Heller

by publius

Scotusblog reports that it's out. And the Court did affirm Heller, thus finding an individual right in the Second Amendment. This part was expected -- the key will be how broadly they read it, and whether it jeopardizes federal gun legislation. The opinion was also 5-4 along political lines.

More on that after I read the opinion. Scotusblog will have more -- as will Professor O'Shea at Concurring Opinions.

Comments

[Ugh]

Well, this should be interesting. Stupid drudge link ruined SCOTUSblog (at least for me).

[Sebastian]

Yikes. About 60 pages of main opinion and 90 pages dissent. This will be a long read.

[publius]

this opinion is absurd -- the idea that history is driving this result is crazy. the ability of law clerks to cherry pick historical cites is driving our constitutional analysis, rather than, you know, the modern world.

this opinion is itself an indictment of hte originalist methodology. more on that tonight though - i had to stop to deal with some errands.

[Sebastian]

You've digested the opinon already?

[Feddie]

Now, now, Publius. Let's not be a sore loser. :)

[Gus]

Whoo-hoo! Gonna go buy me some guns!

[Klerk]

I look forward to the debate tonight, P. The idea that this history is cherrypicked is indeed fairly special. Even Larry Tribe and Sanford Levinson (no friends to guns) admit where the historical support lies....

[publius]

no - i got about halfway through the operative clause. but I'm literally about to walk out the door.

i will say this (and will expand later) -- this reasoning is as patently results-oriented as kennedy's. scalia's just better at hiding it from the masses by drowning it in string cites and 60 page opinions

[Feddie]

Sebastian-

He doesn't like the result.

[Brett Bellmore]

It's rare I get 50 or so pages into a controversial Supreme court ruling before finding anything objectionable; In this case, Scalia's appeal to "common use" to spike the right to military arms. Of course, the only reason military arms AREN'T in common use is that the federal government set out to keep people from owning them, and the Court spent 70 years ducking the issue before finally taking it on.

Cherrypicking, Publius? This is sour grapes. Your favored interpretation of the amendment was an invention of 20th century gun control advocates, it never had any historical basis to begin with.

Wonder if Scalia keyed Stevens' car, too? It would be the only dig at him that was missing from the opinion...

[cleek]

i love it... Scalia states right up front that the Constitution was meant to be read and understood by normal people using the plain meaning of the words. then he spends fifteen pages parsing the sentence in question.

yeah, that's some plain meaning right there.

[CharleyCarp]

Breyer is especially good on the majority's willingness to imply exception into those old statutes that it won't imply -- at the invitation of the DC government -- into the DC statute.

[Brett Bellmore]

Cleek, the perfectly ordinary people already understood the 2nd amendment, he had to explain it to lawyers.

[Vincent]

I've skimmed most of the opinion and I don't really have any big problems with it. But I've never been one of those liberals who are virulently opposed to guns. I'm not one of those who use or owns guns either BTW.

The opinion came out pretty much the way I expected. There's an individual right to bear arms but it looks like most federal legislation on "long-standing bans on carrying a concealed gun or on gun possession by felons or the mentally retarded, on laws barring guns from schools or government buildings, and laws putting conditions on gun sales" are still intact.

Maybe it's results-driven (so was Brown, my favorite opinion ever) and it's probably not perfect but no Supreme Court decision is. These are my initial impressions anyway.

[Brett Bellmore]

It was never going to get better than this, Scalia is violently allergic to overturning federal laws, especially ones that have been around a while. It was an absolute given that any decision Scalia signed onto would leave the existing federal firearms laws intact.

Now, the Lautenberg act, at least in it's retroactive application, is probably in trouble, because even the federal government doesn't get to treat a right that casually. And there might be some victories on the edges. But the Supremes are not going to be striking down federal gun laws.

More's the pity.

[cleek]

Cleek, the perfectly ordinary people already understood the 2nd amendment,

i doubt it. if an individual right was the intent, the sentence is a grammatical mess and requires some pretty sneaky parsing to get that intent. there are a dozen better ways to write a single sentence that provides an individual right and is clear enough for non-lawyers and lawyers to both agree on.

[Brett Bellmore]

But perfectly ordinary people did understand the amendment, as demonstrated by polls all along demonstrating persistent super-majorities agreeing with the conclusion of the court. I dare say that there has never been a time since the amendment was ratified that the people thought it meant anything other than that they had a right to own firearms, though they might have been a bit hazy about the precise details.

The notion that it didn't protect such a right is of relatively recent vintage, and has mostly been confined to our native class of professional sophists.

You've got to be pretty far gone in self-delusion to not read "right of the people" as a right, of the people.

[Sebastian]

"this reasoning is as patently results-oriented as kennedy's. scalia's just better at hiding it from the masses by drowning it in string cites and 60 page opinions"

I haven't read the opinion yet--just the first 10 pages of the main opinion and the first 8 or so of the dissent. (I find that reading both in parallel helps me understand the cleavages of the argument, but YMMV).

But one reminder is definitely necessary on the Miller case. It was never fully litigated. The Supreme Court basically said "you haven't given us enough trial information" but a demurrer was inappropriate, you should have had a trial on the facts as presented. Miller never defended the case and nothing else happened. Stevens wants to make that decision into a sharp limitation on gun rights, and then shoehorn institutional 'precedent' into it. Ok, there should have been a trial about whether or not shotguns could possibly have military value. Some precedent.

Scalia's opinon (at the beginning, as I've only hit the start of it) strikes me as being mind-numbingly comprehensive because he knows he has to clear out the relatively crazy law-school mythology that has grown up around the 2nd amendment that allows people to pretend that it shouldn't be taken as seriously as the 1st or 4th.

