Skip to comments.Revisiting the DC v. Heller ruling - Part III
Posted on 06/29/2009 4:55:03 AM PDT by marktwain
In parts one and two, we looked in detail at the ruling of the Supreme Court of the United States. In this third part, we will examine the dissenting opinions. Dissenting opinions hold no rule of law, but are oftentimes cited as persuasive authority by those who wish to change laws or file additional lawsuits. They can even be used by a future court to overturn a previous decision.
While we won in this case and SCOTUS affirmed that the Right to Keep and Bear Arms is indeed an individual right and that the DC gun ban is unconstitutional, we came within one justice of losing on both counts. The Dissenting Opinions will help us understand why.
The first dissenting opinion was written by Justice John Paul Stevens, noted by Wikipedia as "widely considered to be the leader of the liberal side of the court". He argues that while the Second Amendment "protects a right that can be enforced by individuals," he feels that the scope of that right is the issue.
Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes. Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case.
Justice Stevens claims United States v. Miller "provide[s] a clear answer" to the issue of individual vs. collective rights, and that "the Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia." He claims there is no evidence to indicate the Founders intended for there to be a right to individual gun ownership; despite much evidence presented to the contrary and the fact that denying the individual right to Keep and Bear Arms would by design disarm the militia, as explained by Justice Scalia in the majority opinion.
Stevens used the Miller ruling that the Second Amendment did not apply to a specific short-barreled shotgun to mean that the general Right was reserved for the militia. He believes that the fact that the court said such a firearm had no relation to a private citizen's potential service in a militia, in other words, such a firearm was not a military weapon (which I'd argue they got wrong as there are documented cases of short-barreled "trench shotguns" being used very effectively in WWI), that they were in fact stating the overall right was reserved solely for the militia. Closer to the truth would be that they designated that a short barreled shotgun was not an "arm".
Stevens then argues that all evidence presented by Scalia regarding historical context should be ignored as "significantly different" from the Second Amendment. He also believes it shouldn't be considered because it was available to the Court in the Miller case. Since that Court didn't review it, he believes this Court should ignore it as well. After arguing the historical context should be ignore, Stevens proceeds to give his interpretation of said context.
He gives his interpretation that a well regulated Militia, being necessary to the security of a free State "identifies the preservation of the militia as the Amendment's purpose; it explains that the militia is necessary to the security of a free State; and it recognizes that the militia must be 'well regulated.'" Here, Stevens is arguing that the prefatory clause is identifying the only purpose of the amendment instead of singling out one purpose as Scalia argued. Since the amendment does not specifically denote self defense, hunting, etc., he believes those activities are not protected. Despite the fact that had the colonial government prohibited the use of firearms for hunting, for example, many colonials at the time would have starved to death.
Justice Stevens then goes on to deride the majority for believing that "the people" in the operative clause means the same thing as the use of "the people" in the rest of the Constitution. Apparently, the Founders meant something completely different in the Second Amendment than they did everywhere else. Here, he argues, "the people" means only people serving in the militia. He fails to explain why they didn't say the right of the people serving in the militia to Keep and Bear Arms shall not be infringed. Maybe they were running low on ink.
Next up is "To keep and bear Arms". Justice Stevens defines this as "to possess arms if needed for military purposes and to use them in conjunction with military activities". After making up his own definition, he takes the majority to task for their use of the phrase, "to possess and carry weapons in case of confrontation". It would seem to me that the defining portion is "to possess and carry weapons". Why it is acceptable for him to read additional meaning into the definition and not Scalia is curious to me.
Breaking it down further, Stevens uses a definition of "to serve as a soldier, do military service, fight" for bear arms. That definition, taken from a 1989 dictionary probably not available to the Founders, lists three possible definitions separated by commas. "Fight" being the third, and people can fight outside of a military context. That fact was apparently lost on the esteemed Justice as he presented several more conflicting definitions before arriving at the final conclusion that bear arms "refers most naturally to a military purpose." To me, bear arms refers more naturally to carry weapons, but I never went to law school.
Stevens explains that keep "describe[s] the requirement that militia members store their arms at their homes." He fails to cite the dictionary that produced that definition. Finally, he arrives at his conclusion, "when each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia."
Justice Stevens then continues with a history lesson about the fears at the time that a standing army would become oppressive, and also that an untrained militia was unsuitable for defense. Therefore, he believes...
In order to respond to those twin concerns, a compromise was reached: Congress would be authorized to raise and support a national Army and Navy, and also to organize, arm, discipline, and provide for the calling forth of "the Militia."
