The 2nd Amendment: An Individual Right

The Supreme Court rules 5-4, with Anton Scalia writing the opinion:

Answering a 127-year old constitutional question, the Supreme Court ruled on Thursday that the Second Amendment protects an individual right to have a gun, at least in one's home. The Court, splitting 5-4, struck down a District of Columbia ban on handgun possession.

Justice Antonin Scalia's opinion for the majority stressed that the Court was not casting doubt on long-standing bans on gun possession by felons or the mentally retarded, or laws barring guns from schools or government buildings, or laws putting conditions on gun sales.

Stay tuned all day to this space for reaction and interpretation.

Comments

[Dan]

Great news!

[Guy Montag]

Yeaaaa!!!!!!

Oh, and First Post!

[Guy Montag]

drat!

[Scott]

or laws putting conditions on gun sales

You can own a gun, but we won’t let you buy one.

[Mike]

So is the DC mayor gonna lose his job now?

[Dan]

Also very good news that there wasn’t a 4-1-4 decision, or a mess of concurring opinions, etc. Sounds like a solid 5 member majority opinion.

[Ben]

Pretty sad to see this was as close as 5-4.

[Episiarch]

or laws barring guns from schools or government buildings, or laws putting conditions on gun sales

Sounds like the people who said they would say “individual right but local restrictions, within reason, are OK” were right.

[Nigel Watt]

So is there an absolute right for a competent adult to possess a handgun in one’s home, then? I’d have preferred something broader, but that’s at least nice.

(And does that mean that, as a 19-year-old, I can now get a handgun in Texas?)

[R C Dean]

Pretty sad to see this was as close as 5-4.

Yep. We’re just one Obama appointment away from a reversal.

[Dan]

“In sum, we hold that the District’s ban on handgun
possession in the home violates the Second Amendment,
as does its prohibition against rendering any lawful firearm
in the home operable for the purpose of immediate
self-defense. Assuming that Heller is not disqualified
from the exercise of Second Amendment rights, the District
must permit him to register his handgun and must
issue him a license to carry it in the home.”

[Dan]

“The Constitution leaves the
District of Columbia a variety of tools for combating that
problem, including some measures regulating handguns,
see supra, at 54-55, and n. 26. But the enshrinement of
constitutional rights necessarily takes certain policy
choices off the table. These include the absolute prohibition
of handguns held and used for self-defense in the
home. Undoubtedly some think that the Second Amendment
is outmoded in a society where our standing army is
the pride of our Nation, where well-trained police forces
provide personal security, and where gun violence is a
serious problem. That is perhaps debatable, but what is
not debatable is that it is not the role of this Court to
pronounce the Second Amendment extinct.”

[Guy Montag]

Ruling here, .pdf warning

[Dan]

“We know of no other enumerated constitutional right
whose core protection has been subjected to a freestanding
“interest-balancing” approach. The very enumeration of
the right takes out of the hands of government-even the Third Branch of Government-the power to decide on a
case-by-case basis whether the right is really worth insisting
upon. A constitutional guarantee subject to future
judges’ assessments of its usefulness is no constitutional
guarantee at all.”

[John]

Like most rights, the Second Amendment right is not unlimited.
It is not a right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose: For example, concealed
weapons prohibitions have been upheld under the Amendment
or state analogues. The Court’s opinion should not be taken to cast
doubt on longstanding prohibitions on the possession of firearms by
felons and the mentally ill, or laws forbidding the carrying of firearms
in sensitive places such as schools and government buildings, or
laws imposing conditions and qualifications on the commercial sale of
arms. Miller’s holding that the sorts of weapons protected are those
“in common use at the time” finds support in the historical tradition
of prohibiting the carrying of dangerous and unusual weapons.
Pp. 54-56.
3. The handgun ban and the trigger-lock requirement (as applied to
self-defense) violate the Second Amendment. The District’s total ban
on handgun possession in the home amounts to a prohibition on an
entire class of “arms” that Americans overwhelmingly choose for the
lawful purpose of self-defense. Under any of the standards of scrutiny
the Court has applied to enumerated constitutional rights, this
Cite as: 554 U. S. ____ (2008) 3
Syllabus
prohibition-in the place where the importance of the lawful defense
of self, family, and property is most acute-would fail constitutional
muster. Similarly, the requirement that any lawful firearm in the
home be disassembled or bound by a trigger lock makes it impossible
for citizens to use arms for the core lawful purpose of self-defense and
is hence unconstitutional. Because Heller conceded at oral argument
that the D. C. licensing law is permissible if it is not enforced arbitrarily
and capriciously, the Court assumes that a license will satisfy
his prayer for relief and does not address the licensing requirement.
Assuming he is not disqualified from exercising Second Amendment
rights, the District must permit Heller to register his handgun and
must issue him a license to carry it in the home. Pp. 56-64.

