Heller Decision

[Marswolf]

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The Meaning of the DC Gun Case Decision

By Henry Mark Holzer

FrontPageMagazine.com | Monday, June 30, 2008

The Supreme Court's decision striking down Washington, D.C.’s restrictive gun ban represented an individual interpretation of the Second Amendment, affirming each American’s right to keep and bear arms (with some restrictions)—as opposed to a collectivist interpretation giving that privilege only to the state. However, in the media buzz (and conservative rejoicing) over the opinion, it should be not overlooked that many questions remain unanswered.

Justice Antonin Scalia’s opinion for the 5-4 majority of the Supreme Court in the recent landmark Second Amendment gun case, District of Columbia v. Heller, is a major contribution to American constitutional law.

It is at once a rich exposition of the Second Amendment’s historical context, a textbook demonstration of Originalist analysis of an important constitutional amendment, a surgical dissection of virtually every word of the amendment, and a point-by-point refutation of the dissents of Justice Stevens (for himself and Justices Souter, Ginsburg and Breyer) and Justice Breyer (for himself and Justices Stevens, Souter, and Ginsburg). (Apparently Justice Scalia is too much of a gentleman to have reminded the dissenters that they, too, employed an Originalist-type methodology, but doubtless only as a matter of convenience to justify their losing “militia†argument.)

Scalia’s opinion is also a ringing endorsement of the individual rights view of the Constitution and, in its rejection of the dissenters “militia†and “balancing†arguments, a repudiation of the collectivist approach to the enumerated and unenumerated rights of the first nine amendments. In this regard Scalia wrote that “the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.†In other words, when the founders wrote, and the states approved, the Second Amendment (as with the entire Bill of Rights), they removed from the other two branches all power to prevent American citizens from using firearms to defend their homes.

Also very important is that Scalia’s opinion makes clear that subsidiary questions about the scope of the Second Amendment right enunciated by the Court in Heller will in the future be decided by Originalist principles, not, as Justice Breyer’s dissent argued, on the basis of a cultural/social balancing act, with the justices holding the scale.

Because Heller dealt with one of the most sensitive constitutional/cultural issues in America today, for the past several days the print, broadcast, and internet media have understandably been saturated with news and commentary about the decision.

Unfortunately, much of it has been over the top, like the statement by the founder of the Second Amendment Foundation: “This ruling also makes it abundantly clear that laws which ban the possession of firearms, or make it simply impossible through regulation for citizens to exercise their right to keep and bear arms, are unconstitutional and cannot stand.â€

According to him, then, under the Heller decision paroled armed robbers can own machine guns.

Despite the hyperbole, SAF’s founder really knows what Heller actually decided, but many others—among them most laypersons and even many lawyers—do not. The reason is that like other federal and state appellate courts the Supreme Court of the United States can decide only the specific issue before it, and in Heller that was very limited.

To make the point, here’s an extreme example: In a case presenting the question of whether it’s cruel and unusual punishment to deny vegetarians special food in prison, the Court could not properly rule on the constitutionality of capital punishment.

In many appellate court opinions, however, one often finds rambling discourses about all sorts of things that have little or nothing to do with the facts and law of the case at hand, let alone the actual issue to be decided: irrelevant facts, extraneous history, faulty reasoning, inapplicable precedents.

Sometimes, an appellate opinion will even purport to make a ruling despite it lacking any basis in the facts of the case and not resolving the actual issue before that court.

Lawyers often refer to these discourses and rulings as obiter dicta (from the Latin, meaning “a remark in passing; a casual observationâ€; or in law, “something said by the judge while giving judgment, that is not essential to the decisionâ€).

Thus, in the vegetarian prisoner example, if Justice Souter’s opinion drifted into a discussion about the evils of Seventeenth Century English prisons, and then roamed into Fifteenth Century capital punishment, and then segued into how the Eighth Amendment probably barred capital punishment, all of that discourse would be (among other things!) dicta.

It’s important to understand this phenomenon of dicta because it underscores the necessity of focusing narrowly on exactly what appellate courts are being asked to decide.

The first thing Justice Scalia did in his opinion was to lay out what the case was all about. He explained what the District of Columbia law prohibited, what the aggrieved citizen (Mr. Heller) was seeking, what decision the trial court made, and how the Court of Appeals viewed the case and what it ruled. (My comments are bracketed.)

The District of Columbia generally prohibits the possession of handguns. It is a crime to carry an unregistered firearm, and the registration of handguns is prohibited...Wholly apart from that prohibition, no person may carry a handgun without a license, but the chief of police may issue licenses for 1-year periods...