So, to prevent Congress from being oppressive with its Army and Navy, it could call on the Militia to stop itself. And apparently the people could be disarmed, but once Congress called on them to become a Militia they had to give those arms back. That certainly sounds more plausible than the alternative argument, that the Founders wanted to be sure The People couldn't be disarmed so that they would always remain a check on the power of the government.
While meandering a bit from topic to topic, Justice Stevens eventually comments on provisions in two earlier proposals, which ?included the text, "that any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead." From that, he maintains "?There is no plausible argument that the use of 'bear arms' in those provisions was not unequivocally and exclusively military: The State simply does not compel its citizens to carry arms for the purpose of private 'confrontation,'...or for self-defense."
Granted, the state does not force anyone to carry arms. However, how he can arrive at the conclusion that the use of the phrase bear arms here is "unequivocally and exclusively military" while not also arguing that those in the military cannot be "religiously scrupulous" under the same grounds is beyond me. Use of a phrase in one context does not make it exclusive only to that context.
After that, Stevens gets back to the checks and balances concept and correctly asserts "state militias could not effectively check the prospect of a federal standing army so long as Congress retained the power to disarm them, and so a guarantee against such disarmament was needed." Justice Scalia argued that is why the Founders included the concept of the militia in the prefatory clause as one reason why The People had the Right to Keep and Bear Arms. However, Stevens "proves" this point by writing, "the evidence plainly refutes the claim that the Amendment was motivated by the Framers fears that Congress might act to regulate any civilian uses of weapons." Again, how can the militia be a check if Congress has the power to disarm those who would make up the militia?
Here is the scenario, according to Stevens:
Congress: We've decided to oppress you guys and our armies will do our bidding. Disarmed Citizens: Sorry, we're forming a militia to stop you Congress: Oh, ok. Here are your guns back. See you on the battlefield!
Justice Stevens then continues with his explanations regarding how all of the historical references used by the Majority "shed only indirect light", apparently in contrast to the blinding beacon of light he is wielding. He also dismisses all of the scholarly discussions after the drafting as having "limited relevance" because they were "unfamiliar with the drafting history of the Second Amendment".
He then references Joseph Story, a former Supreme Court Justice who was quoted in Stevens' beloved Miller case. Story acknowledges that the people have the right to keep and bear arms, but doesn't think they should have that right. So, because one guy is quoted as saying "there is a growing indifference to any system of militia discipline" that the Framers could not have intended for individuals to have a right to be armed. Also, since Story never mentioned hunting or self-defense, those two couldn't possibly be covered under the amendment.
Stevens then contradicts himself again by arguing that "all of the statements the Court cites were made long after the framing of the Amendment and cannot possibly supply any insight into the intent of the Framers; and all were made during pitched political debates, so that they are better characterized as advocacy than good-faith attempts at constitutional interpretation," despite the fact that he earlier commented that "hundreds of judges" have viewed Miller his way. I'd argue that they were employing judicial advocacy and reading into the decision something that wasn't there.
Stevens then misread the Court's decision in United States v. Cruikshank when it wrote:
"The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent on that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government."
Stevens claims "the Court did not itself describe the right, or endorse the indictments description of the right." But it does! It is not a right granted by the Constitution, it is a pre-existing right acknowledged by the Constitution. They are saying, though, that it only applies to the Federal government, an opinion later overturned as the Court ruled that the Bill of Rights does restrict States as well.
Justice Stevens then goes on to claim that the militia became the National Guard in 1901 and that the prohibition of small, concealable arms from being mailed and bans on machine guns and and sawed-off shotguns were all proof against an individual Right to Keep and Bear Arms. He again refers to the Miller ruling allowing a prohibition on one short-barreled shotgun as proof the Second Amendment has nothing to do with self-defense. It strikes me as amusing that Stevens can so vehemently maintain that "the Court is simply wrong" in this case, yet the Court in the Miller case got everything exactly right.
His belief that this ruling creates a "new constitutional right" is a complete fabrication.
Justice Stephen Breyer, "currently known as an intellectual leader of the liberal wing of the Supreme Court" according to Wikipedia, wrote the second dissent. He believes that the Majority is wrong for two reasons. First, he agrees with everything Justice Stevens said. Second, they are wrong because "the protection the Amendment provides is not absolute." He believes that since the protections guaranteed by the Second Amendment are not absolute, then it is ok for DC to completely deny them.
Although he agrees with everything Stevens said, Breyer "assume[s] that one objective...of those who wrote the Second Amendment was to help assure citizens that they would have arms available for purposes of self-defense." This despite agreeing with Stevens who argues that it was not.
Breyers believes the DC ban is ok because handguns are the "overwhelmingly favorite weapon of armed criminals." I suppose if criminals preferred to hit victims with a Bible it would be ok to ban those as well.
