District Of Columbia Vs. Heller, At Last An Interpretation of Second Amendment

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.
Justice Antonin Scalia in District of Columbia vs. Heller.

I actually seems quite ridiculous that is has taken over two hundred years to get a definition of this great Amendment, the Second. So has been the case with District of Columbia vs. Heller, more commonly known as the D.C. Hand Gun Ban.

Heller worked as a security guard and petitioned the District for a permit to keep a hand gun in his home for protection. He was denied and thus began the process of a legal challenge by Heller and others that such an act was unconstitutional. A District Court of Appeals agreed with Heller and the case was presented to the U.S. Supreme Court. The Court agreed to hear the case.

In March, 2008 the U.S. Supreme Court heard oral arguments in District of Columbia vs. Heller. Even before the conclusion of oral arguments, many thought the High Court would rule that the Second Amendment guaranteed an individual the right to keep and bear arms. For whatever the reasons, some in this country have come to want to believe that the Second Amendment applied only to giving states the authority to arm state militias. There is little evidence to support that claim.

Somewhat lost in the debate over the Second Amendment was the actual case of District of Columbia vs. Heller. The District’s ban against Heller and being challenged in court, states that for all intent and purposes, that it prohibits the possession of a handgun and demands that all other guns kept in a home be rendered inoperable through disassembly or the use of trigger locks. The U.S. Supreme Court could not and does not rule on certain issues on the administration of the Second Amendment as some would have hoped because of the case before them.

As I said earlier, it has taken over two hundred years in order to get the Supreme Court to actually define the Second Amendment. In case you have been in outer space in the last few days, the Supreme Court, in a 5-4 vote, agreed to uphold the lower court’s ruling that the D.C. gun ban was unconstitutional. Justice Antonin Scalia wrote the opinion for the majority which included the following justices: Scalia, Roberts, Kennedy, Thomas and Alito.

Here is Scalia’s summary of the Court’s decision:

In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified
from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

For the Court to reach this decision, it first opted to actually define the Second Amendment. For those interested in reading the entire rendering of the case, which includes Alito’s opinion and dissenting opinions by Justices Stevens and Bryer, I have made it available at our Skinny Moose Media website.

Although Justice Scalia didn’t spell out something I find quite important and never considered by most in discussions about the Second Amendment early in his opinion, I would like to bring to your attention this important fact before getting into the highlights of Scalia’s definition.

Scalia points out that the way the Second Amendment is written clearly shows us that our right to keep and bear arms was a recognized, preexisting right long before the Bill of Rights was written. The Second Amendment isn’t a right granted to us by the U.S. Government. The Second Amendment merely recognizes that as free human beings we have that right.

Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed

To spell that out more clearly, Scalia is saying that if this was a right being granted by the Government, it would have stated so. Instead, by defining the right and declaring that this right “shall not be infringed” points to the fact the right already existed.

Justice Scalia goes to great lengths in creating the definition of the Second Amendment supporting it with historic facts and data. He also points out that our Constitution was written in language that we would understand and of that used at the time of its writing.

The opinion states that “the right of the people” refers to individual rights and cites references in even the unamended Constitution that clearly signifies rights as being intended for individuals and not a “collective” right when suggesting that the Second Amendment pertains to the military only.

A bit of cleverness was used by Justice Scalia in his discussion of the interpretation of “keep and bear arms”. He actually uses the opinion of Justice Ginsburg in Muscarello v. United States, 524 U. S. 125 (1998), in what was defined as “carries a firearm”.

“[s]urely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate[s]: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ”

As Scalia points out, Justice Ginsburg’s opinion of what “carries a firearm” means, she uses reference to the Second Amendment but does not refer to that in any context of the military, yet Ginsburg was one of the four justices voting against the appeal of District of Columbia vs. Heller. One would think that if you believe that the Second Amendment means that an individual has the right to “carry a weapon” how can you then take on the opinion that the Second Amendment pertains to the military uses only?

Justice Scalia spends a great deal of time refuting Justice Stevens’ dissenting opinion concerning individual vs. military rights under the Second Amendment. He also points out that four states had included in their constitutions, rights to keep and bear arms that clearly defined such as the right of an individual.

There has always been differing opinion about the preface of the Second Amendment, i.e. “A well regulated Militia, being necessary to the security of a free State . . . .”, and the operative clause, “the right of the people to keep and bear arms, shall not be infringed.” and how they work together. Scalia claims that the two parts fit nicely together and the meaning is clear once we gain an understanding of the history that our founding generation knew and all that he gives in his opinion.

We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the ablebodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification
of the right to have arms in the English Bill of Rights.

If we now have determined exactly what the definition of the Second Amendment is according to the interpretation of Justices Scalia, Roberts, Alito, Thomas and Kennedy at the time of ratification, how has it been viewed and written about in history since that time? I actually find much of this quite puzzling. I find myself asking the question, “If it was widely agreed upon, the definition of the Second Amendment, and was so rarely interpreted through law and referred to in writings after ratification not differently, then how did we reach a point of banning ownership of guns without being challenged in the U.S. Supreme Court until now?

Scalia takes us through a chronology of three eras in history since ratification and explains to us how each era viewed the Second Amendment. The first era is the Post-Ratification era in which he describes the writings of three prominent legal scholars during that time – St. George Tucker, William Rawle and Joseph Story.

