Finally Some Thoughts on the The DC Gun Case
Originally published at The Mouse's Tale. You can comment here or there.
Well, it took me long enough, but I think I finally made up my mind about DC v. Heller. Despite everyone on both sides of the issue being absolutely convinced of the correctness of their positions, I actually found this case to be pretty hard. Much to my pleasant surprise, ( Read more... )
The prefatory phrase of the second amendment is just that - a prefatory phrase. It is meant to introduce, not to restrict. The action clause is whole and complete unto itself. It says the right of the people. It's the same people who are in every other amendment in the bill of rights. It is the individual. Justice Stevens is, quite simply, out of his gourd when he suggests that the second, or first, can ever be seen as applicable only to groups.
In fact, "the people" makes far more sense individually than collectively. Think of it as a class and instances. The second amendment assigns a right to the class "People" and it is inherited by every instance of "Person." The only collective thing about it is that it is assigned in a blanket way, so that a separate bill of rights doesn't have to be written for each individual. In other words, it's assigned, blanket, to all individuals, not to individuals only when acting as part of a collective.
But back to the prefatory clause. In insisting that it does anything more than inform as to the reasons for the second amendment, we have a case of "when all you have is a hammer, the whole world starts looking like nails." You're trying to fit a square peg into a round hole, just for the mental satisfaction of having everything tie together perfectly. While this "every sperm is sacred" approach is nice for critiquing fiction, it may or may not actually have any relevance to the constitution, as writ.
In fact, I'll go one farther. The prefatory clause is there to highlight the second amendment. It was written in light of a recent rebellion against their own government, won by militias. It says "hey, we might need to do this again some day, so you had best guard this right jealously." If anything, it provides that the federal government can't restrict militias.
As for your suggestion that the amendment doesn't protect the right to keep and bear arms of the owner's choice, I'd have to say you're rather blinkered on that one. "Shall not be infringed." If you say I can't have my Sig, KelTec, or Glock because DC has decided that semi-automatic firearms are verboten (which is exactly what they're doing with their post-Heller re-write of the law), then you are infringing. Why is it that you think the founders chose such forceful language for that?
Of course, we know that everything can be infringed, given sufficient overwhelming need. None the less, it puts a nearly-insurmountable burden of proof on the state to prove why a few exceptions should be tolerated. Otherwise, "shall not be infringed" is the law of the land, and the sacred right enshrined by the second amendment. Everything else is leftist, statist spin.
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As for your suggestion that the amendment doesn't protect the right to keep and bear arms of the owner's choice, I'd have to say you're rather blinkered on that one. "Shall not be infringed." If you say I can't have my Sig, KelTec, or Glock because DC has decided that semi-automatic firearms are verboten (which is exactly what they're doing with their post-Heller re-write of the law), then you are infringing. Why is it that you think the founders chose such forceful language for that?
There are a few problems, actually, with calling any of that infringement even if we accept Heller's view of the Second Amendment.
Beginning with the text, it would be remarkable if "arms" could be fairly read to actually mean "particular arms." In every sense in which the word "arms" can be fairly read, it is a collective term. Unlike "the people" which can be fairly replaced in the text with "every particular individual" wherever it shows up in the text of the Bill of Rights, trying to replace "arms" with "every particular weapon" yields a statement which is absurd on its face. At best, we can attempt to insert "every particular class of weapon" into the "arms" slot, but the best we've done in that case is reduce a very collective term into a slightly less collective hybrid. The trouble with the hybrid, however, is threefold: First, it begs the question of how to classify weapons without offering any advice to the judiciary on that point, second, it's not at all clear how this is would be different in practice from the fully collective view, and third, it would appear to yield what I am sure you would consider the undesirable result of allowing the government to (for example) prohibit you from owning two Glocks.
So, on the basis of text alone, it seems unlikely that the Second Amendment can support a right to the arms of the bearer's choice. In this case, though, the text alone is perhaps not the clearest guidepost, and I wouldn't fault anyone for thinking that the above analysis is insufficient to prove the point. There are, however, other indicators which point in the same direction.
The most obvious problem to the idea that the right encompasses the right to the arms of the owner's choice is Miller. In that case, the Court held that certain classes of arms could be banned. To achieve its holding, the Court noted that any weapon not suitable to military service could be banned outright and, incident to that holding, permitted a ban on sawed off shotguns. While there is plenty of reason to doubt the factual holding about the military application of a sawed off shotgun, the legal holding is unmistakable.
