Thursday, July 3, 2008

District of Columbia v. Heller

We're getting ready for a 4th of July trip down to Los Angeles, so we won't be back until Monday. Until then, a brief introduction to our discussion of Heller.

The court found that the 2nd amendment protects an individual right to own firearms. Scalia writes the opinion. As with his opinion in Giles v. California (discussed yesterday), the only relevant question for Scalia was: What did the framers of the Constitution think the 2nd amendment meant?

Judge Stevens wrote the main dissent, with the three other judges joining him. He debated the issue with Scalia on his own terms, and determines that the Framers intended the amendment to protect militias, and not individual firearm rights?

Who is correct here? We don't dare wade into this debate. As purely policy matter, we like the result in Scalia's opinion better. As for our legal opinion, we're not inclined to view the intent of the framers as the be-all and end-all of the debate. We prefer to start with the text of the amendment:
"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."

Not the best drafting job in the entire constitution. In our view, it is very difficult to interpret the amendment in a way that is fair to the language before and after the first comma. If the right has nothing to do with militia service (Scalia's opinion), why include that language? To explain why the right is important? No other right in the Bill of Rights has such an explanation. On the other hand, if the purpose of the amendment is just to protect militias, why only state that the "right of the people to keep and bear arms" shall not be infringed.

We plan to focus on two issues in Scalia's opinion in Heller. One of them has to do with his interpretation of the Supreme Court's last opinion dealing with the 2nd amendment; the other has to do with how Heller will effect other types of gun control laws - particularly, laws that prevent felons from owning guns. HINT: we're not satisfied with Scalia's resolution of either issue.

Recommended reading: United States v. Miller

THE ISSUE HAS LEGS: Several parties in Kennedy v. Louisiana are considering filing a motion for rehearing based upon the death penalty provision in the Uniform Military Code that was left out in the majority opinion (because none of the parties told the court about it). It is unlikely that the Court would do this, and even more unlikely that a law that only applied in military court would (or should) change the result of the opinion.

For the last time: There was a much easier way to decide the case - a way that relied on settled law instead of the oft-criticized "state-counting" objective test used by the majority (want to know more? -v isit our archives!)

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