Contrary to popular belief, the Supreme Court’s ruling in District of Columbia v Heller did not extend 2nd Amendment rights (“…keep and bear arms…”) to all Americans. The court declared, for the first time, that the right is an “individual” right, but the ruling did not establish a “fundamental” right by which state and local governments are bound (see also: “incorporation”).
In fact, Justice Scalia, writing for the majority, took great pains to explain that the court’s decision did not preclude state and local governments from limiting their constituent’s rights to keep and bear arms as long as the restrictions are not excessive (i.e., “reasonable”).
What Heller Said and what it Didn’t:
I, too, watched every minute of Judge Sotomayor’s confirmation hearing and what I learned caused me to revisit my prior analysis of Justice Scalia’s majority opinion in Heller. My most recent analysis, in light of what I heard during the hearing, leads me to believe that, regardless of my personal views about Judge Sotomayor’s judicial philosophy, she was right about what Heller did and didn’t do.
What Heller Did:
1. Settled the question about whether or not the right to “keep and bear arms” was a state right (see: “militia”) or an individual right. The SCOTUS has held that the Second Amendment speaks to an individual right. That is now “settled” law.
2. Confirmed the government’s (state, local, federal) right to place restrictions on gun ownership/use.
3. Held that DC’s gun laws were “unreasonable” (the manner in which the District required gun owners to keep their guns rendered the arms virtually useless for self-defense and they essentially banned an entire category of arms: handguns).
4. Ordered the District to give Heller a license to keep a registered handgun in his home (unless he is otherwise disqualified).
Justice Scalia:
“In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment , as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.”
What Heller Didn’t Do:
1. Establish a “fundamental” right for ALL citizens (“fundamental” rights are those rights by which ALL state/local governments are bound) to keep and bear arms. Note that Justice Scalia said “the District’s ban” violates the Second Amendment; it does not say that “the District and every state” is bound by its (the court’s) decision.
2. Restrict DC’s ability to require that handguns must be registered.
Until a case rises to the SCOTUS to address and resolve an issue surrounding state or local jurisdiction, the Heller decision is not “incorporated” at a national level. In other words, as I understand it, until someone files suit claiming that their “individual right to keep and bear arms” is violated by some state or local law or restriction and that case reaches the SCOTUS, state/local governments are not bound by the Heller decision (except that we can all use its “individual” right finding as a basis for a suit).
I found the following (from Justice Scalia’s opinon) interesting as I had always assumed that the Bill of Rights was a set of “automatic” rights that we all enjoy. Turns out, until the Court makes an actual ruling (to include First Amendment rights), no such “fundamental” right exists. Who knew?
“We conclude that nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment . It should be unsurprising that such a significant matter has been for so long judicially unresolved. For most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens. Other provisions of the Bill of Rights have similarly remained unilluminated for lengthy periods. This Court first held a law to violate the First Amendment ’s guarantee of freedom of speech in 1931, almost 150 years after the Amendment was ratified, see Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931) , and it was not until after World War II that we held a law invalid under the Establishment Clause, see Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign Cty., 333 U. S. 203 (1948) . Even a question as basic as the scope of proscribable libel was not addressed by this Court until 1964, nearly two centuries after the founding. See New York Times Co. v. Sullivan, 376 U. S. 254 (1964) . It is demonstrably not true that, as Justice Stevens claims, post, at 41–42,“for most of our history, the invalidity of Second-Amendment-based objections to firearms regulations has been well settled and uncontroversial.” For most of our history the question did not present itself.”
As much as I am loathe to admit it, Judge Sotomayor was right to recuse herself from answering Senator Coburn’s questions about a right to self-defense in his own home in light of the Second Amendment in general and Heller specifically. That question has simply never been presented to the SCOTUS for a ruling, except in DC. Her expectation that she may have to rule in such a case is both reasoned and reasonable.
However, the whole exchange with Coburn et al was quite maddening.
I suggest (respectfully) that you take the time to read the majority opinion. It’s a fascinating history (including basic tenets of English Common Law) about our founding, our constitution, and our laws.
So then, following the same logic, none of the other Bill of Rights apply to individuals as fundemental rights?
Interesting, but I’m not sure this argument holds water. To date, several local bans and restrictions have been overturned applying the Heller decision.
But hey, your milage may vary!
By: Jim Matte on July 30, 2009
at 6:58 pm
Not exactly. The esoteria surrounding Supreme Court rulings includes a requirement that the court actually has to RULE that a right, contained in the Constitution and/or Bill of Rights (or, by extension, rights “created” through the interpretation of the Constitution and its amendments), is “fundamental” and therefore must be “incorporated” by the states.
The tenth amendment (I think) says that any right not specifically spelled out is reserved for the states. Heller was “landmark” because it clarified/resolved that the 2nd Amendment right to keep and bear arms was an individual right rather than a state right.
For instance, the freedom of speech has been determined to be a “fundamental” right by the court (sorry, I don’t have the appropriate citation at hand). No such ruling has been made by the court in light of the recent 2nd Amendment findings in Heller. Until some case hits the court to require such a ruling, no assignment of “fundamental” exists for the 2nd Amendment.
The court DID rule, however, that restrictions, guidelines, procedures, etc. created by state and local governments must be “reasonable” (part of the justification in the Heller case, as cited in the majority opinion by Justice Scalia, was that DC allowed people to own firearms but they had to be locked up or dismantled in such a fashion that the weapon could not be used in self-defense inside the home; in effect, they were useless…the court ruled that the restrictions placed on gun owners was unreasonable). This may be why you’re seeing laws/rules/ordinances being modified or removed.
Heller prevailed because DC’s laws were overly stringent. As a byproduct, the court ruled that the 2nd Amendment was an individual right (amazingly, the first time the issue was raised to the court in our history). The court did NOT rule that the right to keep and bear arms was a fundamental right. Therefore, states are not bound by the Heller decision with respect to incorporation.
I didn’t dream this up, by the way. It all came to light during rigorous examination of Judge Sotomayor during her confirmation hearings.
By: Tad on July 30, 2009
at 11:11 pm