Sunday, June 29, 2008

DC v Heller--my take

Ah, the end of the Supreme Court term. What a great time to see just how far downhill this country has fallen in the last 12 months.

I seriously wish I had the time to look at every decision rendered in a given term, SCOTUS jurisprudence being somewhat of a hobby of mine. And hopefully over the next couple months I'll get a chance to catch up with a few of the earlier decisions. For now, though, we'll concentrate on just one: this week's ruling on the 2nd amendment case District of Columbia v Heller.

When I first heard about the opinion, I was happy. Wow, the court upheld that we--as citizens--have a right to keep and bear arms. Why, that's such a good idea it should be written somewhere!

Of course, things aren't always that easy. My interest became piqued when I read on Bench Memos yesterday the essay of one Matthew J Franck, who among other interesting points writes:

One thing said by Justice Stevens is undeniable—that the Court's ruling "will surely give rise to a far more active judicial role in making vitally important national policy decisions than was envisioned at any time in the 18th, 19th, or 20th centuries." Yes, it's Stevens saying it, but if he's right, he's right. Once again, thanks to a five-justice majority (that includes Justice Kennedy), we are in for a future that entails increased government by judiciary. That the terms of gun ownership are now subject to the impulses of any five members of the U.S. Supreme Court is not, for me, a pleasing prospect. The matter was better left in the hands of democratically elected institutions.

Now I hate government by judiciary, so this set off all the alarms in my head. Could a decision that should be as simple as "it's the Constitution, stupid" REALLY open the door to increased judicial governing?

So I went to reading. And let me tell you, it's exciting: 157 pages of .pdf file, 50-plus of which that deal with what "right to keep and bear arms" means. And that's just in the opinion, forget about reading the dissent! Is there anything quite as disgusting and self-serving as lawyers being lawyers? Anyhow, I'll summarize the 50 pages for you: "keep" loosely means "own", "bear" loosely means "carry", "arms" means "guns", and the right is not just reserved for members of a militia nor to military purposes (a point that dissent does not agree with, I might add). Got it? Good--let's move on. . .

To the real question for me: was the D.C. law barring handgun ownership an overlimiting of the second amendment right? I know that there are allowable limits on all of our rights--the opinion identifies several of them regarding the second amendment alone--but was this limit in DC a bridge too far?

And even more importantly to me: did the court write another law? That point is, after all, the main reason why I rail against Roe v Wade--rather than merely find Art. 1196 unconstitutional based on all the smoke and mirrors that it used, the court also specifically created its own law for the whole country to abide by. THAT is judicial activism--and it stinks!

SO with that in mind, here we go:

To me, the law in D.C., which "ban(ned) handgun possession by making it a crime to carry an unregistered firearm and prohibiting the registration of handguns" was indeed a bridge too far, as it rendered as illegal the carrying (i.e. having in your possession) of all handguns within D.C. jurisdiction, to include your house/dwelling.

As for the other big lookout for me (the degree to which the court legislated), it all comes up roses. The court simply held "that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm
in the home operable for the purpose of immediate self-defense." No new laws--heck, even a nice limiting of the part of the law that it took issue with, which was the inclusion of the home as an area to which the handgun ban applied. THAT is model opinioning, if I may opine myself.

For background on this case, one must understand United States v Miller from 1939. Majority justices look at one paragraph in the opinion to purport that that decision was about the TYPE of "arm" that was of attention in Miller :

"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense."

The difference between a sawed-off shotgun and a handgun in terms of probability of use by a law-abiding citizen is used in the majority opinion as an express difference between Miller and Heller.

Dissenting justices look at Miller thusly:

"The view of the Amendment we took in Miller—that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons—is both the most natural
reading of the Amendment’s text and the interpretation most faithful to the history of its adoption

Well, here's the thing about Miller: it doesn't say that at all. ANYWHERE. Whereas the majority justices look at specific text from the case law in question, the dissent rests upon a reader's digest summary of an already brief opinion (read it here). Especially since Miller had nothing to do with "ownership" (at least not directly), I find that entire argument lacking.

SO, in short, I can rest easy tonight. This breach on our Second Amendment rights was duly smacked down; the court did not legislate from the bench but rather played the "yay/nay" role with an appropriately limited scope . . .and I've spent entirely too much time reading about some very boring stuff. Oh yes, the sleep will come easy tonight!


Post a Comment

<< Home