On Heller v. D.C., and how it fails to be Roe v. Wade
Any time I read the writings of a member of the Judicial branch, I cannot help but feel terribly outclassed. Everything is meticulously reasoned and supported using the most sophisticated language, and the justices themselves often inject a usually acerbic wit into their arguments; consider the following reasoning from a minority opinion in K-mart v. Carter:
The statute excludes only merchandise “of foreign manufacture,” which the majority says might mean “manufactured by a foreigner” rather than “manufactured in a foreign country.” I think not. Words, like syllables, acquire meaning not in isolation but within their context. While looking up the separate word “foreign” in a dictionary might produce the reading the majority suggests, that approach would also interpret the phrase “I have a foreign object in my eye” as referring, perhaps, to something from Italy.
Perhaps it’s just the image of an octogenarian Supreme Court Justice saying something like this out loud, followed by official-sounding murmurs of assent, but I find humor like this hilarious!
Okay, okay, so anyway, I somehow managed to come across an article written by a J. Harvie Wilkinson III on a subject of great interest to me: the Heller v. D.C. decision which ruled that the Second Amendment protects an individual right to own and carry weapons for self-defense. Wilkinson argues that Heller v. D.C. threatens to become this judicial generation’s Roe v. Wade, overreaching by creating a constitutional right where none previously existed. Now before I go any further, let me say that my disapproval of Roe v. Wade should not be taken to mean opposition to abortion. To the contrary, I believe that it should be generally legal (and would remain so if left up to the states).
It’s just that Wilkinson’s piece has further convinced me that Roe was an incredibly dubious and slipshod piece of judicial work, and was a totally inappropriate way to protect abortion. It’s argued fairly convincingly, and, reading through it, I couldn’t help but realize that Wilkinson is blindingly intelligent. Nevertheless, his comparison of Heller to Roe stumbles.
Wilkinson’s fault lies in discounting the Second Amendment itself. The core of his arguments stem from what he views as the arbitrariness of manufacturing a new constitutional right without legislative approval. He makes an extremely convincing case for this being true of Roe, but he errs in applying the critique to Heller; the right in question already existed, and was merely being clarified in purpose, not created from whole cloth.
While the constitution says nothing whatsoever about abortion or trimesters of pregnancy as Wilkinson correctly observes, it does indeed discuss the civilian possession of weapons — a fact that Wilkinson seems to overlook. The primary debate revolves around what purpose this possession serves, with advocates of gun control typically asserting that the “well-regulated milita” clause indicates that the arms must be possessed with military service in mind, while the pro-gun focus on the “shall not be infringed” part.
There is a lively debate in the Heller decision, and this question is settled fairly decisively. The “collective rights” theory pushed by gun control advocates was immediately discounted by all nine justices! In addition to getting tossed out by the majority, the minority opinion (authored by Justice Stevens) arrives at the same conclusion, and does so in the first sentence: “The question presented by this case is not whether the Second Amendment protects a ‘collective right’ or an ‘individual right.’ Surely it protects a right that can be enforced by individuals” (he then goes on to say that the real issue is the scope of the right).
I’ll repeat that: all nine Supreme Court Justices agreed that the Second Amendment protects an individual right to own weapons. The dissenting minority opinion does not contradict this, it merely attempts unsuccessfully and unconvincingly to add some additional baggage, which explains why it remains the minority opinion.
As an example, Stevens proposes the idea that while the Second Amendment undoubtedly protects an individual right, the right in question can only be exercised in a collective fashion, a curious notion that is exposed as nonsense when Stevens attempts to describe the right to petition as such a right. Scalia artfully blows this unsubstantiated moonshine out of the water, and Stevens has no rebuttal.
So Wilkinson is dead wrong in his estimation that the true purpose of the Second Amendment remains shrouded in mystery, a cosmic puzzle for congress to sort out. Rather, it is convincingly laid out in the majority opinion, unchallenged by the minority.
Wilkinson then tries to claim that self-defense being the core of that individual right is what has been invented on the spot, similar to Roe‘s right to abortion. But this too is an enormous stretch, because while the right to abortion was indeed spontaneously created, the right to self-defense is merely an interpretation of what was already written. Remarkably, Wilkinson contradicts his own analysis, saying elsewhere that there “is a big difference between when the text says something (whatever that something may be), and when it says absolutely nothing.” Wilkinson should practice what he preaches!
No, Heller is more subtle; it did not invent a new constitutional right, it merely clarified a pre-existing one. The fact that this clarification has led to so many legal challenges of existing gun laws speaks more to the burdensome nature of these laws than the controversiality of the decision.