He continues, "in interpreting and applying this Amendment, I take as a starting point the following four propositions, based on our precedent and todays opinions, to which I believe the entire Court subscribes...(1)The Amendment protects an individual righti.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred."
Except that he agrees with Stevens that this is not true. Two other justices signed on to that dissent as well. But, I digress.
"(4) The right protected by the Second Amendment is not absolute, but instead is subject to government regulation." While he is correct that the whole Court does seem to agree with this particular concept, "regulation" is not the same as "prohibition".
He gives as an example of government regulation during the Colonial period that "Boston, Philadelphia, and New York City, the three largest cities in America during that period, all restricted the firing of guns within city limits to at least some degree." Again, restricting to some degree firing guns is miles from being the same as a total ban.
"Furthermore, several towns and cities (including Philadelphia, New York, and Boston) regulated, for fire-safety reasons, the storage of gunpowder, a necessary component of an operational firearm." He claims a supposed ban on storing gunpowder inside the home (without the text being available to me, I cannot ascertain what exceptions might have been made, such as are common in current laws) and posits this created a de facto gun ban for self-defense. Of course, container storage requirements for loose powder as a fire hazard are not applicable to today's modern cartridges for which there would be no such concern.
When asking how the curt is to determine when a regulation has gone too far to become unconstitutional, Breyer talks about a "rational basis" standard, which "requires a court to uphold regulation so long as it bears a 'rational relationship' to a 'legitimate governmental purpose.'" Apparently, all it takes for the government to decide to take away any right is to believe itself to have a legitimate reason for doing so. I wonder if he'd feel the same way if Congress decided that articles criticizing them could not be published because they were hurting their credibility?
Justice Breyer believes that instead of looking at the facts of the protections written, the Constitution should be looked at from a "interest-balancing" perspective. In this case, "with the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other." He feels that if the government decides you're safer disarmed, you should be disarmed. Evidence is irrelevant, government rationale is the new standard to be applied. Indeed, checks and balances be damned, "the Court normally defers to a legislatures empirical judgment in matters where a legislature is likely to have greater expertise and greater institutional factfinding capacity." He believes if the Legislature says it is the right thing to do, the Court should not counter that; despite admitting that "a court, not a legislature, must make the ultimate constitutional conclusion". Breyer then argues that the DC ban is not a ban on self-defense because it only bans handguns and requires trigger locks or disassemble of long guns. I guess when woken by the sound of broken glass at 3am you'll have no trouble putting your gun back together or finding the key and removing the trigger lock before the burglar reaches your bedroom.
He further justifies the handgun ban under his interest-balancing rational theory by claiming the intent "to reduce the potentiality for gun-related crimes and gun-related deaths from occurring within the District of Columbia." Since DC has the highest murder rate in the nation while this ban is in effect, I'd say that it has dramatically failed in that regard.
He then goes on a multi-page rant about how bad guns are (bias, anyone?) before going into a discussion about the Second Amendment only relating to militia service and that Heller is too old to be in the militia (didn't he initially state he "assume[s] that one objective...of those who wrote the Second Amendment was to help assure citizens that they would have arms available for purposes of self-defense"?) He also says that the ban doesn't take away any rights because citizens can always go outside the district to exercise those rights (hey, let's ban churches in the District... people can also leave and go to church elsewhere; after all, "I cannot say that a subway ticket and a short subway ride...create more than a minimal burden").
Justice Breyer then explains another reason a ban is so important...
The reason there is no clearly superior, less restrictive alternative to the Districts handgun ban is that the bans very objective is to reduce significantly the number of handguns in the District, say, for example, by allowing a law enforcement officer immediately to assume that any handgun he sees is an illegal handgun. And there is no plausible way to achieve that objective other than to ban the guns.
Well, I'm all for getting rid of rights if it makes it easier for police to assume everyone is a criminal. We should ban cars to. That way, the police can assume everyone driving is a drunk driver. The assumptions continue...
...any measure less restrictive in respect to the use of handguns for self-defense will, to that same extent, prove less effective in preventing the use of handguns for illicit purposes. If a resident has a handgun in the home that he can use for self-defense, then he has a handgun in the home that he can use to commit suicide or engage in acts of domestic violence.
It is good to know Breyer sees all gun owners as potential suicidal criminals. He also laments that this ruling "will encourage legal challenges to gun regulation throughout the Nation" and "threatens severely to limit the ability of more knowledgeable, democratically elected officials to deal with gun-related problems." I'd argue that's a good thing.
I cannot understand how one can take from the elected branches of government the right to decide whether to insist upon a handgun-free urban populace in a city now facing a serious crime problem and which, in the future, could well face environmental or other emergencies that threaten the breakdown of law and order.