It may very well be the case that Scalia is cherry picking the history. But that isn't what I've seen. I've never seen anything (other than from the completely discredited fabulist Bellesiles) that strongly supports the collective rights concept, or that strongly supports the new concept from Stevens that there is a strong right to hold weapons for a militia, but that it doesn't really protect anything in particular. (Again, only the beginning of his argument, perhaps he clarifies later).

[Sebastian]

Kennedy I presume signed on to this because he saw that the emerging moral consensus on the 2nd amendment went toward an individual right...

(I jest. At least I think I do...)

[cleek]

I dare say that there has never been a time since the amendment was ratified that the people thought it meant anything other than that they had a right to own firearms

... a right to own a firearm for what purpose? you can't simply disregard the first 13 words of a 27 words sentence.

maybe you can check the crosstabs on those polls.

[Adam]

Kennedy I presume signed on to this because he saw that the emerging moral consensus on the 2nd amendment went toward an individual right...

(I jest. At least I think I do...)

I laughed in spite of myself.

[Brett Bellmore]

"a right to own a firearm for what purpose? you can't simply disregard the first 13 words of a 27 words sentence."

I don't. But the public is perfectly capable of that feat.

If we ask somebody if individuals have a right to freedom of speech, do we regard them as bonkers if they don't launch into a dissertation on libel law?

[KCinDC]

Dahlia Lithwick:

But I must first pass along this rather brilliant observation from professor Stephen Wermiel from American University, who wonders why none of the dissenters cautioned the majority that today's decision "will almost certainly cause more Americans to be killed." (Boumediene, Scalia, J. dissenting.)

[cleek]

we regard them as bonkers if they don't launch into a dissertation on libel law

no we don't

[Brett Bellmore]

Exactly, Cleek. The public can be right about the meaning of the 2nd amendment, without being constitutional scholars, or particularly nuanced in their understanding.

[david kilmer]

"if an individual right was the intent, the sentence is a grammatical mess..."

It's a grammatical mess no matter what the intent. In fact, I'd question whether it's really an actual sentence.

I can't wait to read Scalia's parsing of it. That is going to be a hoot.

A question for the legal experts here: Why do you think it is that the intent of an amendment (or any law, really) isn't stated explicitly as a matter of course? To someone with a Philosophy background, it always seems like the constitution was carefully redacted to make sure that future generations wouldn't think they were getting all theoretical about things.

[cleek]

say Brett, did you just hear a whooshing sound?

[Ugh]

actually, I'm hearing a whooshing sound too. ?

[Hartmut]

Well, ordinary plain people also understood clearly a lot of other things that most of us now consider abominable and would not read out of the text (e.g. to my knowledge slavery was not mentioned in the constitution before being amended to abolish it, same for the lower legal status of women*).
---
My opinion:
1. The 2nd amendment is ambiguous and both main readings have good reasons for them.
2. At the time it was written there was no necessary contradiction between both since there was no significant difference between "civilian" and "military" weapons.
3.I would prefer this amendement not to exist or at least not in this form
4.I personally doubt that the founders would have written it that way, had they known and understood the situation of today.
5. Where can I get a letter of marque? This is also constitutional and I would like to hear Scalia's opinion on it.
6. There should be a large reworking of the constitution that would deal with all the topics that provide ammunition for the culture wars etc. (and that should include simplifying the amendement process).
7. #6 will not happen in my lifetime. I consider an overthrow of the democratic order in all but name far more probable and many 2nd amenders will march for not against tyranny in that case.
8. Precedent based law sucks in general. I prefer the continental European way. Keeps the "judicial activism" low.

*except for the explicit exclusion from voting

[Doctor Science]

this reasoning is as patently results-oriented as kennedy's

You know what I'd like to see one of you lawyer-types do in the "post-season analysis"? Show me how many SCOTUS opinions (per Justice) of the season were *not* predictable knowing their political affiliations.

To a first approximation, the IANAL analysis is: none. All of the opinions look as though the Justice decided what ze wanted, and then sought the argument, history, etc., that would support hir desires.

In fact, it looks quite Humean: we choose moral opinions based on emotional factors, but justify them with reason (and rhetoric, cute kittens, blinkenlights, etc. -- whatever we find in the bag).

*Only* Justices who say, "this isn't what *I* want, but it's what the law says" will get any faith or credit toward the idea that they are arguing based on law or facts. Otherwise, I will assume they are arguing like human beings -- it seems like a reasonable default assumption, doesn't it?

[KCinDC]

Whooshing here too, cleek.

[cleek]

oy... i threw too fast.

i wrote:

"you can't simply disregard the first 13 words of a 27 words sentence."

Brett then replied with a sentence of 29 words, of which i acknowledged and replied to only the last 15. and then he clearly thought he got me in some logical gotcha, since it looked like i was agreeing with him, when in fact it was he who had stumbled into a trap - the trap i so shrewdly laid for him! mwahahaha! victory!

[hairshirthedonist]

It seems to non-lawyer me that the only reason something gets to the SCOTUS is that the law in question wasn't strong enough to prevent some lower court judges from attempting to impose their personal preferences, even if unsuccessfully, so it simply moves to the last available court for the last available and most potent personal preferences to be imposed. If it were super-clear, it would have been settled already, regardless of some judges' personal preferences. (Of course, I could be completely wrong about that.)

[Doctor Science]

hairshirthedonist: Yeah, that's how it look to this non-lawyer, too. I can be talked out of this attitude if the lawyer-types present *evidence* that this is not how it works -- but since our cynical view is based on "how human beings usually work", they're going to have to *prove* that SCOTUS (and lower courts) aren't acting just like other people.

[Ugh]

and then he clearly thought he got me in some logical gotcha, since it looked like i was agreeing with him, when in fact it was he who had stumbled into a trap - the trap i so shrewdly laid for him! mwahahaha! victory!

Is this like both cups being poisoned with iocane powder?

[cleek]

exactly!

[Davebo]

Does this mean I can now get that rocket propelled grenade I've been dreaming of?

