Thoughts on District of Columbia v. Heller

June 30th, 2008 at 08:50pm Mitch Mulhall 171

Last Thursday, the United States Supreme Court (USCS) decided the thirty-two year old, Washington D.C. gun ban is unconstitutional.

Take two things from this decision:

1. The 2nd Amendment is not inextricably linked to the concept of "militia."
2. The right extended by the 2nd Amendment is—like speech—not unlimited or unqualified.

The USSC rejected D.C.’s legislative attempt to impose a total ban on guns. The ban failed the Court’s Constitutional metric. Read more into this at your own peril.

Justice Scalia wrote the decision, and Justices Stevens and Breyer wrote dissents. Justice Scalia pens over 50 pages positing what he thinks the Constitution's framers were thinking when they wrote the 2nd Amendment. It’s an interesting read, one I’m not done digesting. The upshot? Scalia asserts that service in a militia is a result of the fact that Antifederalists feared a Federal Government would disarm the people, thereby neutralizing citizen militias and subjecting them, through military force if necessary, to the mandates of Government. While this comports with my study of history, I find Scalia’s rhetoric at times inflammatory. For example, he concludes the majority’s decision thus:

[T]he 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.
~Decision, p. 67

Stevens and Breyer object to the majority in two key ways. First, the 2nd Amendment’s mention of militia does link the right to bear arms to militia service. Second, the District of Columbia’s gun ban is consistent with the 2nd Amendment, even if the Amendment is interpreted as protecting individual self-defense. Justice Stevens addresses the first part, Justice Breyer the second.

In comment #19 of this post (May 6, 2007), I wrote that the concept of self-protection extended by the 2nd Amendment has roots in the Assize of Arms (c. 1181). There, I outline the different wordings of the 2nd Amendment considered by the framers, and I summarize some of the undesirable effects of Government-controlled military—as epitomized by the House of Stewart (c. 1642-1649)—effects likely fresh on the framers’ minds, effects they likely hoped to avoid. In my comment, I cite Sir William Blackstone’s Commentaries on the Laws of England. I think it worth noting that Scalia cites Blackstone throughout the majority decision, much to Stevens’ chagrin:

The Court’s reliance on Blackstone’s Commentaries on the Laws of England is unpersuasive for the same reason as its reliance on the English Bill of Rights. Blackstone’s invocation of “‘the natural right of resistance and self-preservation,’” ante, at 20, and “‘the right of having and using arms for self-preservation and defence’” ibid., referred specifically to Article VII in the English Bill of Rights. The excerpt from Blackstone offered by the Court, therefore, is, like Article VII itself, of limited use in interpreting the very differently worded, and differently historically situated, Second Amendment.
What is important about Blackstone is the instruction he provided on reading the sort of text before us today. Blackstone described an interpretive approach that gave far more weight to preambles than the Court allows.
~Stevens’ Dissent, p. 30

Further observations from my reading:

1. Individuals have a constitutional right to possess basic firearms. This definition is not specific, but machine guns are mentioned as a likely exception. Semiautomatic weapons are referenced as a class of weapons subject to existing bans, to make the dissenting point that the Court failed to show a more effective way to stem gun violence than the DC handgun ban.
2. Government can prohibit possession by felons and the mentally ill.
3. Government can regulate firearm sales, presumably through background checks.

A further point I made those many months ago: “I submit the day those who choose to fight can avail themselves of the weaponry necessary to win has passed us by.” If you feel compelled to arm yourself against the force of Governmental tyranny, make yourself a pea shooter and spend the money saved on your garden-variety .45 semiautomatic buying gasoline.

Cheers,

Entry Filed under: Politics, Glenwood Springs, Aspen

9 Comments Add your own

1. reckless G | July 2nd, 2008 at 6:56 am

Mitch,

I was hoping someone would put up a post on this ruling, as I think it’s an interesting subject for discussion.

The fact that liberals fiercely guard and defend the First Amendment, but question the wording and validity of the Second is absurd. Both are about the “security of a free state.” That to me is the key phrase in the Second Amendment, which does not connote foreign invasion or physical enslavement, but as you note; government tyranny. The entire Bill of Rights is about political freedom.

Wikipedia defines political freedom as “the absence of interference with the sovereignty of an individual by the use of coercion or aggression. The members of a free society would have full dominion over their public and private lives. The opposite of a free society would be a totalitarian state, which highly restricts political freedom in order to regulate almost every aspect of behavior.”

So a free state is one in which the government doesn’t infringe on personal rights, which are outlined for us in the Bill of Rights. The right to keep and bear arms, while essential to a “well regulated militia” is also essential to personal security and freedom and to the security of a free state. In the event of a totalitarian takeover by our own government, well armed citizens would be a free state’s only means of security.

Why do you think the US military spent so much time and energy taking away the guns of the Iraqi citizenry? To prevent terrorism? No. To prevent them from resisting the totalitarian takeover by the U.S. If you want to control a nation, you must first disarm the citizens.

