[As a preface, the headnotes are very useful here in summarizing the opinion. This entry was inspired by me happening to read over the opinion again. A recent article on the case was not the reason involved.]
A re-examination of D.C. v. Heller, the Second Amendment case from last June, suggests the majority ultimately has the better argument. It surely was not Justice Stevens' finest hour, providing a fine example of self-assured slanted jurisprudence in spades. The strongest part of the opinion is its argument that the core of the Second Amendment was to protect state militia, particularly from fears that the federal government will disarm them pursuant to Article I, sec. 8. And, the collective rights argument has some merit and arguably can be defended. But, saying "there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution" (not only via the Second Amendment) is overkill. Or, that "no one" has argued that the political process has not adequately handled the gun control issue. Or, that history etc. has provided us a "clear answer" to the question. Oh come on.
Early reference should be made to a blatant deficiency of all the opinions. Except to the degree they broadly spoke about "the people," the opinions did not discuss the Second Amendment's particular reach in federal enclaves and territories in general. The dissents did not reference the incorporation issue; the majority only briefly did so to note it is still open. Stevens did emphasize state concern that the feds would disarm their militia, but made no reference to arguments (even though the dissent below relied on it) that federal territories or the nation's capital (see Art. I, sec. 17, giving plenary control to Congress) was different in some fashion. Finally, no mention was made to Dred Scott v. Sandford, which referenced an individual right to "keep" arms in the territories. Ironically, if equally applied, an interpretation that could be used by the radical anti-slavery side as well. See, e.g., Akhil Amar's book on the Bill of Rights.
[The majority does note that "free state" is general in scope, not concerned with individual "states" in particular. But, more needed to be said, especially is such a novel case and in reply to the dissent from below.]
Stevens argues that the amendment is "distinctly military in meaning." The majority's linguistics analysis does not really compel one in the other direction, even if it thinks so. All the same, "military" can imply "armed forces" when what is clearly involved is an alternative, a "militia" that serves when necessary, but consists of citizens who usually go about their ordinary business doing something else. Overall, you need more than the mere words to determine what is at stake, including arguing that it is more than service in the militia itself. It is "entirely sensible" to take the majority's more expressive view, though relying merely on the Second Amendment to add hunting and self-defense is ill-advised. Better and probably more accurate to share the load, the militia and the common law right of self-defense often applied on two different tracks.
The majority was myopic here. The very question being examined was if the Second Amendment covered non-militia possession and use of firearms. The Court answered in the affirmative, noting that such use in various ways furthered the interest of the militia as well. This seems almost to be a "penumbra" approach, akin to not letting the warrant provisions of the Fourth Amendment reduce the scope of the "right of the people to be secure" in the relevant areas. The dissent took the other side, holding only the militia was at stake here. But, "service in a militia" includes people not in active service, in effect, the people are always in some sense "serving" this role. They are in those cases a resource, gun ownership keeping them prepared and ready to serve if necessary. As with a general "liberty" interest of self-defense, one that traditionally included weapons, this broad approach should have at least been used in the alternative.
The majority notes: "the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right — unlike some other English rights — was codified in a written Constitution." This was the immediate purpose of the amendment and the core reason the prefatory clause was added, but "undoubtedly [they] thought it even more important for self-defense and hunting." If so, the opinion does not really prove so in respect to what the Second Amendment secures. Scalia also for some reason feels it necessary to argue that drafting history is not really a good tool when dealing with such pre-existing rights. Does this mean drafting history and the like (what Madison etc. talked about when writing the thing) is not important for purposes of free speech and religious freedom, also pre-existing natural rights? Really? This path is simply not necessary or even advisable for where the majority wants to go. [As compared, perhaps, to Scalia interpretative preferences.]
The dissent with disdain rejected much of the evidence used by the majority. A blatant example is the dismissing, in a few paragraphs, the relevance of the English Bill of Rights of 1688. "The English Bill of Rights responded to abuses by the Stuart monarchs" implies that it as a whole was not really relevant to our constitutional history, across the board, but in fact multiple rights found there are also found in our own Bill of Rights (e.g., ban on cruel and unusual punishments). Yes, as referenced by William Blackstone, it was limited by parliamentary supremacy. It also favored Protestants (the official religion) and certain classes. But, the fact that we have judicial review and rights of "the people" as a whole does not mean the English precedents should just be swept away as irrelevant. We tweaked them in various cases, see the First Amendment; they still are clearly very relevant overall.
