A Hollow Victory?

Assessing the real world impact of D.C. v. Heller

Radley Balko | July 2, 2008

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But that right only extends to gun ownership in the home, and even then, it's subject to all sorts of restrictions and licensure requirements. Just how strict those requirements can be (could D.C. pass a six-month waiting period for handgun purchases?) will need to be resolved by litigation.

Outside of D.C., nothing has changed. The Heller decision won't affect other cities with gun restrictions as severe as those in D.C. So-called "assault weapon bans" still are valid. All Heller did outside the nation's capital was remove the possibility that Congress might one day pass a blanket federal ban on all firearm ownership, which seemed like a remote possibility, anyway.

Pan back a bit and the cause for skepticism grows. The Bill of Rights never was intended to be a list of the only rights we have; in fact, the founders worried that future generations might interpret it that way, which is why they included the Ninth and Tenth amendments.

Rather, the Bill of Rights includes the rights the founders considered most important, those necessary to secure and preserve all of the others.

The right to bear arms appears second on the list. And yet even here, on an issue that's become a central tenet of conservative philosophy, we have a decision written by the Court's most conservative justice that can't even uphold the second addition to the Bill of Rights without a series of caveats, exceptions, and asides. And it's a ruling that, practically speaking, applies that right to only a sliver of the country's 300 million residents.

As the short-lived "federalism revolution" demonstrates, an incrementalist approach to winning back the liberties we've lost over the years isn't likely to be successful. Indeed, the general trajectory of the Court over American history has—with some exceptions—been toward more power for the government at the expense of individual liberty, not the other way around.

Heller was a symbolic victory, and the lawyers who brought the longshot case should be commended. But time will tell if this symbolic victory evolves into a practical one.

For now, we're still a long way from a blanket, real-world right to keep and bear arms.

Radley Balko is a senior editor of reason. A version of this article originally appeared on FoxNews.com.

Comments

Elemenope|7.2.08 @ 12:25PM|#

...because while Scalia loves *his* guns, he is also a Law & Order whore. I'm surprised he didn't just up and spit into two distinct people (like some TOS Star Trek episode) because of this case.

Guy Montag|7.2.08 @ 12:26PM|#

It is certainly a victory for media types of all stripes :)

Marcvs|7.2.08 @ 12:30PM|#

Good article. That pretty much sums up how I felt about the decision when it came out. The fact that this group is supposed to be composed of legal scholars, when, in reality, it's just a a bunch of individuals that project their personal beliefs about how society should work and then couch it in legal language.

That anyone could look at the Commerce Clause and think that it was meant to allow the federal gov't to pass any law that it wants to is offensive to anyone with a modicum of intelligence.

Steve Verdon|7.2.08 @ 12:38PM|#

In short, despite the fact that many liberals wet their pants over Scalia, he is really a big government justice.

Elemenope|7.2.08 @ 12:46PM|#

In short, despite the fact that many liberals wet their pants over Scalia, he is really a big government justice.

So long as that government is also really, really mean. otherwise, he's against it.

jimmy|7.2.08 @ 1:27PM|#

plus, scalia's opinions are notoriously sloppy even when "correct." for someone who is supposed to be such an intellectual and strict constructionist, many of his opinions have huge holes and rely too much on emotional and ad hominem arguments. i would have much rather had thomas or alito or roberts write this one.

|7.2.08 @ 1:37PM|#

...because while Scalia loves *his* guns, he is also a Law & Order whore. I'm surprised he didn't just up and spit into two distinct people (like some TOS Star Trek episode) because of this case.

Isn't that the episode where he sports that cool "Evil Scalia" goatee?

Elemenope|7.2.08 @ 1:45PM|#

Isn't that the episode where he sports that cool "Evil Scalia" goatee?

Either that one or the episode in which an unfortunate transporter accident divides Scalia into an aggressive pro-freedom warrior and a simpering presidential lackey.

tarran|7.2.08 @ 1:52PM|#

Emotional arguments? Scalia????

No! I don't believe it!

"Jack Bauer saved Los Angeles . . . . He saved hundreds of thousands of lives," Judge Scalia reportedly said. "Are you going to convict Jack Bauer?" He then posed a series of questions to his fellow judges: "Say that criminal law is against him? 'You have the right to a jury trial?' Is any jury going to convict Jack Bauer?"

"I don't think so," Scalia reportedly answered himself. "So the question is really whether we believe in these absolutes. And ought we believe in these absolutes.

