The Second Amendment Goes to Court
Civil libertarians respond to D.C. v. Heller
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Brian Doherty: The Heller decision was exciting for fans of American liberty—even the dangerous and disreputable end of that liberty, where weapon possession and use rights abide in the minds of many good-hearted people who think guns are just ugly and awful and appeal to the worst aspects of human nature.
Scalia's opinion did a thorough job of fileting, layer by layer, the lame and unsupportable "collective right" beliefs about the Second Amendment—including lots of sadly necessary exegesis on how the word "keep" means that people have a right to, yes, keep arms in their homes.
But Heller represents no happy ending to our legal and public policy duels over guns. Scalia's opinion does admit that we do have a constitutionally protected right to some degree to defend ourselves and our property with weapons.
But the opinion also stresses that right is still regulatable in many, many ways. It leaves plenty of room (which you can be sure will be filled rapidly) for future court challenges and public policy fights to define the degree to which the government, at any level, can restrict or regulate the sale, possession, and use of weapons. It may well turn out that anything less severe than D.C.'s total ban will withstand scrutiny even under the newly revived Second Amendment.
The "eternal vigilance is the price of liberty" part: four members of the Supreme Court think that it's A-OK for the government to completely bar citizens from using guns for the protection of their lives and homes. That can't make sleeping at night any easier. That said, the Heller victory was a sweet one for the recognition that there are limits to what democracy can do to individual rights, and is worth celebrating for that.
Brian Doherty is a senior editor at reason and the author of This Is Burning Man and Radicals for Capitalism. He is currently writing a book about District of Columbia v. Heller.
Sanford Levinson: The majority obviously found that the Second Amendment does protect an individual right to bear arms, and they applied this right in the easiest possible case, i.e., a functionally absolute prohibition against handgun possession.
What cannot be determined from the opinion is what the future impact of Heller will be, beyond further litigation. I am reminded of a cartoon in the New Yorker several years ago, of a conversation at a suburban cocktail party where a woman says to a well-dressed man, who is carrying a rifle slung over his shoulder, “I've never met a Second Amendment lawyer before.” I suspect that there will be more such lawyers in the next few years, but this says nothing about the prospects of winning such cases. For all of the rhetorical bluster of Scalia’s opinion, it not only focuses on the extreme nature of the D.C. ordinance, but also goes out of its way in effect to legitimize a plethora of existing federal legislation regarding guns. And, of course, there is no way of knowing who will be appointing the all-important “inferior” federal judges, beginning in January 2009, who will play a far more important role than the Supreme Court in deciding the operational meaning of the Second Amendment.
Finally, Scalia should take a certain pleasure that Justice Stevens, by confining the entirety of his opinion to an “originalist” analysis of the Second Amendment (that obviously came to a completely different conclusion), seemed to concede the overarching importance of original meaning. Neither Justice was willing to pay any attention to the “dynamic” aspect of the Second Amendment. Scalia was presumably unwilling to cite Chief Justice Taney’s opinion in Dred Scott, but it’s the strongest single piece of evidence for the proposition that by mid-19th century an individual right to bear arms (at least if you were an American citizen) had become the conventional wisdom.
Sanford Levinson holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas Law School. His most recent book is Our Undemocratic Constitution.
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Jacob Sullum: The most important aspect of D.C. v. Heller, of course, is the Supreme Court's recognition that the Second Amendment protects an individual right to arms. From that premise it almost inevitably follows that the District of Columbia's gun law—which, as the Court noted, "bans handgun possession in the home" and "requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable"—is unconstitutional. If such a law does not violate the right to armed self-defense, it's hard to imagine what law would. That's why the Court did not bother to specify what level of scrutiny is appropriate for purported violations of the Second Amendment. It concluded that the D.C. law is invalid "under any of the standards of scrutiny the Court has applied to enumerated constitutional rights."
