Heller High Water

(Note: This essay is not authored by me. I received it by email with permission to reprint, but without full attribution. It's pretty good. I've modified it from the plain text email format for readability here, but other than that, I've done no other editing. The title of the piece is the author's. I'm not responsible for the pun, clever or not. - Kevin)

June 26th, the United State Supreme Court issued the opinion in District of Columbia, et.al. Petitioners v. Dick Anthony Heller, the first decision by the court to truly address the nature of the Second Amendment of the United States Constitution, and the extent of the rights it protects. As such, this was a highly anticipated decision, with momentous bearing on one of the most hotly contested issues in American society at the beginning of the 21st century. On one side of the debate stood millions of gun owners and the largest grassroots lobby in the United States, the NRA, and on the other a well funded lobby, and other citizens committed to the idea that guns are an unnecessary danger, prevalent in our society.

While the national corporate media has covered the outcome of this case, their analysis has been (and will be) long on the sensationalism of the arguments between these two sides, and very short on what the opinion actually says. For those who are interested in the actual language and analysis of the Heller decision, as well as some educated guesses as to the likely directions this decision will take us in the future, this analysis will deal with the issues of importance that stand out to both practicing criminal defense attorney and political science professor.

The most important things about Heller, other than the mere fact that it squarely addresses the Second Amendment, are that it is far more comprehensive than the national media are explaining. This is no mere overturning of the District of Columbia's pervasive gun ban, it absolutely establishes that the Second Amendment does indeed protect an individuals right to own and use firearms, as separate and distinct from any government controlled military organization. Justice Scalia, writing for the 5-4 majority, carefully analyzes each and every word of the Amendment, and does so from both a linguistic, legal, and historical perspective. He defines, "arms", "bear", "people", "right", "keep", "militia", "state", and fully deconstructs how they are put together. There is nothing left to define here, no words about which the meaning can be speculated, and no syntax structure left to be manipulated. Short of outright overturn of the decision (which every Supreme Court abhors to do), the individual nature of this right is now set in stone. Further, Justice Scalia (rightly) heaps scorn on some of the more obtuse and insultingly disingenuous arguments that have been made to eviscerate the meaning of the Second Amendment over the last few decades. We begin our examination of Heller with its disposal of those "chestnuts".

For at least a couple of decades, we've been forced to endure the catchphrase that the Second Amendment only would allow private ownership of muskets and muzzleloaders, since that was what the founders were calling firearms. This was what would be called a "compromise position" uttered by the self congratulatory, semi-educated, through a haze of clove cigarette smoke. Justice Scalia harshly brought them to reality with the following:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 19th 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, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima faciae, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

The second venerable "chestnut" that has long been a lamppost for gun opponents to slouch against during any debate, has been to claim that the Second Amendment is only a "collective" right, indicating that it has to do with "militia service" or some existent group organized by the government, such as police forces, National Guard Units, or the proverbial "posse". While Justice Scalia spends considerable time on the exploration of the "militia" idea, before disposing of the gun opponents agenda for that phrase, he deals a swift death blow to the idea that the Second Amendment is some kind of "collective" right. He notes that the Second Amendment specifically says the "right of the people", and goes on to add that;

The unamended Constitution and the Bill of Rights use the phrase "right of the people" two other times, in the First Amendment's Assembly-and-Petition Clause and in the Fourth Amendment's Search-and Seizure Clause. The Ninth Amendment uses very similar terminology.[direct quote removed] All three of these instances unambiguously refer to individual rights, not "collective" rights, or rights that may be exercised only through participation in some corporate body.

In footnote here he says that Justice Stevens contention that the right is conditioned on membership in a militia, and is "primarily collective in nature", Justice Scalia calls "dead wrong", citing McDonald v. Smith, 472 U.S. 479(1985) which defined the historical origins of another individual right set forth in the Bill of Rights. Writing for the majority Justice Scalia notes that, "Nowhere else in the Constitution does a 'right' attributed to 'the people' refer to anything other than an individual right." In fact, he says, "We start therefore with the presumption that the Second Amendment right is exercised individually and belongs to all Americans."

The opinion spends much of its length dealing with just how, precisely; the "militia" concept is entwined with the right to bear arms. In short, he says that the Second Amendment is divided into two distinct parts. The part that talks about "militia" is what he calls a "prefatory clause", a phrase used only to clarify or justify the important part of the statement, the "operative clause". The operative clause here is, "the right of the people to keep and bear arms shall not be infringed".

