Another Thought on Heller

Reading the comments of Linda Singer, the former District of Columbia’s Attorney General, “[w]hile the majority spent much time on British and colonial history, they talked almost not at all of the real world, right now, life and death consequences to the Court’s ruling,” another thought crossed my mind.

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.

Can any of you textualists out there point out where in the Second Amendment the words “self defense” (or defence, as they preferred to spell it back then) appears?

While defense of one’s home is certainly a significant reason why the right to keep and bear arms should exist, nowhere does the text of the amendment provide a limitation of its purpose to self-defense (as opposed, for example, to the defense of democracy from a tyrant). 

And where does it mention a home, apartment, abode, living space, castle or any other particular location?  So how do we end up with a right, but only inside our home? 

As noted in my earlier post, Scalia went on at length to explain that the right to “bear Arms” refers to the right to carry arms around with you.  Yet this aspect of the right disappears during his discussion of what the court is permitting.  Is it a magic trick?  Is it a miracle?  Is it a concession to that reality that Linda Singer was talking about?

This is not an argument over whether it’s a good or bad idea, but whether it’s rational and internally and externally consistent.  What was that thing about judicial philosophy again, Justice Scalia?

And don’t get too hot and sweaty over which of your state laws are going to fall first.  After all, it’s not like Scalia said that the right was incorporated and applies to the states.  Even that will be left for another day and a million dollars later.

8 thoughts on “Another Thought on Heller

  1. Joel Rosenberg

    Great minds run in the same gutter; your objection to the “in the home” stuff was exactly what David Gross initially objected to when I was reading the summary to him over the phone this morning.

    As to the question of what wasn’t decided, isn’t it judicial modesty for the Court to not go beyond the issues presented in the case at hand?

    I haven’t read the Opinion of the Court other than once, and that only briefly, but my entirely amateur impression was that while the Court decided that whatever restrictions might be Constitutional, a blanket prohibition against possession of a handgun in the home clearly isn’t, and strongly suggested that it will look very closely and critically at restrictions beyond the ones that it (for good and/or ill; I’m unhappy with the throwing of former felons under the bus) specifically said seem okay.

    But yeah, I think if one opens law books and looks at blanket prohibitions against carrying handguns in public places, you can see “MENE, MENE, TEKEL, UPHARSIN” penciled in along the margins.

    As to the practical issues, well, yeah; I think that those are definitely worth addressing. Will the number of defensive gun uses — and the saving of lives — go up only a little, or a lot?

  2. SHG

    I told you that you would be less thrilled with the decision as you worked your way through it.  While the theoretical holding sounds good, the devil is in the details, or in this case. the lack of details.  In fact, aside from the extremely unsatisfying ruling that Heller gets his gun, you would think that gun control prevailed.  After all, did you read anything in that decision that changes anything beyond a total ban in the home being unconstitutional?

  3. Gideon

    Another very valid point – the right to “bear arms” (Justice Stevens’ definition of which is more persuasive, btw) “only in your house in immediate self-defense unless you’re mentally retarded or a felon” is what the second amendment says.

  4. Anne

    This is such a hard one — what was a “militia” then? Now? We guess it’s the National Guard today (as opposed to some constitutional movement group!). But things have changed so, so much in the past 200+ years in terms of what “militia” means, what arms mean, etc.

    Back then, the military was strictly BYOW (bring your own weapons). There was no DOD.

    Past and present can barely imagine one another in this context. No wonder we’re so confused. Maybe the one thing past and present would agree on is that “the people” have the power to change their government.

  5. Joel Rosenberg

    Well, yeah, I do — but, as you no doubt suspect, it’s not as explicit as I wish it was, and as I expect it will be after the next case.

    With the exception of the Court ordering the relief prayed for (did I get the terminology right?), the thrust of the Decision of the Court (you will, I hope, excuse me for enjoying writing that) is that the RKBA is a fundamental right, acknowledged by the Second Amendment, and that it can’t be infringed upon. (Which is different, of course, from “can’t be limited at all.”)

    There isn’t any suggestion that I can see that the scope of that right is limited to the home, but merely that, in the case presented, that the RKBA in the home is clearly protected.

    I’m still thrilled. I think there’s a lot of issues to still be decided, but, as I wrote (and said) at length before today, even the best possible decision (which this isn’t; although it is, IMHO, pretty close) will still result in years and years of litigation to give it teeth.

    I think the principle — which I approve of, in principle — of judicial conservatism impels the Court to at least try (although, in this case, I think that they’re trying a little too hard) stay away from deciding issues that aren’t before it, and haven’t been argued.

    Just to pick one: there’s some hints in the Opinion of the Court that it may see a clear distinction between open and discreet carry in public. I think that’s bad legislative policy, mind — I think Minnesota’s refusal to draw a legal distinction is good policy, and Texas’ and New Mexico’s and Arizona’s different forms of insistence on it unwise — but I think it’s entirely possible that, say, NYC’s government may find that it can require its draconian carry permit system for concealed carry, while simply having to live with New Yorkers (and visitors; I’d love to feel comfortable visiting — and if you’re up for it, the coffee and/or beer’s on me) strapping a S&W 625 JM into a visible Vega holster as they proceed out of the flat and head for the subway.

  6. Joel Rosenberg

    Whatever the militia is now — and I think it’s implicit in the decision — it’s not the National Guard; the Court decided that in Perpich.

    As to the military being strictly BYOW, I don’t think so — didn’t the Continental Army issue infantry weapons? (I know there were armorers.) And who brought (and for that matter, bought) the cannons? You don’t think that the farmers and apprentices and such brought their own cannons, do you?

  7. Anne

    I honestly don’t know who brought the cannons! They’re so heavy.

    I spent several years living not far from Yorktown. Somehow this knowledge did not soak into me as much as their frightening dentistry practices.

    But they did have the citizen-soldier Cincinnatus thing going, did they not?

  8. Joel Rosenberg

    The Americans on the Revolutionary side (let’s forget the French, for the nonce) included local militias, as well as the Continental Army, which were regulars: unlike the militia they served for fixed terms of enlistment, were equipped by the Army (at the direction of the Continental Congress), and in many cases, fought conventional battles with varying degrees of success against the British regulars. (When the militias fought conventionally against the British, they did horribly.)

    Whatever the National Guard is, it’s not either the state militias that existed after the Revolutionary War, or the local militias that existed both before and after. That’s not just my opinion; the Perpich case settled that.

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