Washington, D.C., for instance, still maintains a law that defines autoloading handguns as “machine guns” if they are even capable of accepting magazines that can hold more than 12 rounds of ammunition — a ridiculous and arbitrary distinction, especially since Federal law already adequately defines what a “machine gun” is! Wilkinson does not place enough faith in the ability of American jurors when he asserts that this case would require the introduction of complicated technical data to decide. Nothing of the sort is required — justices trying this case will merely have to examine the federal law and force D.C. to comply with it.
Wilkinson claims that Heller will force justices to rule on exactly which features make or do not make a weapon “suitable for self-defense”, but this attitude displays his bias against guns; he takes the gun-controllers’ position that arbitrary cosmetic features can render a weapon more or less useful for the purpose of murder.((Any gun can be misused by one with malice in his heart. The only attributes shared by the crude single-shot derringer that killed Lincoln, the ancient and slow-to fire bolt-action rifle used to kill Kennedy, and the inaccurate high-capacity pistols wielded by the columbine killers were that their users disregarded the law and desired to commit murder. Regulating certain features does nothing to address the mindset that would incline one to kill — a mindset that can still and often does result in violence and death completely absent firearms.))
I suspect Wilkinson himself would be unable to decide whether a folding stock, for example, would make a gun unsuitable for self-defense. But why would it? In such a case, testimony would be heard describing just what a folding stock is good for: making a long gun handier, less bulky, and more comfortable for users of differing arm lengths. It would be plain then that none of these goals substantively alter any more than a weapon’s ergonomics, so therefore, the presence or absence of a folding stock would be obviously irrelevant to the core of self-defense. Again, Wilkinson doesn’t put enough faith in his peers when he asserts they they would struggle with basic questions like these.
The truth is, weapons that cannot easily be used for self-defense are fairly easy to imagine. Think about bombs and explosives for a moment. At extremely short distances, they would probably cause as much damage to the user who wishes to protect his life as they would to the aggressor. At longer distances, they would be all but impossible to aim properly so as to avoid causing tremendous collateral damage or loss of innocent life. Clearly the indiscriminate nature of explosives makes them unsuitable for targeting an individual aggressor and avoiding unwanted damage to bystanders, property, or self. I don’t believe that an extraordinary amount of judicial talent would be required to deduce that explosives would fail to receive the protection of the Second Amendment.
No, all Heller will ultimately do is force legislatures to avoid introducing nonsensical regulations, or throw out such laws if they manage to pass. And that is exactly what Heller is supposed to do: protect the citizenry’s ability to buy, own, and carry weapons that can be used for lawful self-defense, which is most of them.
That said, Wilkinson correctly identifies a crucial flaw in Heller that threatens to undo its legitimacy. The following passage in Scalia’s majority opinion is exactly the kind of judicial overreaching that Scalia himself constantly observes is damaging to Roe:
The Court’s opinion should not 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. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.
As Wilkinson observes, “The Constitution’s text, at least, has as little to say about restrictions on firearm ownership by felons as it does about the trimesters of pregnancy.” He’s right, of course. The above passage appears to be little more than judicial ass-covering by Scalia, who presumably did not want to be branded as a radical gun nut. As Wilkinson says, “the Heller majority seems to want to have its cake and eat it, too — to recognize a right to bear arms without having to deal with any of the more unpleasant consequences of such a right.”
Questions of whether felons should be permanently denied their Second Amendment rights, where self-defense can legally take place, and how or if the sale of firearms should be taxed are indeed questions best left to legislatures, to be later tested against the Second Amendment. By what logic does Scalia attempt to explain how handguns should be protected as tools of lawful self-defense, yet barred from being carried in schools or government buildings; would he argue that those locations are, in effect, “self-defense free zones”? Because that is the logical effect of protecting laws that limit the carrying of arms there, given that he has defined the carrying of arms as a legitimate activity for self-defense. There is absolutely nothing in the constitution on this subject, nor is there even any real attempt at justification at all in Scalia’s opinion.
And furthermore, there is a glaring logical flaw in the passage: the “in common use” clause makes no sense; why should handguns be protected simply because they are popular? If for some reason people start equipping their houses with .50 cal machine gun turrets, should those be protected as legitimate tools of self-defense? Popularity seems to me to be an extremely poor determinant of suitability for self-defense.
So what does this mean for Heller? Is it as bad as Roe? I don’t think so. While both suffer from some judicial overreaching, what is clear to me is that while Roe fabricated a new right out of thin air with no justification, Heller merely refined the meaning of an existing right, which does wonders for its legitimacy. This of course doesn’t excuse those peculiar and hypocritical sentences in the Heller ruling, and I dearly wish they didn’t taint it with their presence. But the fact remains that Heller both starts on much firmer constitutional ground and reaches a much more logical conclusion. In the end, it is a much stronger ruling than Roe.