Thursday, June 26, 2008
The Supreme Court released their decision in the matter of the District of Columbia et al . v. Heller. This case was a challenge as to the constitutionality of several gun laws in the District of Columbia. Those being a ban on possessing a handgun and a requirement that all other guns be stored so that they are non-functional, therefore making them useless for self-defense purposes. I am in the process of a through reading of the case (another long one), but I wanted to give some initial impressions.
There isn't a whole lot of jurisprudence in regards to the 2nd Amendment. Most Con Law classes don't cover it at all and only the 3rd Amendment (quartering soldiers in your home) probably has less case law. Throughout most of our history, this was never an issue. Prior to 1934 there were very few gun laws. A child could order a belt-fed machine gun through the mail. Since that time, there has been a great deal of legislation regulating use, possession, and purchasing of firearms. For the most part, these laws have been upheld, despite numerous challenges. I was very surprised when the Supreme Court decided to hear this case.
What does it say and what does it mean?
1. They affirmed an individual right to keep and bear arms. This has been the majority opinion of most legal scholars and hopefully puts to rest the notion that this right is a collective one that belongs to the states or to people that are members of an orgainized militia.
2. They nullified the two provisions of DC law that were previously mentioned.
They were less clear in some other areas.
1. They rejected the rational basis standard of scrutiny and hinted at a higher level, though didn't say what kind of test it would require.
2. They didn't say if this applied to the states. Under the doctrine of selective incorporation, the second amendment, along with several other provisions from the BOR, has not been held to be binding on the States. Several commentations have suggested that the Court hinted that the 2nd does apply to the States, but I will have to see if I can find that.
3. They didn't say how this would apply to other federal laws.
For the most part, I am pleased with this decision. It didn't go as far as I would have wanted and still left the door open for plenty of other laws, such as licensing and bans on carry, but it is a step in the right direction. I understand that this is an emotional issue for many and I have never hid where my bias stands. I am interested to see how the candidates react. McCain has always been pretty luke warm towards gun rights and has backed many gun laws in the past. Obama has supported gun control, but hasn't made it an issue in this election. I sincerely hope he doesn't start.