RSSRight to Bear Arms an Individual Right
W.H. Chellis
The SC just released its opinion on the District of Columbia v. Heller on the question of whether the right to bear arms is an individual right within the context of the 2nd Amendment.
Justice Scalia wrote the majority opinion. This is a truly exciting and historic day. I am waiting for the release of the opinion.
More to come
John
June 30th, 2008 at 7:45 am
Sometimes, Being Conservative is Not a Good Thing…..
Scalia misses an opportunity
John Fielding
While it is now helpful to have the United States Supreme Court on board with respect to a Second Amendment individual right to keep and bear arms as announced in its recent decision in District of Columbia v. Heller, the decision is narrowly crafted to respond to only the most egregious of violations of an individual right to self-defense through a right to keep and bear arms, that of a complete ban, in the case of handguns, and a practical ban in terms of long guns (the DC gun ban required, in the words of Scalia, all other arms in the house to be “rendered and kept inoperable”).
Scalia, in keeping with his minimalist approach to constitutional interpretation, defined the narrowest set of tools necessary to accomplish his mission. What Scalia giveth with one hand, he taketh away with the other. While he ranks the right protected with those protected in the First Amendment (”The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people—which JUSTICE BREYER would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding,responsible citizens to use arms in defense of hearth and home.”), he makes no effort to prescribe for us what level of scrutiny to be according a state law burdening such a right in the name of flexibility(”JUSTICE BREYER chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible. See post, at 42–43. But since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field,any more than Reynolds v. United States, 98 U. S. 145(1879), our first in-depth Free Exercise Clause case, left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.”).
This should not provide much comfort when coming from Scalia. While he seems to indicate that the “rational basis” test is not appropriate (”JUSTICE BREYER correctly notes that this law, like almost all laws,would pass rational-basis scrutiny. Post, at 8. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. See, e.g., Engquist v. Oregon Dept. of Agriculture, 553 U. S. ___, ___ (2008) (slip op., at 9–10). In those cases, “rational basis” is not just the standard of scrutiny, but the very substance of the constitutional guarantee. Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific,enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. See United States v. Carolene Products Co., 304 U. S. 144, 152, n. 4 (1938) (“There may be narrower scope for operation of the presumption of constitutionality [i.e., narrower than that provided by rational-basis review] when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments. . .”). If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.), he does not tell us what the standard is. Such a failure in the hands of Scalia is alarming since he has in the past seen a rational basis to burden religious exercise when drug use is involved in the exercise (Oregon v. Smith), and since the Court has come up with all different gradations of scrutiny with respect to speech.
Further, Scalia has left the question of incorporation unanswered. To be sure, this was not at issue in Heller, but Scalia’s footnote 23 would seem to indicate that he felt that the Court’s cases on incorporation left out the Second Amendment, something that would let stand hundreds of laws burdening the right of self-defense. In Pennsylvania, Art. I, §21 of the Pennsylvania Constitution states that “The right of the citizens to bear arms in defence of themselves and the State shall not be questioned.” The apparent strength of this statement certainly has not stopped the Pennsylvania legislature from passing a plethora of laws “questioning” and burdening the right to keep and bear arms in the absence of some definitive statement from the United States Supreme Court. Not incorporating the Second Amendment to the states through the Fourteenth Amendment hardly addresses this problem.
Finally, and related to the above, Scalia states that “[t]he Constitution leaves the District of Columbia a variety of tools for combating thatproblem, including some measures regulating handguns, see supra, at 54–55, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policychoices off the table.” But in terms of the rulings effect on real and present policies that burden such a fundamental right, Scalia is silent: “Although we do not undertake anexhaustive historical analysis today of the full scope of theSecond 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.” And just in case, he left out the potential validity of any and all restrictions falling short of an outright ban, Scalia adds in footnote 26, referencing the above-quoted list: “We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.” So glad he cleared that up.
Still it takes five to reach a majority, and we will never know how much of this ambiguity was necessary to put together a majority in favor of what we have at this point. As a result, it would seem that if the development of First Amendment jurisprudence is any indication, the path to something approaching a definitive answer as to the magnitude of a Second Amendment fundamental individual right to keep and bear arms will not be arriving anytime soon. Thus, while Scalia is a conservative, he is also conservative in his approach as well, and has sentenced us to 100 years of litigation before Second Amendment jurisprudence takes definitive shape.
Thanks a lot, Nino.