All those legislators, including the U.S. Congress, who are enacting legislation to prevent Katrina style confiscations should take note... here is a Supreme Court Justice who would like to overturn those laws and render disaster stricken residents defenseless.
He does, however, make one good point that confuses me as well.
Nor is it at all clear to me how the majority decides which loaded arms a homeowner may keep. The majority says that that Amendment protects those weapons typically possessed by law-abiding citizens for lawful purposes. Ante, at 53. This definition conveniently excludes machine-guns, but permits handguns, which the majority describes as the most popular weapon chosen by Americans for self-defense in the home. Ante, at 57; see also ante, at 5455. But what sense does this approach make? According to the majoritys reasoning, if Congress and the States lift restrictions on the possession and use of machine-guns, and people buy machine-guns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machine-gun. On the majoritys reasoning, if tomorrow someone invents a particularly useful, highly dangerous self-defense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so. In essence, the majority determines what regulations are permissible by looking to see what existing regulations permit.
Myself, I prefer a more hands-off approach when it comes to gun bans and instead harshly punish those who use guns to actually commit crimes. However, Breyers does not and believes the DC gun ban should stand, finally ending his argument with his prediction about how the Founders would view modern society. Again, his interpretation differs from mine. Fortunately for us all, the Majority is a little closer.
This has been Part III of a three part series examining the SCOTUS ruling. Part I covered the Syllabus introduction and findings, Part II covered the majority opinion, and Part III covered the dissenting opinions.
Of course, the Miller court made no such ruling. They decided that they could not make a ruling one way or another about the short-barrel shotgun without further evidentiary hearings which never took place.
Stevens argument is long and circuitous, because it would never occur to him that self-defense is an inalienable right. I believe that this was so obvious to the Founders, that they neglected to set it down on paper.
1) Given Steven's and Breyer's position vis a vis the military use for arms, I trust we can count on them to fully support the home storage of machine guns for all members of the militia, and further more to support the marksmenship training (or regulation) for those people. As a retired member of the organized militia and a current member of the unorganized militia, I thank them.
2) Justice Breyer supports the intent "to reduce the potentiality for gun-related crimes and gun-related deaths from occurring within the District of Columbia."
Uh, what's the phrase you learned in law school, the Mr. Justice? "Assumes facts not in evidence"?
Finally, it's too bad the positions these liberals put forth aren't required to be internally consistent. About 2/3 of the arguments they put forth can be refuted by other opinions they themselves make within their own dissenting opinions. Sheesh.
Sounds like you’re an ideal candidate to make #1 happen. Find a willing Class III dealer, pay for a new M4, file the Form 4 properly and completely, get rejected by the BATFE, and follow Mr. Heller’s process, case, and verdict to the letter. Being a “retired member” may be key to winning.
Kind of like the meaning of the word "marriage," eh?
I'm not sure I follow. I've never looked at Form 4 prior to now but in glancing at it I'm not sure what basis the ATF would have for rejecting me. Could you elaborate?
Welcome to the world of NFA.
You would be rejected because an M4 is manufactured after 1986, the cutoff date for federal law 922(o) banning civilian ownership of machineguns (pre-’86 MGs are grandfathered). Form 4 is rejected for anything you are not allowed to have.
The interesting bit is that the M4 is exactly what the Founding Fathers had in mind when enacting the 2nd Amendment (and emphasized by the Militia Act of 1792): unhindered (nay, encouraged) civilian ownership of standard/common/mundane modern military arms. You, a retired military man and now explicit member of the unorganized militia, with presumably clean record and upstanding citizen, should constitute a perfect example of the intention of the 2nd Amendment that you should, without infringement, be able to own a new M4 for defense of home and country without infringement (and we’ll even overlook the Form 4’s “infringement” of no possession until registration & $200 tax) - but 922(o) forbids you from doing so, and invariably causes a Form 4 rejection.
Make sense? (I’d do it if I had the money to spare. You have the advantage of honorable discharge from military service.)
Ditto the money thing. The one reservation I would have on being the ideal candidate would be the fact that my State identifies an age limit for the unorganized militia and I exceed that by six years. While I'd still turn out for muster, I'd think a somewhat younger retiree would avoid that possible loophole.
Of course if I could find a benefactor who'd cover the costs, I'd do it in a New York minute.
I would assume so. A statist tyrant is a statist tyrant. (Of course published criticism of George Bush is different. Somehow. That's Constitutionally protected speech.)
That's absurd. He must think all the guys who use guns for "illicit purposes" scrupulously check the laws and would obey this one as opposed to all the others. Any law will have almost no effect on the behavior of the criminal class, except possibly to embolden them, whereas the spectrum of restrictive laws would have a whole range of impact on the feasibility of gun ownership for self defense.