That is t he relevant protion of the sylabus. It looks to me like they can stop you from carrying concealed, carrying into certain areas and keep you from having unusally dangerous firearms, machineguns and the like, and they can make you get a license, but that is it. Not bad really.

[John-David]

Scalia certainly did spill a lot of ink in that decision ripping Stevens a new asshole.

[Guy Montag]

carrying into certain areas and keep you from having unusally dangerous firearms, machineguns and the like

You certainly have a low threshold for “unusually dangerous”.

[Mike M.]

Yep. We’re just one Obama appointment away from a reversal.

Exactly. This court has shown time and time again that precedent doesn’t necessarily mean anything at all. One more international socialist on the court and it’s gone like the wind. Elections most definitely have consequences.

[J]

I have mixed feelings about guns, but I am so happy about this decision. I am surprised that it wasn’t a clearer decision. 5-4 for something so obvious is disturbing (and before you think I am just badmouthing the liberal wing, I also think the conservative wing has been also clearly wrong at times lately).

[John]

“You certainly have a low threshold for “unusually dangerous”.”

Have you ever seen what a fully automatic rifle, not some MP5 pimp gun but a full fledged rifle with full rifle rounds instead of pistol rounds, can do?

[Nigel Watt]

Have you ever seen what a fully automatic rifle, not some MP5 pimp gun but a full fledged rifle with full rifle rounds instead of pistol rounds, can do?

Have you ever seen what a car can do, dude?

[Pro Libertate]

Whoa. I expected this, but it’s still surprising to see it in print. There really was no other conclusion, and they can consistently talk about it being an individual right and mentioning certain permissible limitations. After all, speech, even in Libertopia and certainly in America, has some limits (e.g., perjury).

5-4, huh? The left wing of the Supreme Court can be quite disturbing. This is a fairly limited ruling, it appears, so it should’ve had more support. Depends on what the opinion says as a whole, of course.

[Baylen]

First the first time in my adult life, I am proud of the Supreme Court.

[Thom]

Can’t wait to see what kind of registration fee DC decides to charge for gun permits…

[db]

Doesn’t look good for NFA firearms owners.

[J]

I wonder what the liberal wing has to say about their decision against it.

[Russ 2000]

Is it just me or are there more SCOTUS decisions going 5-4 now than a few years ago?

Roberts specifically mentioned (in an interview with The Atlantic, I think) how he felt is was his duty to try to get more consensus on the court. Seems he’s been an abject failure at that, though I am only going off my gut rather than looking at any statistics (partly because I don’t know where to find them).

[bigbigslacker]

“Have you ever seen what a fully automatic rifle, not some MP5 pimp gun but a full fledged rifle with full rifle rounds instead of pistol rounds, can do?”

I’d brag if I had one too!

[Abdul]

5-4 for something so obvious is disturbing

To give the liberal wing their due, this decision is only obvious if you subscribe to an originalist view of the constitution. There’s plenty of legal schools of thought that don’t care much what the original understanding of the amendment’s language might have been. Also, the vast majority of federal courts to consider the issue prior to this felt the 2nd amendment only guranteed a collective right.

[John]

Hey, I am all for personal ownership of machineguns and even small caliber mortors and howitzers but I will take having a constitutional right to own a handgun. That is a good start.

