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Why The Supreme Court’s
Gun Opinion Is Bonkers
The United
States Supreme Court seems to have ratified the argument of
firearms activists that individuals have a Constitutional right
to possess and use guns, and the NRA is already planning a
litigation blitzkrieg against gun laws throughout the country.
The NRA and its allies are in for a major shock. When they
sashay into court, brandishing the newly minted Scalia opinion,
they will find out the Court has actually weakened their
position.
Lurking on page
58 of the 157 page Court opinion (including the dissent) is the
landmine that will blow up in the face of the NRA and anybody
else who thinks the Heller decision will invalidate
restrictive gun laws throughout the nation. “We also recognize
another important limitation on the right to keep and carry
arms,” wrote Justice Scalia. “We think that limitation is
fairly supported by the historical tradition of prohibiting the
carrying of ‘dangerous and unusual weapons.’”
Justice Scalia
admits the “regulated militia” language is nonsensical in the
modern era. If we cut through his historical analysis and
pedantry, he is really saying: take that militia stuff with a
grain of salt. Just because they were talking about muskets and
we are talking about machine guns doesn’t mean the militia
language is obsolete. Quaint, perhaps, but not obsolete.
“Indeed, it may be true that no amount of small arms could be
useful against modern-day bombers and tanks,” he wrote. “But
the fact that modern developments have limited the degree of fit
between the prefatory clause and the protected right cannot
change our interpretation of the right.” The consequence,
however, is a constricted interpretation of the right.
Here is where
Justice Scalia went wrong: He set out to establish the Second
Amendment as a protection of the individual right to keep and
bear arms. But his analysis reflects the Constitutional right
of Privacy. The result is possibly the weakest declaration of a
Constitutional right in the history of the Supreme Court. When
the Court affirmed the right to counsel, or the right of freedom
of expression, or the right to be free from unreasonable search
and seizure, the Court didn’t truncate the rights while they
affirmed them. They struck down certain provisions or practices
because they violated a fundamental right and left it to the
evolution of the law to determine the boundaries of the right.
That evolution removed libel, threats, and fighting words from
the protections of the First Amendment. It modified search and
seizure law to allow for certain exceptions. Justice Scalia’s
opinion defies that natural evolution of the law. He has
already declared that “dangerous and unusual weapons” are not
protected by the Second Amendment. He has also decreed that
other limitations – bans on guns at school, for example – will
pass Constitutional muster. Justice Scalia attempted to foresee
and resolve issues that will undoubtedly come up in district and
circuit courts in the wake of his opinion by an expansive use of
“dicta,” which is language a Court uses to provide guidance, not
direction. Such an expansive use of dicta is unusual, and
suggests that Justice Scalia knew he was getting in over his
head. What he is saying, basically, is, “Don’t take this
Second Amendment stuff too far.”
Justice
Scalia’s error was failing to recognize a privacy issue and,
instead, trying to make it a Second Amendment issue. This is
the very narrow holding of the Court: “(T)he enshrinement of
constitutional rights necessarily takes certain policy choices
off the table. These include the absolute prohibition of
handguns held and used for self-defense in the home.”
I emphasize “in
the home,” because that is what he is really talking about.
Americans have the right to do what they want in their homes, as
long as it doesn’t result in a breach of the peace. That’s why
the Supreme Court overturned sodomy laws in Lawrence v
Texas. That’s why the Alaska Supreme Court allowed adults
to possess small amounts of marijuana in Ravin v State.
If individuals are allowed to participate in gay sex in their
homes, or smoke pot in their homes, they logically should be
allowed to keep weapons in their homes for protection. The
District of Columbia, with its total ban on firearms, violated
that basic principle, one that is founded on the right to
privacy, not a right to keep and bear arms. The District of
Columbia had no Constitutional basis to prevent law-abiding
citizens from keeping weapons for self defense in their homes.
As the Supreme Court of the United States ruled in Lawrence,
and as the Alaska Supreme Court affirmed in Ravin, the
home is sacrosanct. That’s what Justice Scalia tried to say in
Heller, but he was so busy building a monument to himself
that he overlooked the basic issue. There was no need to make
Heller a Second Amendment case. Heller was a
right to privacy case, not a Second Amendment case, and Justice
Scalia’s attempt to shoe-horn it into a Second Amendment issue
has turned the Second Amendment into the most watery provision
of the Bill of Rights.
I hope the gun
advocates who are partying over what they think is a major
historical victory enjoy their celebration. When they realize
what Justice Scalia has actually done to them and their cause,
they’ll be more inclined to plan a wake.
© June 27, 2008, by Mike
Tully |
Mike has been writing a regular column on
Inside Track
Online since July 1, 2003. |
