Thursday, June 26, 2008


The word regulate appears exactly three times in the U.S. Constitution - twice in reference to commerce and once in regard to an armed citizenry.

Despite the First Amendment explicitly stating "Congress shall make no law", we accept restrictions on speech every day, however, mention restricting the ownership of guns and some suggest we cross a rubicon of government intrustion on the individual. It is a confusion which abounds, shockingly has never been addressed by our highest court and ultimate clarity rests on the strange construction of our most discussed federal law.

The Second Amendment may be the most tortuous clause in an aged document laced with dated verbage and 18th century mannerisms. Filled with commas and awkward phrases, it seems to simultaneously grant the government the ability to regulate arms for the purpose of defense yet absolutely states the right of the people shall not be infringed.

With the ever escalating heat of the gun debate, most on both sides ignore this critical nuance. With backs arched, the absolutists either claim all regulation is unconstitutional or claim regulation all the way to prohibition is perfectly reasonable.

Both are wrong and despite the political spin you will hear over the next few days, Justice Antonin Scalia writing for the majority in Heller brilliantly explains why.

...the most natural reading of ‘keep Arms’ in the Second Amendment is to “have weapons...The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity...Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation...Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

The majority ultimately decides that indeed government regulation is allowed in order to maintain security (the underlying purpose of the first portion) but cannot result in an absolute prohibition of individual ownership of firearms (the underlying principle of the second portion).

The District of Columbia with its absolute prohibition of handguns, as Justice Scalia referencing Miller states, weapons "in common use at the time", obviously uses the first clause of the amendment to attempt the utter destruction of the second clause.

Guns will continue to be regulated. However, regulation cannot overwhelm the ultimate right to bear arms. In the majority's view, even though it strongly avers the individual right, both must live in harmony.

It is in those harmonic moments where we discover the brilliance of the founders - radicals all but absolutists none. Whether "strict constructionist" or advocate of a "living document, all must understand the underlying principle of our greatest document is idealism tempered by reason.

Through this philosophical filter, Justice Scalia shows the Second is not so discordant after all. In fact, it sings.


Jen said...

It is completely astonishing to me that Heller was decided 5 to 4. In fact, I made a wager that it would be either 8 to 1 or unanimous. The DC gun ban struck me as blatantly unconstitutional and as someone who considers herself in the "living document" category, I'm very interested in reading the dissent (probably should have read it before I left this comment).

Sara said...

Jen, I think it would have been 9-0if the opinion hadn't been quite so expansive on the individual right and had instead merely found the DC law to go too far. In fact, I suspect that Scalia was forced to include all that stuff about all the regulation they were NOT declaring unconstitutional because otherwise he would have lost Kennedy and the majority opinion.

Richard Campbell said...

For the benefit of your readers that don't overlap with Sara's blog (both of them, yes):

After reading the majority opinion, it's about 50 pages longer than it needs to be.

1) The Second Amendment is an individual right (p.22).
2) Laws implicating the Second Amendment are subject to some unnamed level of scrutiny higher than rational basis review (pp.56-57 & n.27).
3) A law banning handgun possession in the home is unconstitutional (p.64).
4) A law banning firearms in the home capable of operation for immediate self-defense (presumably a ban on loaded firearms in the home, but the Court didn't go that far explicitly, and the DC ban required trigger locks or dissassembly in addition to keeping the gun unloaded) is unconstitutional (p.64).

The rest is arguing with Stevens and Breyer about the history.

1) Does the Second Amendment apply against the States?
2) What level of scrutiny is appropriate?
3) Besides the enumerated permissable bans (felons, mentally ill, schools, govt. buildings), what else may be regulated?

Brilliantly explains, my ass. Wanders off in the weeds and gives little guidance is more like it.

griftdrift said...

How did I know you would disagree?

It's brilliance is two-fold. First, it finally establishes an individual right. Secondly, it establishes that individual right is not limited. It does indeed set up a test in the reasoning that both elements of the amendment must be balanced and if one goes to far to the detriment of the other, the law is unconstitutional.

Frankly, when the court gets to specific in its tests and standards is when I start to worry.

Oh, and we don't know if it applies to the states yet because it hasn't been tested in a state yet. But don't worry. Illinois and the insane Chicago ban will be next. With I predict the same result.

Sara said...

"Frankly, when the court gets to specific in its tests and standards is when I start to worry."

Forgive the lawyers for worrying about the level of scrutiny when it might seem unimportant to you, but it is an important threshhold question in virtually all constitutional litigation. Most constitutional analysis is either conducted under strict scrutiny (i.e. the law must be necessary to achieve a compelling state interest), or rational basis review(i.e. the state must simply have a rational basis for taking the action.) There is also intermediate scrutiny, which is rarely applied and mainly only to claims of unequal treatment on the basis of sex. The level of scrutiny is usually the single ost crucial factor as to whether a particular law or action by the state will pass constitutional muster. To have no idea what level of scrutiny to apply to these cases is, therefore, a big problem.

That the court did not articulate the level of scrutiny to be applied means that almost certainly the lower court interpretations of Heller are going to be a complete mess. As Richard and I discussed in the comments to my post about Heller, I think the DC law would have to be upheld under rational basis review, but under strict scrutiny virtually every gun law would be unconstitutional--even the "good ones" Scalia worked so hard to exempt.

So, whether he intended to or not, I think Scalia just carved out a specialized level of scrutiny for these cases, much like the balancing test you describe, but did not provide nearly as much guidance to lower courts as he probably could have. Presumably that will come in the next test case, perhaps the Chicago case that NRA filed yesterday.

In the meantime, this little quandary will vex law clerks, judges, and law students reading this decision.

Pokerista said...

My old law professor, Randy Barnett, argues in today's WSJ that the review applied will be similar to that applied to "time, place and manner" restrictions on public speech--that it be narrowly tailored to serve a compelling government interest, and not merely a pretext. So, basically, intermediate scrutiny.

Pokerista said...

Sorry, important but not compelling government interest under intermediate scrutiny. I can't type today.

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