[(The original) Francis]

to our conservative commentators, I have a serious question:

What are "arms"?

[dmbeaster]

My two cents:

The decision is pretty mainstream. Affirm an individual right but indicate that it may also be heavily regulated, which has been implicit policy in this country for 200 years. The only long term risk is having "individual right" morph into something akin to 1st amendment law where we recognize damn little in the way of proper restraint. But I think that unlikely, no matter what Brett Bellmore may wish for.

There may be a flurry of lawsuits for the next ten years as gun nuts push for an absolutist position on the right, which I think is unlikely to go anywhere. But that is the normal method our law resolves these questions. I wish it was less messy, but what is the better process when there is such strident disagreement about policy on this subject?

The opinion is results oriented, which is funny given Scalia's conceit to pretend that his reasoning is somehow different. But it is naive to think that judges fundamentally think in some other way, and there is nothing inherently wrong in result oriented thinking.

Most Supreme Court decisions are at a level in which it is essential that the Justices insert their personal views on what the law should be, although within the constraints of clear legislative or constitutional language. But the clear cases rarely go as far as the Supreme Court. That is why we spend so much time on the character of appointees.

The art of writing clear statutes is a damned hard one, and the art of writing clear constitutional text even harder. The art was in a pretty nascent form back in 1789, and frankly, the constitutional text is full of weak drafting based on modern standards. It also represented compromises or deliberate vagueness on tough points. There was also no practical experience with prior constitutions in 1789. It is amazing that they got as much right as they did.

Which loops back to the original point -- you want the imperfect document to work and the peculiar institution of the Supreme Court to work (lifetime appointees with the final word), which requires result oriented thinking. What we are really talking about is the right kind of result oriented thinking as opposed to it as something that should be condemned or eliminated.

As for the details of the arguments in the opinions, there are a hundred different ways to write the same thing, and there is not too much point in getting exercised about how well its written. Yeah, there is something to judging how well someone expresses a point of view in the same manner as Olympic judges assigning points for a gymnastic routine or a dive.

But this opinion is not that troubling, nor is the result. Compared to the atrocity of Scalia's dissent in Boumediene, this is pretty mainstream.

[Brett Bellmore]

""2. At the time it was written there was no necessary contradiction between both since there was no significant difference between "civilian" and "military" weapons."

2a. And there wouldn't be today, if the Supreme court hadn't let the federal government violate the 2nd amendment for the last 70 years; Civilian arms would have continued to be the same as military arms. That's the problem with Scalia's "common use" analysis; The current pattern of "common use" is an artifact created by the very laws whose constitutionality is being attacked.

"3.I would prefer this amendement not to exist or at least not in this form"

Fine, There's Article V, just persuade a bunch of people to agree with you. Considering the direction things have been trending at the state level, though, I don't give you much chance of ratifying the repeal. Getting the Supreme court to rule that the 2nd amendment didn't mean what it plainly said was your best shot at killing it.

[Brett Bellmore]

Perhaps you could explain what you think went whooshing over my head.

Frankly, this case went exactly as I expected, though scarcely as I would have hoped, right down to it's 5-4 nature.

[rea]

You've got to be pretty far gone in self-delusion to not read "right of the people" as a right, of the people.

But "the people" in plain English is collective, and not the same thing as "every individual person."

Nevertheless, I don't much care about individual vs. collective, as long as keeping and bearing arms can be "well regulated."

Bellmore seems to thing that everyone has the right to keep and bear military arms--I wonder what he'd make of Jose Padilla in possession of a suitcase nuke?

[Hartmut]

It was not "my" shot. And for "just persuade" see #7.
I think there is exactly no amendement or other change of the constitution possible to pass for the time being. That is (imo) one important but clearly not the only reason that "judicial activism" is so rampant (and simple ignoring of inconvenient parts of the constitution or other laws).
---
OT: News from Yoo (paraphrased)
Yoo: I never gave advice that the president could order burying someone alive.
Q:But do you think the president had the authority and would you tell him that?
Yoo:I don't think that will be necessary
(please note that he does not actually answer the question)

[Klerk]

Only* Justices who say, "this isn't what *I* want, but it's what the law says" will get any faith or credit toward the idea that they are arguing based on law or facts.

I think I can easily point to one explicit and a few implicit examples of this, in just this term.

Explicit: Stevens in Baze (paraphrased): I think that the Death Penalty is cruel, and unconstitutional. Held -- concurrance in result holding that lethal injection is ok.

Implicit: Much is made of Scalia and Thomas's Catholicism when they decide abortion cases. Where is this criticism when they decide death penalty cases? Catholic teaching is fairly clearly against the DP. Their holdings, then, must be based on the law and not their personal preferences.

Implicit: Alito in (forget the name - workers rights case): strongly questions the accuracy of an earlier decision. Writes an opinion reaching the same result based on the doctrine of statutory stare decisis.

As these examples show, I think all of the Justices really do aspire to seperate their personal policy preferences from their votes in individual cases. I think some do it more successfully than others, but I do think that most try to be impartial as to individual outcomes.

Your critique functions better at a meta-level -- the ex ante decision of what interpretive philosophy to espouse. I do think that many supposed proponents of both 'originalism' and 'living constitutionalism' (insert whatever labels you want in the quotation marks) arrive at their ex-ante philosophy by seeing its likely results in different cases.

A conservative person is more likely to favor textualism and original meaning as it links back to the traditional way of doing things. A liberal person is more likely to favor the doctrine of 'ex facto ius oritur' -- the law must speak to the facts at hand and adapt.

Each interpretive method has its own justifications, and strengths (I believe the former to be far more justified). That said, the judges really do GENERALLY apply their ex-ante philosophies (possibly skewed/results-oriented here) relatively neutrally to the individual case.

