it would look askance at conditions attached to them.

"Assuming that [plaintiff Dick] Heller is not disqualified from the exercise of Second Amendment rights," the Court says, "the District must permit him to register his handgun and must issue him a license to carry it in the home." (Emphasis added.) It's harder to predict which weapons will end up being covered by the Second Amendment, except that they will include handguns but evidently not machine guns or bazookas.

Finally, the majority opinion does not address the question of whether the Second Amendment, either directly or via the 14th Amendment, applies to the states as well as a federal domain like the District of Columbia. But it's hard to imagine why it wouldn't now that the Court has clearly acknowledged the right to armed self-defense as a fundamental aspect of liberty protected by the Constitution.

Jacob Sullum is a senior editor at reason and a nationally syndicated columnist.

***

Dave Kopel: Heller is a tremendous victory for human rights and for libertarian ideals. Today’s majority opinion provides everything which the lawyers closely involved in the case, myself included, had hoped for. Of course I would have preferred a decision which went much further in declaring various types of gun control to be unconstitutional. But Rome was not built in a day, and neither is constitutional doctrine.

For most of our nation’s history, the U.S. Supreme Court did nothing to protect the First Amendment; it was not until the 1930s when a majority of the Court took the first steps towards protecting freedom of the press. It would have been preposterous to be disappointed that a Court in, say, 1936, would not declare a ban on flag-burning to be unconstitutional. It took decades for the Supreme Court to build a robust First Amendment doctrine strong enough to protect even the free speech rights of people as loathsome as flag-burners or American Nazis.

Likewise, the Equal Protection clause of the Fourteenth Amendment was, for all practical purposes, judicially nullified from its enactment until the 1930s. When the Court in that decade started taking Equal Protection seriously, the Court began with the easiest cases—such as Missouri’s banning blacks from attending the University of Missouri Law School, while not even having a “separate but equal” law school for them. It was three decades later when, having constructed a solid foundation of Equal Protection cases, the Court took on the most incendiary racial issue of all, and struck down the many state laws which banned inter-racial marriage.

So too with the Second Amendment. From the Early Republic until the present, the Court has issued many opinions which recognize the Second Amendment as an individual right. Yet most of these opinions were in dicta. After the 1939 case of United States v. Miller, the Court stood idle while lower federal courts did the dirty work of nullifying the Second Amendment, by over-reading Miller to claim that only National Guardsmen are protected by the Amendment.

Today, that ugly chapter in the Court’s history is finished. Heller is the first step on what will be long journey. Today, the Court struck down the most freakish and extreme gun control law in the nation; only in D.C. was home self-defense with rifles and shotguns outlawed. Heller can be the beginning of a virtuous circle in which the political branches will strengthen Second Amendment rights (as in the 40 states which now allow all law-abiding, competent adults to obtain concealed handgun carry permits), and the courts will be increasingly willing to declare unconstitutional the ever-rarer laws which seriously infringe the right to keep and bear arms.

As the political center of gravity moves step by step in a pro-rights direction, gun control laws which today might seem (to most judges) to be constitutional will be viewed with increasing skepticism. The progress that the pro-Second Amendment movement has made in the last 15 years has been outstanding. As long as gun owners and other pro-Second Amendment citizens stay politically active, the next 15, 30, and 45 years can produce much more progress, and the role of the judiciary in protecting Second Amendment rights will continue to grow.

Dave Kopel is Research Director at the Independence Institute, in Golden, Colorado. He was one of three lawyers at the counsel table who assisted Alan Gura at the oral argument on March 18. His brief for the International Law Enforcement Educators and Trainers Association was cited four times in the Court's opinions.

***

Joyce Lee Malcolm: What a great day for individual rights. The majority of the Supreme Court retrieved the original intent of the Second Amendment to permit individuals the right and ability to defend themselves. For thirty years those convinced that ordinary people can’t be trusted with guns have dominated the discussion. In order to ban civilian ownership of weapons, the original meaning of the Second Amendment had to be reinterpreted, and unfortunately with its awkward language—which was well-understood at the time—that wasn’t too difficult. Generations of law students have been taught that the Second Amendment merely protected the right of states to have a militia, a right already incorporated into the body of the Constitution. The nearly complete control over the militia by the federal government was not altered in any way by the amendment, but no mind. The linguistic efforts to deny an individual right were quite inventive—“the people” only in this amendment meant a group, not an individual, “bear arms” implied an inclusively military context, that awkward word “keep” was to be erased by linking it with “bear” in order to make it exclusively military, and so on. And it all nearly worked. But not quite.