He clearly states that the operative clause is based on the long standing conflicts in England, where the government sought to disarm groups that opposed it, to better establish tyranny, and is the codification of a pre-existing right. Hence, the word "infringed", making it clear that the people already have a right to keep and bear arms. Had the amendment been designed to give a heretofore unknown right to the people, it would have read something like, "…does hereby grant to the people a right to keep and bear arms". (The founders were followers of the philosophy of the 18th century liberals philosophers, like John Locke, and believed that humans had inalienable rights, not that humans were only to be "given" rights by a sovereign.)

He says that the prefatory clause does not serve as a limit on the operative clause, and that "…operative provisions should be given effect as operative provisions, and prologues as prologues….[if] the prologue itself should be one of the factors that go into the determination of whether the operative provision is ambiguous [that] would cause the prologue to be used to produce ambiguity rather than resolve it."

He notes that the Constitution itself empowers congress to make a Navy and to raise Armies, but that the militias are something different. He argues that the plain language and history indicate the militias were pre-existing to the government, and were composed of all able bodied men, armed with their personal weapons. He conveys that there were many reasons the founders felt that a militia would be "necessary to the security of a free state", among them repelling invasion. Though he does not mention it specifically, it is worth noting that Admiral Yamamoto advised the Japanese military ruling council against a land invasion of California, primarily because the large number of armed citizens would make it an ungovernable quagmire. This shows that the founders belief that the security of the nation would be bolstered by having an armed populace was borne out, at least through the 20th century. Scalia also draws attention to the writings of Hamilton describing that a nation of armed, able bodied men, are better able to resist tyranny, and also spends some time discussing the history of the struggles between Catholics and Protestants for control of the monarchy, as the origins of this knowledge of armed resistance to tyranny. Thus he illuminates that the prefatory phrase about the militia is merely explanatory as to the operative phrase of just why it is so important that the "right of the people to keep and bear arms shall not be infringed".

The fundamental right established, the remaining three elements of this decision, upon which so many people waited so anxiously, were how the court was to deal with "crime", "regulation", and the types of "arms" protected.

Justice Scalia repeatedly referred to the right to use firearms to protect oneself in the home or on ones property. Over and over again, this entered into his analysis at all levels. This established two things never before addressed by the Court. First, that the 2nd Amendment is now related to an individual's right of self defense, not merely as a mechanism for defense of the nation against foreign aggression or domestic tyranny. Secondly it clearly establishes the right of a person to use a firearm in self defense. This second point, while it has escaped comment in the popular media, was hammered home, by repetition, throughout the opinion. By choosing this language, Judge Scalia laid a bulwark against any future efforts to undermine this right of self defense, such as is currently happening in England. There, many recent cases have found persons convicted for using deadly force to defend themselves from violent attack. It seems likely Judge Scalia took this opportunity to prevent such a perversion of justice from finding roots here in America. He goes so far as to call it the "core lawful purpose of self defense".

The court acknowledges the difficulties posed to communities by "handgun violence" but says that the Constitution leaves communities with a variety of tools for combating the problem, "But the enshrinement of constitutional rights necessarily takes certain policy choices off the table". To wit, governments and communities can't absolutely prohibit handguns, "held and used for self defense in the home".

As to the right of the government(s) to regulate ownership of firearms, the court clearly states that some regulations are permissible. The court notes that like most rights, this right is not unlimited. Just as there are permissible limits on the freedom of speech, and the freedom to practice ones religions, so too there are reasonable limits that can be placed on ones right to keep and bear armaments. Scalia and the court note that the longstanding prohibitions which prevent convicted felons, or the mentally ill from owning firearms is permissible, as are restrictions preventing the carrying of firearms into sensitive locations. Specifically named are schools, and government buildings. Likewise the opinion specifically permits laws which impose conditions and qualifications on the commercial sale of arms. Scalia says these are merely examples, and are not to be seen as the complete list, so we can presume that many more specific restrictions will not be undone by this opinion. It seems the ATF officers who conduct checks on gun stores and licensed dealers will not need to be updating their resumes, nor will the wand wielding inspectors at our courts, schools, and airports. However, the strong wording on the right to use a firearm to defend oneself in the home makes it likely any "school zone" bans which overlap anyone individuals private residence are likely defunct.

