The Legal Implications of the Heller Opinion -- Please Comment:
Sorry our comments were down most of the day; if you'd like to comment about the legal implications of the opinion — what future challenges are likely to arise, how the opinion's reasoning may affect other areas of the law, and the like — please comment here. If you'd like to comment about the opinion as such, please do so on this thread below. If you'd like to comment about the political implications of the opinion, please do so on this thread above.
Do you think the same majority would hold up for striking down a less square infringement of the right than the District of Columbia's outright ban?
Very likely, the dicta that the opinion did not reach regulations disabling felons and the insane from exercising the right as well as regulations limiting the means and locations of carrying firearms was meant to get Kennedy on board.
Also, the decision to apply a de facto strict scrutiny to find the ordinance facially unconstitutional under any facts without actually holding that the Second Amendment required strict scrutiny was very likely meant to address Roberts concerns voiced in oral arguments.
However, none of these concessions really circumscribe the core Second Amendment right to keep and bear commonly owned arms for lawful purposes.
Felons and the insane are routinely denied civil rights. It is notable, however, that msidmeanants and those merely accused of such things as domestic violence were not included among those who were disabled from exercising the Second Amendment right.
Regulations on the time, place and manner for carrying firearms were always in the works. However, the majority opinion strongly suggested that these regulations may not be arbitrary (may issue licenses) nor may they completely abridge the core right to carry arms (concealed or open carry may be barred, but not both). The majority's repeated comparison of the scope of the First and Second Amendments suggests that the First Amendments, time place and manner rules may be adopted for the Second Amendment.
Finally, de facto strict scrutiny without de jure strict scrutiny still accomplishes the same purposes.
Given an extremely rare opportunity to establish the scope of a fundamental right in the Bill of Rights, it appears that Scalia ensured he did not squander that opportunity.
I got the same thing about "must issue" licensing versus arbitrary and subjective licensing standards. I think the New York City gun bans and licensing schemes will eventually be forced to change to a "must issue" (as will all states - which is the trend Justice Stevens) mechanism.
No longer will only the rich and politically connected be able to get gun licenses in New York City, but the constitution will once again apply to all honest law abiding citizens in New York City regardless of wealth or political connection.
Also, the stuff about the gun must be IMMEDIATELY available for self defense will or should protect us from storage requirements that require the gun to be unloaded and probably invalidate any trigger lock rule that gets in the way of IMMEDIATELY available for self defense.
Says the "Dog"
Scalia's argument that the 2nd ammendment protected an individual right to keep and bear arms by the people in general (as opposed to only members of a formal state fighting force) was quite persuasive but where the majority opinion fell down was in extending the protections of the 2nd ammendment to personal self-defense. And even assuming such an extension taking it to protect handgun ownership.
The citations Scalia made in support of the claim that the second amendment included a right to personal self-defense seemed to be only a couple sources who, shortly after the passage of the second amendment, wanted to interpret it in such a fashion. The fact that some lawyer said self-defense was an important provision of the second amendment is hardly compelling when weighed against the text of the amendment itself which emphasizes the concerns of common defense. Moreover, it seems unbelievable to me to suppose that at the time of ratification people were even worrying about the situation where the federal government let the people keep weapons suitable to warfare but barred them from keeping them available to fend off burglars. Given the understanding of the relation between the state and federal government at the time I doubt this was even on the radar so it surely can't be uncontroversially assumed that an ammendment designed to give citizens the right to carry infantry weapons extends to handguns.
Any weight that Scalia's quotes suggesting the second amendment included a right to weapons for personal self-defense might have carried is more than countered by Breyer's example of a ratification era law doing just what was supposedly unconstitutional in the DC law: barring the possession of loaded weapons inside the home. Scalia's rejoinder that such a law would have allowed the homeowner to load a weapon when attacked doesn't rebut the point. While I admit that one law is hardly conclusory it is at least as persuasive as the citations Scalia makes.
But even granting a right to own weapons for personal self-defense why does this protect handgun ownership? The fact that handguns are the most popular personal defense weapons seems wholly irrelevant to the issue. Maybe people buy them because they are cheaper, or because it makes them feel cool, or because they saw them in a movie. Unless long guns can be shown to be ineffective weapons for defending the home I see no justification that the DC ban on handguns was a violation of the 2nd amendment.