Thanks to the scholarly efforts of many people, the overwhelming evidence for an individual right to keep and have weapons for self-defense was uncovered and published. It was that evidence that the justices relied upon.

My only disappointment with an otherwise great decision was how narrow it was. Four justices ignored the evidence in order to preserve the gun control measures meant to deny individuals the right to be armed. In the process, they were prepared to erase a basic right and uphold the stringent and ineffective D.C. gun ban, a law that went so far as to forbid reassembling a gun in the home in the case of a break-in.

Still, it was a great day for every American, one that will ensure a safer America than any number of gun bans ever could.

Joyce Lee Malcolm is professor of legal history at George Mason University School of law. She is the author To Keep and Bear Arms: The Origins of an Anglo-American Right.

A Somewhat Skeptical Take on Heller

rbalko@reason.com (Radley Balko) — Thu, 26 Jun 2008 16:37:00 EDT

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.

Mayor Fenty and Co. Gnash Teeth, Tear Hair

mriggs@reason.com (Mike Riggs) — Thu, 26 Jun 2008 12:40:00 EDT

Guess who's not happy about today's big decision?

[Washington, D.C.] Mayor Adrian M. Fenty, Interim Attorney General Peter Nickles and Metropolitan Police Chief Cathy Lanier announced their disappointment in today's ruling of the United States Supreme Court in District of Columbia v. Heller.

Mayor Fenty plays down the ruling, and essentially insists that for the next three weeks, the case doesn't change anything. Chief Lanier says that officers are encouraged to "use their discretion" in response to burglaries or assaults where residents have used guns in self-defense—which means that protecting one's home could still result in a trip down to the station.

Here's the video, courtesy of the Washington Post.

Read the Heller Ruling

matt.welch@reason.com (Matt Welch) — Thu, 26 Jun 2008 10:38:00 EDT

Here [pdf]. Then leave your legal opinions in the comments!

The 2nd Amendment: An Individual Right

matt.welch@reason.com (Matt Welch) — Thu, 26 Jun 2008 10:19:00 EDT

The Supreme Court rules 5-4, with Anton Scalia writing the opinion:

Answering a 127-year old constitutional question, the Supreme Court ruled on Thursday that the Second Amendment protects an individual right to have a gun, at least in one's home. The Court, splitting 5-4, struck down a District of Columbia ban on handgun possession.
Justice Antonin Scalia's opinion for the majority stressed that the Court was not casting doubt on long-standing bans on gun possession by felons or the mentally retarded, or laws barring guns from schools or government buildings, or laws putting conditions on gun sales.

Stay tuned all day to this space for reaction and interpretation.

Stop Him Before He Places a Classified Ad!

jwalker@reason.com (Jesse Walker) — Thu, 26 Jun 2008 10:08:00 EDT

In his Boumedienne dissent, Antonin Scalia claimed that "At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield." This isn't just an unpersuasive argument for denying the detainees due process. Turns out it isn't even true -- unless your definition of "returned to the battlefield" includes such nefarious jihadist activities as publishing an article in The New York Times.

Recently at Reason.tv: The High Stakes of the DC Gun Case

Thu, 26 Jun 2008 08:30:00 EDT

Later today, the U.S. Supreme Court will announce its decision in District of Columbia v. Heller, the first major Court case about gun rights to be considered since the late 1930s. In the mid-1970s, the District of Columbia passed draconian gun-control legislation that effectively made it impossible for residents to legally own guns. Alan Gura is the lead attorney for seven plaintiffs who want to own guns for self-protection and other reasons. Gura and his associates have challenged the constitutionality of D.C.'s gun laws.

At the center of the case is whether the judiciary will recognize that the Second Amendment grants an individual right to own guns, a point conceded by virtually all historians and legal experts.

Gura recently sat down with reason.tv's Nick Gillespie to explain the high stakes of one of the most important and highly anticipated court cases in recent memory.

This nine-minute interview was shot and edited by reason.tv's Dan Hayes.