By the same token, however, this decision does not give a clear sense of the line between constitutional and unconstitutional forms of gun control. The Court indicates that laws regulating the sale of firearms and prohibiting concealed carry, gun ownership by "felons and the mentally ill," possession of "unusual and dangerous weapons" (as opposed to weapons in common use for lawful purposes), and possession of firearms in "sensitive places" such as schools and government buildings are consistent with the Second Amendment. But it is not clear whether a law against openly carrying guns would pass muster, or what kinds of guns count as "unusual and dangerous," or how onerous licensing and registration requirements can be before they run afoul of the Second Amendment.
Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time.
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Anybody up for trusting our liberties to "liberaltarian" appointed judges?
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No.
Again, I want to stress that people are pretty cavalier in their use of the phrase "Machine Gun". I'm sure they intend it as defined in the NFA, but they're not illegal and one can, in fact, possess them in most states. Further, DC defines a machine gun as a fully auto or burst (more than one round per trigger pull), but also as semi auto if it can fire more than 12 rounds without reloading, or can be easily modified to do so (meaning, swap to a higher capacity magazine and even a Glock 29 can hold 33 rounds).
There is a lot of work to do, but at least this "collective right" crap is out the door. -
No=in response to Anybody up for trusting our liberties to "liberaltarian" appointed judges?, at least in regards to 2nd amend rights.
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I disagree with what Glenn Reynolds said about this ruling taking the issue off the table and helping Obama. It may calm the gun rights people down but it will energize Obama's anti-gun supporters possibly forcing Obama into the open on this subject.
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It may calm the gun rights people down but it will energize Obama's anti-gun supporters possibly forcing Obama into the open on this subject.
We can only hope, but it's up there with "World Peace" and "eliminate the IRS" to have Obama actually give some substantive statement on anything. -
I agree with Glenn Reynolds' idea that this may help Obama by taking the gun control issue off the table. People that would like to vote for him, but might not because of the gun control issue, may now feel like the Heller decision will protect us from excessive gun control and they don't have to worry about that anymore.
On the flip side, I think it is also possible that it could hurt Obama. The decision provided a very clear picture of the ideological divide on the court. All McCain has to say is say "Look at the decision: the judges I would put on the court would support this ruling. The judges he would appoint would not." -
The fight begins in Chicago:
http://saf.org/viewpr-new.asp?id=270 -
Anybody have a count yet on how many more court cases will be necessary to win before the Heller ruling can actually help anybody?
Still have not seen anybody mention if there are any stores selling handguns in DC. I know there is a Dick's Sporting Goods there, but they stopped selling handguns in all of their stores a few months ago, IIRC.
So, would getting the stupid federal law requiring people to purchase handguns only in their State/Territory of domocile be on the block so that DC folks can legally buy in VA and MD? Or would that be a whole different deal. Heard something about a "plan" to sell handguns in or near police stations, but not sure how real that was.
Seems the DC (hopefully MD too) hysterical-level registration requirements should be on the block sooner than later too.
DC seems to be all nuts about honest folks transporting firearms anyplace. Hope those wacky regs het tossed soon too. Perhaps a case of someone taking their pistol to the police station for registraion and getting arrested could knock down several at the same time?
Baby steps, I hear, is the way we should view this. Quite a frustration. -
Marcvs,
Wow, that Chicago law sounds as crazy as all the DC crap.
If that announcement is covering what SAF is bringing, and it gets a reasonable ruling, then they should get a whole lot of nonsense knoced down in one case.
I am having a little heartburn right now renewing my TN CCP. If I do it by mail I have to send documentation that will not be returned, like a passport (valid or expired), and have to pay a $50 "renewal fee" either by mail or if I go in person. However, I am a lot better off than folks in DC or even VA. -
The fight begins in Chicago
They basically filed before Scalia's ink was dry. I love it. Fuck you, Daley. No wonder you're already running scared.
I agree with Glenn Reynolds' idea that this may help Obama by taking the gun control issue off the table.
All McCain has to do is go "it was 5-4! That close!" and press the judicial appointments issue to get people fired up. I think it'll actually be a wash; people will feel their rights are safe now, but will become slightly alarmed again by how close it was, and this will end up not affecting turnout overall for either candidate. -
The fight begins in Chicago:
Awesome. Suck it, Daley. -
I surprised by how little press this is getting.