Even beyond Miller, our history includes other examples of weapons receiving blanket bans which even the majority in Heller has indicated are likely to survive challenges under an individual rights interpretation. The problem is that there is no principle in the Second Amendment which allows a court to distinguish between one class of weapons and another, both as a matter of fact and as a matter of law. Nowhere do the Courts receive any guidance when needing to decide whether the relevant class of arm is "guns", "handguns", "Glocks", or "pink Glocks with little poodles drawn on the handle." But even after the courts make that determination, they still have a problem of deciding if the given class of weapon can be banned, which, history tells us, will depend in large part on if the weapon is too dangerous to be tolerated; but that is a quintessentially political question.
On my reading of the Second Amendment, none of that matters. Your ability to form up into a militia is not diminished if I prohibit Glocks, because you can always grab your Sig instead.
With respect to what's happening in DC, I doubt their latest move would pass either the Court's standard or my own. It is a very poor attempt at satisfying the "letter" of Heller while clearly missing its "spirit."
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It is a general term. By arms, they meant just that - each and every weapon. They chose a blanket term like "arms" for a blanket prohibition on infringement. They left the wording as open as possible so that no arms could be excluded by the government.
Unlike "the people" which can be fairly replaced in the text with "every particular individual" wherever it shows up in the text of the Bill of Rights, trying to replace "arms" with "every particular weapon" yields a statement which is absurd on its face.
How is it absurd on its face? When the Constitution was written, what type of arm do you think they wished to ban or exclude from second-amendment protection? I submit to you that this absolute prohibition on infringement of any type was exactly what they intended.
As for the issues with Miller that you bring up, they really do not apply to the Second Amendment, as writ. While I think it was a remarkable work of jurisprudence (which is why I linked it on my Livejounal almost a year ago), I don't think it really expresses the true intent of the founding father, or the plain and obvious meaning of the Second Amendment.
Your ability to form up into a militia is not diminished if I prohibit Glocks, because you can always grab your Sig instead.
The second amendment does not solely protect my ability to form a militia. Nor is it not violated, simply because I can form a militia of some sort. Additionally, such a prohibition can, and likely would diminish my right to form a militia. What if I supplied my troops with Glocks (for reasons of reliability and commonality), and then congreff, fearing my martial might, bans Glocks? Must I now eat the cost of replacing them with Sigs? That's no small expense. Ok, now I'm armed with Sigs. Congress bans those too. After all, I can carry Colts. How about semi-automatic weapons, since I can carry revolvers? How about firearms chambered in 9x19, since I can carry .357. Soon, they can ban me into insolvency.
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By "every particular weapon" I truly mean every particular weapon. "Glock" as a type of weapon is a class of arms. "Glock: Serial no. 33462" is a particular weapon.
When the Constitution was written, what type of arm do you think they wished to ban or exclude from second-amendment protection?
When the Constitution was written, nobody thought that the federal authority extended to causing any sort of disarmament whether the Second Amendment existed or not. It was passed mostly to pacify the fears of the antifederalists who believed that the federal authority to arm and discipline the militia might also be used to disarm the militia as well.
What if I supplied my troops with Glocks (for reasons of reliability and commonality), and then congreff, fearing my martial might, bans Glocks? Must I now eat the cost of replacing them with Sigs? That's no small expense. Ok, now I'm armed with Sigs. Congress bans those too. After all, I can carry Colts. How about semi-automatic weapons, since I can carry revolvers? How about firearms chambered in 9x19, since I can carry .357. Soon, they can ban me into insolvency.
This argument mirrors a line of argument used by Lawrence Lessig in Eldred v. Ashcroft in which he attempted to convince the justices that Congress had exceeded their authority under the Constitution with respect to copyright by passing a series of copyright laws that had the effect of extending copyright indefinitely although each individual law contained an explicit deadline. Lessig lost that argument.
In any event, the insidious line of legislation you postulate is probably unconstitutional on other grounds, and is still limited by the principle that "the government may not make it unreasonable to own a usable weapon." (original post) The government might be able to pass such a law once or twice, but forcing a large fraction of the people who seek nothing but exercise their rights to go bankrupt in order to do so is pretty obviously unreasonable. However, deciding whether a line of legislation is actually unreasonable, or what could be done to save it, is a factual question which I'd rather not be sitting here trying to decide in the context of a hypothetical case.
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