Click below to watch.

Go here to add this interview to your website and for more supporting materials.

Recently at Reason.tv: Brian Doherty on the DC Gun Case

Thu, 26 Jun 2008 08:00:00 EDT

Today, the U.S. Supreme Court will issue its decision in District of Columbia v. Heller, the first major gun-rights case to be decided by the Court since the 1930s.

Heller deals with Washington, D.C.'s ultra-restrictive gun control laws, which have been in place since 1976. reason Senior Editor Brian Doherty, author of This Is Burning Man: The Rise of a New American Underground and Radicals for Capitalism: A Freewheeling History of the Modern Libertarian Movement, is writing a book about the case and its ramifications; the volume will be released later this year by Cato Books.

Back in March, Doherty gave reason.tv a quick rundown of his project. Click below to check out the video.

Supreme Court Watch

info@reason.com (Damon W. Root) — Wed, 25 Jun 2008 11:31:00 EDT

Big morning today at the Supreme Court, which ruled that the death penalty is unconstitutional in cases of child rape "where the crime did not result, and was not intended to result, in death of the victim." Justice Anthony Kennedy wrote the 5-4 majority, which was joined by Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer, and David Souter. Justice Samuel Alito dissented, joined by Justices Antonin Scalia and Clarence Thomas and by Chief Justice John Roberts. You can find the decision here.

For those of us eagerly awaiting the Court's decision in DC v. Heller, which looks at the constitutionality of Washington, DC's sweeping handgun ban, as well as whether the Second Amendment protects an individual or collective right to keep and bear arms, that ruling will be issued tomorrow. And it is looking very likely that Justice Scalia will be the author of a plurality, if not a majority decision, which suggests a big win for individual rights.

Mr. Modesty

info@reason.com (Damon W. Root) — Tue, 24 Jun 2008 17:15:00 EDT

During his Senate confirmation hearings, soon-to-be Chief Justice John Roberts stressed his belief that the Supreme Court should practice judicial "modesty," a respect for precedent and consensus that he extended all the way to the abortion-affirming Roe v. Wade, a decision he described as "the settled law of the Land."

Did Roberts mean what he said? Jeffrey Rosen thinks so. In a provocative piece for the New Republic, Rosen argues that while it's too early to say for sure,

it seems increasingly clear that liberals dodged a bullet when President Bush nominated [Roberts] to be chief justice. Instead of siding with conservative extremists like Clarence Thomas, who are eager to press the limits of the so-called Constitution in Exile, resurrecting limits on federal power whenever possible, Roberts prefers narrow opinions that can attract support from the center. Liberals ought to applaud this instinct because, even if Barack Obama gets to appoint the next justice or two, it's the only thing standing between them and a Court eager to roll back progressive reforms.

Setting aside Rosen's tiresome crusade against the non-existent "Constitution-in-Exile" movement, the point about Roberts and narrow opinions rings true. As Rosen learned from the chief justice himself, Roberts has, among other things, encouraged the Court to hear more business cases, since those tend not to divide the justices along stark ideological lines, contributing to "a culture and an ethos that says, 'It's good when we're all together.'"

Interestingly, Rosen's conclusions are very different from those of other liberal legal scholars, particularly New York University's Ronald Dworkin, who has argued that Roberts and his fellow conservatives have been fomenting a revolution that is "Jacobin in its disdain for tradition and precedent."

As evidence against such claims, Rosen points to the differences between the recent habeas dissents of Roberts and Justice Antonin Scalia. There is definitely something to that. As I've previously noted, Scalia's dissent is an ugly, even menacing document, while Roberts's makes the surprising point that, "the habeas process the Court mandates will most likely end up looking a lot like the [Detainee Treatment Act] system it replaces." That's a long way from Scalia's vicious assertion that Boumediene v. Bush "will almost certainly cause more Americans to be killed."

But of course we're not done with the current term yet. There's still the eagerly anticipated District of Columbia v. Heller, where the Supreme Court will decide on the constitutionality of Washington, DC's sweeping gun ban and most likely settle whether the Second Amendment protects an individual or a collective right to keep and bear arms. That decision may come as early as tomorrow morning. We'll see if Rosen still wants to call this term "something of a bipartisan lovefest" after that.