If this case had been decided in the 1980s or 90s, it would have been one of the biggest political issues in the country.
With the Democrats pretty much abandoning the issue, and even the NRA adopting an "enforce the gun laws on the books" position, the country is much closer to a consensus than it used to be, and this decision falls right in line with that consensus.
Mike Dukakis ran on gun control in 1988. George HW Bush ran on gun rights in 1992. Those were top-tier issues they pushed throughout their campaigns.
Things have really changed. -
One comment and I'm out.
I've been listening to the 2nd amendment crowd for decades. I remain unconvinced.
I don't think having more guns around makes for a safer environment. It seems to me that both sides wave around "studies" and "evidence" as if they conclusively and indisputably supported their side while summarily dismissing what the other side waves around. For my part, anytime I hear someone say "an armed society is a polite society" I stop paying attention.
Regarding the 2nd amendment itself. I've been hearing people tell me and tell me that it is indisputably an individual right. They have a case but it's not as cut and dried as they think.
More to the point, the "well regulated militia" language tells us specifically what it's intended purpose is. It has nothing to do with defending yourself in your own home. The 2nd amendment was meant to ensure the people could protect themselves from their own government. Ever since WACO, the 2nd has been nothing but an anachronism.
OK, commence with the throwing of the rotting vegetables. -
Checklist:
1. Win lottery or get way better job.
2. Get high-speed legal team.
3. Rent apartment in DC
4. Attempt to register and purchase ParaOrdnance hi-cap .45 semi-auto pistol.
5. Sue DC for violating my right to own a semi-auto pistol, for calling it a machine gun, fo making me register the darn thing to begin with and for just beeing overall jackasses.
6. ???
7. Conservative book deal and all profits used to create a 2nd Amendment foundation. -
8. Never invite Warren to Militia Happy Hour.
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"I surprised by how little press this is getting."
They've spent about 1/10th the time talking about this of what they did talking about Russert's death. -
joe, you are correct that pretty much everyone (except the serious gun-banners) has moved towards a more gun-rights position, especially since we have had so many states adopting shall-issue yet crime continues to go down.
However, the Chicago fight, and others like San Fran, are going to be bitter and full of incredibly hyperbolic rhetoric that will scream from the front pages. -
OK, commence with the throwing of the rotting vegetables.
Why? Your argument is stupid and has been utterly invalidated. -
OK, commence with the throwing of the rotting vegetables.
No. They are for my compost heap. Build your own. -
That's being generous, JLM.
Episiarch,
joe, you are correct that pretty much everyone (except the serious gun-banners) has moved towards a more gun-rights position Except the NRA, who have now begun advocating for the enforcement of the laws that they once fought to defeat, while working mainly to oppose the adoption of new laws.
"Just about everyone, except the extremists on both sides, have moved towards the middle," would be an accurate statement. -
The 2nd amendment was meant to ensure the people could protect themselves from their own government. Ever since WACO, the 2nd has been nothing but an anachronism.
The rest of your post is garden-variety idiocy, but this is bizarre. Since the government has more arms than the people now, we should just give up and throw away the right? I'm confused as to how you started with a valid point (the 2nd is meant to allow for popular revolt) and ended up with "melt 'em down". -
Warren: Regarding the 2nd amendment itself. I've been hearing people tell me and tell me that it is indisputably an individual right. They have a case but it's not as cut and dried as they think.
Q) Why would the Bill of Rights include 9 individual rights and 1 "collective right"? Or, do you think that the 1st amendment, etc. are also collective rights? -
I don't think having more guns around makes for a safer environment.
The only guns you need to worry about are guns in the hands of the criminal element. Many, many studies show that guns owned by law-abiding citizens present no real risk at all.
Gun control laws don't effect gun ownership and use by criminals much at all, but they do suppress gun ownership by law-abiding citizens.
Bottom line: gun control laws don't make for a safer environment. Any law that restricts a fundamental right like the right to self-defense should meet a pretty high threshold; gun control laws generally don't meet that threshold. -
Except the NRA, who have now begun advocating for the enforcement of the laws that they once fought to defeat, while working mainly to oppose the adoption of new laws.
