The Constitution Means What
It Says
District of Columbia v.
Heller
Editor's Note: Thomas's commentary is in blue and
Marcie's is in purple.
On 26 June the Supreme Court
struck down the Firearms Control Regulations Act in Washington,
DC. The firearms ban had made it impossible for any DC resident
to legally keep a firearm in their home unless it was registered
prior to the ban's enactment in 1975. In Heller, Dick Heller
had wanted to have a handgun in his home for protection, and had
even tried to register it. He was turned down, and in that move
the city of Washington, DC, set the stage for the landmark ruling
handed down in his case. Their ruling? In a 5-4 majority they
agreed that his rights had been violated, and the DC ban was unconstitutional.
The decision was hailed by proponents of Second Amendment rights,
and was reviled by those opposed to the Second Amendment.
Justice Scalia penned the majority decision,
and his judicial logic was on full display. Not only did he go
through the history of the Amendment, but also the history of
the people's right to bear arms for the protection of their homes
and families. He referred to Justice Joseph Story's commentary
regarding the Constitution, and specifically his beliefs in what
the Second Amendment meant. His opinion was narrow -- tailored
to the question at hand -- and never veered into the question
of incorporation; that being "Does the Fourteenth Amendment's
broad scope of applying the Bill of Rights to the States apply
in the case?" That question was left unanswered, and rightly
so. It was not in contention. What was in question was whether
or not the across-the-board ban in Washington, DC infringed on
citizens' rights under the Second Amendment. The majority ruled
that it did.
The dissenters -- Justice Stevens and Justice
Breyer -- weren't pleased with the outcome. It's clear through
the oral arguments that Justice Ginsberg and Justice Souter shared
their disdain for even accepting the case. For the last sixty-nine
years, the court has refused to address the question as to whether
or not the Second Amendment protects an individual or a collective
right. (Collective meaning, only under the auspices of a militia,
as opposed to a personal, individual right to own, keep, and bear
a firearm.) The dissenting jurists leaned toward the collective
side; they believe that only those who serve in a militia have
this right. Furthermore, their odious warnings of how far this
could progress should the ban be lifted was reflected in the media
aftermath. More than one newspaper opined that: now felons would
be allowed to possess firearms (preposterous until the laws are
changed regarding that), that people could buy assault weapons
(again, laws need to be changed for that), and that violent crime
would rise (this despite the fact that the ban didn't reduce crime
in DC to begin with). The dissenters could not come up with a
single, logical argument as to why the ban should be struck down
other than hyperventilated hyperbole.
Justice Scalia even admitted in his majority
opinion that some laws were common sense. He stated that while
the ban itself, because of how broad it was and the weapons it
targeted -- most notably handguns -- was unconstitutional, certain
laws would remain in place. People still cannot purchase assault
weapons without the proper license. Laws regarding trigger locks
would still stand. Additionally, he did not address the idea of
magazine capacity for firearms. The point he strove to make is
that an ordered and civilized society must have some restrictions
in place, and they would stay in place unless they could be shown
to be unconstitutional or nonsensical. Indeed, he even points
out that the provisions in the ban, that weapons had to be unloaded,
disassembled and/or fitted with trigger locks, went directly against
the inherent reason of why people were allowed to have arms in
the first place. People do not have them to serve in a militia
or to hunt and forage, but rather for their own personal protection.
So what happens now? The city of Washington,
DC, is still holding firm on two separate bans on semi-automatic
rifles and handguns (the latter of which will definitely be challenged
due to the fact that a handgun is the preeminent choice for people
to utilize in defending themselves). In Chicago, Alan Gura (who
was the attorney for Mr. Heller) has already filed a suit against
the city of Chicago for its absolute ban (McDonald v. Chicago).
A similar suit has been filed in San Francisco by the NRA challenging
their ban of firearms in public housing (Guy Montag Doe v.
San Francisco Housing Authority). And Robert Levy, senior
fellow at the Cato Institute who vetted the plaintiffs for Heller
has said the next target for him will likely be the New York City
gun ban which closely mirrors the DC ban in scope. Could these
cases win? Possibly. As a matter of fact, there is a high probability
they could be struck down by the high court should the justices
decide to take up the cases, and provided they make it through
the initial proceedings and appeals.
We congratulate the majority for their common
sense decision. We congratulate Justice Scalia on his artful majority
opinion, an opinion we agree should be hung in an art museum for
its content. Never before have we seen Justice Scalia go into
great detail about such a fundamental right. We have read his
opinions before, but this one struck us as an issue that he takes
seriously. Of course, he takes all subjects he addresses with
the utmost seriousness and sincerity. What also struck us about
this case were the oral arguments, and the fact the Justice Kennedy,
from the onset, seemed determined to emphasize that the Second
Amendment was an individual right. He repeated that fact time
and again in oral arguments. Furthermore, for those who will say
this decision was a form of judicial activism on the right, they
are incorrect. Neither Chief Justice Roberts nor Justice Scalia
gave quarter to either the plaintiffs or the defendants in the
case. They were equally bruising to both sides. But in the end,
the right decision was made. This is not an act of judicial fiat,
as Boumediene and Kennedy were, but rather it was
a decision upholding a right for all citizens of this nation that
has been trampled on for far too long.
He is a scholar of history, especially American
history, and the United States Constitution. She has finished
her undergrad studies, graduating with a BA in English and history
and will move onto law school this fall where she will specialize
in Constitutional Law. Together, Thomas and Marcie form the vanguard
of conservative opinion at Hamilton,
Madison, and Jay -- a blogging site devoted to advancing the
conservative cause by challenging the liberal lies and deceit
spread by the media, and espoused by the Left in general. Both
are expert debaters, and have beaten many liberals into submission
with their collective wit, and unmatched knowledge. The pair is
married, and resides in Arizona
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