A fresh look at the Heller decision.

[Hoopla Phil]

There is much litigation working its way through our court system right now based on the Heller decision. Some of it seems to interpret the decision very broadly while others seem to ignore the findings of Heller all together. Without a doubt SCOTUS will be hearing many cases over the next few years based on Heller. I thought I'd take a moment to post a few excerpts from Heller as a refresher on what SCOTUS said:



We start therefore with a strong presumption that the
Second Amendment right is exercised individually and
belongs to all Americans.

Some have made the argument, bordering on the frivolous,
that only those arms in existence in the 18th century
are protected by the Second Amendment. We do not interpret
constitutional rights that way. Just as the First
Amendment protects modern forms of communications,
e.g., Reno v. American Civil Liberties Union, 521 U. S. 844,
849 (1997), and the Fourth Amendment applies to modern
forms of search, e.g., Kyllo v. United States, 533 U. S. 27,
35–36 (2001), the Second Amendment extends, prima
facie, to all instruments that constitute bearable arms,
even those that were not in existence at the time of the
founding.

We think
that Miller’s “ordinary military equipment” language must
be read in tandem with what comes after: “rdinarily
when called for service men were
expected to appear bearing arms supplied by themselves
and of the kind in common use at the time.”

Thus, the most natural reading
of “keep Arms” in the Second Amendment is to “have
weapons.”

“Keep arms” was
simply a common way of referring to possessing arms, for
militiamen and everyone else.

Putting all of
these textual elements together, we find that they guarantee
the individual right to possess and carry weapons in
case of confrontation.

There seems to us no doubt, on the basis of both text
and history, that the Second Amendment conferred an
individual right to keep and bear arms.

Unlike armies and navies, which Congress is given the
power to create (“to raise . . . Armies”; “to provide . . . a
Navy,” Art. I, §8, cls. 12–13), the militia is assumed by
Article I already to be in existence. Congress is given the
power to “provide for calling forth the militia,” §8, cl. 15;
and the power not to create, but to “organiz” it—and not
to organize “a” militia, which is what one would expect if
the militia were to be a federal creation, but to organize
“the” militia, connoting a body already in existence, ibid.,
cl. 16. This is fully consistent with the ordinary definition
of the militia as all able-bodied men

Finally, the adjective “well-regulated” implies nothing
more than the imposition of proper discipline and training.

It is particularly wrongheaded to read Miller for more
than what it said, because the case did not even purport to
be a thorough examination of the Second Amendment.
JUSTICE STEVENS claims, post, at 42, that the opinion
reached its conclusion “fter reviewing many of the same
sources that are discussed at greater length by the Court
today.” Not many, which was not entirely the Court’sfault.
The respondent made no appearance in the case,
neither filing a brief nor appearing at oral argument; the
Court heard from no one but the Government (reason
enough, one would think, not to make that case the beginning
and the end of this Court’s consideration of the Second
Amendment).

It may be objected that if weapons that are most useful
in military service—M-16 rifles and the like—may be
banned, then the Second Amendment right is completely
detached from the prefatory clause. But as we have said,
the conception of the militia at the time of the Second
Amendment’s ratification was the body of all citizens
capable of military service, who would bring the sorts of
lawful weapons that they possessed at home to militia
duty. It may well be true today that a militia, to be as
effective as militias in the 18th century, would require
sophisticated arms that are highly unusual in society at
large. Indeed, it may be true that no amount of small
arms could be useful against modern-day bombers and
tanks. But the fact that modern developments have limited
the degree of fit between the prefatory clause and the
protected right cannot change our interpretation of the
right.

Whatever the reason, handguns are the most popu-
lar weapon chosen by Americans for self-defense in the
home, and a complete prohibition of their use is invalid.

the District’s requirement (as
applied to respondent’s handgun) that firearms in the
home be rendered and kept inoperable at all times. This
makes it impossible for citizens to use them for the core
lawful purpose of self-defense and is hence unconstitutional.

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.

The Second Amendment protects an individual right to possess a
firearm unconnected with service in a militia, and to use that arm for
traditionally lawful purposes, such as self-defense within the home.