There are relatively few laws on the (federal) books that the NRA opposed in their final form; NRA lobbying general takes the mainstream/pragmatic approach of trying to amend proposals to remove the most offensive features. -
"Just about everyone, except the extremists on both sides, have moved towards the middle," would be an accurate statement."
Extremism in defense of liberty is no vice....... -
Why would the Bill of Rights include 9 individual rights and 1 "collective right"?
The 9th and 10th define individual rights? You sure about that?
The "insurrectioist" position of the 2nd Amendment - the right of The People to take up arms agains the government, or at least posess enough arms that the government doesn't get in the habit of pushing them around - doesn't have any collective element?
That's just nuts. There are obviously collective right elements in the Bill of Rights. -
"Just about everyone, except the extremists on both sides, have moved towards the middle," would be an accurate statement.
Hmmm...no. Gun rights have almost uniformly been winning showdown after showdown for the last 15 years. Gun control has lost. And people's opinions have shifted towards the gun rights position, not to the "middle", whatever that is. -
Extremism in the defense of liberty is still extremism.
"But we're right" doesn't get you any closer to the mainstream, and the point I was responding to was about the effect of the ruling and the issue on American politics overall. -
A tad unrelated, but how is Glenn Reynolds a libertarian??? Has this guy not been in support pretty much of every atrocity against civil liberties committed by the bushocracy? this is the instapundit bootlicker right? or is this a different GR?
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Yes, even in the light of this ruling categorically stating that Amendment II expresses an individual right, we still have folks trying to say it does not. Just like we did before. It does not matter how plainly it is stated as an inividual right. If the ruling were one line stating it is an individual right the same people would be arguing against it.
I am sure someone exists who thinks Amendment I only protects the right of the press to petition the government while peaceably assembled in a house of worship while speaking freely, but I have not heard one of the collective right folks read Amendment I in that manner, yet.
Looking forward to it.
Note: I never thought I would hear anybody compare firearms manufacturers to homeowners in DC who fail to shovel their sidewalks in the winter either, but had to hear every blowhard in Reston, VA spout that crap while DC was tryign to sue gun makers who were prohibited from selling to DC residents AND DC residents were prohibited from buying from them. -
Gun rights have almost uniformly been winning showdown after showdown for the last 15 years.
Because they've limited themselves to low-hanging fruit, rolling back overreaches from the 70s and 80s (the period when gun control was kicking the NRA's ass), like the DC gun ban.
The NRA HASN'T been arguing for the enforcement of existing gun laws as part of their platform? Really? I haven't heard too much about "jack-booted thugs" from them lately. Come to think of it, I haven't heard much of that type of language for about 15 years. Hmm...
"The gun rights position" isn't what it was 20 years ago. "The gun rights position" that the country has been moving towards is well to the "left" of where the NRA used to be. It's this new position that the country is moving towards. -
A tad unrelated, but how is Glenn Reynolds a libertarian???
He supports state sanctioned Gay Marriage.
That is the litmus test for libertarians. -
This is precious, btw:
...the gun rights position, not to the "middle", whatever that is.
"The gun rights position" gets to sit there all by itself, but the term "middle" gets not only scare quotes, but a "whatever that is." -
Please define the middle, joe. Exactly.
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He supports state sanctioned Gay Marriage.
That is the litmus test for libertarians.
Correct. Anybody who supports State sanctioned marriage of any kind can not honestly call themselves a libertarian of any kind. -
Please define "the gun rights position," Episiarch. Exactly.
Or, if you actually have any thoughts rather than semantics, or wish to respond to either of the examples I've given of the NRA moderating its line, that would be even better than going off into a semantic cul de sac.
I think you can figure out all by yourself what the term "the middle" means in political discourse. -
The 9th and 10th define individual rights? You sure about that?
Joe: The 9th says "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people". I don't see a collective right there.
Now the 10th amendment does reserve power to the States or the people but do you believe that the authors would give people the right to defend themselves in the 2nd amendment and then modify it the 10th?
