Thursday, June 26, 2008

Coup d'Liberte

Today the United States Supreme Court struck a blow for liberty! In a majority (5-4) opinion, authored by Justice Scalia and using arguments strikingly similar to those in my posting on April 26, 2008 (including the same grammatical argument and the same quotes from Federalist #46 (Madison) and Federalist #29 (Hamilton)), the Court struck down the District of Columbia's handgun ban and reaffirmed that the right to keep and bear arms is an individual right and not a collective one:

"The Second Amendment protects an individual right to possess a
firearm unconnected with service in a militia, and to use that arm for
traditionally lawful purposes, such as self-defense within the home."
SCOTUS, D.C. v. Heller

The Court argued that the independent (or as the Court put, operative) clause conveying a right to the people to bear arms is not limited by the the dependent or prefatory clause, which merely explains why the right was held to be important. The Court argued that the phrase, "the people" used in the Second Amendment conveys the same general meaning as elsewhere in the Constitution (and again implies the right to bear arms is a broad, individual one) and found support for this view of individual rights (and this definition of militia) in the writings of the Founding Fathers. The Court also found support for this view in a similar right to bear arms found in many state constitutions written prior to the U.S. Constitution. The majority opinion reads U.S. v. Miller narrowly, arguing that the Second Amendment did not protect, specifically, the type of weapon involved (a sawed-off shotgun) because that type of weapon did not have any applicability to a legitimate military use as suggested by the prefatory clause. The Court acknowledges that the prefatory clause has little meaning in 21st century America, but argues that this does not change the interpretation of the right.

Most importantly however, the opinion drives home the importance that Constitutionally enumerated rights are not to be taken away by anything other than Constitutional amendment - not by acts of legislature and not by decisions of judges:

"The very enumeration of the right takes out of the hands of government—
even the Third Branch 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. Constitutional rights are enshrined with
the scope they were understood to have when the people
adopted them, whether or not future legislatures or (yes)
even future judges think that scope too broad."
-SCOTUS, D.C. v. Heller

This is the principle of liberty that needed to be upheld in this case. Our modern sensibilities may no longer desire a broad individual right to bear arms. If so, we have a remedy called Constitutional amendment. But, it is critically important that we not set legal precedents that circumvent the Bill of Rights and open our other enumerated and important Constitutionally guaranteed rights to be side stepped by simple majorities in legislatures or on the bench.

If this opinion is characteristic of this Courts view of the Constitution, then perhaps the second Bush term (and appointments of Roberts and Alito) was not a complete disaster after all.

For the full opinion, and dissenting opinion: