Heller and the DC Gun Ban

A well-regulated militia, being necessary for the protection of a free State, the right of the people to keep and bear arms, shall not be infringed.

— Second Amendment to the Constitution of the United States of America

Last Thursday, the Supreme Court ruled in favor of individual gun ownership, and, somewhat paradoxically, in favor of state – as opposed to federal – regulation of same.

In District of Columbia v. Heller [.pdf], Justice Scalia wrote the majority opinion for Chief Justice Roberts and Justices Kennedy, Thomas, and Alito [Breyer, Stevens, Ginsberg, and Souter dissented. Quelle surprise! The minority arguments were mostly contrived and ideological, in my layman's opinion]. The ruling has been hailed as a great victory for gun rights, a return to Constitutional government, and all kinds of clap-trap.

In fact, it’s hardly laudable as Constitutional fidelity. In writing the majority opinion, Scalia said:

The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist [sic] rhetoric.… John Smilie, for example, worried not only that Congress’s [sic] “control of the militia” could be used to create a “select militia,” or to have “no militia at all,” but also, as a separate concern, that “[w]hen a select militia is formed; the people in general may be disarmed.”

This last, by the way, is exactly the liberal argument against gun ownership I hear most often: individual gun ownership is no longer necessary because we now have the Army and the police. What kind of blithering idiot would one have to be in order to entrust his very life into the hands of the government? I mean, an organ that cannot understand that 2 + 2, always and forever, equals 4 — not 5, and not 3 — is going to keep me safe and sound? Really?

Scalia continues:

Federalists responded that because Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people. … It was understood across the political spectrum that the right helped secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.

Notice that “Congress was given no power,” not “Congress has no power,” nor “Congress possesses no power.” This insignificant statement belies its importance. Buried in a typically verbose rendering of opinion are the keys to the kingdom. The fact is, the original intent of the Constitution was to circumscribe the powers of the federal government. A strict constructionist — or, as I prefer to refer to them, someone who knows what the heck the Constitution says — would understand that such a document provides an exhaustive list of governmental powers, as would have been the custom in the late eighteenth century. This is a concept which is sorely missing in modern discussion of Constitutional republican government: that the powers of Congress, the President, and the Judiciary are limited to those specifically spelled out in the text of the unamended Constitution. [In a future post, I will analyze the political and financial implications of a truly Constitutional government, and why such a government is unlikely in modern America]

Besides ignoring the historical reality that the Second Amendment was not intended to lay down a “novel principl[e]” but rather codified a right “inherited from our English ancestors…” [the] petitioners’ interpretation does not even achieve the narrower purpose that prompted codification of that right. If, as they believe, the Second Amendment is no more than the right to keep and use weapons as a member of an organized militia, — if, that is, the organized militia is the sole institutional beneficiary of the Second Amendment’s guarantee — it does not assure a “citizens’ militia” as a safeguard against tyranny… For Congress retains plenary authority to organize the militia, which must include the authority to say who will belong to the organized force. That is why the first Militia Act’s requirement that only whites enroll caused States to amend their militia laws to exclude free blacks. … Thus, if petitioners are correct, the Second Amendment protects citizens’ right to use a gun in an organization from which Congress has plenary authority to exclude them. It guarantees a select militia of the sort the Stuart kings found useful, but not the people’s militia that was the concern of the founding generation. [Emphasis in the original]

For the life of me, I can’t pin down these guys — the four “conservatives.” On the one hand, they’re doing all they can to ignore basic Constitutional concepts to the benefit of a despotic Unitary Executive, and on the other hand seemingly trying to ensure that the same despot is finally limited in his grasp, if not his reach.

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. … It is demonstrably not true that, as JUSTICE STEVENS claims… “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.

Then comes the rub, the catch, the vig:

Like most rights, the right secured [not granted] by the Second Amendment is not unlimited. From Blackstone through the 19^th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. [He then lists several legal prohibitions of firearms, and disclaims the list as not meant to be exhaustive] … We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” … We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

Further gun-rights minimization comes because “the conception of the militia at the time of the Second Amendment’s ratification [a time when there were no standing armies, mind you, much less machine guns, fighter jets, or ICBMs] was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.”

The case was about the validity of the DC handgun ban. The narrow scope of the case, and the unique legal position of DC, makes this decision much less the “harbinger of a new era of freedom” than so many pundits would have us believe.

The DC ban consisted of the fact that residents of the District were not allowed to possess unregistered handguns; registration of handguns was not allowed; licenses for handguns could be obtained only from the Chief of Police, and would be valid for one year; and, finally, the Chief of Police had sole discretionary power to decide who would receive a license. It was, for the most part, the total caprice with which the ban was regulated that the Court took greatest issue.

As we have said, the [DC handgun law] totally bans handgun possession in the home. … As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right. … The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. … [B]anning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” … would fail constitutional muster.

…It is enough to note… that the American people have considered the handgun to be the quintessential self-defense weapon.

Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.

We must also address the District’s requirement (applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.

We… do not address the licensing requirement.

One must note that whatever the majority position of the Court on various issues, SCOTUS is still an institution of the state, dependent upon the President for nominating, and the Senate for confirming, its membership, and dependent upon the Congress in toto for its funding. My point is, no matter what Article III of the Constitution, or your high school civics teacher, says, the Third Branch is decidedly not independent of the other two, and when the chips are down, it will fall into line with the dictates of the state.

Scalia left the door open for just such nefarious activity — the Court rubber stamping the prohibitions of the Congress — when he wrote:

[The dissent] chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible. … But since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field… [a]nd there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us. [My emphasis]

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.

[…]

Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

This is some reassuring rhetoric from the bench. But the fact that the Court refused to nail down absolute limits on possible prohibitions — and even refused to rule on the legitimacy of the bald-faced “infringement” of licensing, based solely on the injured party saying he “doesn’t have a problem” with being licensed [as if a police officer is the final repository of Constitutional jurisprudence; a cop has a vested interest in keeping tabs on all citizens' activities by the very nature of his job] — is true cause for concern, what with the likelihood the next President will replace sitting justices with political activists, regardless of who wins in November.

Hans-Herman Hoppe has this to say about the inherent fallacy of a limited, Constitutional government:

Because they are not subject to and bound by contracts, states typically outlaw the ownership of weapons by their “clients,” thus increasing their own security at the expense of rendering their alleged clients defenseless. In contrast, no voluntary buyer of protection insurance would agree to a contract that required him to surrender his right to self-defense and be unarmed or otherwise defenseless. To the contrary, insurance agencies would encourage the ownership of guns and other protective devices among their clients by means of selective price cuts, because the better the private protection of their clients, the lower the insurers’ protection and indemnification costs would be.