Methinks to properly discuss
Heller, we should go to
Heller rather than argue about who said what about what they think
Heller said, or might have said, or should have said.
The decision:
https://www.supremecourt.gov/opinions/07pdf/07-290.pdf
Right at the start, under "Held," on page 2:
Page2 said:
The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved.
So the Second Amendment was intended to "deny Congress power to abridge tha
ancient right of individuals to keep and bear arms." I apply the same argument about "abridge" that I apply to "infringe." If the Second Amendment was intended to deny Congress the power to "abridge" the RKBA ... we have to ask what "abridge" means. This was Scalia's word, not the Second Amendment, so we can go to any contemporary dictionary. According to Merriam-Webster online, it means:
1 : to shorten by omission of words without sacrifice of sense : condense
2 : to shorten in duration or extent
3 formal : to reduce in scope : diminish
4 archaic : deprive
And what are restrictions (or regulations) if not things that shorten in duration or extend, reduce in scope, or deprive us of the "ancient" (to use Scalia's word) right to keep and bear arms?
The holding references pages 22-28, so logically we should probably look there next.
On page 22 Scalia wrote, "Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, see,
e.g., United States v. Williams, 553 U. S. ___ (2008)."
In the First Amendment, it says that "Congress shall make no law ...
abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." So here we find the word "abridge," where in the Second Amendment we find the word "infringe." Since there is a considerable judicial track record regarding allowable "abridgements" of First Amendment rights, apparently Mr. Scalia extrapolated from that to posit that the Second Amendment is likewise subject to "abridgement" (infringement). But ... there isn't much of a track record at the SCOTUS level to back up this assertion/assumption.
After some discussion of the relationship of the prefatory clause to the operative clause, on page 25 Mr. Scalia gets back to the subject we are interested in:
page 25 said:
John Smilie, for example, worried not only that Congress’s “command of the militia” could be used to create a “select militia,” or to have “no militia at all,” but also, as a sepa-CENSORED-rate concern, that “[w]hen a select militia is formed; the people in general may be disarmed.” 2 Documentary History of the Ratification of the Constitution 508–509 (M. Jensen ed. 1976) (hereinafter Documentary Hist.). Federalists responded that because Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people.
From this point forward, Mr. Scalia spends a great many pages addressing the question of whether the Second Amendment is an individual right, or only a collective right to bear arms in the militia. Jumping to page 38, we find this nugget:
page 38 et seq. said:
Many early 19th-century state cases [not SCOTUS precedent] indicated that the Second Amendment right to bear arms was an individual right unconnected to militia service, though subject to certain restrictions. A Virginia case in 1824 holding that the Constitution did not extend to free blacks explained that “numerous restrictions imposed on [blacks] in our Statute Book, many of which are inconsistent with the letter and spirit of the Constitution, both of this State and of the United States as respects the free whites, demonstrate, that, here, those instruments have not been considered to extend equally to both classes of our population. We will only instance the restriction upon the migration of free blacks into this State, and upon their right to bear arms.” Aldridge v. Commonwealth, 2 Va. Cas. 447, 449 (Gen. Ct.). The claim was obviously not that blacks were prevented from carrying guns in the militia. See also Waters v. State, 1 Gill 302, 309 (Md. 1843) (because free blacks were treated as a “dangerous population,” “laws have been passed to prevent their migration into this State; to make it unlawful for them to bear arms; to guard even their religious assemblages with peculiar watchfulness”).
So here's an historical reference to a
state precedent regarding restriction of the RKBA ... but the restriction isn't a general restriction, it's a pre-Civil War restriction intended to prevent free black men from bearing arms (except when in the militia) because "free blacks are dangerous."
Somehow, I don't think such a precedent would gain much traction today. This historical restriction, in fact, would almost certainly fail a constitutional review today because it wasn't aimed at preventing crimes or mass murders, it was aimed at keeping guns out of the hands of free black men. In other words, it was blatantly discriminatory.
When we get to page 54, Mr. Scalia wrote, "Like most rights, the right secured by the Second Amendment is not unlimited." The full section, for context, reads as follows:
page 54 et seq. said:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, 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.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”
Here, Mr. Scalia states that he does not seek to call into question longstanding prohibitions on the carrying of arms by felons or the mentally ill, or prohibitions on the carrying of "dangerous or unusual weapons." But felons, in the historical context, refers to people who are in prison; it does not necessarily (in the historical context) include EX-felons, who have been released from prison and who have completed any parole period imposed. In any case, conviction of a felony results in the loss of certain civil rights, and thus it is unfair and illogical to equate laws restriction the carrying of firearms by felons with restrictions on the carrying of firearms by citizens in good standing, who have never been convicted of felonies.
Moving on to page 56, we find this:
page 56 et seq. said:
Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster.
By "the most preferred firearm in the nation" Mr. Scalia is referring to the overall class of firearms comprised of handguns ... which is the entire class of firearms at question in the
Heller case. But the case can obviously be made that a huge number of Americans prefer to keep an AR-15 or an AK-47 (but, especially, an AR-15) in the home for self defense. If you remove
class of firearms and focus on the specific type of firearm design and model, the AR-15 would have to be at or very near the top of the list of the most popular ("preferred") firearms in the United States. And in this portion of the
Heller decision, Mr. Scalia wrote that banning "the most preferred firearm in the nation" would not pass constitutional muster.
There's more. The full decision runs to 157 pages, and we're only up to page 60. But this post is getting too lengthy. My point simply is that if we're going to discuss what's in the
Heller decision, we need to look at the
Heller decision rather than argue over what what's-his-name said so-and-so said was in
Heller.