As to the insurrectionist position being "collectionist", I disagree. I have the indiviual "CHOICE" to join or stay on the sidelines. Tell me, is freedom of religion a "collective" choice. May a state or DC pass a law outlawing Islam or any other religion? -
SOFL Hockey Fan,
I hope some day my fellow Baptists and I will be able to practice snake handling and poison drinking freely.
As for certain of my Mormon brothers and sisters, I am sure that if they stopped going to the government for multiple State sanctioned marriages their problems would be lessened. -
SOFL,
Individuals have the choice to own or not to own under the 2nd, I agree. It does protect an individual right, but it protects a collective right as well.
While the "government-cowing" element of the 2nd Amendment ultimately operates via individuals making unique choices for themselves, the effect - unlike the hunting/personal defense/sporting elements - relies upon there being a collective, a militia, a body of armed people sufficient to alter how the government might operate. The vision of how gun ownership protects rights and keeps the government in line wasn't "John can take his gun and hold off the police by himself, or go shoot a corrupt officer," but there being enough armed people in a community, and in the public at large, to throw a real wrench into oppressive government schemes. -
SOFL,
I'll add, you don't see language in the first like "the existence of congregations being necessary for the morals of a free state" before the freedom of religion language. The fact that the framers put in such language when discussing the RTKBA, and not for any of the other rights, means something.
I don't think it means that there is ONLY a collective right, but it means something. -
Or, if you actually have any thoughts rather than semantics
joe, I know that it's Friday, you're hung over, you have no girlfriend to beat, and you are just itching to get into your favorite pastime of endless pointless cyclical argument.
But I'm not. I was willing to (relatively) politely discuss this issue with you, but your colossal assholishness is just too much for me to overcome today.
Go find TallDave and have a sweaty circle-jerk with him, he seems to like it just as much as you. -
SOFL Hockey Fan,
I will gladly add that if the homosexual community, welcome in First Baptist Church of Montag, especially the lipstick lesbians, would stop trying to get State sanctioned "marriages" they would have fewer problems too.
They can be married at FBCM of course and we will provide a free guide on how to find a lawyer to make a will, so that the government or the wrong relatioves do not get their stuff, forming Trusts and all sorts of other useful things that so many people have been brainwashed into thinking the government is supposed to do.
Donations are NOT tax deductable because we refuse government permission to run a Church. -
Waah waah waah.
About what I expected, Episiarch. I was discussing the issue, and you decided it would be more interesting to play your word games. -
Joe, do you have to disagree with somebody on every thread? It's a minor issue that y'all are pretending is important. What direction the political spectrum has moved is a matter of perspective.
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I just didn't want to get dragged into another parsing contest. Sorry if I read that more harshly than it was intended.
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you guys are pulling my leg about the gay marriage thing right? that would essentially make all democrats libertarians.
ok, now that i typed that, i realize you were definitely pulling my leg. so, that still leaves the question open: why did they call GR a libertarian? -
sebs, I think he used to kind of be a Libertarian.
He's one of the "9/11 changed EVERYTHING" crowd, though and has given up on civil liberties now. He's more or less a Rudy Giuliani-type, whatever you'd call that. Pro-gun (I know this wasn't one of Giuliani's issues), socially tolerant, and in favor of vast and expansive powers for the military and law enforcement. -
thanks for the clarification, someone.
i wish Reason of all publications would not label him a libertarian. it's really dissonant! -
Please define "the gun rights position," Episiarch. Exactly.
"The individual right to keep and bear arms shall not be infringed -- all gun control laws shall be struck down" would be the extremist POV advocated by the Second Amendment.
Now, what was the "middle" ground again? And is it the same for everyone, or is it a shifting compromise of invalidating some but not all of the Second Amendment? -
I get a good impression of someone, you really need to read over a somewhat long period of time, and not just links when opponents get exercised over individual items.
Also, there are not enough conscious libertarians around to start worrying about the un-pure.
I am not going to try to prove that Reynolds is just as libertarian as any, but he has at least a streak of libertarianism; which is more than you can say for most. -
you guys are pulling my leg about the gay marriage thing right? that would essentially make all democrats libertarians.
