Thursday, June 26, 2008

DC v. Heller: SCOTUS Gives Right to Own a Gun, But Little Else

The opinion is out. As usual, SCOTUSWiki is the best place for a round up. On SCOTUSBlog, Lyle Dennison has a good summary of the opinion and a separate post pulls key quotes from the majority opinion. Also, you can check my preview cheat sheet and predictions post to see how I did.

To understand the Scalia's majority opinion, you should focus on one word in the Second Amendment: "The." As Scalia noted in oral argument, the amendment protects The right to bear arms, that is, the right as it existed at the time the Second Amendment was passed. So the opinion spills most of its ink in service of examining the historic record to determine what that right was at the time the Bill of Rights was added to the Constitution.

"The" is also why Scalia's opinion goes to pains to laundry list the kinds of restrictions (e.g. on concealed carry, types of weapons, sales and licensing) not directly implicated in the decision. While The Right cannot be infringed, The Right was not absolute and many current restrictions can fall under the boundaries of The Right.

The only surprise in the decision is how carefully Scalia defines its parameters. While not the extreme minimalist that Roberts and Alito are, he nonetheless tends not to bother with realpolitik in his opinions. I certainly can't recall a Scalia opinion so careful to define what it is not.

I wonder if this opinion will be a watershed for gun control activists. Up to this point, activists have been fractured between absolutists who make up the core of a small cadre of activists, and the majority of us who could be described as "concerned citizens of America but not of Gunnutistan" who are more interested in common sense regulations to dampen the urban arms race rather than tilt at the absolute ban windmill. With an absolute ban off the table, but the Court signaling that many regulations short of a ban, that core, if they are smart, will try to organize people around regulation. That is what Freedom States Alliance, for example, has been burning most of their pixels on.


Eric R. Swanson said...

Beside resolving the individual right versus collective right argument once and for all, and ruling that DC's absolute ban was unconstitutional, the Heller decision doesn't do much else. The one thing that it ensures is that a lot of 2nd Amendment rights attorneys are going to keep themselves busy for the next 20+ years.

The other fact is that we have enough gun laws in force right now. Go buy a handgun, get a concealed carry permit, and you will undoubtedly agree that we have enough bureaucratic hurdles in place already. People who legally own firearms and carry overwhelmingly aren't the ones causing the problems.

Instead of putting more restrictions on them, we need to work to keep guns from getting into the hands of the wrong element. That is actually easier than it sounds, and can be accomplished using existing laws. Take a look at the statistics on gun crime sometime and you will see that the majority of guns used in crimes come from a small percentage of firearms dealers. Focus on shutting these dealers down, and you will put a significant dent in the flow of illegal guns.

Ben said...

swanny, you are right that there seems to be a lot more settled down the road in courts.