Thursday, June 26, 2008

The Supreme Court overturns the DC gun ban in District of Columbia v. Heller. The decision was 5-4: Scalia, Roberts, Kennedy, Thomas, and Alito in the majority with Breyer, Stevens, Souter, and Ginsburg dissenting. For analysis, see some of the usual suspects: SCOTUSblog, Volokh, and Hot Air. Here are some of the basic points of this decision, written by Scalia, as far as I can tell: the Second Amendment recognizes an individual right, and this right is subject to some regulation. The court doesn't lay out exactly what regulations are permissible but does find that DC's law crosses the line of Constitutionality. Since Heller's lawyers seemed not to quarrel with the notion of licensing, the court did not rule explicitly on that. Here's a relevant passage on the restriction of firearms:
Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.
With its (admitted) numerous gray areas, this opinion would seem to pave the way for more lawsuits about the Second Amendment in the future.
One interesting point for further lawsuits in this area is whether the Second Amendment is incorporated into the Fourteenth Amendment to apply to the individual states as well as the federal government. The court doesn't rule on incorporation directly, but the role of incorporation is mentioned in a footnote about the nineteenth-century ruling of U.S. v. Cruickshank, which ruled that the Second Amendment was not incorporated into the Fourteenth:
With respect to Cruikshank’s continuing validity on incorporation,
a question not presented by this case, we note that Cruikshank also
said that the First Amendment did not apply against the States and did
not engage in the sort of Fourteenth Amendment inquiry required by
our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252,
265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed
that the Second Amendment applies only to the Federal Government.
So the court does mention precedent denying incorporation to the Second Amendment. However, Scalia may imply an avenue for incorporation in this observation near the beginning of the opinion:
The unamended Constitution and the Bill of Rights
use the phrase “right of the people” two other times, in the
First Amendment’s Assembly-and-Petition Clause and in
the Fourth Amendment’s Search-and-Seizure Clause.
These First and Fourth Amendment provisions have been incorporated into the Fourteenth Amendment (reversing Cruickshank's denial of incorporation to the First Amendment). Could the "right of the people" be used as a vehicle for claiming incorporation?