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.

Nordyke v. King - Ninth circuit Court Incorporates the 2nd Amendment Against the States

The decision, greatly anticipated by gun-rights groups, was handed down from the Ninth Circuit today. The operative sentence:

We are therefore persuaded that the Due Process Clause of the Fourteenth
Amendment incorporates the Second Amendment and
applies it against the states and local governments.

However, the ordinance was upheld, no doubt to the disappointment of the Nordykes, which means that S.B. 585, which would ban gun shows at the Cow Palace, will no doubt stand if it passes in the state legislature.

You can read the entire decision here. Hat tip to Of Arms and the Law.

Note: be sure to watch if any supplementary briefs are filed in McDonald v. Chicago, as this decision would seem to drive several nails into the coffin entombing the Chicago city handgun ban.

Court Findings in D.C v. Heller - My Interpretation

In this post I am going to try to summarize the conclusions of the Supreme Court in their decision in D.C. V. Heller. The conclusions of the Court are listed in the Syllabus of the decision, and I attempt a layman's summary:

1. The Second Amendment protects an individual right to possess firearms.
1. a) The prefatory clause does not restrict the 2nd Amendment to service in the military.
1. b) The "militia" means the "people" of the United States.

2. The 2nd Amendment is not unlimited: it does not protect a right to keep "any weapon for any purpose". It does not eliminate prohibitions against concealed weapons, possession by felons or the mentally ill, or prohibitions against carrying weapons in sensitive areas. The Court noted in Heller that Miller's holding protects weapons "in common use at the time".

3. The handgun ban and trigger lock requirement are unconstitutional. Bans on entire classes of weapons in common use are unconstitutional. Requirements to render a firearm inoperative are unconstitutional. Licensing requirements ARE NOT unconstitutional as long as they are not enforced "arbitrarily and capriciously".

So, what does all of this mean in the real world? My interpretation, point by point, follows.

1. This is the real meat of the decision, the real legal, political and social game changer. All citizens have the right to keep and bear arms for lawful purposes. Self defense is specifically cited as a lawful purpose.

This is the big win for gun rights. Federal bans on gun possession are now unconstitutional and any new such proposals would have to pass constitutional muster. Could a ban be enacted into law and be found constitutional? Yes, but Heller takes the first steps toward defining a test for constitutionality.

This finding I think goes a long way toward pulling the teeth of any gun registration scheme becoming a basis for gun confiscation. If bans are not allowed, then confiscations are also not allowed. Could this be the start of a compromise on the gun issue: allow some kind of regulation that still allows the lawful citizen freedom of possession and use?

1. a) Gun control advocates arguments that the 2nd Amendment is limited to service in the national Guard of other military body is hereafter denied. Done. Any argument using that logic has no legal basis.

1. b) This is the final nail in the coffin of the "militia" argument: the militia is defined to be the people. This is consistent with existing Federal law, as I have noted in other posts.

2. The 2nd Amendment is not an unlimited right. This will take some wind out of the sails of the more radical gun rights advocates.

Don't expect to see laws limiting possession by felons or by mentally ill persons to go away. Neither are laws requiring background checks, regulating transfers of ownership, and penalizing transfers of firearms to prohibited persons. Waiting periods are not allowed, and so is the California DOJ Roster of Approved Handguns along with the safety requirements. Handgun Safety Certificates are also legal. The micro-stamping law would also pass muster if it does not prove to be a defacto ban. Any and every "Gun-Free" zone law is also okay. These provisions constitutes much of the gun law in California.

Allowing bans of guns in "sensitive places" may not bode well for the plaintiff in Nordyke v. King but is is possible that incorporation may result anyway.

Carrying of concealed weapons is not protected, so may be banned by states, or by the Federal government, or regulated in any manner. So those who favor CCW reform in California will not gain any new traction by Heller. The state could even outlaw concealed carry completely, and I am sure that there are elements in California that would like to do that rather than see liberalized concealed carry laws adopted.

Note, however, the important test in this finding: weapons that "are in common use at the time" are protect by this ruling. Now the specific scope of this phrase will be worked out in subsequent cases, but this may have important ramifications for the states assault weapon ban.

3. This finding takes handgun bans off the table, and is the biggest win.

The subsequent ban on trigger lock requirements may have an effect on California's child safety storage requirement, but a greater principle seems to be created. Any provision that hampers the citizen to exercising the right of self defense with a handgun may have to pass constitutional muster, such as AB 962 which would regulate sales of handgun ammunition. Outright bans on ammunition and bans on gun stores might all be argued to be unconstitutional because of the limitations these would place on citizens exercising the right of self defense.

There is a vary larger caveat in finding 3: licensing is found to be legal. New York state's Sullivan Law will likely survive, but it may have to be changed if it is found to be implemented in a "arbitrarily and capriciously". A current bill in the House, H.R. 45, since it is a "shall issue" law, would probably be okay, but it's provisions would feel like a straight jacket to citizens in other states. Other provisions of H.R. 45 might be unconstitutional (mental health records privacy), but that is for other cases. This is one we will have to fight in the aisles of Congress.