What We All Need to Remember From The Heller Decision

As we bask in the glow of the McDonald victory in the Supreme Court last month, and the Heller decision recedes further back in time, it seems that there is a subtle misunderstanding about Heller, that is increasingly common, especially in the anti-gun media, that may harden into "fact".  This is the idea that the 5-4 decision in Heller narrowly affirmed that the 2nd Amendment confers and individual right to bear arms.

But this is NOT true.  All nine justices agreed that the 2nd Amendment confers and individual right to keep and bear arms.   The 5-4 decision was to overturn the Washington, D.C. handgun ban as an unacceptable infringement on the 2nd Amendment.  Let the words of the justices themselves prove this.

Justice Stevens dissenting, page 68 of the opinion:

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. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.

Justice Breyer, agrees, and restates the view on page 116 of his dissenting opinion:

In interpreting and applying this Amendment,I take as a starting point the following four propositions,based on our precedent and today’s  opinions, to which I believe the entire Court subscribes:
(1) The Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred. See, e.g., ante, at 22 (opinion of the Court); ante, at 1 (STEVENS, J., dissenting).

 All four dissenting justices attached their names to these dissenting opinions, indicating agreement with the principles and legal reasoning contained within them.  Had any justice disagreed with the individual right view, they would surely have been afforded the opportunity to write their own dissenting opinion explaining why their arguments.  None did.

The conclusion that all nine justices find there to be an individual right to keep and bear arms kills the collective right view decisively.  We all need to keep reminding the anti-gun people of this fact.

But Some People Do Get It

And one of them is Frank J. Fleming in this article at Pajamas Media.  And he says something that totally agree with and have alluded to myself:

Let me say something that is unfortunately still news to some people: The debate over gun control is over. Done. It was over before the Supreme Court told Americans what they already knew about their right to firearms and self-defense.

And he believes this for one of the most obvious reasons:

And that’s why for the past couple of decades more and more states have added a right-to-carry law and none have taken it away.

 But the anti-gun rights crowd are living in the past, especially here in California, where AB1934 continues its inexorable advance into law, despite it being unconstitutional on its face.  No doubt when carry laws are liberalized in California, the same old fear mongering about blood in the streets and fender benders escalating into gunfights, will be heard, despite 40 states and 23 years of experience with such laws proving these claims to be spurious.

But i have no doubt that California anti-gun politicians will be at least as hard headed as Chicago anti-gun politicians.

Some People Just Don't Get It

Even after the Heller decision in 2008, and the McDonald decision last month, some people just don't get it that in the United States, firearm ownership is NOT a privilege, but a civil right.  Rebecca Berg, for example, writing in the Columbia Missourian, states in her July 22, 2010 column:

We don’t need 100 percent gun control, but some increased limits would be a positive step.  Allow handgun bans for the urban areas that need them the most, while allowing states more power to dictate specific regulations.  After all, isn’t the right to bear arms only acceptable when it does not infringe on the rights to life, liberty and the pursuit of happiness?

News flash Ms. Berg, but handgun bans in urban areas are exactly what the Supreme Court has ruled, not once, but twice, are unconstitutional infringements to the civil right to keep arms for self defense. While I agree that my right to keep arms does not indemnify me from having to justify my use of arms in self defense, prohibiting ones right to keep arms for any lawful purpose is not constitutional. 

Your column is full of fail.