Shotgun News, September 1, 2008, pp. 24-26
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The Heller Victory
As you no doubt are aware, the U.S. Supreme Court ruled 5-4 that D.C.’s handgun ban is unconstitutional. But there’s a lot that you probably haven’t heard—and it is a reminder that we win battles one slice at a time—and why my last column, about the dangers of President Obama to our gun rights, is still correct.
First of all, the really good news is that while it was a 5-4 decision, the four dissenters agreed with us in one respect: the Second Amendment protects an individual right. As Justice Stevens’ dissent (signed by Justices Breyer, Souter, and Ginsburg) explains in the first paragraph: “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.” Don’t open the champagne bottles quite yet. What individual right does Stevens think the Second Amendment protects? Stevens argues that, “Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia.” Which means what? Stevens does not give us any example of a law that would fail this test.
More amazingly, Stevens argues that the majority opinion was wrong because it overturned existing (and wrong) precedents about the Second Amendment—and this is going to make a lot of work for federal judges—unlike, say, Roe v. Wade (1973), and Lawrence v. Texas (2003)! Stevens’ dissent then quotes former Justice Frankfurter’s warning about the Court intervening in an inherently political matter, such as state legislative districting. And then, Stevens has the nerve to explain why it was okay for the Court to intervene about legislative districting, but not about the right to defend yourself: “While our entry into that thicket was justified because the political process was manifestly unable to solve the problem of unequal districts, no one has suggested that the political process is not working exactly as it should in mediating the debate between the advocates and opponents of gun control.” Uh, Justice Stevens? Why do you think this lawsuit is before the Court? Or is what you mean that the political process, by having disarmed law-abiding adults in D.C., has come to the conclusion that you like?
Justice Breyer’s dissent, also signed by Stevens, Souter, and Ginsburg, agrees with Stevens’ claim that that the Second Amendment does not protect civilian ownership of firearms, but even if it did, “the majority’s view cannot be correct unless it can show that the District’s regulation is unreasonable or inappropriate in Second Amendment terms. This the majority cannot do.“ If Justice Breyer had written, that the majority had not shown that the regulation was “unreasonable or inappropriate” he would be saying that they didn’t prove their case. But saying that they cannot do so shows that Breyer is not being honest. He has decided, regardless of the evidence that might be presented, that a handgun ban in D.C. is reasonable and appropriate. Can you imagine if D.C. passed a law limiting freedom of the press (say, banning pornography) what Breyer’s reaction would be? “Reasonable” and “appropriate” wouldn’t be words in Breyer’s vocabulary.
The dissenters were prepared to go along with D.C.’s handgun ban based on the bogus claims that handguns are especially dangerous, and on the theory that a right can still be heavily regulated without being destroyed. Justice Breyer argued that because it wasn’t clear to him that the gun control law failed to make D.C. safer, that we should trust that the D.C. City Council knew what it is doing. Imagine if the D.C. City Council had decided to prohibit abortion (which unlike the right to keep and bear arms, has no specific Constitutional protection). Do you suppose that Breyer would be so willing to trust D.C.’s government to make the right decision?
At least the various collective rights theories that have been very popular among lawyers and academics for the last several decades are dead. None of the justices were prepared to sign off on that claim—although their argument that the Second Amendment only protects citizens possessing arms for militia purposes turns out to mean only when in military service. Since D.C. hasn’t called up its militia in recent times, and Mr. Heller is beyond militia age, Justice Breyer considered that the Second Amendment was unavailable to protect Mr. Heller’s right to a gun.
Aside from the theoretical positions about what the Second Amendment protects, Justice Stevens’ dissent would leave almost every gun control law untouched, and Justice Breyer’s dissent clearly regards every gun control law as presumptively valid, because he claims that all of them are intended to protect public safety—a compelling governmental interest. Anyone who seriously thinks that every gun control law is passed to protect public safety is clearly too stupid or too dishonest to understand the difference between what legislators say, and what they really mean.
It is always very satisfying for a scholar to see his work cited in a Supreme Court decision. In this case, a paper by Professor Joe Olson and myself about the meaning of the phrase “bear arms” appears in Justice Scalia’s majority decision, on page 15. And while I wasn’t cited extensively, there are many other sections of Scalia’s decision which cite facts or cases that, to my knowledge, my research for the various amicus briefs, first brought forward.
But before we get too proud of how our historical and legal scholarship defeated the forces of gun control and elitism, I think it is worthwhile to remember what really happened here. Most of the five justices that voted with us seem to believe in originalism—that they recognize an obligation to put the original meaning of the Constitution above their personal preferences about what the law should be. Justice Thomas’s opinions—and more often his dissents—show that he understands that originalism matters, and does his best to follow it. This is true even for laws that Justice Thomas agreed were “uncommonly silly,” such as the sodomy law struck down in Lawrence v. Texas (2003). Chief Justice Roberts’ remarks during oral arguments about the modernity and non-constitutional nature of standards of review give me some confidence that he understands the anti-historical nature of much of what passes for judicial reasoning these last few decades. (Justice Scalia, as much as I admire his intellect, does not seem to be quite as consistent of an originalist as Thomas, as became apparent in the Raich case.)
But Justice Kennedy? He voted with us, and made clear during oral arguments that he was on our side—but the same week as Heller, Justice Kennedy wrote the opinion in Kennedy v. Louisiana (2008), ruling that capital punishment for child rape was “cruel and unusual punishment” using an “evolving standards of decency” approach—a profoundly anti-originalist approach. I’m glad that Kennedy was on our side in Heller. It is pretty clear that he was on our side because he opposes absurdly restrictive gun control—not because he feels any obligation to follow the Constitution’s original meaning. How will Justice Kennedy vote if California’s assault weapon ban comes before the Court? I have considerable confidence that Justices Thomas, Scalia, Roberts, and Alito will look at original meaning, and vote to strike it down. But Justice Kennedy? Who knows? Do you want to flip a coin?