[Turbulence]

Much is made of Scalia and Thomas's Catholicism when they decide abortion cases. Where is this criticism when they decide death penalty cases? Catholic teaching is fairly clearly against the DP. Their holdings, then, must be based on the law and not their personal preferences.

Regardless of what Catholic doctrine says, many conservative Catholics publicly favor the DP or at least have nowhere near as much interest in overturning it as they do abortion. In addition, while Catholic teaching condemns the DP, the leadership of the Catholic church don't appear to have made comparable efforts at overturning it. How many Catholic politicians do you know of who have been publicly denied communion over their DP policies the way Kerry was over his abortion policies?

In general, I don't think the existence of any individual case tells us much about whether justices are able to vote on principle as opposed to their own preference. Judges see many cases each year; if they go with principle over preference 5% of the time, that suggests that they're not really any different in a practical sense from a judge who goes with principle over preference 0% of the time.

[Brett Bellmore]

"I wonder what he'd make of Jose Padilla in possession of a suitcase nuke?"

I think that the federal government is not issuing suitcase nukes to it's infantry, which means that they are not militia weapons. It's not a right to any weapon whatsoever, it's a right to be armed comparably to standard infantry, so that if the government needs to suddenly call up a militia, it will have a large pool of citizens who already own the appropriate weapons, and are experienced in their use.

That's the part Scalia got wrong, and I expected him to: The federal government has spent decades trying to make sure it's army has the population outgunned, and Scalia isn't inclined to reverse that.

"But "the people" in plain English is collective, and not the same thing as "every individual person.""

But "right of the people" is, as Scalia points out, everywhere else interpreted as an individual right. "Collective" rights were invented for the purpose of pretending to respect a right, while in practice denying it to every specific individual who might want to exercise it.

The founders had no conception of "collective" rights. All rights were individual.

[Ugh]

The federal government has spent decades trying to make sure it's army has the population outgunned, and Scalia isn't inclined to reverse that.

One more reason to disband the U.S. army.

[Sebastian]

Rea: "But 'the people' in plain English is collective, and not the same thing as 'every individual person.'"

Shall we apply this reasoning to other amendments or does that just count for the 2nd amendment.

!st amendment:

"or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

This doesn't protect the right of individuals to assemble with other individuals, nor does this protect the right of individual citizens to petition the Government, right?

4th amendment:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated"

Clearly not an individual right.

In the paralance of the framers, the idea of "the people" is in tension with "the government" or "the state". Rights held by "the people" are individual rights. That is what it means. And I don't believe for a moment you could find very many non-lawyers who would believe that the 1st, 2nd and 4th amendments don't protect individual rights because it talks about rights held by "the people". The language is not nearly as cryptic as you assert.

[Brett Bellmore]

I'd be in favor of that; One of the ways the militia was supposed to secure a free state was by rendering a standing army unnecessary. We only abandoned the militia system in favor of the standing army because the war of 1812 demonstrated that militias aren't very useful for wars of aggression.

Which was one of the points of having a militia, of course.

[J. Michael Neal]

I'd be in favor of that; One of the ways the militia was supposed to secure a free state was by rendering a standing army unnecessary. We only abandoned the militia system in favor of the standing army because the war of 1812 demonstrated that militias aren't very useful for wars of aggression.

It has also been shown that militias aren't very useful for wars of defense, either.

I'm also curious as to how you arrive at the conclusion that the 2nd Amendment means that people can have weapons of one particular arm of the military, but not the others. Among other things, the colonial militia did possess artillery.

[Bernard Yomtov]

It's not a right to any weapon whatsoever, it's a right to be armed comparably to standard infantry, so that if the government needs to suddenly call up a militia, it will have a large pool of citizens who already own the appropriate weapons, and are experienced in their use.

Why just standard infantry weapons? If the point is to have a large body of citizens ready to fight at a moment's notice wouldn't it be desirable for them to know how to use tanks, various kinds of artillery, etc.?

And of course the Amendment does not require anyone to arm, so I don't see how it is intended to provide a pool of armed and ready citizens. And if that's really the idea what about people who are too old for military service, or otherwise physically unable to serve?

The whole "military preparedness" argument doesn't make much sense to me.

[rea]

I think that the federal government is not issuing suitcase nukes to it's infantry, which means that they are not militia weapons. It's not a right to any weapon whatsoever, it's a right to be armed comparably to standard infantry

So, I gather you'd have no problem with a handgun ban?

[Sebastian]

"And of course the Amendment does not require anyone to arm, so I don't see how it is intended to provide a pool of armed and ready citizens."

Right. Of course that doesn't make sense, because it is an individual right not a collective right.

And for the record it appears that the Supreme Court vote on whether or not it is a collective or individual right is 9-0 in favor of individual right. It is only the contours of that right which show a difference at the Supreme Court level.

[Mis En Place]

What a sad casserole Scalia and his cronies have half-baked.

From this: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

..we get this: "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."

Militia, security of a free state? I suppose we can rest assured the rightwing will now cease complaining about 'judicial activism.'

[Mis En Place]

It's not a right to any weapon whatsoever, it's a right to be armed comparably to standard infantry

Suitcase nukes are largely apocryphal. Based on Scalia's foolishness, I should be permitted to mine my front yard. Or at least deploy claymores.

I can only laugh at this country.

[Brick Oven Bill]

A militia is not the local Air National Guard maintenance unit. A militia is my neighbors and I grabbing our sidearms and rifles and coordinating with the police department to secure public access to our neighborhood right-of-ways until the chaos associated with the collapse of the banking system has passed.

As the oligarchy consolidates power, Heller will be overturned. But it is nonetheless important. Scalia has laid out the correct view in clear language for all to see. His writings will be used to label the subsequent court decisions as illegitimate.

A good day for the rights of the Citizenry.

[cleek]

Why just standard infantry weapons? If the point is to have a large body of citizens ready to fight at a moment's notice wouldn't it be desirable for them to know how to use tanks, various kinds of artillery, etc.?

the Great Emanating Penumbra decrees that it is so. don't argue.

[Bernard Yomtov]

Sebastian,

So all the business about infantry arms is incorrect? Then what's all that militia business about? And what do you see as "the contours" of the right?

[Curt Adams]

Second Mis En Place. How on earth can Scalia say the use of handguns in DC is compatible with a "well regulated militia". It's about as poorly regulated as it gets!

Still, I can't get riled up about Scalia's ruling. I think it's wrong, but I think it's within the bounds of what a judge can/should do (say that citizen should have a right to defend themselves beyond that of petition to the government). Besides, guns are mostly used for people to kill themselves, so think of it as evolution in action.

[Pasota]

Does this mean I can now get that rocket propelled grenade I've been dreaming of?

From the clear text of the 2nd Amendment, no. Because you can't fire one and dial a telephone at the same time:

"There are many reasons that a citizen may prefer a handgun for home defense: ... it can be pointed at a burglar with one hand while the other hand dials the police.”

Yeah, that's totally relevant to original intent.

[Klerk]

Militia, security of a free state? I suppose we can rest assured the rightwing will now cease complaining about 'judicial activism.'

Mis En Place -- I have blogged about this previously here, but the relevant portions for your critique are :

‘Militia’ – The Second Congress enacted the Militia Act of 1792, which required every able-bodied white man of a certain age to be enrolled in the militia and, after enrollment, to procure a gun. No further organizational standards were required. Thus, the militia was originally understood as including all white males – or a large segment population entitled to full legal rights at the time. Following this logic and applying more recent constitutional amendments, the militia should be understood as most adult citizens, without any additional organization. The current definition of Militia in the U.S. Code comports with this understanding, although it limits the female membership – 10 U.S.C. § 311.

‘Free State’ – In the current issue of Notre Dame Law Review, Eugene Volokh offers a thorough canvassing of Framing Era and pre-Framing writings in support of the conclusion that this phrase does not refer to the states of the Union, but rather the platonic ideal free country generally.

[ThirdGorchBro]

I thought liberals were all about human rights. Isn't the right to self-defense a basic human right? The fact that some people misuse their firearms doesn't give the government the right to take them away from everybody else.

[Pasota]

Isn't the right to self-defense a basic human right?

Probably. But the question was about the constitutional right to possess handguns in DC.

[Bernard Yomtov]

Klerk,

But what connection does the Militia Act, as you describe it, have to the 2A?

It could have been passed had the 2A not existed.

[hairshirthedonist]

I'm pretty much settled on the idea that the 2nd Amendment confers an individual right. What gets me though is what "infringed" is supposed to mean.

The way I see it, if you have reasonable access to weapons of pratical usefulness for lawful activities, it doesn't constitute infringement of your right to bear arms if you are not allowed by statue to own some particular type of weapon(s) or number of weapons.

Would any of the lawyers here care to weigh in?

[Klerk]

But what connection does the Militia Act, as you describe it, have to the 2A?

It is just one drop of the veritable sea of evidence which shows that the public understanding (at the time of the 2A's adoption - 1791) of Militia referred to the unorganized citizenry as a latent source of power. The Court has routinely looked to acts of the early Congresses to clarify the original understanding.

Moreover, the fact that this definition of militia has continued in the same vein until present day suggests that the understanding of 'militia' as meaning the unorganized citizenry is not only the original, but still the prevailing understanding.

I could offer many other examples (Madison's introductory language, the VA declaration of rights in 1776, Mass Const 1780, Tench Coxe's influential article, Patrick Henry's ratification speeches) but this is the one that sprung to mind.

[Bernard Yomtov]

Isn't the right to self-defense a basic human right?

Yes. But that doesn't imply an unlimited right to own weapons which might be useful for self-defense regardless of all other costs.

You can't mine your lawn (I hope), even though that can be regarded as a purely defensive measure.

[Sebastian]

"So all the business about infantry arms is incorrect? Then what's all that militia business about? And what do you see as "the contours" of the right?"

The traditional types of descriptions for weapons at the time were 'arms', 'artillery', and 'ordnance'. The latter two had overlapping descriptions and I think that technically artillery may be a subset of ordnance. 'Arms' were traditionally the type of thing carried by your average soldier, which is why we often end up talking about that. The Constitution protects an individual right to keep and bear arms, but not artillery or ordnance which may be restricted (but wasn't in fact, privately held artillery was not unheard of). We could probably have interesting fights about which modern weapons fall into which categories, but fairly generally common guns are arms, artillery and armoured vehicles aren't. RPGs are probably right on one side of the line or the other as a close call.

[Bernard Yomtov]

It is just one drop of the veritable sea of evidence which shows that the public understanding (at the time of the 2A's adoption - 1791) of Militia referred to the unorganized citizenry as a latent source of power.

But what follows from this?

[Klerk]

What gets me though is what "infringed" is supposed to mean.

Hairshirt,

I just finished law school, so take this for what its worth = less than my two cents.

That said, the meaning of infringement is precisely the issue that the Heller majority punted. It has long been settled that the literal meaning of 'no law' in the First Amendment does not (much to Justice Black's chagrin) mean no law. Some egulation of guns, like some regulation of speech, will be permitted. The question is how deferential will the court be to gun regulation

The majority did not even settle on a standard for which to review gun regulation (though it did reject rational basis and hinted somewhat towards strict scrutiny).
Scalia's opinion suggested that gun regulation of long standing does not constitute infringement.