If all democrats were for Gay marriage than maybe one of their national candidates would be for it too. I expect most ethnic/racial minority and lower education/earnings democrats oppose it.
Glen Reynolds may not be "a libertarian" but he is most certainly "libertarian". -
dang, replace "I get a good" with "To get a good"
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siv and anomdebus, i certainly hear what you are saying, but isn't there some sort of rock bottom line at which you just can't be a libertarian? being a major defender of bush's civil liberties policies is in my mind the essence of anti-libertarianism.
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You would first need to prove that he is in fact "a major defender of bush's civil liberties policies", which would require a comprehensive study of his posts.
I am sure you could find some links that expressed opinions (for example) that under the common reading of law, the Bush administration was supported. However, that is different from him saying that is the way he would like it to be, or he thinks should be.
In that process, you might also be ignoring other pieces where he is critical of the Bush administration.
I am not a Reynolds scholar and do not have any interest in cataloging his positions or defending him on particulars, but I have read his site for a while and think he gets a bum rap some times.
One thing I think I can say, something that may be misunderstood, is that he links to all sorts of stuff many times with little or no comment. I am pretty certain that he does endorse every single one of those links, though some people think he does. He does in fact link to people who disagree with him, not necessarily just to put them down. -
I am not happy with this decision at all. I think the crowing in the article over Scalia's error-plagued opinion, combined with the "Rome wasn't built in a day" attitude is quite disturbing.
My take on it is here:
http://fyngyrz.wordpress.com/2008/06/27/2nd_amendment/
This was not a victory. This was an accidental "lean" in the proper direction for the WRONG REASONS. -
I moved my blog; the new location of the linked article is here:
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Benb -- interesting take on the Second in your linked article.
Assume the Supreme Court ruled the way you outlined they should. That sets off a race for someone to legally build nukes and weaponized anthrax before the relatively slow process of ratifying the Amendment you propose.
OK with someone getting their nuke built and detonating it before ratification occurs?
OK with members of Al-Qaeda legally building nukes in every major city, and setting each one off as soon as it's completed, while the ratification drags on? -
Your theory is entertaining, but also ridiculous.
You'll note that US constitutional law ends at US borders (as well as where congress begins to make law.)
You'll also note that no one has built a nuke outside our borders and brought it here. In 60 years of opportunity, during most of which we wouldn't have even had a clue if someone had done so until it actually went off. It's just not that easy to build such a weapon. Materials are a problem, design is a problem, assembly is a problem, transport is a problem.
Furthermore, the whole point of that construction of the amendment was that no sane person would object to it; passage would be a doddle. It is the right way to go. It is the ONLY right way to go.
But let me address your thesis directly: Yes, I am OK with those possibilities.
If we give up liberty through fear, we've given up the thing in life that is most worth having. If we allow the government to do anything it wants, regardless of its constituting authority, we have bought ourselves a dictatorship. It may be benign - today - in that it doesn't do a lot to annoy you personally, but tomorrow it may be run by a different set of people, people who, by your own choice, you have decided can do anything they like, because you made the constitution moot. They may do some things you object to, but you'll have no grounds -- it was you who said they didn't need to be bound by the constitution.
I can't line up with your position. -
I was looking forward to a reasoned analysis and instead got what amounted to a libertarian circle-jerk. As someone who considers himself libertarian-leaning, I have long been ambivalent to the notion that the 2nd Amendment allows an individual right to own guns where the terms "people" (as opposed to person) "militia" and "well-regulated" appear in its text. No amount of asserting otherwise changes these facts, be it by libertarians or Scalia. To do so is just Lochnerizing by other means.
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So, you call this thing "reason", and instead of "reasoning" you get "propaganda".
I guess it's a bit like that tiny difference between "news" and "opinion".
Well, I guess instead of talking to people with another opinion and discussing said, most likely, differing opinion, it is easier to flock together with people who think alike and to pat each other on the shoulder for having the "correct" opinion.
Makes people feel better.
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Thank you
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thnx u man
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Thanks
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Thanks
