By Karen MacNutt,
Contributing Editor

On June 26th, 2008, the United States Supreme Court ruled directly on the meaning of the Second Amendment in the case of District of Columbia v Heller. In a 5 to 4 decision, the Court upheld a Court of Appeals ruling that the city of Washington's ordinance prohibiting the possession of handguns in the home was a violation of the Second Amendment. Justice Scalia wrote the detailed majority opinion which was joined in by Justices Roberts, Kennedy, Thomas, and Alito. Justices Stevens, Souter, Ginsburg, and Breyer dissented. Justices Breyer and Stevens wrote dissenting opinions on different aspects of Scalia's opinion. The court's division was deep and clear with the majority and minority opinions making numerous references to each other's arguments. One can only guess at the verbal arguments that unfolded behind closed doors.

Mr. Heller's position was that the Second Amendment protected an individual citizen's right to possess and use firearms for traditionally lawful purposes, such as self defense, within the home. The District of Columbia said that the Second Amendment only protected the right to possess and carry firearms in connection with militia service. The majority of the Court sided with Heller. They focused on the operative clause of the Second Amendment, "the right of the people to keep and bear arms shall not be infringed."

The last pages of the majority opinion contain the heart of the ruling. Three very important things are stated: 1. "... [T]he inherent right of self- defense has been central to the Second Amendment right." 2. A total ban on a class of firearms that is in common use, the "preferred" firearm for home defense, is not a reasonable regulation and is in violation of the Second Amendment. 3. The Second Amendment, like the right of free speech, is not unlimited. It can be regulated. Laws affecting the right, however, should be scrutinized using the same standards as used with other Constitutional Rights.

The Second Amendment argument has never really been about public safety. It is about elitism. It is an expression of the philosophical divisions of the American Revolution. On one hand are those who believe that the common people are inherently good, can be trusted, and have the right to establish and control their government. On the other hand are those who believe that the people are incapable of self regulation and must be controlled by an elite set of individuals who see government as being set to rule over the common people. The argument about the Second Amendment has always been, "Who do you trust more, the people or the government?"

The essence of the Second Amendment, as recognized by the majority opinion, is the right of self defense, both in terms of the right of individuals to 1. protect their lives and property, and 2. defend their liberty from tyrannical government. The vast majority of Americans believe that they have the right of self defense. The Court in Heller affirmed that right.

The dissenting opinions echo the anti-gun arguments. Although there are logical arguments on both sides, the anti-gun movement has been punctuated with intellectual dishonesty and misleading rhetoric.

The dissent voiced the anti-gun movement's beliefs when Justice Stevens wrote, "there is no indication that the Framers of the [Second] Amendment intended to enshrine the common-law right of self-defense in the Constitution." Although seldom voiced publicly, the anti-gun movement has always denied the right of self-defense.

The fact there is no express wording in the Constitution relating to self-defense, the Constitution protects any number of basic human rights that are not expressly stated. For example, there is no right to privacy explicitly stated in the Constitution. There is no right to travel freely throughout the United States and no right to an abortion. Yet, these and other rights have been seen as implied by the Constitution. The right of existence, and by necessity, the right to preserve one's existence, is the natural right of all human beings. That right exists independently of any government.

The dissent advanced the anti-gun position that the Second Amendment is a collective right which only guaranteed arms for those serving in the militia. The dissent correctly stated the concerns of the Founding Fathers that a standing armed force could be used to destroy liberty. The statement, "A well organized militia being necessary to a free state...." was referring to that fear. The dissent did not follow through logically on its own argument. If the purpose of the Second Amendment was to act as a check on the army, and if it were enacted out of fear that the militia would be disarmed by the government, then how could the militia (correctly identified as being all people capable of bearing arms) fill its obligation to counter a runaway military if people are not allowed to have guns? What exactly did the Second Amendment protect? The dissent did not answer that question. Surely the dissent is not saying that if a group of citizens wanted to form an armed body outside of the government forces (a militia), such armed body has the right to have guns but individuals may not? That strange interpretation would allow radicals and gang members to be armed but not peaceful citizens. If the President called back to federal arsenals all the weapons of the National Guard ( which he has the right to do), and then used the federal armed forces (the military and police) to suspend elections, declare martial law, arrest all the governors, and disband all state legislatures, who would oppose such actions? That, in essence, is what happened at the beginning of the American Revolution when the King suspended colonial legislatures and tried to seize all public stores of weapons. To act as a check against the misuse of military power, the general population must be armed. Thus, even if the Second Amendment were tied to the militia, individuals would need to be armed to respond to the abuse of government power. The conclusion that people do not have an individual right because of the reference to the militia, is not logically sound.

The logical fault is further shown in the dissent's argument that the term "people" is not the individual people but the collective "people." Justice Stevens wrote:

". . . it is only the right peaceably to assemble, and to petition the Government for redress of grievances, that is described as a right of 'the people.' These rights contemplate collective action. While the right peaceably to assemble protects the individual rights of those persons participating in the assembly, its concern is with action engaged in by members of a group, rather than any single individual."

The extension of that argument, which Justice Stevens fails to see, is that even if the Second Amendment is a collective right, such as the right to assemble, in order for it to be effective, the individual rights of those persons participating must be protected. If Stevens' logic as to the Second Amendment were applied to the right to assemble, then only members of approved, organized, pressure groups would be allowed to assemble.

