June 30, 2008

I've spent the past couple of days reading analysis and opinions on the recent DC vs Heller decision by the Supreme Court. I was listening when they announced the opinion, and was reading it within minutes of it being posted. It is a landmark decision, no doubting that, but also pretty scary both for what it doesn't say, and for how close it was.

Scalia really outdid himself this time, and Stevens and Breyer should be ashamed of themselves for the shoddy work they did on their dissents. It's worth reading the opinions just for the amusing name-calling. I've spent about all the time I've been away from work since then reading commentary and analysis of the opinions and what may come out of them.

This is a very narrow opinion, though I think it has a lot more depth than a lot of the anti-rights people realize. Scalia hints quite strongly in dicta that the court will probably incorporate the amendment to be binding upon lower jurisdictions - about bloody time, if you ask me.

But the practical effect is likely going to be pretty limited. The opinion was quite clearly carefully crafted to maintain the status quo over most of the country. Only in the areas where the status quo is particularly egregiously infringing people's rights is it going to have any real effect. Even once the Chicago and San Francisco follow-on cases filed in the past couple of days play out and almost certainly establish that non-federal jurisdictions also cannot ban firearms ownership and self-defense, SCOTUS has quite clearly signaled that they see "reasonable" restrictions on the right as just fine. Problem is, who defines reasonable? That question will be litigated for years. Just what part of "shall not infringe" do these geniuses not understand?

Therein lie the problems. This was a 5-4 decision. Now, setting aside for the moment the fact that I find it incomprehensible how FOUR people qualified to be Supreme court justices could fail to follow the reasoning required to join in the majority opinion, that says we are one death or change of heart from a reversal. Even should that not happen, the "reasonable regulation" ogre that has been left in place could quite easily allow hostile jurisdictions to legislate away any practical self-defense.

That's all ignoring the REAL point of the Second Amendment, too. Scalia very gingerly touched on what academics call the "insurrectionist model" of the Second Amendment, which routinely horrifies even most of the proponents of the now-vindicated "Standard Model".

As someone famously observed, the Second Amendment is not about duck hunting. Nor, as much as way too many of our purported allies even among libertarians and other hard-core freedom lovers try to believe otherwise, is it merely about self-defense. The Second Amendment is about deterring TYRANNY, by maintaining the credible possibility of armed resistance - and should that awful possibility come to pass, by actively EXECUTING armed resistance.

Scalia explicitly conceded that point, which I must say I found somewhat amazing, but at the same time he shied away from really applying it. At least some of the justices, I think, know damn good and well that things like the 1934 National Firearms Act and the insultingly named 1986 "Firearms Owners Protection Act" are blatantly unconstitutional, but are just plain afraid of the consequences should they overturn them. That's a fight for another day, though, and this ruling does indeed make that fight at least conceivable to win in some distant, undefined rosy future.

The advantages of this ruling are going to, in the end I think, come more from rhetorical and philosophical uses than legal. Don't get me wrong, the ongoing legal battle mounted by the team that won DC vs Heller, the Second Amendment Foundation, and the National Rifle Association are going to bear important fruit, and quite likely further expand firearms rights. But the intense interest by the public in this ruling, and oddly enough the distorted reporting by the mainstream media, are I think going to allow the pro-rights movement to continue gaining ground. From what I've seen out there, the real heavy hitters in the movement are pumped up by this win, and are charging ahead guns blazing... (wink)

further reading:

The opinion in DC vs Heller or alternate (pdf)

The followup Chicago challenge

The Volokh Conspiracy is an ongoing discussion among law professors, several of whom contributed to the briefs on DC vs Heller, a lot of good info here.

SCOTUSBlog is another site featuring discussion among members of the Supreme Court bar, again several of the members actually took part in the case.

Dave Kopel has a lot of good commentary and analysis here.

David Hardy is well worth a read.

Clayton Cramer (blog)

Daily roundups of Second Amendment news, a lot of DC vs Heller entries the past few days.

Jeffrey L "the Hunter" Jordan

Your comments welcome!

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