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.
We affirm the judgment of the Court of Appeals.


Well, that's some of the ones that I "kinda" remembered and some that popped out at me as I was re-skimming Heller. So please consider Heller as you read the current events of 2A litigation winding its way through our court system up to SCOTUS.

[SteveM]

1. To demonstrate the extent and the intent of the D.C. gun ban...

I provide this from Wikipedia:

http://en.wikipedia.org/wiki/District_of_Columbia_v._Heller

On June 26, 2008, the Supreme Court affirmed the Court of Appeals for the D.C. Circuit in Parker v. District of Columbia.<3><4> The Court of Appeals had struck down provisions of the Firearms Control Regulations Act of 1975 as unconstitutional, determined that handguns are "arms" for the purposes of the Second Amendment, found that the District of Columbia's regulations act was an unconstitutional banning, and struck down the portion of the regulations act that requires all firearms including rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock."

--------------

Certainly, the ban on handguns was almost complete (explained elsewhere in the above link). But in D.C., "long guns" were by law rendered practically inoperable. Why is this? Because Washington D.C. did NOT WANT people to use ANY firearms in self-defense. This was the D.C. ban. It is a particularly clinical -- even lurid -- way to render citizens incapable of defending themselves with deadly force, even in their own homes.

The question remains: Why would D.C. seek to render its population incapable of using firearms in self-defense? Answering this question will go to the root of modern gun-prohibition/prohibition.

[billh58]

2. Let's not leave out some other important Heller excerpts:

"Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should 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. (Emphasis added)

- and -

"We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. 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. (Emphasis added)

The SCOTUS in Heller ruled very narrowly on the rights enumerated under 2A, and that was mainly the right to own and carry a handgun in the home. They also recognized that not everyone who is in favor of the strict regulation of who can carry a gun where, is "anti-American," or "anti-civil rights" as some on this forum have claimed. They further recognized that there is indeed a "problem of handgun violence in this country," and left the matter of regulation open to the District (and to other local government entities).

I believe that most American citizens totally agree that 2A assures the rights of eligible citizens to own and "carry" legal firearms in their homes, and to and from certain activities involving the legal use of firearms. The main point of disagreement between reasonable Americans centers around the sentence quoted from Heller above pertaining to limited rights: "From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."

There are opposing and rational 2A interpretations of the "public carry of firearms" issue which were neither addressed nor settled by Heller. For anyone to question another American's constitutional loyalty because of his or her stance on the matter is very "love it or leave it" Republican-think in my estimation.

[DanTex]

3. Along those lines, let's not forget the Stevens dissent.

Heller is just one of many recent 5-4 right-wing decisions that many (most) Democrats find objectionable. Think Bush v Gore, Citizens United, etc.

The Scalia opinion is the majority, this is true. But, as you point out, the idea that people who support strict gun control are "anti-civil rights" is preposterous, particularly since all four non-right-wing justices rejected the idea that 2A has anything to do with self-defense, given the natural reading of the "militia clause".

The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.

http://www.law.cornell.edu/supct/html/07-290.ZD.html

[SteveM]

4. Stevens was wrong on his view of the Second...

"The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia."

No where else in the Constitution's Amendments is "the people" so circumscribed as to deny them of individual rights or to attach caveats; the "militia clause" was a rather latter-day notion, popularized by Laurence Tribe and others, and finds little support in the community of scholars who write or have written on the Second Amendment. Further, the Second's reference to militia reflects only the rightful concern of Congress that it has an interest in the Second; i.e., it is charged with powers regarding militia. Finally, given the passage of the 14th Amendment, we can see Congress' intent in great clarity:

"Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

There was once a lot of doubt about whether or not ANY of the Constitution's enumeration of American citizen rights could be applied to the states. That has been settled by the Fourteenth.

[PavePusher]

5. Except that Stevens had to invent a bunch of stuff out of whole cloth....

yeah, sure, whatever....

[AtheistCrusader]

6. Heller was only the first shot. Heller didn't incorporate, for instance.