The Heller Decision: A Massive Disappointment For All

I’ve just finished reading the 68 page Scalia majority opinion in the 5-4 split decision in D.C. v. Heller.  For anyone, like me, who believes that our United States Supreme Court poorly serves its function of providing comprehensive and meaningful guidance to the People of the United States of America, you will not be disappointed.  Heller is a massive disappointment.

To cut to the chase, the sum total of Heller is that states cannot have a blanket prohibition on the possession of a handgun within the home for purposes of self-defense by individuals who are not otherwise prohibited, such as felons and the insane.  That’s all she wrote.

The first 54 pages of the majority opinion go through a painful explanation of how the Second Amendment provides an individual right to have weapons and carry them, provided they are weapons commonly used by regular people, as opposed to weapons used by the military.  Nothing surprising, though Scalia spends a lot of time shooting at the dissent.

As part of his explanation (and this will be relevant in a bit), Scalia writes:

From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century. In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia.

Slip Op. at 11 (used to distinguish J. Stevens argument that “bear arms” referred to use by militia).

Scalia, at section III of the opinion, then states “what’s allowed”:

For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion 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, or laws imposing conditions and qualifications on the commercial sale of arms. 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.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

This is where the opinion spirals downward into the toilet.  This portion of the decision, which purports to provide the actual answer to the actual question, does nothing.  Consisting of a grand total of 2 pages, at 57-8, it provides absolutely no rationale for the imposition of obviously goal-oriented limitations that fly directly in the face of his first 54 pages of verbiage.

During the arguments preceding Heller, I asked everyone, particularly the lawprofs, to provide any explanation of how one concludes that the Second Amendment provides a fundamental individual right, and still avoids all the implications of such a right.  We now have an answer, straight from the pen of Justice Antonin Scalia:

There is absolutely no rationale to support such a conclusion, so Scalia simply announced that all the limitations that he wants to apply continue to do so and provides no explanation or rationale at all.  It’s a total punt.

But if you thought this would be the only smack in the face Justice Scalia had to offer today, you would be wrong.  Ultimately, the holding is this:

Respondent conceded at oral argument that he does not “have a problem with . . . licensing” and that the District’s law is permissible so long as it is “not enforced in an arbitrary and capricious manner.” Tr. of Oral Arg. 74–75. We therefore assume that petitioners’ issuance of a license will satisfy respondent’s prayer for relief and do not address the licensing requirement.

Slip Op. at 59.  Remember Scalia’s whole discussion of what “bear arms” means?  It doesn’t matter, because he never reaches, never discussed, never even mentions, whether the right extends to carrying a weapon.  Because Dick Heller only wants to keep a gun at home, that’s as far as Scalia goes.  Because Mr. Heller, a D.C. special police officer, would otherwise be entitled to a permit, that’s as far as the decision goes.  Because Mr. Heller only asks for D.C. to grant him a permit, that’s as far as the decision goes.

So, now that Justice Scalia spent 54 pages to argue the existence of an individual right under the Second Amendment, we know nothing more than that Dick Heller can get a permit to keep a handgun in his home for self-defense.

The Supreme Court of the United States has utterly failed to fulfill its purpose of providing guidance to the American public.  They have opened the door to huge, fundamental questions, and slammed it shut without answering any but the tiniest of them, and did so without bothering to offer any explanation or rationale for its decision, leaving the legitimacy of its holding in the toilet.  What a disgrace.

13 comments on “The Heller Decision: A Massive Disappointment For All

  1. Gideon

    Agree completely. Very result-oriented, weak on analysis and argument. Not persuasive in the least bit.

    I like Stevens’ comments on page 9 of the dissent, running on to page 10

  2. Joel Rosenberg

    Well, while I certainly would have liked a more wide-ranging decision, I’m a happy camper today.

    Yup; it doesn’t settle any of the details, except in this individual case — DC has to give Heller a permit.

    I’d have liked to see an explicit acknowledgment that, when a case comes up talking about carrying a handgun in public — not just in one’s home — the same principles apply…

    … but I’m willing to wait for another day for that.

  3. SHG

    They announced a fundamental individual right, yet also allowed all standing regulations to remain intact without explanation, and left 99% of the questions arising from this right unanswered.

    This is a recipe for massive confusion.  People will “see” rights that aren’t there, and “deny” rights that may be there, all because the Supreme Court failed to fulfill its responsibility to the People to provide meaningful guidance as to what our rights are under the Constitution.

  4. SHG

    From Doug Berman’s analysis :

    To his credit, Justice Stevens properly asserts in this context that felons are not categorically excluded from exercising First and Fourth Amendment rights and thus the majoiry “offers no way to harmonize its conflicting pronouncements.”

    No way indeed.  So now we spend the next decade litigating each itty bitty detail over each specific fact pattern?  And how many people go to jail or get killed awaiting an answer?

  5. Joel Rosenberg

    We’ll definitely spend the next couple of decades litigating the implications of this; that’s unavoidable.

    Even if — as I’d have preferred — the Supremes had overtly stated: we already have lots of law about when and how the government can limit fundamental rights; we’re going to use that we still would.

    I’ll be very interested to see the NYC cases, for example. NYC’s limitations are just a step below DC’s and Chicago’s, and I think are now very ripe for challenge. Can a citizen be required, say, to spend $200 (for a starter), submit all sorts of documentation, and then wait months and months (or years) before being allowed to exercise an individual right?

    In the long run, I think the answer is, “heck, no; look it up.”

    But you’re quite right in that we don’t have a definitive answer today, and it will take some time to work out the confusion.

    Then again, that’s the way civil rights move forward in litigation. Look how long it took from Brown until Heart of Atlanta Motel v. United States, just to pick an obvious example.

    I think Heller is the self-defense movement’s Brown, and I’m sure that there is the equivalent of “with all deliberate speed” in it.

  6. Joel Rosenberg

    Yes, and lots. It would have been simpler for the court to adopt the dissent and say, in effect, “Hey, whatever right there is, it’s void anytime you can come up with some reason why you think it should be” — which is what “rational basis” really is — but simpler isn’t necessarily better.

  7. Mike Hansberry

    Praise the Lord, and pass the ammunition !

    SHG, What was the question before the court?

    Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

    The answer is YES.

  8. Cassie Edelstein

    If we are praising the Lord, does the Lord not say, “Thou shalt not kill?” or do we leave everything open to interpretation. Is it a question of defending ourselves in our homes, or carrying concealed weapons to commit heinous crimes. If carrying weapons to protect ourselves is what our society is still in need of, the law has failed us.

  9. Michael Bannerman

    Funny, I predicted that DC would revert to the pre-1976 law and haven’t been disappointed. Of course, all that means is that revolvers may be registered after the application process is successfully completed. As Scalia says, Heller may register his handgun if he successfully completes the process.

    I agree, not a big victory for the RKBA movement, but a huge one from the gun control movement. They can do everything except ban the lawful ownership of firearms–whatever that means.

    Of course, the squeaky wheels RKBA folk have to clog up the courts.

    Not sure how long it takes before someone says “stop the nonsense: the Second Amendment addresses militia efficiency, not private ownership of firearms outside the militia.”

    Where is the phrase “self-defence” in the Second Amendment, or Constitution for that matter?

  10. Joel Rosenberg

    In response to your question: well, no; that’s the mistranslation. The original text says, basically, “Don’t murder.”

    As to your last, sure; all laws fail folks, from time to time. Given how distressingly common all sorts of assault are, it’s manifest that, from time to time, some people are in need of carrying weapons to protect themselves. If you choose not to, though, I’ve no problem with that; I’m pro-choice, and all.

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