June 26, 2008

At Last... Court Rules Founders Meant What They Wrote In the 2nd Amendment

Hatched by Dafydd

The decision was just released literally a few minutes ago, so no details yet. But the majority opinion was, as rumored, written by Justice Antonin Scalia... and it begins with a definitive, unnuanced, categorical statement that the Second Amendment to the United States Constitution protects a right to keep and bear arms held by every American... not just those connected in some nebulous way to a "militia," whatever that word means in this day and age. (I don't know if it's limited to citizens or extends to legal residents; and whether it only applies to legal adults or reaches into lower teen ages -- in 1791, those in the militia automatically included all males between 16 and 40-something.)

This is a stunning blow to the national gun-prohibitionist movement; it knocks away the prop on which every federal proposal to ban whole classes of gun is based: the idea that the amendment only protects the "right" (?) of states to keep and bear militias. It was always a foolish and mendacious interpretation; but until today, it was one that had resonated with some appellate courts. (I don't know if this ruling affects state laws; see below.)

Many circus courts that held the amendment applied only to members of the National Guard hung their robes on an equally stupid misreading of U.S. v. Miller, 307 U.S. 174 (1939). In that bizarre case, Jack Miller and Frank Layton were charged with transporting a short-barreled shotgun across state lines. The trial court found that the National Firearms Act -- the law they were accused of violating -- was unconstitutional because of the Second Amendment; the Supreme Court overturned that verdict.

The Court ruled, at core, that the amendment only protected possession of those weapons normally used in armies or militias. No evidence was presented that short-barreled shotguns were in common use among such bodies (though of course they were): The reason no evidence was presented, I believe, was that Miller's attorneys did not show up at the Supreme Court hearing -- as their client had inconveniently been murdered in prison while awaiting appeal.

The Court never reached the question of whether Miller was in any kind of militia; but that didn't stop numerous appellate courts from falsely claiming that the Court in Miller held that the amendment applies only to members of the "militia," which at that time had become the National Guard.

But today's ruling puts paid to that deliberate obfuscation; the only thing clear at this point is that the Court has definitively held that the amendment applies to everyone, not just those in one of the state National Guard units. But the major point I need answered is whether the Court has "incorporated" that protection to state laws, as it has with, e.g., most of the rights in the First and Fourth Amendments: What does the Court say about whether states are likewise forbidden from violating the right to keep and bear arms, regardless of what their state constitutions say (or don't say)?

Reaching that question was unnecessary in the Heller case, and I suspect they steered clear of such overreaching. But this ruling is certainly going to spark federal cases on precisely that question. The amendment does not even mention Congress, as many other rights in the Bill of Rights do; so I think there is at least a serious argument that "the right of the people to keep and bear arms shall not be infringed" would apply to states as well as the federal government.

That question, more than any other, will determine the scope of this ruling; it will surely be litigated over the next decade or so:

  • If federalism trumps the Second Amendment, then most gun bans nationwide will prevail;
  • But if the right trumps federalism, we'll see a wholesale striking-down of such bans nationwide.

But we're not going to know the answer to that question -- or even whether the Court addressed it (probably not) -- until much later today, after lawyer-bloggers like Patterico and the lads at Power Line (not to mention Eugene Volokh, Beldar, Hugh Hewitt, and that lot) have had a chance to digest at least a significant part of the Scalia majority decision itself.

Keep watching the skies!

Hatched by Dafydd on this day, June 26, 2008, at the time of 8:01 AM

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Tracked on June 26, 2008 9:41 AM


The following hissed in response by: levi from queens

I was once told by a fellow law student (whose word I never quite trusted) that the legislative history of the 14th amendment makes it quite clear that one of the amendment's primary purposes was to prohibit the southern states from forbidding gun ownership to former slaves. This was to allow them self-protection against the Klan. I do not know if such legislative history is available on-line. It would be in the Congressional Globe.

The above hissed in response by: levi from queens [TypeKey Profile Page] at June 26, 2008 9:28 AM

The following hissed in response by: levi from queens

The history mentioned is not found in the Congressional Globe for the 39th Congress, at least upon my search of it. I searched under amendment and found two speeches neither of which reference a right to bear arms. I also searched under arms and found nothing. I believe this is just the floor record. Perhaps there are committee records somewhere.

The above hissed in response by: levi from queens [TypeKey Profile Page] at June 26, 2008 9:49 AM

The following hissed in response by: levi from queens


Here is the page where Senator Howard, apparently the author of the 14th amendment says it is intended to prevent the states from infringing upon the right to keep and bear arms. It is in the debate of May 23, 1866. I don't know why it didn't come up in the earlier searches.

The above hissed in response by: levi from queens [TypeKey Profile Page] at June 26, 2008 1:52 PM

The following hissed in response by: Baggi


That link goes to SCOTUSblog where Tom Goldstein writes;

The opinion leaves open the question whether the Second Amendment is incorporated against the States, but strongly suggests it is. So today’s ruling likely applies equally to State regulation

The above hissed in response by: Baggi [TypeKey Profile Page] at June 26, 2008 4:43 PM

The following hissed in response by: Bill Faith

Federalism? "The right of the people to keep and Bear arms shall not be infringed except at the whim of the individual States"?

The above hissed in response by: Bill Faith [TypeKey Profile Page] at June 26, 2008 11:07 PM

The following hissed in response by: Dafydd ab Hugh

Bill Faith, et al:

Just a brief point (not disagreeing with you at all, rather amplifying the point you made). I'm actually responding to the Democrats, who make this fallacious argument...

"Federalism" has never meant "states can do anything they want." Under this bad definition, one could ask, shouldn't federalism allow states to leave the union and join instead with another country? But I doubt that even Thomas Jefferson would have agreed that Virginia could leave the union and rejoin England!

Federalism never meant that states could jettison democracy and become monarchies, or capture visitors from other states and hold them for ransom. In the modern era of selective incorporation of federal rights to the states, they cannot reintroduce slavery or nullify freedom of speech or habeas corpus.

So by that same token, if the right to keep and bear arms is an individual right -- as the Court now finally agrees it is -- and if that right is considered to be a fundamental right, then more than likely, the same Court would hold that, even with federalism, states cannot nullify it.

There is no conflict between the philosophy of federalism and the idea that some rights are universal and will be universally protected by the federal courts, even from depredations by the states themselves.


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at June 27, 2008 1:47 PM

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