Heller: an Individual Right to Possess Firearms

  By a 5-4 margin the Supreme Court has ruled that the Second Amendment guarantees an individual right to bear arms for lawful purposes, principally self-defense.  The Court struck down DC's absolute ban on handguns as violative of this right, but gave little guidance on the standard that should be used to implement the right by detecting which regulations of private firearms possession are invalid.  To invoke Mitch Berman's phrase, derived from his article, "Constitutional Decision Rules," 90 Va. L. Rev. 1 (2004), the Court announced a "constitutional operative rule" but did not announce a clear "constitutional decision rule."  The prefatory clause ("a well-regulated militia ...") announces a purpose, but not a limtation.  The people's right to keep and bear arms was understood by the founding generation to be an individual right to possess firearms.  At that time, there was considerable overlap between the type of weapons useful for private purposes (e.g., self-defense, hunting) and military defense.  Back then, a rifled Kentucky long gun could kill deer and enemy soldiers with equal efficiency.  Though that connection has been lost (handguns, shotguns, and bolt-action hunting rifles are hardly a match for an AK-47 or an M-16, to say nothing of "smart" bombs, Tomahawk missiles, Stealth bombers, and the like) the personal right remains.  The Court's opinion (by Justice Scalia, joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Alito) works from original meaning premises, but so too does Justice Stevens's dissent.  Justice Breyer's dissent proposes a mushy interest-balancing approach to the meaning of the Second Amendment.

  This decision is intellectually satisfying to those of us who believe that the text and original meaning of the Second Amendment centers around self-defense (individually and collectively) and culturally satisfying to those of us who grew up in the mountain west before it was overrun by Hollywood lefties and trust-fund dilettantes.  It will cause hand wringing in the editorial offices of the New York Times and among the gun-haters, who seem to think that nobody can be trusted with a firearm. Yet, Heller leaves lots to be decided later.  In footnote 27, the majority rejects rational basis scrutiny as the level of scrutiny that should be used to assess Second Amendment claims, but does not articulate the measure of heightened scrutiny that does apply.  That question is the big issue for the future.  In the past I ahve argued for a form of "semi-strict" scrutiny:  "Guns, Extremists, and the Constitution," 57 Wash. & Lee L. Rev. 1095 (2000).   

Comments

[Alfred]

Calvin--thanks for the characteristically clear analysis. But I think you left out a most important part: Heller cites more legal historians than any other I can think of!

[John C]

You say: It will cause hand wringing in the editorial offices of the New York Times and among the gun-haters, who seem to think that nobody can be trusted with a firearm.

Beware the straw man. I dare say that support of strong firearms restrictions is healthy (or at least commonplace) amongst those who grew up (or now reside) in densely populated areas.

Leaving aside for a moment the empirical question of private handgun rates' relation to crime deterrance (which has not yet been conclusively established anyway), I can only relate my own thoughts and those of people I live around.

My experience growing up was this: I lived in dense northern New Jersey/Manhattan. The thought of people being armed generally was not a comforting one. My extended family, however, lived in very rural upstate New York. Rifles were mounted in the family rooms, and one set of g'parents lived literally next to a firing range. We never thought a thing about it. I guess my point is that there are real, legitimate reasons for many people in this country to support strict handgun regimes on a policy basis. Let's drop this juvenile "gun haters" name-calling that insults the intelligence of many millions of folks who live in high-density areas and have real concerns about gun control.

[shg]

Only a pedagogue could find satisfaction in 54 pages of historical argument that only results in Dick Heller getting the right to apply for a handgun permit for self-defense in his own home.

But even a paternalistic pedagogue would question how all existing restrictions are inexplicably allowed to stand, despite the imposition of something higher than rational scrutiny.

Twenty years from now, there will still be litigation over what this decision means and how it affects actual people. But the linguists and historians will be pleased with themselves nonetheless. And after all, isn't that why the Supreme Court exists?