[J]

Wait, so does this affect whether I can hang a pair of bear arms in my living room?

[SugarFree]

J,

Interior Decorators v. Endangered Species Act is going to have to wait until next term.

[Other Matt]

Scalia certainly did spill a lot of ink in that decision ripping Stevens a new asshole.

No kidding. Rightfully so, but no kidding.

Also, the vast majority of federal courts to consider the issue prior to this felt the 2nd amendment only guranteed a collective right.

And that whole concept of “collective right” was severely trashed, thankfully. Hopefully we’ll never hear that bullshit again.

[David]

At least two bloggers have scholarly articles cited in the decision:

Eugene Volokh:

Volokh, “Necessary to the Security
of a Free State,” 83 Notre Dame L. Rev. 1, 5 (2007)

Volokh, The Commonplace
Second Amendment, 73 N. Y. U. L. Rev. 793, 814-821 (1998).

Volokh, State Constitutional Rights to Keep and Bear Arms, 11 Tex. Rev. L. & Politics 191 (2006).

and

Clayton Cramer:

Cramer & Olson, What Did “Bear Arms” Mean in the Second Amendment?, 6 Georgetown J. L. & Pub. Pol’y (forthcoming Sept.2008),

[Guy Montag]

Have you ever seen what a fully automatic rifle, not some MP5 pimp gun but a full fledged rifle with full rifle rounds instead of pistol rounds, can do?

Yes, I was firing M-60 machine guns from tanks when I was a 17 year old Private in the Army National Guard, as a tank crewman, loader’s position.

Got to fire bigger crew served weapons later.

Any other interesting questions?

[Other Matt]

On Steven’s new asshole:

after its ratification through the
end of the 19th century. Before proceeding, however, we
take issue with JUSTICE STEVENS’ equating of these
sources with postenactment legislative history, a comparison
that betrays a fundamental misunderstanding of a
court’s interpretive task.

Ouch.

[Joe S.]

Odd how conservatives and liberals seem to pick and choose from the libertarian buffet of ideas, but despite that the Supreme Court as a whole seems to be recently showing a philosophical consistency that libertarians can appreciate.

(Words subject to being eaten upon next court decision.)

[John]

I figured you did Guy. But, I don’t know that I want my neighbor to have one.

[db]

I suspect that this will lead to a state-level push requiring registration and licensing (probably prohibitively expensive) of all firearms. The Court appears to have erred badly in not really addressing the registration and licensing issue. Acknowledging that there exists a class of “…weapons not typically posessed by law-abiding citicens for lawful purposes…” creates a gaping hole into which legislatures could conceivably dump any arm posessed by the citizenry in numbers less than some arbitrary threshold.

The upside may be that there exists a sizeable inventory of registered machineguns (at last count approximately 180,000) that, by their lawful registration, by definition fit the “lawful purposes” requirement. This could perhaps lead to a subsequent court decision striking down 922(o) (1986 machinegun ban). However this would require a non FFL to submit an application to manufacture a machinegun, be denied by the ATFE, and then to challenge such denial in court. This would be a project where venue shopping would be key.

[Dan]

Breyer proposes that DC residents TAKE THE METRO (?!?) to VA or MD to shoot their guns.

“And while the District law prevents citizens from training
with handguns within the District, the District consists of only 61.4 square miles of urban area. See Dept. of
Commerce, Bureau of Census, United States: 2000 (pt. 1),
p. 11 (2002) (Table 8). The adjacent States do permit the
use of handguns for target practice, and those States are
only a brief subway ride away. See Md. Crim. Law Code
Ann. ?4-203(b)(4) (Lexis Supp. 2007) (general handgun
restriction does not apply to “the wearing, carrying, or
transporting by a person of a handgun used in connection
with,” inter alia, “a target shoot, formal or informal target
practice, sport shooting event, hunting, [or] a Department
of Natural Resources-sponsored firearms and hunter
safety class”); Va. Code Ann. ?18.2-287.4 (Lexis Supp.
2007) (general restriction on carrying certain loaded pistols
in certain public areas does not apply “to any person
actually engaged in lawful hunting or lawful recreational
shooting activities at an established shooting range or
shooting contest”); Washington Metropolitan Area Transit
Authority, Metrorail System Map, http://www.wmata.com/
metrorail/systemmmap.cfm.
Of course, a subway rider must buy a ticket, and the
ride takes time. It also costs money to store a pistol, say,
at a target range, outside the District. But given the costs
already associated with gun ownership and firearms
training, I cannot say that a subway ticket and a short
subway ride (and storage costs) create more than a minimal
burden.”