The second era is the Pre-Civil War and the third is the Post-Civil War era.

As was the case during oral arguments, dissenting Justice Stevens places a lot of emphasis on The United States vs. Miller, in which it was determined that the use of a sawed off shotgun was not a weapon covered under the Second Amendment.

Nothing so clearly demonstrates the weakness of JUSTICE STEVENS’ case. Miller did not hold that and cannot possibly be read to have held that. The judgment in the case upheld against a Second Amendment challenge two men’s federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply was not that the defendants were “bear[ing] arms” not “for . . . military purposes” but for “nonmilitary use,” post, at 2. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: “In the absence of any evidence
tending to show that the possession or use of a [shortbarreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”
307 U. S., at 178 (emphasis added). “Certainly,” the Court continued, “it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” Ibid. Beyond that, the opinion provided no explanation of the content of the right.

Miller can get quite confusing if not understood. Scalia points out that “ordinary military equipment” means those “ordinary” for its time, yet in 1939 machine guns were in use in our military but had been banned by the National Firearms Act. Scalia believes he understands the meaning of Miller.

We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right,

If this were the end of the discussion on the Second Amendment and that the U.S. Supreme Court had made its ruling, many “purists” of the Second Amendment would be happy and of course those who hate the right of others to keep and bear arms would be riled to the ultimate. Scalia however, in his opinion, begins to point out that the court understands that, like other rights guaranteed via the Constitution, none are without some kind of limitations. This becomes a troubling situation for many and an opening in the proverbial door to gun control and restrictions.

The court, also through this finding, establishes that in the case of Miller, it is recognized that there are restrictions to the types of weapons individuals can own. Although not clearly defined, it generally means that those weapons that can be kept are those “in common use at the time” and also referred to as “dangerous and unusual weapons”.

Scalia points out that at the time of the writing of the Second Amendment, the balance of power, if you will, was considerably different than today. In other words, the weapons owned by individuals who could be required to take up their arms as part of their duty to the state’s militia, we very much the same weapons as were being used readily by the military. The same weapons being owned today by individuals would pale in comparison to some of the high-tech weapons of today. That being the case, Scalia declares that this still cannot change the interpretation of the Second Amendment.

But as we have said, the conception of the militia at the time of the Second
Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

While the court has recognized that limitations are reasonable, it does not spell out what those limitations are. In discussions prior to the Court’s rendering of this decision, it was not thought that the court would do this. It was believed by legal scholars that the High Court would rule on an individual right but leave open the door for “reasonable restrictions”. I stated that when this happened the courts would be very busy attempting to sort out what were reasonable restrictions.

Falling somewhat short of naming weapons and limitations, Scalia’s opinion falls back onto the case at hand, District of Columbia vs. Heller. Because Heller was prohibited to have an operable gun in his home, the Court, through the work and the definition it derived, declared the District of Columbia’s ban unconstitutional. The ban removes Heller’s well established right to self defense which is contrary to the Second Amendment.

The lower Court of Appeals and the attorney for Heller, created a problem that left the door open to the possibility of strict regulation. Scalia points out that in the lower ruling, the court failed to address the issue of required licensing to own a gun in the District of Columbia. Couple that with the fact that during oral arguments Alan Gura, attorney representing Heller, told the court he didn’t have a problem with licensing and that this requirement is permissible as long as it is “not enforced in an arbitrary and capricious manner.”

As a result of these two events, the Supreme Court did not address the issue of licensing as an unreasonable restriction on the right of an individual to keep and bear arms. For those who see licensing as an obstruction to the owning and possessing of firearms, this could pose serious problems in the future. Time will tell.

The second part of the District’s case was that if the Court found that the Second Amendment right was guaranteed to an individual, they still had the right to limit and restrict usage and ownership because of safety concerns. Both Justices Breyer and Stevens, in dissenting opinions stated that because of the crime problems in Washington, D.C. the District should have the right to limit guns. Scalia pointed out that the court believes that although they may recognize a crime problem, there are more than enough laws to combat violence.

It has taken over 200 years to finally have the highest court in this land define the Second Amendment. That is done and the court has voted, however this does not put to rest any of the continuing debate on what kinds of restrictions can be placed on gun ownership. This will have to be hammered out in the lower courts and perhaps one day one case will find its way back to the High Court.

What this ruling does do could be even more far reaching than any of us can imagine. In the near term, actions will begin to challenge existing gun bans – probably in cities like San Francisco, Chicago and New York.

This ruling will give power and ammunition to those fighting off the efforts of gun control freaks to snatch our guns.

Our current presidential election could prove to be interesting now that there is a clear definition, laid out by the Supreme Court, that we as individuals are guaranteed a right to keep and bear arms. Both Obama and McCain need to watch their step and make sure they speak clearly and precisely on their positions on guns and gun control.

Perhaps one of the most important and encouraging aspects of this ruling is that the U.S. Supreme Court was willing to take a stand, return to the history of this great land and help us all gain a better understanding of what it was the founding fathers and the citizens of that time wanted when they crafted the Second Amendment. This is important to our future.

Perhaps this is one giant step toward the preservation of our great and inspired U.S. Constitution.

Tom Remington