Heller Affirmed

The U.S. Supreme Court today affirmed the lower court’s ruling in District of Columbia v. Heller.

The ruling essentially affirms that “the Second Amendment protects an individual right to possess a firearm for traditionally lawful purposes, such as self-defense within the home.” Scalia’s opinion (joined by Alito, Kennedy, Roberts, and Thomas) clarifies the meaning of the Second Amendment to the Constitution but allows significant latitude for regulation and gun-control. The ruling is largely silent on the issue of incorporation, although it hints that it would likely decide in favor of incorporation should the issue come before the court. Expect a challenge to Chicago’s ban to be formulated within the year.

I’m not an avid follower of the court, and I only occasionally read the opinions in full, so I was struck by Scalia’s often combative tone and his contemptuous dismissal of Stevens’s dissent. I agree that Stevens’s arguments regarding the definition of “to keep and bear arms” are tortured and forced, and I do think that Stevens’s position is wrong–as it pertains to law, philosophy, and history. (I enjoyed Scalia’s destruction of the argument that the idiomatic use of “arms” would control in the latter half of “to keep and bear arms” while the conventional usage would control in the first half. Scalia likened it to saying that a man, “filled and kicked the bucket.”)

All in all, the decision does as much as I thought it might: it affirms a limited individual right to own and use ordinary weapons for legitimate purposes disconnected with formal military service. It opens the door for further rulings clarifying the bounds of the right and–possibly–incorporating it (which I would applaud: the enumerated rights mean little if they are no safeguard against the tyranny of the respective States).

What did bother me was Breyer’s dissent. His argument rests on the idea that the court should rely on an “interest balancing” test in its evaluation of constitutional guarantees. Essentially, Bryer is arguing that if the court or the legislature finds a compelling interest in vacating a portion of the Constitution, it is wholly within their rights to do so. That of course, renders the Constitution meaningless. Scalia’s response to Breyer’s dissent: “A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” If the people find a provision of the Constitution no longer workable, there is a means by which they can correct the Constitution: by amendment. In the absence of amendment, however, it is the legislature’s responsibility–and the court’s obligation–to protect and defend the Constitution as it written.

One final note: I find it, frankly, nearly impossible to imagine the founders agreeing with the dissent. David J. Schenck makes the point clearly on scotusblog.com,

In reading Justice Scalia’s opinion, there is an overwhelming theme that to interpret the Second Amendment as not protecting an individual right would gut the amendment of meaning and defy logic. It is, after all, the Second Amendment, not the two hundredth. This is not an obscure line buried among thousands of pages of text. It is inconceivable that the framers would have given it the priority they did, placing it ahead of so many other critical rights, if they only meant it to apply to militias as the dissenting justices suggest.

The arguments Justice Stevens marshals in his dissent are tortured and seem–at least to me–entirely a-historical. The Stevens dissent strikes me, for that reason, as slightly duplicitous. The Breyer dissent is the more honest argument. Breyer acknowledges that the intent of the founders is largely irrelevant in his analysis, whereas Stevens seems willing to twist history and logic to support his position.

The debate, after all, has never really been about what the founders meant, but rather if we cared what the founders meant. Either the Constitution constrains the government or it does not. Breyer’s position is that it does not. And that’s a position that I find deeply troubling.

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