Which is why the Supreme Court ruling somewhat takes me by surprise. I’ve been harboring the notion that the neocons are bent on establishing a totalitarian regime in America. This ruling contradicts that notion, leading me to breath a sigh of relief. It also reaffirms the fact that I am definitely a conservative.

As for the suggestion that in the event of government tyranny, “the day those who choose to fight can avail themselves of the weaponry necessary to win has passed us by,” and that those who “feel compelled to arm yourself against the force of Governmental tyranny, make yourself a pea shooter and spend the money saved on your garden-variety .45 semiautomatic buying gasoline,” I can only shake my head in sadness. That defeatist attitude is contradictory to my impression of you as a proud American.

So maybe we can’t win against the force of government tyranny, but at least we can give the defense of our freedom an honest effort. To give up our guns is to give up our freedom. I would rather die fighting for my country than roll over and let them take it without a fight. To that end I keep a loaded .38 in the drawer of my desk so that if someday “they” break down my door and try to take away my freedom, I’ll be able to get off a few good shots before they kill me. It’s the least I can do for America.
2. Mitch Mulhall | July 2nd, 2008 at 12:02 pm

Note to self: never enter Sue's office unannounced...

Cheers,
3. B Jon Traylor | July 3rd, 2008 at 10:26 am

"So maybe we can’t win against the force of government tyranny, but at least we can give the defense of our freedom an honest effort. To give up our guns is to give up our freedom. I would rather die fighting for my country than roll over and let them take it without a fight. To that end I keep a loaded .38 in the drawer of my desk so that if someday “they” break down my door and try to take away my freedom, I’ll be able to get off a few good shots before they kill me. It’s the least I can do for America. " -- (very nice quote Sue!)
--- You go Sue!!! Whoop!!! (its an Aggie term of endearment) And hey, I'll start storing up the 55 gallon drums of "WhoopAss". Helluva fight it will be! We'd be kickin' ass and takin' names!! A"nd Sue Gray leads the charge!!! I'll ignite the charges!! Hah.
Seriously though, this a great post Mitch, and good comments Sue.
I don't hide the fact that I have a small arsenal of firearms. Most all are for bird or deer or duck or elk hunting. A few are, well... shall we say.... for fun or sport, not hunting. But they are damn'd fun to shoot.
I'm with you Sue, cuz they'll have to pry my guns from my cold dead heads with a crowbar to ever take 'em.
And, well, it just ain't happening, ever. Too many rednecks in this country, and even the pretty boys will take a stand when that day comes.
Remember that bumper sticker back in 2000? -- "Outdoorsmen for Bush" ??? Sheesh, thats kinda funny now looking back. As an outdoorsman environmentalist who loves and respects this land, I can't help but be sickened at Bush's policies or lack thereof in regards to our public lands and environmentalism.
I best stop now before I gets back up my soapbox with my Abe Lincoln red, white and blue tophat! Hah!
Stay cool. I'll be back in school soon. Happy 4th! I'llabeee campin' and fishin' with my daughter. I'm thinkin' some magnum grande pecados will set me off a bit! -- J
4. Mitch Mulhall | July 3rd, 2008 at 10:28 pm

[I think it’s an interesting subject for discussion.]

OK.

Interesting, like not being able to look away from a car wreck, or just icky, like when a subject makes a dead poet want to hurl?

Cheers,
5. piepowder444 | July 4th, 2008 at 7:48 pm

Ever been to a gun show lately? Ain't a snowballs chance in hell that the ones who own guns will ever give them up. Including me. My voting power might be smaller then a speck of a dust mite's crap but my fire power will give me at least a tiny bit of say so when it comes to that.
6. Mitch Mulhall | July 4th, 2008 at 9:45 pm

piepowder444,

Welcome to AspenPost.

I agree with your Hestonian sentiment. Still, I find that the need to turn to firearms occurs when you've feel you've lost an argument too important to lose.

Cheers,
7. reckless G | July 5th, 2008 at 6:04 pm

Mitch,
Well that video would make anyone hurl. God the 80's sucked!!!

I guess by interesting I mean in how we interpret our constitution, and the means by which we hold ourselves accountable to those interpretations. So many ways to view the world.

Regarding Michael's assertion that I am taking liberals to task, I just want to clarify that I also think conservative's whining over giving Guantanamo detainees legal rights is also absurd. Civil rights are inalienable, pertain to all humans, not just American citizens, and regardless of the person's origin of birth, if they are being detained by the U.S., then our legal system should uphold their rights.

The measure of a man is not in how people treat him, but in how he treats others. This pertains to nations as well...in my opinion.
8. THX1138 | July 13th, 2008 at 9:06 pm

Reckless G,

Take no prisoners! These detainees have it easy. Like most current subjects of this war on terror, it depends on which side of the story you listen to and what is not being told.
9. THX1138 | July 13th, 2008 at 9:10 pm

Oh, dont forget to pickup at minimal a small game liscense to harbor a firearm on federal land, or you will be given a ticket. Same rule does not hold true for the firing range...?
Too many if's.