Sunday, July 25, 2010

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.

2 comments:

The Kid said...

You have a very well disciplined way to put things in perspective

LeftCoastConservative said...

Thanks, a lot. I don't post every day, but I try to make every post as worthwhile as I can.

I find it interesting that three of the Justices that acknowledged in Heller concurred that the 2nd Amendment denotes an individual right, found in McDonald that right may be limited severely by banning handguns.

While Heller and McDonald cannot be reversed, decisions in other cases may have the effect of rendering them moot. I hope that none of the conservative 5 Justices retire or die during the rest of Obamas term in office.