Heller

The Supreme Court has ruled on the Washington DC gun case - Heller. It appears that the right to own a handgun in Washington DC is constitutionally protected. This result, as well as the 5-4 vote, comes as no surprise since Republicans (not conservatives or "Originalists") hold the controlling majority on the Court right now. The ironic part of the decision is neatly summarized by this post: In the Boumediene decision a few weeks back, Justice Scalia argued that the majority's decision giving Guantanamo detainees a right to a judicial hearing would cost American lives. One could probably say the same thing of Justice Scalia's majority opinion in Heller. After all, if you lift the ban on handguns in the District of Columbia, it's entirely possible that some additional people will be killed as a result. ...Yet in both Heller and Boumediene, the majorities (one conservative, the other liberal) blithely disregard stern warnings from the dissent that know-it-all elitist judges will cost American lives. This is the bitter irony that is today's Supreme Court. If one tries to read the 157 page majority opinion, or the dissent, they will find a myriad of references to arcane historical events. Stuart kings references feature prominently in the majority opinion. The effect of historical relevance, to my mind, plays absolutely no part in this debate. If it did, we would need to incorporate the realities of the 18th century, where almost everyone carried a gun and frequently used them to settle disputes in the street - likely legally, I might add. I assume the Court does not expect to replace modern jurisprudence with Code duello any time soon, so the historical context of the legal analysis breaks down almost from the outset. In terms of a useful opinion, I find both sides to be lacking. Scalia spends an inordinate amount of time paying homage to all of the current gun control legislation, presumably in an attempt to forestall the deluge of legal challenges to other gun legislation in the wake of Heller. His explanation for why all of the existing gun statutes are OK - except this one - does not sit well with me. Justice Scalia’s opinion stressed that the Court was not casting doubt on long-standing bans on carrying a concealed gun or on gun possession by felons or the mentally retarded, on laws barring guns from schools or government buildings, and laws putting conditions on gun sales. Why not, exactly? Taken from Scalia's oral arguments, he talks about common use: Scalia suggested that under U.S. v. Miller, individuals have a Second Amendment right to keep and use a broad class of firearms in "common use" at this time -- though not arms that are "uncommon" for private citizens, such as machine guns. This is a neat exercise in cause-effect reversal. The reason that machine guns are "uncommon" for private citizens is because of the federal statutes that govern their procurement. These statutes are not a reason to create yet another, concurring statute. If gun ownership is a fundamental right, than it has been violated since 1986, when the machine gun ban was enacted. Since we have allowed the ban to fester for 20+ years, machine gun ownership has become "uncommon". Scalia then uses "uncommon" as a reason to not protect the right. This would be tantamount to a review of metal gas cans. Metal gas cans have been banned for quite some time, due to the increased possibility of fires. If someone invented a new metal can that prevented fires and then challenged the metal can ban, would Scalia then say "well, nobody uses metal cans anyway, so the ban is OK"? Not quite circular logic, but certainly close. The question of incorporation was also discussed in oral arguments. Scalia again: [T]he Second Amendment [i]s a guarantee that the federal government will not interfere with the individual's right to bear arms for self-defense. ... Dispassionate scholarship suggests quite strongly that the right of the people to keep and bear arms meant just that. ... [T]here is no need to deceive ourselves as to what the original Second Amendment said and meant. Of course, properly understood, it is no limitation upon arms control by the states. This would imply non-incorporation. However, in the written opinion: The Court took no position on whether the Second Amendment right restricts only federal government powers, or also curbs the power of states to regulate guns. In a footnote, Scalia said that the issue of “incorporating” the Second into the Fourteenth Amendment, thus applying it to the states, was “a question not presented by this case.” But the footnote said decisions in 1886 and 1894 had reaffirmed that the Amendment “applies only to the Federal Government.” Whether the Court will reopen that issue thus will depend upon future cases. Sounds pretty weasel-y to me... The dissenting opinions are no better - but, since they do not control policy, they are significantly less relevant. I believe all opinions expressed are weak and un-satisfactory. We know that these opinions are merely cleverly-worded justifications for the Justice's pre-conceived notions, and to support their particular political platforms. The fact that this outcome could easily be predicted shows that. The only real question was 5-4 or 6-3. I continue to be amused by the invocation of "history" as a justification for politically-motivated judicial rulings. If history is as truly relevant as this decision makes it seem, we should be appointing not judges, but history professors, to the Supreme Court. This would (partially) ensure that a proper interpretation of history is used when we delve into the mystical judicial process of reading the Founding Father's minds.