If I had to guess the future, gun regulation will be scrutinized, but the absolutist all guns approach will be rejected. The practical meaning of infringment will be fleshed out overtime as more courts face the issue. This notably comports even with original understanding (mass banned incindiary devices in the late 18th century). Ah the beauty of the common law

[Rick]

So, if we push aside the "well regulated militia" into the cubbyhole of a "well regulated mob (of my fellow citizens)", why can't I own a fully automatic M-16 (rather than the current wimpy semi-auto AR-15 model)? A simple stitchblade? Shotgun with a 17" barrel? (D.C. stands for Dodge City)

[jrudkis]

One way to look at the issue of what type of weapon might be protected is what can an individual "bear." As an individual, I cannot "bear" crew served weapons like heavy machine guns, tanks, artillery, nuclear missiles, etc. The right is not to have a crew served weapon, but an individual weapon.

Additionally, other weapons like Claymores, SAWs, and RPGs are usually squad or platoon assets. They may be individually carried, but not intended to be individual weapons. I would presume that a suitcase nuke would be considered a strategic weapon, not an individual one.

The hard ones are hand grenades, which at times have been individual weapons.

[Klerk]

Bernard:

If one reads militia as meaning the unorganized, latent body of the citizenry, then the collective-rights understanding of the 2A is not feasible.

Collectivists argue, in essence, that because the right to bear arms is tied to militia service, the right to only extends so far as to protect those who actually do serve in militias -- state organized bodies serving a public purpose.

The problem is that a militia is the latent, unorganized citizenry. It is the general public. Therefore, the right to bear arms resides in the general public, such that they COULD organize into militia if need be. Indeed, the militia's very existence is check on the state (theoretically, but I would take the 82nd airborne any day) -- see Federalist 46.

[Klerk]

why can't I own a fully automatic M-16 (rather than the current wimpy semi-auto AR-15 model)?

Why cant you shout fire in a crowded theater?

I don't mean the above as snark, but rather going to/showing the connection with hairshirt's point about what infringment means. Some regulation presumably will be permissible -- the question is how much. Indeed, the majority today explicitly said that much of today's current regulation is fine, but only held that a total ban is impermissable.

[Turbulence]

As an individual, I cannot "bear" crew served weapons like heavy machine guns, tanks, artillery, nuclear missiles, etc.

Why can't an individual be said to "bear" a missile, especially a MANPAD?

I don't understand where this crew served distinction comes from. Are you inferring it only from the 2A's use of the term arms as opposed to artillery? If so, then I'm really confused, because there seem to be many distinguishing factors that separate those two categories besides one of them being crew served, and I don't understand why we should privilege the crew served aspect above any of the other distinctions.

Also, in what sense would an F-16 be a crew served weapon? It is operated by a single pilot. The fact that it requires a maintenance team doesn't seem dispositive: muskets are pretty worthless without a supply chain that can provide soldiers with powder and bullets.

[hairshirthedonist]

...but only held that a total ban is impermissable.

I would think a total ban on arms would certainly be impermissble. But the ban was on handguns. Is your right to bear arms infringed if only handguns are banned? (After all, handguns are made fo' killin'. They ain't no good fo' nothin' else.)

[Bernard Yomtov]

Indeed, the militia's very existence is check on the state (theoretically, but I would take the 82nd airborne any day)

"That's the way to bet."

[jrudkis]

Turbulence:

I infer the "crew served distinction" from it being an individual right, and previous decisions that say there is no right to private militias. I would presume that actions in concert like maintaining an F-16 could be considered a militia, whereas having a 9mm beretta in my night stand is fairly individual behavior. I don't think Walmart stocking 9mm rounds is similar to having 40 people maintaining an aircraft.

The distinction on the MANPADS is exactly what I said: it is not a weapon intended for an individual to utilize, but is in fact a system based weapon that is usually placed by an organization. The MANPADS soldier usually carries an actual personal weapon that meets the intent of the amendment.

[Klerk]

But the ban was on handguns. Is your right to bear arms infringed if only handguns are banned?

I quote from ScotusBlog. Before giving the quote, though, I just want to give a strong endorsement to reading their series of articles, as always they provide inestimable insight:

Fifth, what kinds of guns does one have a constitutional right to possess, even if that right is limited to one’s own home? The opinion gives some hints — “weapons typically possessed by law-abiding citizens for lawful purposes” — but the most that one can say with confidence is that pistols, easily loaded and easily handled, are definitely within the right of possession, in operable condition in the home, for self-defense. Is a rifle something one can constitutionally have at home, even though not readily useable if one is suddenly attacked? Or a repeating pistol? The opinion does not say for sure.

[Turbulence]

I infer the "crew served distinction" from it being an individual right, and previous decisions that say there is no right to private militias.

But the right to free speech is an individual right and yet newspapers and all manner of collective speech still falls under its protection, right?

Are you using the word militia to mean here a specific organization of people or to the general mass of citizenry? If you mean the general mass of citizenry, are you suggesting that it would be constitutionally permissible to ban any use of arms involving more than one person, such as hunting parties or firing ranges? If my buddies and I can hunt deer together, why can't we hack on our own home made fighter jet, complete with home made missiles?

I would presume that actions in concert like maintaining an F-16 could be considered a militia, whereas having a 9mm beretta in my night stand is fairly individual behavior.

I don't understand from whence this presumption comes. Maintaining a vehicle seems rather distinct from using it in combat. There are many dual use technologies.

I don't think Walmart stocking 9mm rounds is similar to having 40 people maintaining an aircraft.

But many more than 40 people are needed to construct ammunition and ensure adequate supply. And if I ever need to have my gun repaired, does that suddenly make it a crew served weapon? What if the gunsmith has more than one person at his shop assist him?

...it is not a weapon intended for an individual to utilize, but is in fact a system based weapon that is usually placed by an organization.

I don't see how the "intent" (whose intent?) is related to the preceding legal analysis. Perhaps you could clarify? I mean, if the government gets to decide what the "intent" of various weapon classes is, then presumably the 2A doesn't actually give us any ability to resist tyranny.