District of Columbia law also requires residents to keep their lawfully owned firearms, such as registered long guns [e.g., rifles], “unloaded and disassembled or bound by a trigger lock or similar device†unless they are located in a place of business or are being used for lawful recreational activities. * * *

. . . Dick Heller is a D. C. special police officer authorized to carry a handgun while on duty at the Federal Judicial Center. He applied for a registration certificate for a handgun that he wished to keep at home, but the District refused. He thereafter filed a lawsuit in the Federal District Court for the District of Columbia seeking, on Second Amendment grounds, to enjoin the city from enforcing [1] the bar on the registration of handguns, [2] the licensing requirement insofar as it prohibits the carrying of a firearm in the home without a license, and [3] the trigger-lock requirement insofar as it prohibits the use of “functional firearms within the home.â€..

The District Court dismissed [Heller’s] complaint . . . .

The Court of Appeals for the District of Columbia Circuit, [narrowly] construing his complaint as seeking the right to render a firearm operable and carry it about his home in that condition only when necessary for self-defense [my emphasis] reversed . . . . It held that the Second Amendment protects an individual right to possess firearms and that the city’s total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right. (My emphasis.)

Based on the D.C. law’s prohibitions, Heller’s application to register a handgun, the trial court’s decision, and the Court of Appeals’ construction of what the issue was and its resolution, the first sentence of Justice Scalia’s opinion was: “We consider whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution.†(My emphasis.)

Well, not exactly.

A mere two paragraphs later, Scalia would write that the Court of Appeals had held that “the Second Amendment protects an individual right to possess firearms and that the city’s total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.†(My emphasis.) So, why was his first sentence limited to “usable handguns�

In our search for the issue actually before the Heller Court, and to understand what that case actually decided, we have to look to the penultimate paragraph of Justice Scalia’s opinion for the Court, some sixty-three pages later: “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.†(My emphasis.)

This, and only this, is what the Supreme Court majority decided in District of Columbia v. Heller: the handgun ban and the inoperative requirement for home possession.

Because Heller is hedged by those four elements—“home,†“lawful,†“immediate,†“self-defenseâ€â€”and, as I show below, because other important questions remain unanswered, judicial interpretation of the Second Amendment rather than ending with Heller has just begun.

For example, Part III of Justice Scalia’s opinion states that:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues...Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. We also recognize another important limitation on the right to keep and carry arms. [An earlier Supreme Court case] said, as we have explained, that the sorts of weapons protected were those “in common use at the time [1791].†* * * We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.†(My emphasis.)

Thus we are reminded that “like most rights†the gun “right†acknowledged by the Heller majority can be regulated, even restricted. It is regulation and restriction—and definitions of “home,†“lawful,†“immediate,†and “self-defenseâ€â€”which will give rise to the many Second Amendment cases yet to come, concerning who can possess firearms, what kind of weapons they can be, where guns can be carried, when they can be sold and to whom, whether outdoors they must be in plain view, and more.

As important as are these questions, and the many others implied in them, there are two more that are even more so.

One is what “standard of review†the court to apply to, say, a New York law, requiring all handguns carried outdoors to be concealed lest the public be scared by being exposed to all that hardware.

Although “standard of review†is a technical question for judges and constitutional lawyers, its answer could determine just how much of a gun right really exists. If the courts’ “standard of review†of gun laws is very deferential, such a New York law would probably be upheld because the state had a good reason to enact it, and the regulation/restriction did not bite too deep into the Heller-established right. If on the other hand, the courts’ “standard of review†is much stricter and the Heller-established right is really a solid, virtually untouchable right, such a New York law would be considered too regulatory/restrictive and held unconstitutional.

As important as is this standard of review question, an even more vital Second Amendment issue is buried in footnote 23 of Justice Scalia’s opinion. It raises the “incorporation†issue (see www.henrymarkholzer.com at “50 of the Worst S/Ct Decs†in the Table of Contents under the case of Gitlow v. New York, for a discussion of the Incorporation Doctrine).

In footnote 23 Justice Scalia’s majority opinion expressly left open “a question not presented by this caseâ€â€”one, when answered, will be at least as important as the Heller decision itself: Does the Second Amendment apply to the states by “incorporation†through the Fourteenth Amendment?

Given the virtually wholesale incorporation of the entire Bill of Rights to the states already through the Due Process Clause of the Fourteenth Amendment—e.g., speech, press, religion, counsel, search and seizure, self-incrimination—it is likely that the answer to the Second Amendment “incorporation†question will be affirmative. If so, given the many unanswered questions raised by Heller, and all the state anti-gun legislation already on the books, Second Amendment litigation could well become a growth industry for constitutional lawyers.

Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.

[Guest crytes]

Being that the right to bear arms was included in the bill of right to enable us to reclaim a runaway goverment I belive that ANY restrictions on our arms by type, number, configuration ect. Are counter productive and a sign of how much this right is needed.

[Guest Abominable_Hillbilly]

There;s nothing in there about a right to privacy either. Do you want to say you have no right to privacy?

No, 'cause, see, if it isn't spelled out in the law, verbatim, then we don't have a right to it.

[Guest crytes]

"life liberty and the persuit of happyness" kind of implies right to defend yourself as I see it. and as it pertains to "protection from unlawful search and seisure" it isn't a search unless you can have a resonable expectation of pravacy. This seems to imply that the protection in question is at least partialy intended as aprotection of privacy.

[G27]

Well, you really don's have any right to privacy - if your neighbor wants to sit in his front yard with binoculars and look through the windows of your house, there's nothing in the world the law can do (other than recommend you shut your curtains).

[molonlabetn]

Wouldn't the very act of the government limiting private 'arms' to mean only certain small arms be 'infringement', by definition?

We all know that the founders were well aware that the arms necessary for the security of a free state must include those which could match a foreign military.

[towerclimber37]

No, 'cause, see, if it isn't spelled out in the law, verbatim, then we don't have a right to it.

heh.. lets' see here...ummm ...no..I don't think so.

if it's not defined, then I don't have that right?

see, this is where the law fails us.

laws are a finite set of rules that were written to cover an infinite set of circumstances. they will never achieve that end and to make more laws is a stricture on people that will, in the end cause rebellion...and then you get less laws.

Common sense goes a long way in these situations. unfortunately folks don't do that so we end up with more and more laws until people can't function under them.

[Falcon1]

No, 'cause, see, if it isn't spelled out in the law, verbatim, then we don't have a right to it.

I'm thinking this was sarcasm?

Admittedly, unless incorporated, the Bill of Rights only applies to the national government, but: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."--Ninth Amendment

[Guest Abominable_Hillbilly]

I'm thinking this was sarcasm?

Yes, it was sarcasm.

Rabbi and I have "debated" natural right verses right of law. He just pooped in his mess kit, and I was being sarcastic to rub it in a bit.

[Guest Abominable_Hillbilly]

Well, you really don's have any right to privacy - if your neighbor wants to sit in his front yard with binoculars and look through the windows of your house, there's nothing in the world the law can do (other than recommend you shut your curtains).

My neighbor can't pass his binocs through the curtains........because of my rights.

[The Rabbi]

Wouldn't the very act of the government limiting private 'arms' to mean only certain small arms be 'infringement', by definition?

No. Because the arms that are protected by the constitution are small arms, by definition.

[molonlabetn]

No. Because the arms that are protected by the constitution are small arms, by definition.

And your basis for that is?

[The Rabbi]

And your basis for that is?

Scalia's opinion. He goes to great lengths on it.

[molonlabetn]

Scalia's opinion. He goes to great lengths on it.

I know that he mentions that the 'nature of the arm' is subject to scrutiny. But never is it defined what an 'arm' is per the Constitution other than to say whatever is in common, lawful use at the time. That merely leaves it open for localities to impose their own restrictions on what is lawful to be in common use, but does not amend or interpret the wording of the 2nd Amendment to mean any specific type of arm (or even limit that to just firearms). All he does is conclude that handguns are included in that catagory.

[The Rabbi]

Yes, I think you're right. So DC's latest of restricting handguns to revolvers could probably pass scrutiny.

[Bigiron]

So they'll just ban ammunition?

[The Rabbi]

So they'll just ban ammunition?

I suppose they could.

But they won't for any number of reasons.

Short of it is that anyone looking to Heller to guarantee an unrestricted right of anything will ultimately be disappointed. A determined legislature can make life miserable for gun owners (or anyone else) in a million ways. Ultimately the legislature is answerable to the people and will overall reflect people's values. So states like TN will continue to be gun friendly while states like N.J. will continue to be antagonistic. At least until gun owners there band together and engage in some major marketing for their side.

And btw I don't think that's a bad thing.

[molonlabetn]

But still, the SCOTUS has not yet ruled on the types of arms which the 2nd Amendment protects. This ruling was simply a definitive answer that for sure handguns are in that category.

[Guest CJRogue]

Since sellers have used the fear-mongering of facing a ban soon to inflate prices a bit, think we'll see any drop in prices now?

