I have not commented on the Heller decision until now because I believe this is a significant event, so I wanted my post on it to be well researched and thought out. After researching it, I found that the best synopsis of the decision is the Syllabus of the ruling itself. Here is a slightly abridged version of that Syllabus:
District of Columbia law bans handgun possession by making it a crime to carry an unregistered firearm and prohibiting the registration of handguns; provides separately that no person may carry an unlicensed handgun, but authorizes the police chief to issue 1-year licenses; and requires residents to keep lawfully owned firearms unloaded and dissembled or bound by a trigger lock or similar device. Respondent Heller, a D. C. special policeman, applied to register a handgun he wished to keep at home, but the District refused. He filed this suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home. The District Court dismissed the suit, but the D. C. Circuit reversed, holding that the Second Amendment protects an individual’s right to possess firearms and that the city’s total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.
Held:
1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.
(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.
(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress
power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved.
(c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment.
(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms.
(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion.
(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, nor Presser v. Illinois, refutes the individual-rights interpretation. United States v. Miller, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes.
2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.
3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an
entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. ...
SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ.,
joined. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.
To summarize Justice Scalia, he concluded that the right to keep and bear arms is an individual right, not a state right, and that the Second Amendment purposely upholds the individual’s right to use firearms for self-defense.
Other supporting documents can be found here. The whole text can be read here. Commentary by a panel of distinguished experts at Reason magazine can be found here.
As can be readily appreciated, this decision will have a monumentous effect down the road. For starters, from this time forward, no liberal can claim that the Second Amendment is just about state militias. Second, the Heller decision will be a powerful tool that can be used to judicially revisit many existing gun control statues. Look for many municipal gun-ban ordnances falling in the near future, or at least being substantially altered in favour of the individual.
In more immediate terms, the reaction has been muted. This is largely because, in the past several years, the Democrats have slowly begun to realize that the gun control issue has been a loser for them - in spite of the fact that public opinion polls consistently show that a majority of citizens support it. What those polls do not show is the degree of support. Almost none of gun control supporters care enough about the issue to allow it to sway their vote on Election Day. However, for gun owners, gun control is an existential threat. Not only will it be the predominant issue that will decide their vote (assuming the issue is in play), these otherwise apolitical citizens will volunteer, donate money and organize against the gun grabbers running for office.
This is the principal reason why the Republicans took control of Congress in 1994. The Democrat-controlled Congress has just passed the assault rifle ban that summer. This energized the gun owners like they have never been energized before. Unfortunately, most political commentators – left and right – are not gun owners and missed the phenomenon entirely. The normally astute conservative flagship, The National Review, had several articles analyzing why the Republicans won that November. The assault rifle ban was hardly mentioned. Because most of the writers at NR did not own firearms, they did not experience the atmosphere of crisis and fear that existed among shooters. In fact, it was the Democrats who first realized the magnitude of the gun owner’s ire, but only after the 2000 election. Prior to the 2000 election, they thought the Columbine massacre made gun control a winning issue for them, enough to propel Al Gore to the White House. Yet it didn’t happen. Forget about Florida. Think West Virginia. In the 2000 presidential election, the vote in this once-reliable Democrat state swung 20% towards Bush and the GOP. Why? Because of two issues Al Gore was pushing: global warming and gun control. This state of coal miners interpreted him as saying, first I will close down your coal mines, then I will take away your guns. Of course, if he were smart, he would implement these policies in reverse order. West Virginia has 4 Electoral College votes. If they had gone to the Democrats like they did every time before, all the hanging chads of Florida would have meant nothing.
Thanks to Dc vs. Heller, the US is now in the reverse situation, with gun owners feeling more secure about their rights than they have in years. This will likely make a Democrat victory in November more likely. It will be that much harder for the GOP to pry gun owners away from the reloading bench to the polling booth when the Supreme Court is covering their flank. Heller took away one of the most reliable vote-getter in the GOP’s arsenal.
The danger, of course, is that if Obama becomes President, he will likely be able to nominate a Supreme Court justice or two. Since the Heller ran 5 to 4, there is a real danger that it could be overturned down by Obama’s justices. For this reason, Eric Raymond thinks Heller will energize gun owners http://esr.ibiblio.org/?p=298. Doubtlessly it will energize some, but you won’t get the mass influx of new energized GOP voters that you had in 1994.
Later this week I will post a lengthy analysis of the gun control situation in Canada.
Stay tuned.