Also what categories of weapons does the majority opinion protect? Are tasers constitutionally protected? What about mace? Would they be constitutionally protected if they were more popular?
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Of course the way I read the 2nd amendment would lead to the most unpopular results imaginable. I would take the 2nd amendment to not protect handgun ownership but to protect the ownership of M16s, AK-47s and other equivalent weapons used by the average infantry soldier. Thus angering both the pro and anti gun forces.
I disagree the Stevens dissent really just renames the old collective right. Stevens grants that individuals can enforce their right to bear arms when part of an organized state militia.
Here's an essay that I wrote from a layman's point of view.
CCW and Churches: Does the state have a role to play?
Had he the proper case, his scholarship certainly supported a conclusion that the 14th Amendment was intended to incorporate the 2nd. Further, to the degree that a lack of such incorporation allowed the Southern states to disarm newly freed slaves and prevent their resistance to Jim Crow, incorporation of the 2nd Amendment was nearly mandated by the main objective of the 14th -- to prevent racial discrimination.
I'm sure that these passages will be revisited sometime soon.
I am about to file a motion to dismiss in Colorado state court based on Heller arguing that the issue of 14th Amendment incorporation is de novo before Colorado courts and implied by Heller (not to mention the 9th and 5th Circuits).
Cruikshank merely stands for the unremarkable proposition that the Bill of Rights on their own only limit the Federal Government. There was no discussion of whether the 14th Amendment incorporated the Bill of Rights against the States.
Presser merely cited Cruikshank and also did not discuss whether the 14th Amendment incorporated the Bill of Rights against the States
Miller cited Cruikshank and Presser specifically for the proposition that the Bill of Rights on their own only limit the Federal Government and then noted in the next paragraph that the appellants in that case could not raise the 14th Amendment incorporation argument for the first time on appeal, implying that the Court had not considered this issue in Cruikshank and Presser.
The 10th Circuit over CO never opined on the effect of Cruikshank, et al, so I do not have to fight circuit precedent.
Now, Scalia has made it clear that Cruikshank never applied the 14th Amendment incorporation doctrine to the 2d Amendment and implied that the Second Amendment stands in the same shoes as the First so far as incorporation goes.
Not a slam dunk, but NRA is proceeding with their own suits in about five cities to similarly force the issue.
Breyer Dissent at 10. And if you prefer the lower standard advanced by the Solicitor General:
Breyer Dissent at 25. And Breyer specifically suggests how to achieve a regulatory result under even a strict scrutiny-style analysis:Breyer Dissent at 35.
I suspect we haven't heard the last of Breyer's analysis.
The heart of this interpretation is that when individual citizens use arms to defend themselves, their families, and their property or in coming to the aid of their neighbors, they are serving the purpose of a well-regulated militia in maintaining the security of a free state. A "well-regulated" militia is an effective one. "Security" means not just defense against foreign invasion, but the security of the people against attack and robbery.
Two centuries ago, private citizens would have borne a substantial burden in defending themselves and their communities from violent criminals. Today, we have well-organized and highly mobile professional police forces, but they still cannot be everywhere at every moment, so a significant role remains for armed citizens--the militia--as the first line of defense until the police can arrive. In order for citizens to fulfill this role, they must be able to carry weapons as well as keep them in their homes in operable condition. Hand-held weapons-pistols, tasers, and mace--would clearly be the first choice, although long guns will also be useful in at least some circumstances. All should fall under Second Amendment protection.
The police and National Guard fulfill the role of an organized militia. Heavier weapons would be appropriate for their arsenal, particularly that of the Guard.
There is also the matter of resisting tyranny, where widespread possession of modern rifles would make possible the capturing of heavier arms, etc--I believe there's a significant literature on how that works. So it is arguably not necessary that individuals be allowed to possess heavy weapons, in order to fulfill the purposes of the Second Amendment. A reasonable line can be drawn that includes semi-auto rifles and pistols but perhaps excludes full auto except for specially licensed collectors, roughly the situation in most places in the US now.
(1) Since when can we relegate part of the constitutional text to mere "prologue." Doesn't sound very Scalia.