And this is why politics still matters. Imagine if John Kerry had been elected President in 2004. Does anyone seriously think that originalists like Roberts or Alito would have ended up on the Supreme Court? Does anyone seriously think that Heller would have been decided 5-4 in our favor? Reading the confused and sometimes factually erroneous dissents in Heller tells me that President Kerry’s appointments would have helped write a 6-3 decision that found that the Second Amendment protected no right worth having.
Heller isn’t the last word on the meaning of the Second Amendment. It is really the first word. Chief Justice Roberts sets great value on what he calls “judicial modesty”—judges not getting too arrogant in their authority to second-guess legislative bodies, and not exceeding their duties. When in doubt as to the Constitutionality of a law, judges should defer to the people and their elected representatives. I suspect that this is one reason why the majority in Heller did not go far beyond the question that they were supposed to be deciding here: was D.C.’s handgun ban contrary to Second Amendment? Consequently, Justice Scalia’s opinion was careful not to lay down what standard of review (categorical prohibition, strict scrutiny, heightened scrutiny, rational basis) should be used—pointing out that D.C.’s law would fail the test under any standard of review, because this is an enumerated constitutional right. But that also means that there is still considerable uncertainty as to how the Second Amendment should be applied to a variety of different questions.
Justice Scalia’s opinion reminds us that like other rights, the Second Amendment is not unlimited: “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.” Justice Breyer’s dissent points out the rather worrisome problem that there isn’t much original intent evidence that laws like these were present when the states ratified the Second Amendment.
Justice Breyer is correct about this, at least concerning felons. To my surprise, I am having trouble finding laws that disarmed felons upon their release in the Colonial and Revolutionary period. The earliest law that anyone seems to know about that disarmed felons who had completed their sentences was passed by California in 1923—as part of a package of laws that proponents openly stated was to disarm Chinese and Hispanics. (And yes, this is the direct ancestor of California’s current discretionary concealed weapon permit law—a law openly promoted as racist.)
Around the country, in response to the Heller decision, lawyers in criminal cases started arguing that the Second Amendment rights of their clients were being denied. Some of these are felons in possession who are exactly the kind of people that Justice Scalia had in mind when he reminded us that felons have no Second Amendment rights—the kind of people who should probably not be trusted with a butter knife or car keys, much less a gun. Some of them are people who were convicted of a non-violent felony decades ago, and have never been in trouble since. How the courts deal with these cases is likely to influence whether Heller is just the first step towards a broad recognition of the right to keep and bear arms, or only a mild improvement in the situation of gun owners.
All these questions are going to be resolved through a series of lawsuits in the next few years—and the types of justices that sit on the Supreme Court are going to make a world of difference. As I mentioned in my column last month, I don’t particularly like John McCain, but I don’t see that I have much choice as to who to vote for in November. I know the type of justices Barack Obama is likely to appoint—and they are likely to be less sympathetic to the individual rights’ understanding of the Second Amendment than Justices Stevens, Souter, Ginsburg, and Breyer.
Next month: how D.C. responded to the decision; the suits against Chicago, San Francisco; how the Fourteenth Amendment will incorporate the Second Amendment against the states; and what I am doing to help on that effort.
 D.C. v. Heller, 558 U.S. ____ (2008), slip opinion, (Stevens, J., diss.), 1.
 Ibid., 45.
 Ibid., 46 n. 39.
 D.C. v. Heller, 558 U.S. ____ (2008), slip opinion, (Breyer, J., diss.), 2.
 Ibid., 4-8.
 Ibid., 28.
 Ibid., 8-10.
 Clayton Cramer & Joseph Olson, “What Did ‘Bear Arms’ Mean in the Second Amendment?”
Georgetown Journal of Law & Public Policy 6 (forthcoming Sept. 2008), online at http://papers.ssrn.com/abstract=1086176.
 D.C. v. Heller, 558 U.S. ____ (2008), slip opinion, 38, Scalia cites Johnson v. Tompkins (CC Pa. 1833), a case that, to my knowledge, the paper by Joe Olson and myself first brought into the discussion. Ibid., 59-60, Scalia use the evidence concerning the fire protection purpose of the 1783 Massachusetts statute concerning loaded firearms—something that first appeared in my book Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie (Nelson Current, 2006).
 Lawrence v. Texas, 539 U.S. 558 (2003) (Thomas, J., diss.), 1.
 D.C. v. Heller, oral arguments transcript, 44, http://www.supremecourtus.gov/oral_arguments/argument_transcripts/07-290.pdf, last accessed July 19, 2008.
 Gonzales v. Raich, 545 U.S. 1 (2005), (Scalia, J., conc.),
 Kennedy v. Louisiana, 554 U.S. ____ (2008), slip opinion, 8.
 D.C. v. Heller, 558 U.S. ____ (2008), slip opinion, 56-57.
 D.C. v. Heller, 558 U.S. ____ (2008), slip opinion, 54-55.
 D.C. v. Heller, 558 U.S. ____ (2008) slip opinion, (Breyer, J., diss.), 42-43.
 People v. Camperlingo, 69 Cal.App. 466 (1924).
 “New Firearms Laws Effective on August 7,” San Francisco Chronicle, July 15, 1923, p. 3, col. 1, http://www.claytoncramer.com/primary/other/SFChronicle1923.PDF, last accessed July 19, 2008.