[Other important provisions of the English Bill of Right to our constitutional tradition even if directly applied without some change include: judicial independence, concern for taxation without legitimate legislative action, right to petition, legislative freedom of speech, and rules respecting due process of law.]
The dissent also did not think much of postenactment commentary, "views are not altogether clear, they tended to collapse the Second Amendment with Article VII of the English Bill of Rights, and they appear to have been unfamiliar with the drafting history of the Second Amendment." The majority does not solely rely on postenactment commentary; it uses it as one of many ways to determine the amendment's meaning (cf. U.S. v. Miller, relying on part on "writings of approved commentators"). So, the fact it is not "altogether clear" -- what is? -- is largely besides the point. Maybe, just maybe, "they tended to" do something many of the time believed was quite relevant. This includes Joseph Story, no matter how the dissent spins his reference. IOW, they were more familiar with the drafting history, or what was at least partially involved (which is all that really is necessary at the end of the day) in its inspiration.
Antebellum state cases were split and sometimes focused on state provisions not directly on point, so are a mixed bag. More so than the majority implies, but this stacking the deck is fairly normal as opinion writing goes. Stevens also does not think much of post-Civil war commentary. To wit: "All of the statements the Court cites were made long after the framing of the Amendment and cannot possibly supply any insight into the intent of the Framers; and all were made during pitched political debates, so that they are better characterized as advocacy than good-faith attempts at constitutional interpretation." Does this apply to interpretation of the Fourteenth Amendment and/or developing constitutional principles in general? Some of the sources also were constitutional commentaries not so easily dismissed as biased. Also, the majority emphasized the sources were just one more resource, useful in part since the framing was still fresh in mind while the people grew to adulthood. Historical arguments only take us so far, but each side use them, so the dissent dismisses them at its peril as well.
Stevens also quotes a 1876 ruling, though the quote does not really help him any:
The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution.* Neither is it in any manner dependent on that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government.
As the majority notes, this underlines that "the right" referenced is not what was claimed by the indictment at issue in the case (as Stevens argues), but the Constitution itself. Using then understood constitutional principles, the Court held that the right (ditto the First, as noted by Scalia in a footnote, clearly implying the Second also should be incorporated against the states) was not guarded against from private or state invasion, even pursuant the Fourteen Amendment. The ruling in question was problematic in part because both the framers of the amendment and common sense held that an important national "privilege and immunity" was weapons for self-defense, and federal law securing such rights (including against unwilling or unable local officials) were constitutional. Scalia references post-war sentiment of this sort somewhat, but the Second Amendment focus makes it overall minor in importance.
[It is also not noted by either side, for their own reasons, that there was some development in the understanding of the Second Amendment. This developing view is generally copacetic to liberal leaning sorts, but is only selectively -- such as those who argue developments made a "well-regulated militia" made up of the people at large unworkable in practice -- by many collective rights proponents. As applied here, see Akhil Amar, an amendment originally often seen as federalist in scope -- state checks on federal power -- became more individualist in nature after the former sentiment led to the Civil War and such. Again, this leads the Stevens' dissent to have a "so what" nature comparable to those who cite early history to justify pro-Christian readings of the First Amendment. A one size fits all originalist approach again does not work as well as a more nuanced one might.]
Stevens also thinks U.S. v. Miller compels his view, but again is not helped as much as he thinks:
The key to that decision did not, as the Court belatedly suggests, ante, at 49–51, turn on the difference between muskets and sawed-off shotguns; it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns. Indeed, if the Second Amendment were not limited in its coverage to military uses of weapons, why should the Court in Miller have suggested that some weapons but not others were eligible for Second Amendment protection? If use for self-defense were the relevant standard, why did the Court not inquire into the suitability of a particular weapon for self-defense purposes?
To the degree we are talking about the Second Amendment itself, reliance on the function of the arms in question as compared to the nature of the arms themselves, makes sense. Surely, as a loyal interpretation of the one direct interpretation of the amendment by the Supreme Court before last June. If nothing else, Scalia clearly tweaked the earlier ruling to the degree it implied that the right to keep and bear arms relied on militia use alone. The majority here argued that more was involved; advancement of the militia was in effect one of many functions of an armed populace. But, the net value for the dissent is unclear. As compared to an unregistered sawed-off shotgun, a handgun and other "arms" the average person would wish to purchase are clearly "militia" weapons.
