imported post
I made the following notes and key quotes from DC v Heller:
NONE OF THIS SHOULD BE TAKEN AS LEGAL ADVICE – BUT FWIW, here are my
personal notes re: DC v Heller : 554 U. S. ____ (June 26, 2008), slip.
opinion:
[5-4; Scalia writing joined by Roberts, Kennedy, Thomas and Alito;
dissenting were Stevens, Souter, Ginsberg and Breyer. New candidates for
the Court will need to be questioned on their position vis a vis gun rights
and Heller in the same way that they are questioned about Roe v. Wade.]
[NB – ‘carry’ must mean open carry – therefore, Texas and all other states
banning open carry have laws that are unconstitutional under DC v Heller
entirely, or to the extent that they are applied to ban open carry.
Restrictions like California’s restriction that the handgun not be loaded
but allowing a mag on the belt, is discussed in dicta at p61-62.]
[Based on this, the only time I won’t feel free to open carry is when it is
not convenient or desirable for me for one reason or another (like I don’t
want to trigger some private business owner to ban firearms on their
property) and when local gun-rights advocates have asked, as someone from
WA/Seattle area did on one thread, that people not open carry where it would
make it more difficult for the locals to protect gun rights. There is still
a desensitization issue that needs to be looked at there.]
at 3:
In interpreting this text, we are guided by the principle that “[t]he
Constitution was written to be under stood by the voters; its words and
phrases were used in their normal and ordinary as distinguished from
technical meaning.” United States v. Sprague, 282 U. S. 716, 731 (1931); see
also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course
include an idiomatic meaning, but it excludes secret or technical meanings
that would not have been known to ordinary citizens in the founding
generation.
at 10:
At the time of the founding, as now, to “bear” meant to “carry.” See Johnson
161; Webster; T. Sheridan, A Com plete Dictionary of the English Language
(1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford).
When used with “arms,” however, the term has a meaning that refers to
carrying for a particular purpose— confrontation. In Muscarello v. United
States, 524 U. S. 125 (1998), in the course of analyzing the meaning of
“carries a firearm” in a federal criminal statute, JUSTICE GINSBURG wrote
that “urely a most familiar meaning is, as the Constitution’s Second
Amendment . . . indicate: ‘wear, bear, or carry . . . upon the person or
in the clothing or in a pocket, for the purpose . . . of being armed and
ready for offensive or defensive action in a case of conflict with another
person.’”
At 19
we find that they guarantee the individual right to possess and carry
weapons in case of confrontation. This meaning is strongly confirmed by the
historical background of the Second Amendment. We look to this because it
has always been widely under stood that the Second Amendment, like the
First and Fourth Amendments, codified a pre-existing right. The very text of
the Second Amendment implicitly recognizes the pre-existence of the right
and declares only that it “shall not be infringed.” As we said in United
States v. Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right
granted by the Constitution. Neither is it in any manner dependent upon
that instrument for its existence. The Second amendment declares that it
shall not be infringed . . . .”
at 20:
See Malcolm 122–134. Blackstone, whose works, we have said, “consti tuted
the preeminent authority on English law for the founding generation,” Alden
v. Maine, 527 U. S. 706, 715 (1999), cited the arms provision of the Bill of
Rights as one of the fundamental rights of Englishmen. See 1 Black- stone
136, 139–140 (1765). His description of it cannot possibly be thought to
tie it to militia or military service. It was, he said, “the natural right
of resistance and self- preservation,” id., at 139, and “the right of having
and using arms for self-preservation and defence,” id., at 140;
at 21:
A New York article of April 1769 said that “ t is a natural right which
the people have reserved to them selves, confirmed by the Bill of Rights,
to keep arms for their own defence.” A Journal of the Times: Mar. 17, New
York Journal, Supp. 1, Apr. 13, 1769, in Boston Under Military Rule 79 (O.
Dickerson ed. 1936); see also, e.g., Shippen, Boston Gazette, Jan. 30, 1769,
in 1 The Writings of Samuel Adams 299 (H. Cushing ed. 1968). They under
stood the right to enable individuals to defend themselves. As the most
important early American edition of Black stone’s Commentaries (by the law
professor and former Antifederalist St. George Tucker) made clear in the
notes to the description of the arms right, Americans understood the “right
of self-preservation” as permitting a citizen to “repe[l] force by force”
when “the intervention of society in his behalf, may be too late to prevent
an injury.” 1 Black stone’s Commentaries 145–146, n. 42 (1803)
(hereinafter Tucker’s Blackstone). See also W. Duer, Outlines of the
Constitutional Jurisprudence of the United States 31–32 (1833).
