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Supreme Court Puts A Bullet in Gun Control

In the final decision of its 2007-2008 term, a Justice Scalia-led court majority rejects arguments that the Second Amendment’s preface constrains an individual’s right to possess firearms.

In striking down a Washington D.C. ban on handgun possession, the Supreme Court on Thursday provided a stark and unambiguous resolution to one of the nation’s hottest and longstanding Constitutional questions. That question, simply, is whether the 12-word prefatory clause to the Second Amendment restricts what gun rights advocates have long insisted is a clear right for individuals to possess firearms.

In a word, the answer provided in the 5-4 decision authored by Justice Antonin Scalia, is a flat “no.”

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.–The Second Amendment to the U.S Constitution

Justice Scalia’s characteristically full-throated (and, in places, caustic) opinion elicited a vigorous dissenting opinion from Justice John Paul Stevens.

Justice Scalia’s 64-page opinion was met, point by point, by Justice Stevens’s 46-page dissent. Principally, the two argued over how the prefatory clause of the Second Amendment should be read, and the extent to which the court’s ruling on Thursday repudiated the Supreme Court’s 1939 ruling in United States v. Miller. Justice Stephen Breyer, while joining Justice Stevens’s dissent, also filed a separate dissenting opinion in which he argued that to the extent the Second Amendment does protect an individual right, it is “not absolute, but instead subject to government regulation.”

The Constitutional question presented itself before the court in the case of District of Columbia, et al v. Dick Anthony Heller. Heller is a special police officer who, while authorized to carry a handgun while on duty at the Federal Judicial Center, was barred by the district from keeping a handgun at home.

“In sum,” Justice Scalia wrote for the majority, “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.

“We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for regulation of handguns. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.”

Among other news organizations, the New York Times, Washington Post, and National Public Radio heralded the ruling in the case as a “landmark” constitutional decision. Justice Scalia was joined in the majority by Justices Samuel Alito, Clarence Thomas, Anthony Kennedy, and Chief Justice John Roberts. Justice Stevens was joined in the dissent by Justice Breyer and Justices David Souter and Ruth Bader Ginsburg.

There was little nuance in Justice Scalia’s opinion as to whether the prefatory clause of the Second Amendment–“A well-regulated Militia, being necessary to the security of a free State”–alters how one should read the remainder of the amendment.

No, he wrote, “it fits perfectly, once one knows the history that the founding generation knew and that we have described above [in the majority opinion.] Along the way, Justice Scalia had pronounced Justice Stevens “dead wrong” in holding the view that the right to bear arms is a collective right, consistent with how Justice Stevens views the collective right people have under the constitution to petition the government.

In response, Justice Stevens wrote that, among other things, Justice Scalia’s reasoning for the majority essentially stood the amendment on its head.

“The Court today tries to denigrate the importance of this [prefatory] clause of the Amendment by beginning its analysis with the Amendment’s operative provision and returning to the preamble merely ‘to ensure that our reading of the operative clause is consistent with the announced purpose,’” Justice Stevens wrote. “This is not how this Court ordinarily reads such texts, and it is not how the preamble would be viewed at the time the Amendment was adopted.”

Their disagreement was at least as sharp over how to interpret earlier Supreme Court rulings on gun ownership, particularly the 1939 Miller case.

Wrote Justice Stevens: “The view of the [Second] Amendment we took in Miller–that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons–is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption.”

Moreover, Stevens noted, “Since our decision in Miller, hundreds of judges have relied on the view of the Amendment we endorsed there; we ourselves affirmed it in 1980.”

Justice Scalia and the majority didn’t see it that way at all, insisting that the earlier decisions, including Miller, had simply not addressed the meaning of the Second Amendment’s prefatory clause. Quoting from Justice Stevens’s dissent that “for most of our history” Second Amendment challenges to gun control laws were rejected because the validity of such regulations are “well settled and uncontroversial,” Justice Scalia simply replied that: “For most of our history the question did not present itself.”

“Miller,” Justice Scalia wrote, “stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.”

As strongly as the majority opinion emphasized the individual constitutional right to use firearms for self-defense, it made clear that the right was not absolute.

“Like most rights,” Justice Scalia wrote, “the right secured by the Second Amendment is not unlimited.”

Nothing in the opinion, he added, “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.

Posted June 27th