[Anyway, a brief ruling from 1939 in which only one side showed up is really of limited value. Noting Marbury v. Madison also had only one side show up is silly, not only because it is not such a trifle but Chief Justice Marshall simply has more cachet than Justice McReynolds! This was just one of too many "oh come on" moments in the primary dissent.]
As to Stevens' annoyance that the majority overruled the understanding of hundreds of appellate judges that followed Miller, nearly all of the cases dealt with felons and the like. The one other federal appeals case involving a handguns ban, which split 2-1, was not even referenced (Breyer mentions the underlining law). Likewise, the Ninth Circuit fairly recently closely split on its application to "assault" weapons, while the D.C. and Fifth districts both found an individual rights view, so were not disparaged by the majority here. In fact, the lower ruling here added to a circuit split, which belies the four justices' apparent annoyance that the majority suddenly overruled the understanding of lower court judges up to now. This understanding was clearly much more nuanced and divided than Stevens' "it's so clear" dissent implied.
Justice Breyer's dissent, also joined by all of the dissenters, took probably a more appropriate (if still problematic) tack -- assume for the sake of argument, the majority's individual rights' view, but interpret the law in question in such a way to hold that it was not violated. Constitutional avoidance can justify a holding that there is a self-defense exception to the ban on usable firearms in residences though admittedly it is probably a stretch. All the same, a clarifying tweak of the law could have made it evident that a easy to operate trigger lock mechanism would satisfy things, though having a loaded weapon available (the alternative would be requiring a person to load the weapon when the burglar comes etc.) would still be problematic. And, if Breyer means that there is an exception only when there is some clear threat, well that is dubious. The idea is that there can be a general threat of crime.
This leaves the handgun ban, which the majority noted (per Miller) is a commonly use weapon, reasonably so, and thus protected by the amendment. All the same, it does not eviscerate the amendment's purpose, even taking an individual right's view, to uphold a handgun ban in urban areas. The majority did not ask for strict scrutiny though its reasoning would seem to warrant it. Anyway, given that a handgun ban in urban areas (passed by a local legislature, one with legitimate evidence of high crime etc.) would not deprive the people of the interests the amendment was said to secure. Other weapons could be used for self-defense, including against tyranny. Hunting would not be done at home; anyway, use of even handguns for hunting or target practice in other areas could still be open. And, the state could still call up average people to serve as an armed force (imagine if locals were prepared in New Orleans for this function when the flood came).
Breyer takes an "interest-balancing" approach that holds that gun policy disagreements does not make a certain regulation in this area illegitimate. It is telling that he cites "second class" constitutional interests as areas where such a policy (with dissents from various members of the majority ... and dissent in some cases) was upheld -- commercial speech, campaign finance regulations, government employee speech and (general) procedural due process (e.g., enemy combatants). Core rights such as political speech, abortion rights and the like would generally (for him) require stricter scrutiny. But, particularly given some history of strong urban gun regulation, a handgun ban might survive even heightened scrutiny. And, as Breyer notes, given the novel nature of this federal question, one should precede carefully.
Anyway, Scalia/Stevens were each one note in their own way, even though a more nuanced approach could have carried them where they wanted to go. All the same, Scalia does have the more convincing argument, if not quite taking the way I would have. This includes the phrasing of the right as the ability "to possess and carry weapons in case of confrontation,” when a broader liberty probably would better suit things. But, you take what you can, with the limits of the justice in question. Kennedy probably would have done a better job, but so it goes.
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* The majority finds a useful early lower court ruling:
Johnson v. Tompkins, 13 F. Cas. 840, 850, 852 (CC Pa. 1833), Baldwin, sitting as a circuit judge, cited both the Second Amendment and the Pennsylvania analogue for his conclusion that a citizen has “a right to carry arms in defence of his property or person, and to use them, if either were assailed with such force, numbers or violence as made it necessary for the protection or safety of either.”
Not mentioned, the ruling also underlines the pre-existing nature of the right, just as the majority here notes the Constitution (both Art. I, sec. 8 and the Second Amendment) assumes that there is already an existing "militia," not one created by that document:
The constitution of the state or union is not the source of these rights, or the others to which we have referred you, they existed in their plenitude before any constitutions, which do not create but protect and secure them against any violation by the legislatures or courts, in making, expounding or administering laws.