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District of Columbia v. Heller

District of Columbia vs. Heller, 554 U.S. 570 (2008) represents the U.S. Supreme Court's single biggest intervention in Second Amendment jurisprudence. The case was one which had been deliberately manufactured by a small cadre of ideologues: the case was organized and funded from the first by Robert Levy, a Senior Fellow with the libertarian Cato Institute. In 2010, Levy would address his own achievements in getting the Heller case before the supreme court in an article published in the Harvard Journal of Law and Public Policy, calling the Heller decision a "big win for common sense" and a "big win for the Constitution" (Levy 216). Levy cherry-picked a diverse group of defendants in order to argue that a broad spectrum of persons were adversely affected by the Dicstrict of Columbia's handgun band (left without an ability to defend themselves). Levy's plantiffs found their initial suit dismissed by the D.C. District Court, which was then reversed on appeal when the panel of appellate judges found that all of Levy's initial plaintiffs had lacked the standing to bring the suit in the first place, except for Dick Heller (who had applied for a gun license to the District of Columbia and been denied) and found strongly in Heller's favor. The District of Columbia then appealed to the Supreme Court, which agreed to hear the case for the 2007-8 session.

The Court's opinion was issued in 2008, written by Antonin Scalia, with Chief Justice Roberts and Justices Kennedy, Thomas, and Alito joining his opinion. Along recognizable party lines, and continuing with the previous decade of narrow 5-4 decisions in the Sandra Day O'Connor era, a dissent was written by Justice John Paul Stevens and joined by Justices Ginsberg, Breyer, and Souter. Scalia's majority decision held overall that the Second Amendment did guarantee an individual right to keep and bear arms, although it was subject to restriction. Specifically, in keeping with the tone of Levy's plaintiffs, Scalia's decision specifically identifies the Second Amendment's "core right" as the right to possess a handgun in the individual's home for the purpose of self-defense.

Scalia's majority opinion dodges what has generally been considered the central fact of interpretation with the Second Amendment, namely the grammatical relation of the constituent parts of the Amendment and how they are meant to be interpreted together. Scalia, extending his originalism to a conception of the Biblical justice of Solomon perhaps, chops the Second Amendment in half: he calls the first portion "the prefatory clause" ("A well regulated militia, being necessary to the security of a free State") and the second portion the "operative clause" ("the right of the people to keep and bear Arms, shall not be infringed") and then mystically declares that "apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause." No authority is offered whereby Scalia can ignore interpretations of the language of the Amendment which might consider the "prefaratory clause" as intended to govern or color the whole of the "operative clause," thus restricting the core of the right to the possession of firearms within the context of a "well regulated militia." Merkel summarizes the rhetorical maneuver thus:

Justice Scalia begins his analysis of the Second Amendment right in Heller with a pivotal ipse dixit assertion: "The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause." This is a crucial step for Justice Scalia as it allows him to uncouple the right to arms from the militia. (Merkel 365)

I think Merkel is right; in any case, this allows Scalia to declare that the "operative clause" of the Second Amendment must "guarantee the individual right to possess and carry weapons in case of confrontation." He offers three principal rationales for this. First, he compares the phrase "right of the people" as it is used in the Second Amendment with the same or similar phrasings elsewhere in the Bill of Rights or the Constitution, and concludes that it refers to an individual right possessed by all persons "not an unspecified subset." Next, he then offers some linguistic evidence from the late eighteenth century -- a classic hallmark of the "Originalist" school of constitutional interpretation which Scalia has championed-to demonstrate that "to keep and bear Arms" does not entail (as some have argued) some kind of specific militia-related term of art but instead denotes the same basic concept that it does today. And finally he offers a somewhat tendentious view of history trimmed to fit Scalia's own individual rights interpretation of the Second Amendment. "We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right," Scalia argues, and in proof he claims that the inclusion of the words "shall not be infringed" confirm his interpretation. These are the three chief pieces of evidence whereby Scalia leans on the individual right (rather than a militia-related right) to own a handgun. As Lund accurately notes:

Justice Scalia never even addresses the most difficult, and therefore the most important question: How could codifying the right to arms have been expected to preserve, promote, or prevent the elimination of a well regulated militia? ("Originalist" 1351-2)

But with a final feat of prestidigitation that is barely worth serious intellectual consideration, Scalia returns in the final segment of the opinion to the severed and wriggling halves of the Second Amendment's text, and somehow proves that the "well regulated militia" business in the first portion actually manages to confirm the individual rights interpretation that Scalia has advanced.

It is hard to say whether the Heller decision represents a bigger disaster on the legal or the policy standpoint. Robert Levy, who ought to have been positively tumescent over the outcome, still manages to find reason to complain in the article he published two years after the decision. The "Heller Paradox" he refers to in the title of his article is the fact that some commentators have taken Heller to be a potential path forward for the advocates of gun control:

Meanwhile, the antigun community is trying to spin the Heller case as a hidden victory for gun control. The argu? ment, which Dennis Henigan at the Brady Center to Prevent Gun Violence calls the "Heller paradox," takes this essential form: First, the National Rifle Association and others in the "gun lobby" argued that each new gun regulation was a step down the slippery slope toward confiscation. Second, fear of the slippery slope made gun control a "wedge" or "cultural" issue. Third, by erecting a constitutional barrier to a broad gun ban, Heller has taken confiscation off the table. Therefore, the NRA and its allies can no longer invoke the slippery slope argument, and without that wedge issue, ordinary gun own? ers will be more receptive to sensible regulations. (Levy 212-3)

It is of course possible that all Levy is responding to here -- and this is certainly how I interpret his article overall -- is the refusal of those who (for quite sensible reasons) continue to support governmental efforts to curtail or control handgun ownership to suddenly agree with Levy now that the Heller decision has posited gun ownership as a fundamental right. Levy's bigger concern -- as suits the specifically libertarian ideology of the Cato Institute (which one hesitates to term an actual "think" tank) -- is with the government's continued division of rights into those enumerated and unenumerated. It is not so big an accomplishment in his opinion to have demanded rights that were enumerated in the constitution but infringed by later legislation. In any case, Levy does acknowledge -- and no-one who still reads a newspaper can fail to have missed -- that the Heller decision did cause a number of major U.S. cities to revoke previous handgun legislation or to drop attempts for passage of similar legislation like that in the District of Columbia, which had just been declared unconstitutional in Scalia's majority opinion. In testament to this, I conducted an interview with Marian Marracco, a former employee with CeaseFire PA, an advocacy group for victims of gun violence (in many cases, innocent bystanders or children injured by bullet fragments in urban shootouts) whose founder would be elected to Philadelphia's City Council in the wake of the Heller decision, largely (in Marracco's opinion) on the basis of community resolve to reduce gun violence despite Scalia's controversial "individual rights" interpretation of the Second Amendment. Marracco described how she had participated in community discussions and organization with the support of Philadelphia Mayor Michael Nutter, whose high-profile attempt to enact a citywide handgun ban was stopped by the Heller decision, and described as "chilling" the effect Scalia's opinion had on the City of Philadelphia's willingness to entertain legislative solutions to the problem of handgun proliferation (Marracco interview, 2011).

But from a jurisprudential standpoint, there was always a tension between the libertarian lobby which brought the lawsuit for reasons, if Levy's account is…[continue]

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