[saker]

Odd how conservatives and liberals seem to pick and choose from the libertarian buffet of ideas

Right, the Scalia fans hate the 4th, due process and privacy rights in general yet jerk off on his bald head when he gets one right.

[Colin]

They were one vote away from allowing Obama to confiscate all guns.

One vote.

[Guy Montag]

I am really not sure what the closest shooting range to any METRO stop would be. Maybe one near Springfield Mall?

Before I bag up the shotguns and grab the range bag, I think I will check with the station staff and see if they have any hysterics problems with people carrying firearms and gear openly on the METRO.

Oh, wait, Justice Bryer says the firearms could be stored at the range, so I will ask in that context: “Station master? Is it a big deal if I transport an armload of shotguns one way from Crystal City to Springfield on the Blue line? Yes, a case of shotgun shells too.”

Please, before trying this from the District, see how good it works from gun ‘friendly’ VA.

Yes, I know that opinion was on the losing side. Just an exercise in showing what a loser it is.

[Other Matt]

I figured you did Guy. But, I don’t know that I want my neighbor to have one.

Why, John? Would you rather that they had a gas grill with, say, 25 extra tanks? One could make a hell of a bomb with that.

The problem is that regulation of potential for use is the issue, not actual use. To use the “yelling fire” canard applied to the second amendment (aka the Obama approach), you would have to compare it to actual discharge of the firearm. Actual misuse is not a problem, the constitution doesn’t say “keep, bear, and use indiscriminately.” The real “fire in a crowded theater” comparison would be to apply a muzzle to everyone walking in a theater due to the potential that they might, in fact, yell “fire.”

You not wanting the neighbor to have one is essentially saying you don’t trust yourself, at least in most cases. People project what they might fantasize about doing with a firearm if they had one and got mad. The simple fact is that there are so many firearms around, and shootings are rare if well publicized, so people don’t really do it.

I am really not sure what the closest shooting range to any METRO stop would be. Maybe one near Springfield Mall?

Gilberts Indoor Range near Shady Grove. Gilberts Guns (not related) near Sprinfield are two I know of. Both mucho $.

[Other Matt]

edit: Springfield.

[Pro Libertate]

Abdul,

True, and I don’t think strict construction is necessarily the only way to fly, but the Constitution either serves as a bulwark against government attacks on our civil liberties, or it doesn’t. Interpreting away clauses that are inconvenient is wrong and wrong-headed and a path that will lead ultimately to tyranny. The Constitution can always be amended.

What’s odd is that most serious legal scholarship (as opposed to serious political scholarship) accepts that gun rights are, to varying degrees, individual rights. The whole militia argument was based on a results-oriented view, not an actual interpretation of the Constitution or the legal history around gun rights in the U.S. (Larry Tribe, a noted liberal scholar, is an example that this isn’t, legally speaking, a left-right issue).

By the way, the right wing can suck, too. This reminds me a bit of the CDA decision, though I think that was much more important in its immediate effect than this one. Then again, I’m more of a speech guy than a gun guy. Neither wing works hard to limit government power, anyway, unless there’s some clear incursion on a popular civil liberty.

[Kevin P.]

I was disappointed to read the liberal dissents. Stevens’ dissent adopted the sophisticated collective right argument, but provided not a single clue about when any gun ban would be struck down under such a standard.

And Breyer’s dissent was just as dishonest.

In some ways, this 5-4 split has reinforced my view that Obama should never be allowed to nominate any judges to the Supreme Court.

[jigga what? jigga who?]

THIS IS THE #1 (ONLY?) GOOD THING TO COME OUT OF THE BUSH ADMINISTRATION.