Yoo Ain't Seen Nothing Yet

rbalko@reason.com (Radley Balko) — Mon, 23 Jun 2008 08:28:00 EDT

Last week, ex-Bush executive power rationalizer John Yoo penned an op-ed for the Wall Street Journal heaping the usual criticisms on the Supreme Court's Boumediene decision, which held that the government can't just snatch people up off the street, then hold them forever without ever giving them a trial.

Glenn Greenwald dresses Yoo down here. Cato's Tim Lynch has a go at him here. Meanwhile, Gene Healy finds an intriguing article written for Cato a few years ago attacking Bill Clinton for his unilateral, imperious approach to foreign policy. That article's author? John Yoo.

Hack-tastic!

Terrorized by the Supreme Court

schapman@tribune.com (Steve Chapman) — Thu, 19 Jun 2008 07:00:00 EDT

A lot of people who strongly believe in the war on terror are not above sowing a little terror of their own. From the reaction to last week's Supreme Court decision on Guantanamo, you would think the detainees were all going to be trained, armed and set free at Ground Zero, with free shuttle service to the nearest airport.

John McCain denounced the ruling, which said inmates may ask for federal court review under a procedure known as habeas corpus, as "one of the worst decisions in the history of this country." Former Bush Justice Department official John Yoo warned that henceforth, captured enemy fighters will be read their Miranda rights. The irrepressible Wall Street Journal had a cartoon with a judge atop a cage labeled "Gitmo" watching masked inmates stream out wearing suicide vests and lugging AK-47s.

All this outrage builds on the dissent registered by Justice Antonin Scalia. The court's decision "will make the war harder on us," he thundered. "It will almost certainly cause more Americans to be killed."

Well, it won't have that effect unless it leads to inmates being released—which it has not, will not anytime soon, and may not ever. If and when it does, he may have a point, though not necessarily a powerful one.

Anytime you let someone out of prison, even if he's innocent, you create the possibility that he will someday kill someone. Scalia makes much of the supposed fact that 30 of the detainees freed from Guantanamo "have returned to the battlefield." Just because they were later captured or killed, however, doesn't mean they "returned" to the war.

Some of them may have been victims of mistaken identity, which could explain why those softhearted folks at the Pentagon let them go. But stick a blameless unfortunate in a cage for six years, abusing him in the process, and when he comes out, he may seek revenge. The only way to eliminate the risk is to keep all the detainees locked up forever.

Even the Bush administration has not gone that far. It was happy to free more than 500 inmates over the years. When it did, by the way, nobody accused the president of causing more Americans to be killed.

Besides, any releases are only speculative right now. To have a chance at freedom, a prisoner will have to make a plausible case that he's innocent. The administration had already planned to try 80 of the detainees before military commissions, which suggests it has abundant evidence of guilt.

Presumably the Defense Department has information to show that many, if not all, of the others were connected to al-Qaida or other enemy forces. If the government presents incriminating evidence that the inmate can't refute, a habeas corpus petition will be about as useful to him as a snowboard.

Nor are the courts likely to let the American Civil Liberties Union draw up the standards for release. Justice Anthony Kennedy, writing the majority opinion, indicated the judiciary will err on the side of caution.

"Habeas corpus proceedings need not resemble a criminal trial," he stipulated, for those worried about Miranda warnings. Though inmates have rights, he noted, "it does not follow that a habeas corpus court may disregard the dangers the detention in these cases was intended to prevent."

Let's suppose there's an inmate whom the Pentagon thinks was fighting for al-Qaida but lacks any supporting evidence it can use in court. Does he now have a get-out-of-Gitmo-free card? Not necessarily.

In that case, says Northwestern University law professor Ronald Allen, the government could classify him as a prisoner of war—who, like POWs in previous wars, may be held until the hostilities cease. The trouble, from the administration's point of view, is that he would then be entitled to standard POW protections, such as being treated humanely and not being punished for refusing to answer questions. But at this point, that's a small price to pay.

It's also a small price to say that if the executive wants to capture someone, treat him as an unlawful enemy combatant and hold him for the rest of his life, it should have to justify that decision to someone other than itself. Critics of this decision are terrified that the courts will have the power to free innocent men. But really, the alternative is a lot scarier.

COPYRIGHT 2008 CREATORS SYNDICATE, INC.