Anatomy of a Win

Thursday's Heller ruling, voiding D.C.'s absolute gun ban, drew this whine from an anonymous commenter:

Scalia ignored the first part of the second amendment switching the right of the people to the right of the individual and the happiness of the National Rifle Association and its members.

I hope Scalia is informed of the quantity and names of the people who will die as a result of his ignoring the clear intent of the Constitution in keeping a militia armed to protect the group of "We the people" rather than the individuals who will now possess guns to use according to their individual discretion.

Those Bush guys sure have dragged down the country in more ways than any of us can count.

Cartoonist Jim Morin made a similar point in Friday's Miami Herald:



source: Miami Herald


On Friday, Washington Post editorialist E.J. Dionne complained that "the conservatives on the Supreme Court have again shown their willingness to abandon precedent in order to do whatever is necessary to further the agenda of the contemporary political right." Finally, Thursday's Reuters report on the decision calls the individual liberty to own guns a "new right," adding this instant-classic of objective journalism (emphasis added):

Although an individual now has a constitutional right to own guns, that new right is not unlimited, wrote Scalia, a hunter.

All four are wrong.

This post does not attempt an exhaustive discussion: already, long-time subject matter experts have published scores of articles about the case. Those seeking more detail can surf to Randy Barnett, Dave Kopel, Glenn Reynolds, Sandy Levinson, Dave Hardy, Eugene Volokh, Dale Carpenter, Ilya Somin, Orin Kerr, David Bernstein, Don Surber, Mike O'Shea, plus a panel discussion at Reason magazine. On top of that, there's analysis in the traditional media: for example, The New York Times' Linda Greenhouse, Dan Balz and Keith Richburg in the WaPo, and Tony Mauro in the Legal Times Blog.

Still, some brief points:

• Old news: Morin accurately quotes the Second Amendment. But the left apparently forgets that the "keep and bear arms" provision was part of the Bill of Rights--the first 10 Amendments--ratified together in 1791. As Best of the Web's James Taranto quips, "If this right really dated back 217 years, Reuters could not describe it as new." And this understates the right's roots--a constraint on the sovereign's ability to disarm citizens pre-dated the Constitution; the Second Amendment merely codified a pre-existing right, as the Supreme Court decided over a century ago. United States v. Cruikshank, 92 U.S. 542, 553 (1876). Meaning the left sees Blackstone's Commentaries on the Laws of England (see 1 Blackstone 140--"And, lastly, to vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next to the right of petitioning the king and parliament for redress of grievances; and lastly to the right of having and using arms for self-preservation and defence.") written in the 1760s as new and unsettled, while the 1973 right to abortion, born with scant antecedents, is forever installed in the unchangeable core of an otherwise "living constitution."



• Reading is fundamental: The cartoonist, Anony and Dionne say the Amendment's first clause restricts the liberty conveyed in the second to a collective right, as opposed to an individual right, embodied only in each state's militia. I doubt any of them actually read the Heller opinions, in which the Amendment's meaning is debated over the course of 110 pages. That includes Justice Stevens's dissent which--though tying the text to the militia--concedes the provision is an individual right. So, by the way, does dissenting Justice Breyer, though for him, the phrase "well-regulated" so limits the liberty that D.C.'s absolute firearm ban was a legitimate legislative judgment.
  
  My point is that no Justice, especially including the five total joining Scalia's opinion, "ignored" (as Anony claims) or eradicated (as Morin suggests) the Amendment's first clause. And if Anony really believes that "The National Guard, the Army, Navy, Marines, Air Force satisfy my needs for a well-armed militia," he also didn't read the Court of Appeals opinion (Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007)), or Congress' 1792 definition of the militia, still codified in the U.S. Code: "The Militia of the United States consists of all able-bodied males at least 17 years of age and . . under 45 years of age." 10 U.S.C. § 311. The point being that the D.C. law blocked even persons classed as Militia from owning guns--and so was unconstitutionally overbroad under Anony's own terms. More importantly, as commenters OBH and bobn observe, it demonstrates that the original conception of "Militia" wasn't limited to an organized body like today's National Guard.



• Logic is fundamental: Scalia carefully looks to the language and context of the Second Amendment and concludes that the initial clause was prefatory, not limiting. Is this so strange? The Constitution's First Amendment begins: "Congress shall make no law. . . " Does that clause mean the liberty of speech/religion/assembly is secured only from acts of Congress, as opposed to state law or decisions of municipal bodies? Now, lawyers might say the circumstances aren't parallel, because of the effect of the 14th Amendment and the complicated doctrine of incorporation. Still, incorporation might also apply to Amendment 2. And, my broader point is that no other Constitutional reference to the rights of the people ever has been confined to the collective, as opposed to individuals. See United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990), cited by Justice Scalia. As law prof Glenn Reynolds says, "It takes politicians, law professors (and, it turns out, four Supreme Court justices) to believe that a 'right of the people' somehow actually doesn't belong to the people at all."
  