(The all-caps were on purpose.)

[bookworm]

“In some ways, this 5-4 split has reinforced my view that Obama should never be allowed to nominate any judges to the Supreme Court.”

But should McCain be allowed to appoint judges to the Supreme Court if he picks judges who will overthrow Roe vs. Wade? We’re damned on some issues if Obama is elected and damned on other issues if McCain is elected.

[Dan]

You can’t credit the Bush administration with this – they actually opposed the Circuit Court’s ruling.

[Pro Libertate]

Since this was D.C., I suppose that the Court didn’t rule on whether the Second Amendment is “incorporated” into the Fourteenth (i.e., it restricts state governments as well)? Anyone know?

[Guy Montag]

THIS IS THE #1 (ONLY?) GOOD THING TO COME OUT OF THE BUSH ADMINISTRATION.

Dan beat me to the response I wanted to give.

[JB]

A huge, huge, huge reason to vote against Obama. We are one more illiterate liberal judge away from Hitler-like gun confiscation. What part of “shall not be infringed” do they not understand?

As for Breyer, I’d like to see him take the Metro to exercise his First Amendment rights. I wouldn’t mind seeing him muzzled while in DC.

Stock up on guns and ammo while you can; these fascists will try a gun grab at some point in the future so they can shove utopia down your throat.

[Dan]

Pro Libertate,

No they didn’t, as it wasn’t an issue presented. They did reference the issue however, in their discussion of Cruikshank, an 1875 case that said that the Second Amendment only applied to Congress, and not to the States. Most notably in Footnote 23:

“With respect to Cruikshank’s continuing validity on incorporation,
a question not presented by this case, we note that Cruikshank also
said that the First Amendment did not apply against the States and did
not engage in the sort of Fourteenth Amendment inquiry required by
our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252,
265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed
that the Second Amendment applies only to the Federal Government.”

And they did set it up for incoproration by noting that it is a historical fundamental right (such rights are generally incorporated via the 14th Amendment:

“By the time of the founding, the right to have arms had
become fundamental for English subjects. See Malcolm
122-134. Blackstone, whose works, we have said, “constituted
the preeminent authority on English law for the
founding generation,” Alden v. Maine, 527 U. S. 706, 715
(1999), cited the arms provision of the Bill of Rights as one
of the fundamental rights of Englishmen.”

[Michael Ejercito]

But should McCain be allowed to appoint judges to the Supreme Court if he picks judges who will overthrow Roe vs. Wade?

The difference is that there is no constitutional amendment protecting abortion.

[Pro Libertate]

Interesting. Well, for people who are hardcore about gun rights, this is one reason not to vote for Obama. Incorporation would likely lose 5-4 if he gets to appoint more than one justice (assuming Stevens’ replacement would be politically aligned with Stevens).

I’m usually all about poxes on both houses, but I’ve looked at some of the dissenting language, and it is really, really bad. They are pretty much openly saying that they want a certain result, and they’re willing to say anything to get to it. Very intellectually dishonest, and if we’re going to throw out the Constitution, common law, and logic to get results we want, we might as well just skip the constitutional system altogether. People who hate Scalia should read these dissents, which are as bad or worse than some of his convoluted defenses of government excesses that he likes.

I’ll vote for any candidate, even McCain, that promises to appoint Janice Rogers Brown ?

[David]

A third blogger cited in Heller:

Randy Barnett:

Barnett, Was the Right to Keep and
Bear Arms Conditioned on Service in an Organized Militia?, 83 Tex. L. Rev. 237, 261 (2004).

[Pro Libertate]

Yeah, I saw that. If only Scalia and the other conservative justices paid more attention to Volokh and Barnett in their other decisions.

[R C Dean]

Have you ever seen what a fully automatic rifle, not some MP5 pimp gun but a full fledged rifle with full rifle rounds instead of pistol rounds, can do?

Yeah, not much more, really, than what the same rifle can do on semi-automatic fire. Arguably, because semi-auto fire is much easier to control, you can do a lot more damage on semi-auto than full-auto.