Lastly, the court did give some guidance in the area of the types of firearms protected by the 2nd Amendment, the area of great interest to both the enemies of gun ownership and firearms enthusiasts alike. Over the last couple of decades, this has been the central arena in the battle over guns in the US. Though this decision in no way creates a definitive list of what specific guns can be regulated or to degree, there is some pretty strong language limiting the governments reach in this regard. On several occasion in the opinion, the court specifically upholds the ban on sawed off shotguns, as an example of the type of permissible regulation of weapons that are "unsafe" and not typical of the weapons used by the average soldier. The opinion cites the colonial regulations on the storage of gunpowder to minimize fire damage, and a singular colonial era regulation on keeping a loaded firearm for its danger to firefighters. This analysis would indicate that the government may prohibit ownership of particularly unusual or dangerous armaments. Do not expect regulations prohibiting flame throwers, rocket launchers, explosives or heavy weapons to be invalidated. (I would note here that flamethrowers are not prohibited, or even heavily regulated. In fact, you can buy them fairly easily, as they have agricultural uses. - Ed.) However, this does not seem to extend to any weapons commonly used by the average soldier, or citizen. The popularity and utility of handguns, for use in personal self defense is given a great deal of discussion, and it seems that any "handgun" ban is going to be absolutely unconstitutional. Justice Scalia notes that many people prefer handguns for defense within the home because of their ease of handling in close quarters, and the fact that they free a second hand to do such necessary tasks as dialing the police, and though he doesn't mention it, hold a flashlight.

Of great interest in light of the recent battles fought over "assault style weapons", was a singular paragraph of great depth and analysis, that this author has yet to see addressed in the popular media. It is almost a summation of the entire analysis of the 2nd 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 Amendments 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 of the 18th century, would require sophisticated arms that are highly unusual in society at large….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.

This seems to say that like the analysis of the right of speech to be extended to our fax machines and cell phones, the right to militarily useful weapons should be protected. Light machine guns, and squad automatic weapons are probably not protected and may be "infringed", but the average infantryman's rifle, "M-16 rifles and the like", appear to be protected specifically by the Second Amendment. At least, for as long as the Supreme Court stands as it does today.

That said, the opinion does expose some weaknesses in the protection if affords. The exceptions made for regulation and licensing of firearms would be deeply disturbing if adopted on a wider scale than by the small political areas that will now be losing their comprehensive bans. The weakness in the decision, specifically, is that there is great deference shown to "licensing", which is treated as an acceptable accommodation to the right, for the District of Columbia. If licensing is a permissible way to regulate handguns, then by analogy, it would be permissible for the Federal government to potentially require licensing of all firearms. To allow this to occur would build a fatal weakness into our basic freedom, since registration makes later confiscation, by tyrant or invader, not only possible but likely. Historical examples of registration based confiscation are common, and not limited to the activities of the Nazi's, both in Germany and immediately upon conquest of a neighboring state which "enjoyed" a gun registration scheme.

Also, there is the phraseology that places it within governmental power to regulate the commercial sale and interstate commercial transport of arms. This may be the single greatest threat to our continued enjoyment of the benefits of the Second Amendment. There have been and continue to be ongoing attempts to prohibit or limit the person to person sale of firearms, without involving a "licensed" intermediary. These efforts to "close the gun show loophole" are largely unopposed by the firearms manufacture and retail industries, because they see the used gun market as competition to their revenue flow. However, this simple custom in the law is the razor thin edge between our current system and de facto national registration. This is not merely speculation, for this author personally worked on a felony criminal case in Arizona, which directly demonstrated the existence of national gun registration in the year 2003.

In that case, an Arizona native, and lifelong resident of the state, with no criminal record, was charged with shooting at a "repo" man. There was no physical evidence of the event, no shell casings or bullet strikes, and no gunshot residue on the hands of the Arizonian. The only basis for the stop and arrest were the word of the "repo" man, and the fact that the Arizonian did own a firearm. In the several months before the case went to trial, the prosecution was able to send the serial number of the pistol to the BATF, who contacted a licensed gun dealer in an outlying city in Arizona. That dealer FAXed the firearm purchase form, which had been filled out nearly 10 years prior, at the purchase of the pistol by the man now accused of the crime. During the trial, the local county prosecutor was able to produce a copy of the actual form filled out by the defendant, with his handwriting, and signature, from a lawful purchase nearly a decade old. Bear in mind, this was not a federal crime, or even a high profile crime, when the accused had no criminal record, and there were no injuries. If a low level, local, prosecutor, chasing down a simple local crime, can easily acquire the purchase forms from a lawful firearms purchase, nearly a decade old, from merely a manufacturers serial number, how is that not a national registration scheme already in place? Only because if a "gun confiscator" came to the addresses on each of those forms, the persons named could now answer, "I sold it to some guy 5 years ago". If the Heller decision permits laws to be passed which require all purchases to be either from licensed dealers, or that the transaction be done through a licensed dealer, the we automatically have national gun registration. The first and most important step for confiscation by either invader or tyrant.

While Justice Scalia concludes the majority opinion by writing "it is not the role of this court to pronounce the Second Amendment extinct", it will unfortunately require ongoing activism and vigilance to make sure another government body does not make it moot. - D. Roth