Also, that same description applies just as well to soldiers with muskets. The soldiers are literally worthless absent a large and complex system needed to supply and equip them, continuously. If the fact that a weapon is "usually" placed by an organization were relevant, than shouldn't the government be able to make new bans of weapons constitutional merely by committing to provide them for the military rather than expect individual soldiers to provide them?

[Jeff]

And there wouldn't be today, if the Supreme court hadn't let the federal government violate the 2nd amendment for the last 70 years;

More like 140 years, unless you think that private ownership of Gatling Guns was common and legal.

(This would seem to fall under "crew weapons" as opposed to "individual weapons", so maybe it's been answered.)

What weaponry does the current infantry have that an private citizen can't acquire? Would a priivate citizen have been able to acquire the equivalent 140 years ago?

[jrudkis]

Newspapers are protected specifically as the press, rather than speech.

I don't think the 2nd amendment protects hunting: you can ban hunting, but not gun ownership.

Many more than 40 people are needed to make the parts and provide the fule and runways for aircraft: however, an aircraft has an assigned crew to support it, as well as the supply chain.

In general, rifles and pistols kept at home can function freely for many years with no support other than the individual. That is simply not true of crew served weapons.

[dmbeaster]

Reading the history, it does support the notion that "militia" as used in the second amendment refers to the armed citizenry in general, and that the right does not depend on being part of the militia. Today, the notion of a militia has passed into history, so has that rendered the 2nd amendment moot? Not if the right is something grounded in the notion of an inherent right of the citizenry to arm itself. Without regard to the amount of regulation that is permissible, that strongly suggests that outright bans of a personal gun is not permitted. This may be an historical anachronism to some, but it is nonetheless in the constitution.

It is worth noting that even in the 18th century, the militia frequently did not rely on the weapons owned by individuals, and the state maintained armories for the militia so that it cold arm itself. Even then, there was a difference between muskets used in the military and the types of weapons traditionally kept at home. And as noted above, the militia had cannons -- only Brett Bellmore types then conclude that cannon ownership is therefore a protected right. But the notion that private ownership was necessary to arm the militia is not historically accurate. Rather the idea being protected was that of an armed citizenry available to assemble into a militia. And the abuse that probably inspired this text was the disarming in the 1600's in England of selected portions of the citizenry as an aid to tyranny.

The context of the Bill of Rights is of some relevance. It was intended to limit the federal government, which at that time was not envisioned as something that would have anything to do with regulating gun ownership. A primary concern was that the federal government would oppress the States, and that therefore State militias were an essential check on the power of the federal government. I suspect that Madison had this in mind when writing the Second Amendment, which may explain why he added the preface justifying the clause. But the underlying idea was an armed citizenry available for a militia.
_______

Re-reading the opinion, two things stand out. First, it is weird (petulant?)that Scalia constantly refers to Justice Stevens throughout his opinion. Normal practice is to simply identify the opposing argument and provide the refutation, or at best refer to "the dissent" rather than the dissenter by name. And the reason is one of courtesy and good form -- not just some technical convention. No wonder Scalia has a hard time winning others to his views.

Second, it is grossly irresponsible for Scalia to say basically nothing on the intended scope of this right, except to hold that outright bans of handguns are not permitted. It is unfortunately normal to have the scope of such things decided by a series of contested cases and Supreme Court opinions, but prior Justices at least tried to give some guidance to future litigation when writing such opinions. Scalia gives only lip service to this issue. It is a major flaw in his jurisprudence that he is unable to do so. If you are going to be an activist judge (and there is nothing wrong with that when it comes to interpreting the Bill of Rights), at least do so competently.

[Sebastian]

"But the right to free speech is an individual right and yet newspapers and all manner of collective speech still falls under its protection, right?"

No, that like blogging falls under the freedom of the press. Which is also an individual right to use tools to communicate. It is a common misconception the the freedom of the press is "THE PRESS" as if it was given only to the collective news media. And to the extent that the news media has rights, it is because it is made up of people with individual press rights, not because 'the press' is a collective entity with special rights.

[Brett Bellmore]

"only Brett Bellmore types then conclude that cannon ownership is therefore a protected right."

Ironically, I've been quite clear all along that I DON'T consider weapons such as cannon to be protected by the 2nd amendment, that it only covers small arms. I guess Brett Bellmore isn't a Brett Bellmore type.

[J. Michael Neal]

The traditional types of descriptions for weapons at the time were 'arms', 'artillery', and 'ordnance'. The latter two had overlapping descriptions and I think that technically artillery may be a subset of ordnance. 'Arms' were traditionally the type of thing carried by your average soldier, which is why we often end up talking about that. The Constitution protects an individual right to keep and bear arms, but not artillery or ordnance which may be restricted (but wasn't in fact, privately held artillery was not unheard of). We could probably have interesting fights about which modern weapons fall into which categories, but fairly generally common guns are arms, artillery and armoured vehicles aren't. RPGs are probably right on one side of the line or the other as a close call.

Sebastian, I have yet to see anyone make citations demonstrating that this oft claimed distinction is, in fact, correct.

[Sebastian]

"It is unfortunately normal to have the scope of such things decided by a series of contested cases and Supreme Court opinions, but prior Justices at least tried to give some guidance to future litigation when writing such opinions. Scalia gives only lip service to this issue. It is a major flaw in his jurisprudence that he is unable to do so. If you are going to be an activist judge (and there is nothing wrong with that when it comes to interpreting the Bill of Rights), at least do so competently."

Actually this is one of the very good things about the case, and one of the indications that he is not being an activist judge here. He is saying that you have to go through the whole process of uncovering and litigating evidence rather than have some judge on high dictate the answer to you (often with very limited knowledge).

It is the extact opposite from a major flaw in his jurisprudence that he only made such a narrow ruling about the issue before him. That is how judges ought to behave more. The fact that you perceive that as a flaw in jurisprudence only shows how awful things have become in the judiciary.

