(Page 3 of 3)
On that last point, the Court says licensing and registration are not necessarily unconstitutional, but it sounds like it would look askance at conditions attached to them.
"Assuming that [plaintiff Dick] Heller is not disqualified from the exercise of Second Amendment rights," the Court says, "the District must permit him to register his handgun and must issue him a license to carry it in the home." (Emphasis added.) It's harder to predict which weapons will end up being covered by the Second Amendment, except that they will include handguns but evidently not machine guns or bazookas.
Finally, the majority opinion does not address the question of whether the Second Amendment, either directly or via the 14th Amendment, applies to the states as well as a federal domain like the District of Columbia. But it's hard to imagine why it wouldn't now that the Court has clearly acknowledged the right to armed self-defense as a fundamental aspect of liberty protected by the Constitution.
Jacob Sullum is a senior editor at reason and a nationally syndicated columnist.
Dave Kopel: Heller is a tremendous victory for human rights and for libertarian ideals. Today’s majority opinion provides everything which the lawyers closely involved in the case, myself included, had hoped for. Of course I would have preferred a decision which went much further in declaring various types of gun control to be unconstitutional. But Rome was not built in a day, and neither is constitutional doctrine.
For most of our nation’s history, the U.S. Supreme Court did nothing to protect the First Amendment; it was not until the 1930s when a majority of the Court took the first steps towards protecting freedom of the press. It would have been preposterous to be disappointed that a Court in, say, 1936, would not declare a ban on flag-burning to be unconstitutional. It took decades for the Supreme Court to build a robust First Amendment doctrine strong enough to protect even the free speech rights of people as loathsome as flag-burners or American Nazis.
Likewise, the Equal Protection clause of the Fourteenth Amendment was, for all practical purposes, judicially nullified from its enactment until the 1930s. When the Court in that decade started taking Equal Protection seriously, the Court began with the easiest cases—such as Missouri’s banning blacks from attending the University of Missouri Law School, while not even having a “separate but equal” law school for them. It was three decades later when, having constructed a solid foundation of Equal Protection cases, the Court took on the most incendiary racial issue of all, and struck down the many state laws which banned inter-racial marriage.
So too with the Second Amendment. From the Early Republic until the present, the Court has issued many opinions which recognize the Second Amendment as an individual right. Yet most of these opinions were in dicta. After the 1939 case of United States v. Miller, the Court stood idle while lower federal courts did the dirty work of nullifying the Second Amendment, by over-reading Miller to claim that only National Guardsmen are protected by the Amendment.
Today, that ugly chapter in the Court’s history is finished. Heller is the first step on what will be long journey. Today, the Court struck down the most freakish and extreme gun control law in the nation; only in D.C. was home self-defense with rifles and shotguns outlawed. Heller can be the beginning of a virtuous circle in which the political branches will strengthen Second Amendment rights (as in the 40 states which now allow all law-abiding, competent adults to obtain concealed handgun carry permits), and the courts will be increasingly willing to declare unconstitutional the ever-rarer laws which seriously infringe the right to keep and bear arms.
As the political center of gravity moves step by step in a pro-rights direction, gun control laws which today might seem (to most judges) to be constitutional will be viewed with increasing skepticism. The progress that the pro-Second Amendment movement has made in the last 15 years has been outstanding. As long as gun owners and other pro-Second Amendment citizens stay politically active, the next 15, 30, and 45 years can produce much more progress, and the role of the judiciary in protecting Second Amendment rights will continue to grow.
Dave Kopel is Research Director at the Independence Institute, in Golden, Colorado. He was one of three lawyers at the counsel table who assisted Alan Gura at the oral argument on March 18. His brief for the International Law Enforcement Educators and Trainers Association was cited four times in the Court's opinions.
Joyce Lee Malcolm: What a great day
for individual rights. The majority of the Supreme Court retrieved
the original intent of the Second Amendment to permit individuals
the right and ability to defend themselves. For thirty years those
convinced that ordinary people can’t be trusted with guns have
dominated the discussion. In order to ban civilian ownership of
weapons, the original meaning of the Second Amendment had to be
reinterpreted, and unfortunately with its awkward language—which
was well-understood at the time—that wasn’t too difficult.
Generations of law students have been taught that the Second
Amendment merely protected the right of states to have a militia, a
right already incorporated into the body of the Constitution. The
nearly complete control over the militia by the federal government
was not altered in any way by the amendment, but no mind. The
linguistic efforts to deny an individual right were quite
inventive—“the people” only in this amendment meant a group, not an
individual, “bear arms” implied an inclusively military context,
that awkward word “keep” was to be erased by linking it with “bear”
in order to make it exclusively military, and so on. And it all
nearly worked. But not quite.
Thanks to the scholarly efforts of many people, the overwhelming evidence for an individual right to keep and have weapons for self-defense was uncovered and published. It was that evidence that the justices relied upon.
My only disappointment with an otherwise great decision was how narrow it was. Four justices ignored the evidence in order to preserve the gun control measures meant to deny individuals the right to be armed. In the process, they were prepared to erase a basic right and uphold the stringent and ineffective D.C. gun ban, a law that went so far as to forbid reassembling a gun in the home in the case of a break-in.
Still, it was a great day for every American, one that will ensure a safer America than any number of gun bans ever could.
Joyce Lee Malcolm is professor of legal history at George Mason University School of law. She is the author To Keep and Bear Arms: The Origins of an Anglo-American Right.