(2) What's with Scalia's intent argument:
Besides ignoring the historical reality that the Second Amendment was not intended to lay down a “novel principl[ e]” but rather codified a right “inherited from our English ancestors,” Robertson v. Baldwin, 165 U. S. 275, 281 (1897), petitioners’ interpretation does not even achieve the narrower purpose that prompted codification of the right.
Can any of you defend Scalia here? I think you are hard pressed. I think the decision is probablly right, to be honest, but in a Bush v. Gore fashion, I think the majority and the dissent is ideologically flipped.
"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions"
Arms used to carry out missions defined as being of the type for which the militia may be employed are the very ones which are (de minimis) protected by the 2nd.
For example, if government agents like police use tasers or handguns to execute the laws, then they are protected. Ditto M-16s since they would be used by the Army in repelling an invasion (and can be borne). Turns out the military issues handguns these days by the way, also. When the Army starts using the Mark-1 laser rifle, that should be protected, too. My 2 cents. YMMV.
Since when can we relegate part of the constitutional text to mere "prologue." Doesn't sound very Scalia.
Show me the case where Scalia, or any other originalist for that matter, cites "In order to form a more perfect union..." as even part the rational to uphold or strike any law. Sometimes a prologue is just a prologue.
Of course not, just as we still haven't heard the last of Roe v. Wade, and any number of other controversial cases.
However, the points you make about Breyer's analysis are only valid insofar as you accept that the points upon which Breyer bases that analysis are actually valid.
For example:
Thus, any attempt in theory to apply strict scrutiny to gun regulations will in practice turn into an interest-balancing inquiry, with the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other, the only question
being whether the regulation at issue impermissibly burdens the former in the course of advancing the latter.
Well, not really. The real question is whether or not, under a strict scrutiny review, we assume that governmental concerns, even where legitimate, are of a level of importance compared to that of an enumerated right such that we accord them roughly equal status. Only by doing so can we assume that a "balancing" test is in order. By a strict reading of "strict scrutiny", those governmental concerns would have to be of great gravity, indeed, in order for any such "balancing" to be warranted. This is nothing more than sophistry by Breyer to dress up a lower standard of scrutiny.
In particular this Court, in First Amendment cases applying intermediate scrutiny, has said that our “sole obligation” in reviewing a legislature’s “predictive judgments” is “to assure that, in formulating its judgments,” the legislature “has drawn reasonable inferences based on substantial evidence.” Turner, 520 U. S., at 195 (internal quotation marks omitted).
Interestingly, Breyer doesn't seem to believe that those inferences be based upon accurate evidence. He seems to think that evidence that the legislature has collected a large body of data stands for "substantial evidence". These things do not equate.
The upshot is that the District’s objectives are compelling; its predictive judgments as to its law’s tendency to achieve those objectives are adequately supported; the law does [not] impose a burden upon any self-defense interest that the Amendment seeks to secure; and there is no clear less restrictive alternative.
Pray tell, Mr. Justice Breyer, in what fashion are the District's predictive judgements "adequately supported"? By inaccurate and misleading evidence that is not corroborated by actual mathematics? There is clearly a significant body of evidence that suggests that the objectives of the District in fashioning the ordinances in question, admirable and compelling though their intent may be (that is to say, public safety concerns), were in actual practice materially damaged by the ordinances they enacted! This is circular reasoning at its worst. The law clearly imposes a burden upon the rights guaranteed by Amendment II, and the conclusion he draws can only be accepted if you assume his premise, while simultaneously closing your eyes to reality!
1. Incorporation via the "privileges and immunities" clause of Amendment XIV (rather than the "due process" clause).
2. Prohibitions of entire classes of firearms, especially where arbitrary in nature (so-called "assault weapons" bans), are invalidated.
3. Arbitrary licensing schemes (read: "may issue" CCW statutes) are invalidated.
4. A challenge to the Firearms Owners' Protection Act of 1986 will be brought, on the grounds that it's ban on selective fire weapons amounts to an outright prohibition which is unconstitutional. At least that provision will be invalidated.
5. Someone, somewhere, will attempt a challenge of the National Firearms Act of 1934 and/or the Gun Control Act of 1968. These will be upheld.
