DC vs. Heller

The U.S. Supreme Court affirmed DC v Heller in a five to four landmark decision last year. Justice Scalia firmly placed the Court’s decision, which knocks down Washington DC’s ban on firearms within the bedrock of the Founding Fathers’ original intentions; i.e., the decision sets forth a principle scorned by tyrants over the centuries. It is in the people that the power of governmental force resides. The government’s use of deadly force ultimately derives from an individual’s duty to protect herself or himself, one’s family and neighbors.

The fact that the discussion of self-defense is usually framed in terms of rights is, perhaps, unfortunate in that Americans can easily become exhausted by the perpetual yapping about “rights“. We have welfare rights, immigration rights, First Amendment right to purvey obscenity. The “right” to keep and bear arms is first of all a duty. Many states, especially in the Eastern U.S., still have laws on the books requiring men of certain ages to have a military weapon and suitable ammunition in specific quantities in order to be ready to perform militia service:

That is what Congress did in the first militia Act, which specified that “each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia.” Act of May 8, 1792, 1 Stat. 271.

Ironically, many of the states that still have such laws on the books will see state and local restrictions on gun ownership challenged as a result of Justice Scalia’s bold enunciations. The Court has recognized an ancient truth that the ancient commonwealths of Israel, Athens, Rome and England (to name a few) took for granted. Free men should own weapons. Those that refuse will not remain free for long. As late as WW II, the authorities called out armed civilians to patrol the East Coast to prevent possible invasions.

The habits of training and handling personal firearms breed a culture of respect for life, habits of steady minded courage, craftsmanship, patience and skill along with appreciation for history and the role of the individual and families in shaping history.

With the Founders’ values and principles in mind, it is worth reflecting on the context of the decision. Yesterday, the Court in another five to four decision, Kennedy v Louisiana, referenced evolving standards to institutionalize a “consensus” that capital punishment for violent child rapists offends decency. In both cases, there were four solid justices lined up in favor of looking to the Founders’ intentions against four justices that regularly look to vague extra-Constitutional concepts such as international norms, foreign precedent and “consensus“. These paradigm shifts in the court evolve in synchronicity with the evolution of elitist morality that has so often been legislated upon those of us that are not law professors or enablers of the American mandarin class.

Judges like Justice Ginsburg, a former ACLU counsel, will normally confront the violent rape of a child with a certain amount of equanimity. After all, in her world, shaping public policy is a priest-like and arcane activity, requiring esoteric power to construe the direction of evolving standards and articulate a mysterious consensus about which mere mortals are unaware.

Rather than attempt to amend the Constitution from the bench as the dissenters would, Justice Scalia’ majority opinion in the Heller case began squarely with the plain meaning of the terms employed by the framers of the Bill of Rights:

“Keep and bear Arms.” We move now from the holder of the right—“the people”—to the substance of the right: “to keep and bear Arms.” Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary(1771); see also N. Webster, American Dictionary of the English Language (1828).”

Justice Scalia went on to define what it means to keep and bear arms:

We turn to the phrases “keep arms” and “bear arms.” Johnson defined “keep” as, most relevantly, “[t]o retain; not to lose,” and “[t]o have in custody.” Johnson 1095. Webster defined it as “[t]o hold; to retain in one’s power or possession.” No party has apprised us of an idiomatic meaning of “keep Arms.” Thus, the most natural reading of “keep Arms” in the Second Amendment is to “have weapons.”

Thus, when the Constitution was drafted, the right to have arms had become fundamental for English subjects. Scalia quotes Blackstone, the great expounder of the common laws of England. Blackstone’s Commentaries “constituted the preeminent authority on English law for the founding generation….” The English Bill of Rights inspired, to a large degree, the U.S. Bill of Rights and, according to Blackstone, self defense and the right to be armed was “one of the fundamental rights of Englishmen”. See 1 Blackstone 136, 139–140 (1765). Contemporary authorities concurred.

The Heller decision also presents incisive history lessons related to the nature of the organized & unorganized militia, concepts that were familiar to many at the time that the Federalists were trying to win over anti-Federalists who feared standing armies and the despotism that was associated with strong central government:

There are many reasons why the militia was thought to be “necessary to the security of a free state.” See 3 Story §1890. First, of course, it is useful in repelling invasions and suppressing insurrections. Second, it renders large standing armies unnecessary—an argument that Alexander Hamilton made in favor of federal control over the militia. The Federalist No. 29, pp. 226, 227 (B. Wright ed. 1961) (A. Hamilton). Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.

Thus, Justice Scalia states, “It was understood across the political spectrum that the (Second Amendment) right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.”

