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.