6. Various state laws will be challenged (again). Only the most egregious provisions will fall.
How does he square that with U.S v. The Progressive?
Does anyone have any input on this?
Radley Balko and Jacob Sullum offer reality checks regarding what Heller accomplished:
http://www.reason.com/blog/show/127227.html
http://www.reason.com/blog/show/127226.html
This may present an intresting opportunity to strike down a "ban on machineguns." Semi-automatic pistols are now much more common than revolvers. As that is the governing standard of what is protected, it seems like the DC banning semi-automatics is ripe for the picking legally. And when the statute is struck down, the ban on real machineguns goes down too. Of course due to federal law this would change nothing as far as real machineguns, but it would provide a precedent striking down a "ban on machineguns."
Having been involved with drafting dozens of constitutional provisions, I find preambles very useful, and try to include them whenever possible. I describe them to the political vetters as intended both for political purposes (which sells them on the fight to include "unnecessary words") and for later reviewing courts. Other drafters often object, finding them potential vulnerabilities.
Heller indicates both sides of the equation. The preamble both muddies and clarifies. I find this a function of length and drafting style. Preambles can be drafted clearly and persuasively.
The recognition of the actual power of the preamble (cannot change the text, but can illuminate it), reflects many state-level analyses and a little constitutional analysis as well. Let us hope that drafters take the hint.
On CCW permits, Heller appears to clearly cabin off concealed carry, suggesting that even an outright prohibition on carry outside the home may be Constitutional. Although to the extent "may issue" permits are denied on arbitrary and capricious grounds (e.g., New York City), individual denials may be subject to attack.
On §922(o)'s ban on NFA registration of machineguns manufactured after 1986, on the surface it appears to have close parallels with the D.C. ban on handguns not registered before 1976. However, the dispositive question will be the extent to which reviewing courts think 922(o) is a burden on Second Amendment rights, when the re-articulated Miller test Scalia discusses in Heller suggests that machineguns will flunk the reinvigorated "common use" test.
Hope to see challenges to restrictions on mail order.
Hope to see challenges to private business restricting concealed/open carry. Parking lots?
Maybe challenges to revoking FFL for minor paper work errors.
Maybe zoning challenges that push dealers out.
The first is that an individual has the right to own 'common' or 'standard' weapons for the purposes of self-defense. From that comes the right of the individual to join free militias for the purposes of defending the state against both foreign and domestic threats. Scalia points out the history of pro-free militia laws in British history, but in my reading of his opinion, it seemed that the right of the Protestants in Britain to remain armed was independent of their ability to join or form militias. Am I wrong in this interpretation?
Dick Heller the man won his case. He was praying for relief in order to be permitted to bring his service sidearm home with him at night. I presume his winning the case should be legally interpreted in this manner, and that the District SHALL issue him a license.
Does anyone know what kind of sidearm Dick Heller carried? Revolver or semi-auto pistol? If the latter, the DC v. Heller decision should directly implicate any smarmy ideas that the District may try to pull in regarding licensing revolvers but not pistols.
Which raises an interesting and unanswered question: Would Dick Heller even have a right to transport his service sidearm home with him at night? In a Washington Post piece about D.C.'s reaction, a local official mused that the District needed to change the law to even permit citizens legally to bring their handguns to police headquarters to be registered.
Given the rejectionist position Fenty and his fellow city government travelers are taking at present, I suspect Heller's going to have to keep his service sidearm in the gun locker at work every night.
Now I found the 'common use' bit a little odd and potentially out of context. If you take it to mean 'in common use by the civilian population' that would support a ban on machine guns since they are not *that* common. But this creates a catch 22; machine guns are not common only because civilian ownership has been restricted since 1934 and new manufacture banned since 1986. If Heller took place before 1934 when you could order a Thompson Submachine gun from a Sears catalog, the enormous $200 NFA tax would have been found unconstitutional by this standard. But because it took place after, what is in 'common use' has been artificially changed making the NFA and FOPA constitutional.