I believe current military doctrine is that full-auto is used for suppression. If you’re going for the kill, you should go semi-auto, or use your bolt-action sniper rifle.

And they did set it up for incoproration by noting that it is a historical fundamental right (such rights are generally incorporated via the 14th Amendment

What dicta there is on this issue all runs in favor of incorporation, as I recall.

[Dan]

Was the decision actually 9-0 for individual right to bear arms? This is how Stevens dissent, which was joined by the 4 dissenting justices, begins:

JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE
GINSBURG, and JUSTICE BREYER join, dissenting.

The question presented by this case is not whether the
Second Amendment protects a “collective right” or an
“individual right.” Surely it protects a right that can be
enforced by individuals. But a conclusion that the Second
Amendment protects an individual right

[Dan]

The question presented by this case is not whether the
Second Amendment protects a “collective right” or an
“individual right.” Surely it protects a right that can be
enforced by individuals. But a conclusion that the Second
Amendment protects an individual right does not tell us
anything about the scope of that right.

[zeb]

I feel the need to point out that one Obama nominee will almost certainly not change the way the court would rule on this subject. The current “conservative” wing of the court is fairly young and with it. Stevens seems the most likely to die or retire any time soon. Still is pretty disappointing that there was not a more solid majority on this. But I am rather more concerned about what a McCain nominee might help do to the 1st and 4th amendments. As we can learn from organized criminals, you can still get guns if you really want to, even if they are banned. But a black market in freedom from unreasonable search and seizure seems unlikely to develop. Why does it seem impossible to find a supreme court justice who is not totally wrong on at least one issue?

[Kwix]

I dunno zeb,
Scalia seems to be getting senile, but maybe it’s just me.

[Zeb]

Yeah, Scalia is a lot older than he looks. Of course his decisions are pretty terrible on almost everything else I care about, so whoever the next president it, prospects for the SC don’t look too good. My money is still on Stevens for the next justice to go.

[Mr. X]

I fully expect Heller to be another litmus test for prospective Justices, no matter who the next President is. And as opposed to Roe, saying you wouldn’t uphold Heller is going to be a one-way ticket to filibusterville.

[Chris Franco]

It’s the Constitution, stoopid.

[Dr. Ruger]

Justice Stevens’ dissent is severely flawed and it is scary to think that one more dissenter would have effectively repealed the second amendment. Stevens’ premise is that the 2nd states that the ‘right’ extends to only bone fide miltia members to store the weapons of war within their homes to to engage in armed conflict on behalf of the state/federal government in defense of what those governments dictate. The absurdity of a ‘right not to be infringed’ declared in the Constitution to apply to service in a bone fide military organization is hard to comprehend. Why would the Framers need to guarantee the right of someone in a combat miltia the ‘right’ to be in a combat militia fighting? Does that then mean that you have a right to be in a militia if you so want that cannot be infringed? First let’s ask who was the militia? At the time it was ordinary, able citizens who voluntarily formed defensive units. They provided their own weapons. Yet Stevens equates them to State National Guards under the direction of the governor. Would this then mean that Guardsmen can ‘keep’ their weapons of war at their homes? Would this then include mortars, TOWs, Bradleys & M60-A2’s? Or, if it truly only applies to militias, then folks in the Michigan and other militias should have the right to keep & bear all manner of offensive & defensive weapons including Stingers, Tomahawks & MRVs. If only Guardsmen have the ‘right not to be infringed’ to store war weaponry at their homes and to fight in active combat for their country, what about the NAVY, ARMY, AF & Marines? What would these guardsman be allowed to fight for……perhaps only things that Justice Stevens sanctioned……perhaps a women’s right to choose (abortion on demand)? The militias could shoot abortion protesters. Maybe the ‘rights’ of the enemy combatants to go before a US judge? How about forced school busing? Or better yet, enforce the elimination of ‘hate speech’ and the implementation of the ‘fairness doctrine’. But Stevens does not have to worry about being patently ridiculous, he’s a Supreme Court Justice appointed for life so he can be as dumb as a box of hammers and we can’t do anything about it.