Many of the state constitutions at the time of the Founders used Second Amendment keep and bear arms language in a manner that clearly demonstrated an intent to recognize that individual ownership and use of firearms was encompassed by the term. Scalia cites Pennsylvania’s Declaration of Rights of 1776:

“That the people have a right to bear arms for the defence of themselves, and the state . . . .” §XIII, in 5 Thorpe 3082, 3083 (emphasis added).

The majority opinion goes on to point out that many colonial statutes required individual arms-bearing for public-safety reasons— such as the 1770 Georgia law that “for the security and defence of this province from internal dangers and insurrections” required those men who qualified for militia duty individually “to carry fire arms” “to places of public worship.”

The Court cites St. George Tucker’s version of Blackstone’s Commentaries for the proposition that:

The right to self-defence is the first law of nature: in most governments it has been the study of rulers to confine the right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.” He believed that the English game laws had abridged the right by prohibiting “keeping a gun or other engine for the destruction of game.”

Another famous Constitutional scholar wrote:

One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia.” A Familiar Exposition of the Constitution of the United States §450 (Story).

The Court cites one of my favorite authors, firearms lawyer Stephen Halbrook, to illustrate that “in the aftermath of the Civil War, there was an outpouring of discussion of the Second Amendment in Congress and in public discourse, as people debated whether and how to secure constitutional rights for newly free slaves. See generally S. Halbrook, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866–1876 (1998):

Yet those born and educated in the early 19th century faced a widespread effort to limit arms ownership by a large number of citizens; their understanding of the origins and continuing significance of the Amendment is instructive. Blacks were routinely disarmed by Southern States after the Civil War. Those who opposed these injustices frequently stated that they infringed blacks’ constitutional right to keep and bear arms. Needless to say, the claim was not that blacks were being prohibited from carrying arms in an organized state militia.”

The majority opinion discussing the legislative history of the Fourteenth Amendment quotes a joint Congressional Report that described how after the Civil War “in some parts of [South Carolina], armed parties… without proper authority, engaged in seizing all firearms found in the hands of the freemen. Such conduct is in clear and direct violation of their personal rights as guaranteed by the Constitution of the United States, which declares that ‘the right of the people to freedmen of South Carolina have shown by their peaceful and orderly conduct that they can safely be trusted with fire-arms, and they need them to kill game for subsistence, and to protect their crops from destruction by birds and animals.”

The view was common right after the Civil War that newly freed black citizens held a constitutional right to bear arms. The viewpoint expressed in these statements “was widely reported and was apparently widely held.”

For example, “an editorial in The Loyal Georgian (Augusta) on February 3, 1866, assured blacks that “[a]ll men, without distinction of color, have the right to keep and bear arms to defend their homes, families or themselves.”

“It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense.”

Justice Stevens’ dissent strains to reach new apogees of linguistic sophistry. It is like listening to President Clinton split hairs about what the meaning of “is” is:

“[K]eep and bear arms” thus perfectly describes the responsibilities of a framing-era militia member. This reading is confirmed by the fact that the clause protects only one right, rather than two. It does not describe a right “to keep arms” and a separate right “to bear arms.” Rather, the single right that it does describe is both a duty and a right to have arms available and ready for military service, and to use them for military purposes when necessary. Different language surely would have been used to protect nonmilitary use and possession of weapons from regulation if such an intent….”

The dissent lectures the majority on the principle of stare decisis; i.e., the principle that a court should not lightly set aside prior precedent. Citing Miller, Justice Stevens argues that the holding relates the right to keep and bear arms to military matters.

Belying the dissent’s reliance on Miller, there was no party briefing the case for the other side in Miller. The Miller Court ruled that the distinction between the sawed-off shotgun possessed unlawfully by the defendant in that case and a militarily useful weapon should be the basis for upholding the National Firearms Act that outlawed certain kinds of weapons. That is as far as the Miller court went. Nevertheless, from 1939 until now the Miller case has been cited to deny individuals any standing to enter the courthouse door and seek redress state, local or federal policy render us defenseless. See United States v. Miller, 307 U. S. 174 (1939).

In 2003, the usual Supreme Court suspects cried, “Stare decisis be damned and full speed ahead with the global social agenda!” All in the name of melding our institutions with the evolving international consensus. That was the case where the Court overturned its own seventeen year old precedent, negating its previous opinion upholding states that outlaw sodomy between adults.

Think of all the cities like Chicago and Washington, DC that have disarmed their citizens, a citizenry that has seen children raped, the streets held by thugs and armies of drug dealers. Citizens fear what used to be called “hue and cry”. Well, now the mayors, like Seattle’s Mayor Nickels and the Mayor of the other Washington, are making the hue and cry.

See full text of Heller decision.