  Nor would it be logical, as Justice Stevens tries, to equate the phrase "bear arms" with organized military service, as Scalia shows:

  No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving "bear Arms" its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war--an absurdity that no commentator has ever endorsed. . .. Worse still, the phrase "keep and bear Arms" would be incoherent. The word "Arms" would have two different meanings at once: "weapons" (as the object of "keep") and (as the object of "bear") one-half of an idiom. It would be rather like saying "He filled and kicked the bucket" to mean "He filled the bucket and died." Grotesque.

  And--a point made by Tom Maguire of Just One Minute--I doubt Anony or Morin complained about a vastly more strained Constitutional reading, discerning privacy protections "in the Bill of Rights . . . penumbras, formed by emanations." Griswold v. Connecticut, 381 U.S. 479, 484 (1965).



• Facts matter: Anony hypothesizes that Heller will have lethal consequences: "more crazies will have access to weapons and use them to kill innocent people." Washington Post editorialist Eugene Robinson agrees:

  The practical benefits of effective gun control are obvious: If there are fewer guns, there are fewer shootings and fewer funerals. As everyone knows, in the District of Columbia -- and in just about every city in the nation, big or small -- there are far too many funerals. The handgun is the weapon of choice in keeping the U.S. homicide rate at a level that the rest of the civilized world finds incomprehensible and appalling.

  This claim is largely speculative and thus will remain unproven pending statistical analysis of a stable period of life under the new law. Still, to the extent that the past is prologue, the claim that Heller necessarily will trigger higher homicide rates is unsupported, as Don Surber shows:

  Question: Did the murder rate really triple under the Washington, DC, gun ban?
  
  Answer: Yes. The murder rate was 26.8 homicides per 100,000 people in 1976, when the ban became law. That would be its lowest rate for the next 30 years. It peaked at 80.6 homicides per 100,000 people in 1991.
  
  Question: What’s the highest the murder rate has been in gun happy West Virginia in that time?
  
  Answer: 6.9 homicides per 100,000 people.

  I'm not saying this confirms that re-establishing armed self-defense will save D.C. lives--though I suspect it will. But, contrary to Anony's implication, banning guns didn't reduce gun violence in D.C.--other policies consistent with self-defense were far more successful in other cities.



• 1939 was not a good year: In the Washington Post, Dionne further chastises the Heller majority for discarding a long-standing and supposedly settled ruling assertedly taking the opposite view of the Second Amendment:

  [T]hese pragmatic judgments underestimate how radical this decision is in light of the operating precedents of the past 69 years. The United States and its gun owners have done perfectly well since 1939, when an earlier Supreme Court interpreted the Second Amendment as implying a collective right to bear arms, but not an individual right.

  Reuters doesn't go that far, saying instead that the prior case "failed to definitively resolve the constitutional issue."
  
  Reuters gets half credit--and Dionne none. Both refer to Miller v. United States, 307 U.S. 174 (1939), on which Justice Stevens also relies. But--as I have shown, and Justice Scalia also concludes--Miller doesn't say that at all. Instead, this mis-interpretation of Miller--as Ann Coulter has detailed, the New York Times made the same error in 2002--flourishes mostly among those not closely reading the case. The fact that Stevens misread several aspects of Miller undercuts his position--and might evidence over-reliance on his law clerks.

I'm looking forward to getting a pistol, possibly a Sig-Sauer P250.

MORE:

MaxedOutMama quotes a gunowner about Heller: "I printed the ruling out and I sleep with it under my pillow."

MORE & MORE:

Kaimipono Wenger wonders what the ACLU will do?:

It seems theoretically plausible to suggest that, now that an individual right of some sort . . . has been recognized by the Court, that this right is now one which the ACLU should actively defend under its general mission of defending the Bill of Rights. This reasoning may become more compelling in the future, too, as future cases elaborate on the now-murky incorporation questions that Heller didn't really answer.

On the other hand, the culture-wars aspect of the debate might suggest otherwise. And I wonder whether those pragmatic considerations will win out -- whether the organization will take a different tack and hold, essentially, that Heller is wrong.

MORE³:

Another error in Justice Stevens's dissent.

(via Free Constitution, Instapundit (twice), Best of the Web, Wolf Howling)