[Guest GLOCKGUY]

Since sellers have used the fear-mongering of facing a ban soon to inflate prices a bit, think we'll see any drop in prices now?

no i doubt it because its like Gas they see we will still pay these high prices so they will keep it marked

[G27]

no i doubt it because its like Gas they see we will still pay these high prices so they will keep it marked

Yah and with the impending election remaining an unknown, I think you'll see prices continue to climb. Wouldn't be surprised at all if we saw a rather large jump between August and December. Remember, Heller did not say an AWB was unconstitutional...

[midtennchip]

I suppose they could.

But they won't for any number of reasons.

Short of it is that anyone looking to Heller to guarantee an unrestricted right of anything will ultimately be disappointed. A determined legislature can make life miserable for gun owners (or anyone else) in a million ways. Ultimately the legislature is answerable to the people and will overall reflect people's values. So states like TN will continue to be gun friendly while states like N.J. will continue to be antagonistic. At least until gun owners there band together and engage in some major marketing for their side.

And btw I don't think that's a bad thing.

I tend to agree, but keep in mind that the legislature doesn't have to ban ammo for there to be a problem. Just keep in mind the OSHA regulations that were proposed (but later withdrawn) from last year.

http://www.tngunowners.com/forums/showthread.php?t=1538&highlight=osha

This was from a Republican administration. If we get a Dem administration, there's no telling what can happen and the Congress is all but powerless to do anything about it.

Regarding gun prices, I tend to agree with Crimson. While I am no expert on predicting gun prices, I only see prices going up as the election nears.

[Guest Abominable_Hillbilly]

There have been several decision to cite Heller so far. This one is the most interesting to me:

http://volokh.com/archives/archive_2008_07_06-2008_07_12.shtml#1215395769

For those of you who support the government restricting your rights in a "reasonable" manner, as in Terry v. Ohio, this is what you get for your trouble.

[Guest DrBoomBoom]

I do not, and never will, support government restricting my rights to own anything, not just firearms. Having said that, I believe we've got to fight the laws as they are. We can take a tip from our enemies. They'd like to ban all weapons, just as most of us would like to have the right to own all weapons, but they pick small battles. Win enough small battles and the mindset changes.

[Guest GLOCKGUY]

Post-Heller Congressional Action On "Second Amendment Enforcement Act"

<HR style="COLOR: #8c735a" SIZE=1><!-- / icon and title --><!-- message -->This just in from NRA-ILA:

http://www.nraila.org/Legislation/Fe...d.aspx?id=4089

<TABLE cellSpacing=0 cellPadding=0 width="100%" border=0><TBODY><TR><TD class=copy>Friday, July 11, 2008

</TD></TR><TR><TD></TD></TR><TR><TD class=copy>As mentioned in last week's edition of our Grassroots Alert, following the Supreme Court's favorable Heller decision, city officials in Washington, D.C. have been planning to obstruct D.C. citizens from exercising their right to keep and bear arms, despite the Supreme Court's clear statements. And some in Congress are planning to do something about it.

On Thursday, Representative Mark Souder (R-Ind.) introduced H. Res. 1331, a rule to govern House consideration of a modified version of H.R. 1399--the "District of Columbia Personal Protection Act."

H.R. 1399 was introduced in March of 2007 and has 247 cosponsors. (For more information on H.R. 1399 and on its Senate companion bill, S. 1001 by Sen. Kay Bailey Hutchison (R-Texas), please go to www.nraila.org/Issues/FactSheets/Read.aspx?id=72&issue=020) This rule (H. Res. 1331) would force House consideration of H.R. 1399 if activated by a discharge petition, which will require 218 congressional signatures. It would provide for speedy consideration of legislation to enforce the Supreme Court's decision in District of Columbia v. Heller by repealing the provisions of the D.C. Code that were at issue in that case, and by preventing the District from enacting new and burdensome restrictions on its residents' Right to Keep and Bear Arms.

Among other things, H. Res. 1331 includes provisions that would repeal D.C.'s ban on many semi-automatic firearms, and repeal the District's firearm registration system, as in H.R. 1399. It would also reduce the District's burdensome restrictions on ammunition, and repeal the District's unique law that allows manufacturers of certain types of guns to "be held strictly liable in tort, without regard to fault or proof of defect," for injuries caused with those guns. D.C. has used this law to bring suits against the firearms industry, but those suits have now been blocked by the "Protection of Lawful Commerce in Arms Act."

NRA-ILA is fully committed to restoring the Second Amendment rights of law-abiding residents of Washington, D.C., and will fight this critically important battle until victory is in hand.

We will be sure to keep you informed of new developments as we move forward. In the meantime, please be sure to contact your U.S.</TD></TR></TBODY></TABLE>