Dagny T.|7.2.08 @ 2:02PM|#

So long as that government is also really, really mean. otherwise, he's against it.

This made me laugh at work! Laughter at work is dangerous and will "almost surely cause more Americans to be killed."

|7.2.08 @ 2:12PM|#

After all teh other folks made a effort, Balko wrote the most libertarian article on gun control from Reason in the last week. What is it about Balko's peers that make them hopelessly uncritical and optimistic about the government...it is as if they are hoping to soothe libertarians into forgetting that there is a insane leviathan attacking individual freedoms at every turn.

Mungu Ward thinks that government cameras will be used to protect our rights!!, NSA and endless wiretapping is great. Chapman loves forcing us all to buy ignition lock breathylyzers...both think we have won huge victories for gun rights. Nobody cares if we have to get permits and licenses to talk to people on public property or keep a gun in our house.

Balko do your peers at Reason call you a closet Paleo? a redneck? do they think you are paranoid for not liking tasers?

Steve Verdon|7.2.08 @ 2:18PM|#

So long as that government is also really, really mean. otherwise, he's against it.

Point taken.

Steve|7.2.08 @ 2:21PM|#

Isn't that the episode where he sports that cool "Evil Scalia" goatee?

Since i currently wear a goatee, does that mean in some alternate universe there is a "good" Steve running around helping *gags, sputters* people? I shudder to think so.

Regular, non-evilalternateuniv|7.2.08 @ 2:28PM|#

You guys are hella stupid.

|7.2.08 @ 2:32PM|#

Scalia did not squarely address the incorporation question because it was not relevant to the holding of the case (since D.C. is not a state). If he had, it would have been dicta and, therefore, any lower court could simply ignore it at its will. That is way the precedential heirarchy of case law works, for better or worse.

|7.2.08 @ 2:51PM|#

Radley makes several good points in his article, and there have been any number of valid criticisms written of the Heller decision.

HOWEVER

Imperfect as it may be, Heller is the camel's nose under the tent. The NRA has already filed almost a half-dozen lawsuits to strike down similar bans in other cities.

Tank|7.2.08 @ 3:27PM|#

I'm not sure I completely agree with Radley that each passing year of court decisions delivers us more big government. In certain areas, I'm thinking first amendment cases among others, the power of government has been dramatically reduced by the Supreme Court over the years.

|7.2.08 @ 7:42PM|#

I wonder if you protest too much. Yes, it is correct to say that in the Heller ruling the Supreme Court was silent on the incorporation issue, but that doesn't mean it will always be. It confined itself to the fact situation at hand. Will the ban on handguns in Chicago, which unlike the District of Columbia is actually located in a state, fall on the basis of the Heller ruling? It just might because Heller validated the 'individual rights' interpretation of the Second Amendment and held that a total ban on handguns was unconstitutional. Yes, it is disappointing that Justice Scalia didn't go as far in the ruling as he could have, but we should never forget that on June 25 it wasn't at all clear that the court was going to recognize the individual right to bear arms, but thanks to Scalia and four justices on June 26 we could at long last rest secure in the knowledge that the right enjoyed the protection of the courts.

|7.3.08 @ 1:01PM|#

In certain areas, I'm thinking first amendment cases among others, the power of government has been dramatically reduced by the Supreme Court over the years.

I would say that the failure to strike McCain-Feingold from the books means that, even in the 1A arena, SCOTUS has signed off on a dramatic increase in government power.

Billll|7.5.08 @ 8:26PM|#

Did you catch footnote #27 which sets the 2nd as a "specific enumerated right" and thus subjects restrictions to "strict scrutiny"?

That right there sounds like a big win in and of itself.

anonymous|7.6.08 @ 1:08AM|#

The "sensitive areas" thing is pretty obvious: He wants to find an individual right to own a handgun, but he doesn't want to get shot. That means he better not find that the individual right to a handgun extends to spectators in the Supreme Court. He also wants to keep criminals in prison, so your right to carry a gun does not apply when visiting your friend in prison. He wants to protect the President, so your right to a gun does not apply in the White House.

Is there anything surprising about that?

|7.10.08 @ 8:14PM|#

Right now, there are lawsuits contesting handgun bans in Chicago and San Francisco. These can potentially resovle the incorportion issue at the appeals level.

The important part of Heller was to confirm it is an individual right. We have to take our rights back one step at a time, in the same manner they were taken . . .