But I really don't think that is what was meant by Miller (or by Scalia in Heller for that matter). I think 'common use' means 'in common use by the military'. According to Miller:
Correct me if I'm wrong, but I take that to mean that since no one has provided evidence (being that Miller was dead) of a short barreled shotgun is of 'ordinary military equipment' that it can not be protected by the 2nd A. Doesn't this then define the 'common use' test as being 'ordinary military equipment' or equipment that 'could contribute to the common defense'? A machine gun would certainly fall into the category today.
I think that the "common use" test could be side stepped in a challenge to the GCA 1934 as amended in 1986. How can one say that the 2nd amendment doesn't protect machineguns because they are not in common use if the reason they are not in common use is the law whose constitutionality is being challenged.
My question is, Doesn't the logical problem created take the fact that machineguns aren't in common out of consideration in the constitutionality of NFA 1934/FOPA 1986?
Firstly for TruePath:
The right of self defense (the right to wage war) for nations idealogically stems from the right of self defense of the individuals of which that nation is comprised. In that regard, there is really no such thing as "state security," there is "personal security" that extends across the state, giving to the political creation its power to provide for the common security of all citizens. Therefore, any select milita or standing army has no "right to arms" that does not stem from individual self-defense. I think the reasoning is sound.
Secondly, I think that the "common use" idea needs to be read as a whole sentence. I thought it read "in common use for a lawful purpose." There have been two crimes committed with NFA registered machineguns since 1934, so aren't they commonly used for lawful purposes, as the corallary to the fact that they are only uncommonly used for unlawful purposes? Moreover, I think this is the exact reasoning that a ban on cosmetic features of firearms ("assault weapons" bans) is unconstitutional: even though they MAY be used in crime, rifles like the AR-15 are OVERWHELMINGLY used for target shooting, a lawful purpose. I don't read this to say it has to be commonly owned, just commonly used for a lawful purpose.
I also like the idea that the ban on a new machingun vs. an old machingun (which are technologically inseparable) is certainly arbitrary. There's really no difference between that and a ban on cosmetic features.
I would think so, yeah, but apparently Scalia doesn't:
But surprisingly, the majority took another approach. At least the "common use" part of the Miller test survives as reinterpreted by the Scalia opinion. The key sentence in the opinion is:
This leads to a logically infirm circular argument: a firearm can be legally possessed if it is in "common use" by law-abiding civilians. But a firearm can only be in "common use by law-abiding civilians if it can be legally possessed.
I'm fairly sure that this logical leap (or illogical slip-and-fall?) was necessary to get 5 votes for affirmance. Justice Kennedy, at least, wasn't going to sign on to any Heller opinion that made it likely the NFA's regulation of machineguns would eventually be overturned. Ditto for felon-in-possession and the other types of gun control mentioned in dicta as not being impacted by the Heller holding.
And so we get to live with the "common use" circularity, at least for the time being. Which is why a challenge to §922(o) probably isn't the best way to lead off the post-Heller litigation parade.
I agree. Which is why the best course of action for gun rights proponents right now is not to test the limits of this opinion through litigation, but to 1) work on electing a president and senators who will nominate and confirm good Supreme Court justices, and 2) do their best to use the "moral authority" of this decision to get more gun-friendly laws through the legislatures.
While I agree with the outcome of the decision there is one part of Scalia's opinion that I have problems with. Throughout the opinion Scalia give us the historical perspective and understanding of what "the militia" meant to the framers. However the actual text is "a well regulated militia". He dismisses the phrase "well regulated" to mean:
First, I find this argument unpersuasive. Second, couldn't the legislature then draft regulations based expressly on a specialized training requirement, a specific class/program that must be attended and a code of conduct that must be followed? Requiring that, for example, the gun lock portion of the DC law must be followed or allow for further limitations/regulations?
I am not saying anything for or against doing something like this, but do other people have problems with Scalia's logic on "well regulated"?
Try this, then: While the preamble to the Patent and Copyright Clause comprises only 1/3 of the clause, consider that the clause covers two separate and individual rights.
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
Back at the time of the framers and extending into the Victorian Era, "well regulated" meant something that worked as it should. The closest modern definition of regulated, regulation, or regular would be "exemplary."
Our current world of pervasive governmental regulation was unimaginable at that time; the Code of Federal Regulations was still far in the future.
Good point. Into that category I would also place the language "to pay the debts and provide for the common defense and general welfare of the United States." But that's just me. :)
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