Why should Scalia try to rule on the distinction between a rifle and an RPG before he gets reviewable evidence on the subject? Why should you think it a flaw that he wants to get the evidence before the conclusion is to be handed down?

[Klerk]

DMBeaster:

Two minor nits to pick, and then two major disagreements.

But the notion that private ownership was necessary to arm the militia is not historically accurate

The Militia Act of 1792 suggests otherwise: "That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack . . .”

I suspect that Madison had this in mind when writing the Second Amendment, which may explain why he added the preface justifying the clause.

Madison did not write the Amendment in its current form. The language he proposed was: “The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person”

it is grossly irresponsible for Scalia to say basically nothing on the intended scope of this right, except to hold that outright bans of handguns are not permitted.

No. No No No. It would be grossly irresponsible for Scalia to do much more than this. The Constitution limits courts to deciding cases and controversies. The issue decided was the only one that needed to be reached for this case. To go beyond this case, and issue an advisory opinion would be judicial overreaching -- rank irresponsibility, and not the other way around.

That brings me to the final point. You claim that his opinion is judicial activism. Please explain to me how a reading of the Constitution that, as you seem to agree, comports with the history and original understanding thereof, qualifies as activist?

[Brett Bellmore]

"More like 140 years, unless you think that private ownership of Gatling Guns was common and legal."

I don't know about "common", but they're still legal. You can buy one if you want, I can't afford the ammo bill.

[Doctor Science]

Defense of the self & home is a traditional *rationale* for individual firearms ownership. But it is not, statistically speaking, what firearms are *used for*.

Firearms in the home are used *for* suicide and for killing family members, far more than they are used for defense against strangers.

Firearms outside the home are used *for* "resolving" arguments and protecting oneself when the other man wants to resolve them with a firearm, too.

I'm trying to think of a comparable case, of a device that is ostensibly for purpose A but which is in practice used for other purposes. An off-road vehicle that is used to go to the grocery store?

[Brett Bellmore]

"Firearms in the home are used *for* suicide and for killing family members, far more than they are used for defense against strangers."

Only if you refuse to acknowledge as defense any case where the gun wasn't used to kill, and ignore that it is sometime necessary to defend against "family members". Those firearms stats can be pretty heavily rigged, when you look into the details.

Vibrators bought for massage? ;)

[Nate]

Is it worth point out that in the military, the arms the soldiers bear are HEAVILY regulated? Guns and especially ammo are kept locked up and carefully inventoried, issued only when going on missions, etc.

Does/should that have any bearing on things, if the second amendment is supposed to replicate what the military has?

[Doctor Science]

Brett:

Do you think that "legitimate" (self-defense rather than assault or suicide) in-home firearm uses represent more than a third of all in-home use? More than half? On what do you base your opinions?

In RL, I know a number of people who have been killed or assaulted with firearms (accident, suicide, strangers, intimates); I don't know that I know anyone who has actually used a firearm in anything approximating self-defense. My observation, then, is that true self-defense by firearm is rare, assault/murder/suicide/accident are not.

[OCSteve]

Dr. Science: My observation, then, is that true self-defense by firearm is rare, assault/murder/suicide/accident are not.

People who decide to kill others certainly do not need a firearm. A steak-knife works fine. A piece of rope, bare hands…

However, it is much easier to defend yourself with a M1911 that happens to be on your person than to look around for a steak knife.

[Sebastian]

"Defense of the self & home is a traditional *rationale* for individual firearms ownership. But it is not, statistically speaking, what firearms are *used for*."

On what basis do you say that?

Statistically speaking, suicides and murders with guns are rather tough to miss. Statistically speaking, frightening off a burglar or rapist with a gun is easy to miss. So what study are you using that compares the two and controls for that?

[Doctor Science]

However, it is much easier to defend yourself with a M1911 that happens to be on your person than to look around for a steak knife.

I don't understand what that has to do with my observation, frankly. I'm saying that AFAIK the use of firearms for self-defense is rare compared to other uses against humans.

Yes, kitchen knives can be used for self-defense -- but in my experience, they're mostly used to prepare food, which is also what they're sold for. So the *ostensible* reason for having a kitchen knife is the same as the *actual* reason -- it just can also be used for self-defense, just as it can also be used to cut up cardboard boxes.

The situation with guns reminds me of off-label drug use, especially cases where a drug is being *mostly* used off-label.

[Doctor Science]

On what basis do you say that?

As I said, Sebastian, on the basis of personal experience. Is your personal experience radically different?

[OCSteve]

Dr. Science: I don't understand what that has to do with my observation, frankly. I'm saying that AFAIK the use of firearms for self-defense is rare compared to other uses against humans.

A handgun is a tool – just like a steak knife. I guess you would have to show me studies that prove that violence is more likely to happen just because a handgun is conveniently at hand. I’m saying that a handgun is a very convenient tool to commit violence if that is what you intend. But if you don’t have access to one, a knife of any kind or a claw hammer works almost as well. If you want to commit suicide I can think of a dozen better ways than sticking a gun in your mouth. If you want to kill someone and get away with it I can think of a bunch as well.

We’re talking about suicide or crimes of passion (I think) – lack of a hand gun would not ease your stats by even .1% IMO. I think that the scales weigh heavier on the side of folks who may have been killed or seriously injured if they did not have a handgun for protection.

[Brett Bellmore]

It's been estimated that there are in excess of 250 million firearms in this country. In 2001, IIRC, there were under 30,000 firearms deaths.

I have to conclude that killing somebody is actually a darned infrequent use of a firearm.

[Phil]

If I had to make a guess, I'd wager that the vast majority of handguns that are in people's homes are never actually used for anything at all with the exception of occasional target shooting at the range. I, of course, offer no stats whatsoever to support this guess, but, well, neither has anyone else.