As most of you know the Supreme Court has been fairly busy the last few days handing down a series of rulings. I had hoped to post a little of my very amateur legal comments on the decisions but have been somewhat swamped by work lately so I haven’t had a chance to post until now.
Since it just came down today I thought I would start with the Heller decision (more properly District of Columbia v. Heller). This was another 5-4 ruling with the court liberals (Breyer, Ginsberg, Stevens and Souter) on one side and the court conservatives (Thomas, Scalia, Alito and Roberts) on the other. As usual middle justice Anthony Kennedy provided the swing vote.
In this case he swung to the conservative side in helping to strike down the District of Columbia gun ban which had been in place since 1976. The suit was brought by Dick Heller, a security guard who was denied his application to keep a gun at his home in the District. Six others also joined as plaintiffs but Heller is the name we will remember.
In striking down the law, Justice Scalia stated that the basic right for individuals to keep and bear arms for self protection is protected by the 2nd Amendment. He rejected the argument by supporters of the law that the words ‘well regulated militia’ in the amendment meant that the right was only connected to military service.
His opinion goes into great detail, breaking down the words of the amendment part by part to support the position that the purpose is to protect gun ownership rights by individuals and that since the purpose of the right is, at least in part, to defend people against an oppressive government it would be illogical to then assume the right could only be exercised through the government (IE a formal government militia).
He also points out that at the time the amendment was adopted that militia had a much looser meaning, applying simply to the concept that the men of a given community would be expected to come to the defense of the citizenry in case of emergency, such as attacks by Natives.
The dissenting opinion by Justice Stevens takes a narrower view, interpreting the term militia in a more modern formal sense, saying that it applies only to legally recognized organizations such as the National Guard or a State (ie government) organized body.
Regardless of my personal views on the merits or flaws of private gun ownership, I would tend to side with Scalia on this debate. As he points out it would be ridiculous to say that on the one hand the 2nd amendment right is there to protect against an intrusive government but then to say that the only way to exercise that right is with government permission.
Of course this is just a cursory review of the opinions and I would urge you all to go to the various web sites to read it for yourself, I will be offering a more detailed analysis this weekend.
However it is also worth noting that the ruling really does not change that much. The DC law was pretty much an absolute ban on gun ownership, about as restrictive as you can get. The majority opinion makes it clear that they do NOT intend to strike down any gun restrictions, only ones as absolute as the DC law.
The court has previously affirmed laws that required gun licenses or waiting periods, as well as banning felons or the mentally ill from owning guns. They have also supported laws that restricted gun possession at schools or other public buildings. The ruling makes it clear that these positions still stand.
So if you have a local law that requires applications, permits, waiting periods and the like, it is unlikely anything will change. Guns will not be carried into schools or courtrooms, nor will the unstable be allowed to own them.
So as is often the case, the actual impact of the ruling is not nearly as broad as the hype suggests, though it is clearly a major statement of 2nd amendment rights.