Of more concern to the future of the Second Amendment, and of all of the Bill of Rights, is the dissent of Justice Breyer. He takes the position that even if we accept that the Second Amendment as an individual right, banning handguns is Constitutionally permitted. This has been the definition of "reasonable restriction" by the anti-gun movement all along.

Constitutional rights are subject to some regulation. The question is, which standard should courts use to determine if those regulations are lawful or, if they so burden the right as to violate it?

Breyer advocates a balancing test of private interests and governmental interests with the weight of legitimacy falling on the side of the legislative determination that the restriction is appropriate. Using a "balancing" test, Breyer concludes that the government's interest to reduce crime and "save lives" out weighs the individual right to have a gun. Like Justice Stevens, Breyer discounts the right of self defense. He then outlines an argument dripping with discrete racism.

Breyer contrasts the difference in crime in urban and rural areas. He speaks of the "different experiences" cities like Washington, DC have from rural areas which makes disarmament of the civilian population necessary. He makes the rather strange argument that if people in Washington, DC wish to practice with a handgun so they can perform militia duty, they can jump on public transportation and go to one of the adjoining states. The Justice implies that people in the mostly white suburbs of Virginia and Maryland have a right to keep and bear handguns because their communities have less crime, but those who live in the mostly minority neighborhoods of Washington do not. What, other than race, is the "different experience" that makes urban dwellers less worthy? Justice Stevens' opinion, in which Breyer joined, pointed out how historically arms were restricted to "those of adequate social and economic status." That position is not acceptable in the United States. Breyer's argument is either racist or disingenuous.
Breyer accepts all of the anti-gun movement's suspect statistics as the basis of the DC gun ban. He uses the "gun crime" reduction argument which ignores the fact that society needs to be concerned with all crime, not just gun crime. He admits that crime has gone up in the city since the ban. He admits that it can not be proven that handgun bans work. Nevertheless, he states that banning guns is a reasonable restriction on a civil right because the legislature articulated a rational argument for the ban. Breyer would sacrifice individual rights to the collective "good" even if there is no proof that the sacrifice would in fact improve the public good. Our Constitution has always stood for the proposition that the greater good is best achieved by the recognition of individual rights.

On the collective good theory, a city could exclude the distribution of ideas that might lead to violence. It could, as has occurred in some of our cities, order the police to search on sight all suspected gang members. The fact that profiling falls disproportionately on blacks or tends to set the community and police at odds, should not, by Breyer's reasoning, lead to court intervention. Indeed, the argument could be made in the name of public safety to round up and hold without trial entire classes of people the government deems to be dangerous. That is, of course, exactly what is going on at Guantanamo where the government has been holding people without trial or formal accusation. In the Boumediene v Bush case (handed down on June 12, 2008) Breyer joined the majority opinion which held, "The laws and Constitution are designed to survive, and remain in force, in extraordinary times." That is a true statement. It is equally applicable to all of the bill of rights, including the Second Amendment.

Because the Heller decision was 5 to 4, it is important to understand the minority position. It must be addressed as the nation goes forward to further define the Second Amendment.

For now, the majority opinion of the Court states that there is an individual right to own a gun in your own home and to possess it in a manner that permits its use for self defense. Although the Heller case dealt specifically with a federal law, Washington, DC being an exclusive federal jurisdiction, the dicta in the case suggests that the current majority on the Supreme Court would apply this right in some manner against the states. Laws that make it impossible to obtain handguns or that have storage requirements which make the use of a gun for self defense all but impossible, are suspect.

The Court stated that its opinion should "cast no doubt on longstanding prohibition on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places...," the regulation of commercial sales, or of guns not in common use.

Gun rights groups need to proceed with discretion. Licensing, if fairly administered, would probably be upheld. Those few states that have discretionary license with vague terms such as "suitable person," or those that require citizens to prove some particularized need to have a gun in their home for self defense, will be subject to challenge. Laws that prohibit people who are licensed by their home state, from having a gun for self defense when they travel interstate, would seem to be subject to challenge, especially by those who live in motor homes.

Although not specifically stated, the Court implied that it would use the same standard of review for gun laws as it does for laws impacting the First Amendment. It rejected the "balancing test" suggested by the minority opinions.

"We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding, 'interest-balancing' approach. The very enumeration of the right takes out of the hands of government . . . the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all. . . The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people . . . whatever else it leaves to future evaluation, it surely elevates above all other interest the right of law-abiding, responsible citizens to use arms in defense of hearth and home."

Any change in the make-up of the Supreme Court could result in a drastic restriction on the Second Amendment. Judges who have been hostile to the Second Amendment are still on the bench. Some will look for ways to avoid defending the right. The Second Amendment, however, can no longer be ignored.

As America goes forward, it should be noted that those states that enacted "shall issue" handgun licenses, suffered no ill effects on public safety. The United States grew out of the unique idea that the great mass of people are trustworthy and that governments are established by the people to protect their rights, not to rule over the people. The greatest good comes from respecting each other, from respecting individual rights, and limiting the power of government. This is especially true in the face of a perceived emergency. For now, Heller is a big step forward in the preservation of all civil rights.