Ohio

Heller Update: What the Court giveth…

… the Court taketh away.  I was going to do a post on the Supreme Court’s Heller gun rights decision tomorrow, but I’ll do a quick post on it today, so you’ll get two posts for the price of one; the one on Kennedy v. Louisiana, the child rape case, is right below this.  (Remember, our motto here at The Briefcase:  we read the decisions so you don’t have to.) 

Justice Scalia’s majority opinion in Heller v. District of Columbia is 64 pages long.  The first 52 could be entitled, “Everything You Ever Wanted to Know about the History of Firearms Regulation, With the Possible Exception of What James Madison Had for Breakfast the Day They Debated the Second Amendment in Congress.”  Hell, for all I know, what Madison had for breakfast could be in there, too; I started to doze off when I got to the part about Lord Richmond’s comments during a debate in the English House of Lords, whichaccording to Scalia, is chronicled in 49 The London Magazine or Gentleman?s Monthly Intelligencer 467 (1780).  No, I am not making that up.  (Note to self:  check to see whether my Lexis plan includes The London Magazine or Gentleman?s Monthly Intelligencer.  I’m guessing not.)  The last 9 pages of the opinion could be entitled, “Why I’m Right and Those Guys in the Minority are So Wrong.” 

The money quotes, though, come on pages 53 and 54:

nothing in our opinion should 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.

We also recognize another important limitation on the right to keep and carry arms.  Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

In other words, anything short of an outright ban of guns in the home, or a law which renders the ability to use the weapon for self-defense impossible (like DC’s requirement that the gun be “rendered inoperable”) is permissible.  Even an assault weapons ban would not run afoul of the 2nd Amendment.  Nor would laws regulating the carrying of guns outside the home be a problem, although the decision is a little less clear on this point; it refers to court decisions which struck down laws prohibiting the open carrying of a gun (i.e., not concealed).

When I’d blogged about the case earlier (here), I’d suggested that the Court would rule in favor of the individual right theory, but that the devil would be in the details: 

Who gets to possess guns?  What ?arms? are covered?  What regulations can be imposed on carrying them?  What test is used in determining that:  rational basis?  Compelling interest?  Something in between?

Turns out I was half right.  The decision came in as predicted (although by a narrower 5-4 margin than I’d thought it would be), but instead of setting forth some analysis for determination of what regulatory schemes would be permissible, punting that question down the road, or kicking the case back to the DC court for consideration of that issue, the Supreme Court essentially resolved them:  just about every gun regulation in the country, other than Washington’s, arguably passes constitutional muster.

Full post as published by The Briefcase on June 26, 2008 (boomark / email).