Constitutional Law
Second Amendment Opinion May Lack Firepower
Posted Aug 8, 2008 5:18 PM CST
By Debra Cassens Weiss
Harvard Law School professor Mark Tushnet believes Justice Antonin Scalia’s recent majority opinion striking down a ban on handguns in the home was a compromise decision, crafted to appeal to a swing voter such as Justice Anthony M. Kennedy.
As evidence of a compromise, Tushnet points to Scalia’s statement in the 5-4 decision, District of Columbia v. Heller, that the right protected by the Second Amendment is not unlimited.
Nothing in the opinion, Scalia said, should be taken to cast doubt on laws banning possession of guns by felons or the mentally ill, or barring firearms in sensitive places, or imposing conditions on the commercial sale of guns.
But compromises are inherently unstable, Tushnet said Friday during a session at the ABA Annual Meeting. He predicts that in 10 years or so, the U.S. Supreme Court will issue a new ruling finding the Second Amendment right applies only to overturn complete bans on handguns. Any other regulation will be found acceptable.
In the interim, lower courts will have to sort out a variety of questions. Tushnet listed several.
Does the Second Amendment limit state as well as federal regulation of guns? What type of weapons are “dangerous and unusual,” making them subject to regulation under Scalia’s opinion? What standard of review will courts use? What kind of gun storage laws are permissible? Is there a right to carry weapons on the streets?
Other panelists agreed that Heller will likely have a limited impact in the long run, including Walter Dellinger, the former solicitor general who argued and lost the Supreme Court case. Dennis Henigan, vice president for law and policy at the Brady Center to Prevent Gun Violence, said the opinion “may turn out to be more symbol than substance.”
But Alan Gura, the lawyer who argued the case and won, said gun opponents appear to be going through stages of grief. They’ve experienced anger, denial and bargaining, he said. Now they need to reach acceptance.
The primary sponsor of the session was the ABA Special Committee on Gun Violence.
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Comments
Bill
Aug 15, 2008 10:25 AM CST
Incorporation as against the states is next. Which the 14th Amendment so plainly intended to do nearly 150 years ago anyway.
And Tushnet is wrong. The Second Amendment protects more than ownership of handguns, and certain other restrictions and regulations are overly burdensome with no rational basis connection to actually preventing violent crime. Like the so-called “assault weapons ban,” which did absolutely nothing to prevent criminals from obtaining any guns whatsoever.
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William A. Wheatley
Aug 15, 2008 10:29 AM CST
The second amendment applies to the states as much as it applies to the Federal Government. It makes no statement as to which branch of government it is addressing. It simply states that “The right . . . shall not be infringed.” Because it did not state who may not infringe the right, it means that no one may infringe the right. It is a clear and forthright recognition that the right is inherent in the person and not granted by law or by the Constitution. It is a fundamental human right, residing in the individual, and by extension, in militias consisting of ad-hoc groups of individuals formed up for the common defense.
Any restriction on the right will have to pass a test of reasonableness and necessity. I see the decision being broadened in the future, not narrowed.
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Con Law
Aug 15, 2008 12:08 PM CST
#1 doesn’t know what he’s talking about. It took decades and a Civil War before the rights under the federal constitution were recognized as equally applicable under state law, through the 14th Amendment. Before then, it was all about states’ rights, or have you forgotten your Southern history? This is why when states joined the union, there were still state constitutions in addition to the federal constitution, and why to this day we still have a dual system. This is also why federal courts’ jurisdiction is limited to federal question or diversity cases. DC being a federal district, I can see its application limited to federal gun laws only; many states and cities are toughening local gun laws.
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Wrote an Article On This Very Issue
Aug 16, 2008 9:15 AM CST
I could not disagree a more with the premise that Scalia’s majority ruling lacks “firepower” (or “substance”). It is quite apparent from Scalia’s opinion that an individual has a Constitutionally protected write to (1) own a firearm and (2) use it in self-defense.
You can read the (a) text, (b) history, (c) analogous state constitutions, (d) precedent cases and (e) other resources to affirm Scalia’s opinion.
The language of the Second Amendment is not so strange when you understand its context, and if you read Madison’s original Second Amendment language, which the dissent strangely tried to rely upon, it is quite apparent that individuals have a Constitutionally protected right to own a firearm and use that firearm in self-defense.
If you also read Breyer’s dissent, you get the sense that he concedes, which he expressly stated, but does not believe the Second Amendment is an “absolute right.” Scalia conceded that the Second Amendment is not an “absolute right,” but that in no way generates doubt as to whether an individual has a right to own a firearm and use that firearm in self-defense.
The law in my view is clear:
(1) individuals have a right to own a firearm and use that firearm in self-defense; and
(2) the Second Amendment is not an “absolute right” and reasonable limits such as forbidding the mentally ill from possessing a firearm are Constitutionally acceptable.
People need to reread the opinion, dissent, and worthy journal articles several times for it to become crystal clear.
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Wrote an Article On This Very Issue
Aug 16, 2008 9:16 AM CST
I apologize for my grammatical error in which I wrote “write” and not “right.”
I hope that does not distract too much from the point I was trying to make.
Thank you.
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