Freedom New Mexico
The U.S. Supreme Court’s decision in District of Columbia v. Heller might not have been as sweeping in its scope as we might have preferred. In practice it is likely to permit any number of gun-control laws to which we would object because they are too impractical, expensive, intrusive and ineffective to be considered constitutional. Nonetheless it was a landmark decision, and decided correctly on almost all counts.
The case arose from the District of Columbia’s uniquely restrictive 1976 gun-control law, which banned outright the possession of handguns and that required legal guns to be kept unloaded and disassembled or with a trigger lock.
The issue was whether the Second Amendment — “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed” — protects an individual right or a collective right that can be exercised only when one is serving in a militia.
As Justice Antonin Scalia’s majority opinion in the 5-4 decision explained rather clearly, at the time of its passage and based on language and context, the amendment protects an individual right retained by all people.
Every other passage in the Constitution that refers to a right of “the people” refers to an individual right. In 1787, the “militia” was all able-bodied men, not a standing army or government-run reserve force.
And the clear understanding of (small-r) republicans at the time of the founding was that the individual right to keep and carry arms was essential to protecting individual freedom, not only from foreign invasion or criminal disturbances, but also against a potentially tyrannical government.
Advocates of gun control who find this understanding of the Second Amendment inconvenient have tried for years to argue that the right applied only to people in an organized militia. As Justice Scalia explained, however (and illustrated with examples), the prefatory phrase does not limit the operative phrase, and that is how it was understood until very recently in our history.
So the court affirmed that the right to keep and bear arms is an individual right and declared the D.C. laws unconstitutional. Those were the most important aspects of the case, and the court got them right.
The majority opinion also stated that “the right secured by the Second Amendment is not unlimited.” Specifically, “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Thus many current gun-control laws are likely to pass constitutional muster under the Heller doctrines, though further challenges to specific laws are likely.
Roger Pilon, vice president for constitutional studies at the libertarian Cato Institute, pointed out that Justice Scalia’s opinion included the stipulation that, in such cases, courts should not apply “rational basis,” the lowest level of scrutiny, to such laws, since the right to keep and bear arms is a fundamental enumerated constitutional right, requiring strict scrutiny when a legislative body seeks to limit it.
All in all, a good day for individual rights.