The Heller Syllabus

As reported in the decision, the syllabus is prepared by the court staff for the convenience of the reader and does not have any binding legal language; it's just the summary version. I'm going to start my analysis there. It begins with a summary of the case:
District of Columbia law bans handgun possession by making it a crime to carry an unregistered firearm and prohibiting the registration of handguns; provides separately that no person may carry an unlicensed handgun, but authorizes the police chief to issue 1-year licenses; and requires residents to keep lawfully owned firearms unloaded and dissembled or bound by a trigger lock or similar device.  Respondent Heller, a D. C. special policeman, applied to register a handgun he wished to keep at home, but the District refused. He filed this suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home. The District Court dismissed the suit, but the D. C. Circuit reversed, holding that the Second Amendment protects an individual's right to possess firearms and that the city's total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.
Not much to say here.  It's an accurate summary. Next, the holdings:
1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.
This is the core win for us. An individual right, unconnected to service in a militia, that protects not just hunting but also self-defense and other traditionally-lawful purposes.
(a) The Amendment's prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause's text and history demonstrate that it connotes an individual right to keep and bear arms.
Again, part of our core victory here.  The "militia clause" does not limit the right that is protected, although it may explain its purpose.
(b) The prefatory clause comports with the Court's interpretation of the operative clause. The "militia" comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens' militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens' militia would be preserved.
Again a necessary part of our victory.  Scalia's decision is basically blessing the "Standard Model" of the 2nd Amendment.
(c) The Court's interpretation is confirmed by analogous arms bearing rights in state constitutions that preceded and immediately followed the Second Amendment.
No surprise here -- other state Constitutions agree with this interpertation, often in language less easily confused.  Enforcement of those state Constitutional provisions has not always been ideal, though, or we'd have fewer gun control laws.  However, the example of Vermont, which has permitless concealed carry due to some court rulings to that effect, is instructive.
(d) The Second Amendment's drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms.
It's of dubious worth because, after all, the drafters picked one final version.  However, the fact that many of the versions they began with included clearer individual rights language can be suggestive of how they thought about the proposed right.
(e) Interpretation of the Second Amendment by scholars, courtsand legislators, from immediately after its ratification through thelate 19th century also supports the Court's conclusion.
No surprise here.  The "collective rights" fiction is a 20th century invention designed to provide a convenient non-answer to Constitutional challenges to the National Firearms Act of 1934.
(f) None of the Court's precedents forecloses the Court's interpretation.  Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264 265, refutes the individual rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes.
This vindicates something I have been saying about Miller for a long time -- that the ruling was based on the militia status and type of the weapon, not the militia status of the person possessing it.  However, it also hints (not surprisingly, but disappointingly) that Scalia will be backing away from Miller's implied protection of military weapons. The result of applying Miller faithfully to modern laws would be... exciting. So Scalia is preemptively backing away here. We'll have to read this section of the actual decision to understand exactly where he's going.  More on the other cases later.  Next the syllabus has a laundry list of what we lost.  On the one hand, it's disconcertingly large and includes a lot of things I wish would rather not be there.  We'll have to read these parts of the decision closely to find out exactly how bad these concessions are, but it basically looks like most (if not all) existing federal laws regarding gun ownership will be preserved. 
2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court?s opinion should not 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. Miller?s holding that the sorts of weapons protected are those ?in common use at the time? finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.
Well, the result isn't unexpected, but we'll have to read it closely to understand the reasoning.  The only positive thing I can say about this part is that most of it will be dicta -- not necessary in order to reach the core ruling striking down the District's handgun ban.  Will that matter?  Probably not to lower courts, which will use this language to avoid striking down any federal laws that resemble those listed.  For future Supreme Court decisions, though, there may be some room.  Notably absent from Scalia's list of permitted infringements is the Lautenberg domestic-violence prohibition -- and the court is hearing a case next term on exactly that.  Interesting.  Also missing is any reference to an assault weapons ban.
3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District's total ban on handgun possession in the home amounts to a prohibition on an entire class of "arms" that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition -- in the place where the importance of the lawful defense of self, family, and property is most acute -- would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement.  Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.
And this is the most disappointing part, even though it's the part that affirms the lower court and delivers us the actual win.  The court avoids setting a standard of review for firearms laws.  It explicitly validates licensing and registration requirements for simple possession.  The only bright spot is that it does so because Heller conceded those points in his argument -- later challenges to licensing and registration laws could conceivably have a different outcome.

So... a mixed bag.  5 votes to create an individual right that protects possession in the home for self-defense and other lawful purposes, but has a laundry list of exceptions.  No standard of review specified.   No word on incorporation, either.  Later courts will have to decide how much weight to give this court's dicta on which infringements are permissible and which standards of review to apply and whether state and local governments are bound by this right.  There's going to be a LOT of litigation on this topic.  Maybe I should consider going to law school.

Overall, it's a step forward.  We won on the fundamental question.  We now have an individual 2nd Amendment right that the courts can (and might even choose to) protect.  We'll have to fight for every scrap of protection we can get, though.

This entry was published Thu Jun 26 11:53:30 CDT 2008 by TriggerFinger and last updated 2008-06-26 11:53:30.0. [Tweet]

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