At 22:
Of course the right was not unlimited, just as the First Amendment’s right
of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___
(2008). Thus, we do not read the Second Amendment to protect the right of
citizens to carry arms for any sort of confrontation, just as we do not read
the First Amendment to protect the right of citizens to speak for any
purpose. Before turning to limitations upon the individual right, however,
we must determine whether the prefatory clause of the Second Amendment
comports with our interpretation of the operative clause.
At 24:
First, of course, it is useful in repelling invasions and suppressing
insurrections. Second, it renders large standing armies unnecessary—an
argument that Alexan der Hamilton made in favor of federal control over the
militia. The Federalist No. 29, pp. 226, 227 (B. Wright ed. 1961) (A.
Hamilton). Third, when the able-bodied men of a nation are trained in arms
and organized, they are better able to resist tyranny.
At 25:
During the 1788 ratification debates, the fear that the federal government
would disarm the people in order to impose rule through a standing army or
select militia was pervasive in Antifederalist rhetoric.
At 26:
It was understood across the political spectrum that the right helped to
secure the ideal of a citizen militia, which might be necessary to oppose an
oppressive military force if the constitutional order broke down.
At 33:
St. George Tucker’s version of Blackstone’s Commentaries, as we explained
above, conceived of the Blackstonian arms right as necessary for
self-defense. He equated that right, absent the religious and class-based
restrictions, with the Second Amendment. See 2 Tucker’s Blackstone 143. In
Note D, entitled, “View of the Constitution of the United States,” Tucker
elaborated on the Second Amend ment: “This may be considered as the true
palladium of liberty . . . . The right to self-defence is the first law of
nature: in most governments it has been the study of rulers to confine the
right within the narrowest limits possible. Wherever standing armies are
kept up, and the right of the people to keep and bear arms is, under any
colour or pretext whatsoever, prohibited, liberty, if not already
annihilated, is on the brink of destruction.” 1 id., at App. 300 (ellipsis
in original).
At 35:
Rawle further said that the Second Amendment right ought not “be abused to
the disturbance of the public peace,” such as by assembling with other armed
individuals “for an unlawful purpose”—
at 35
Story explained that the English Bill of Rights had also included a “right
to bear arms,” a right that, as have discussed, had nothing to do with
militia service.
At 36:
In addition, in a shorter 1840 work Story wrote: “One of the ordinary modes,
by which tyrants accomplish their purposes with out resistance, is, by
disarming the people, and making it an offence to keep arms, and by
substituting a regular army in the stead of a resort to the militia.” A
Familiar Exposition of the Constitution of the United States §450 (reprinted
in 1986).
At 36:
Antislavery advocates routinely invoked the right to bear arms for
self-defense. Joel Tiffany, for example, citing Blackstone’s description of
the right, wrote that “the right to keep and bear arms, also implies the
right to use them if necessary in self defence; without this right to use
the guaranty would have hardly been worth the paper it consumed.”
At 39:
An 1829 decision by the Supreme Court of Michi gan said: “The constitution
of the United States also grants to the citizen the right to keep and bear
arms. But the grant of this privilege cannot be construed into the right in
him who keeps a gun to destroy his neighbor. No rights are intended to be
granted by the constitution for an unlawful or unjustifiable purpose.”
United States v. Sheldon, in 5 Transactions of the Supreme Court of the
Territory of Michigan 337, 346 (W. Blume ed. 1940) (here inafter Blume).
At 39:
In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed
the Second Amendment as protecting the “natural right of self-defence” and
therefore struck down a ban on carrying pistols openly. Its opinion
perfectly captured the way in which the operative clause of the Second
Amendment furthers the purpose announced
at 40:
Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana
Supreme Court held that citizens had a right to carry arms openly: “This is
the right guar anteed by the Constitution of the United States, and which
is calculated to incite men to a manly and noble defence of themselves, if
necessary, and of their country, without any tendency to secret advantages
and unmanly assassinations.”
At 46:
“As the Constitution of the United States, and the constitutions of several
of the states, in terms more or less comprehensive, declare the right of the
people to keep and bear arms, it has been a subject of grave dis cussion,
in some of the state courts, whether a statute prohibiting persons, when not
on a journey, or as travellers, from wearing or carrying concealed weap-
ons, be constitutional. There has been a great differ ence of opinion on
the question.” 2 J. Kent, Commen taries on American Law *340, n. 2 (O.
Holmes ed., 12th ed. 1873) (hereinafter Kent).
At 46:
No doubt, a citizen who keeps a gun or pistol under judicious pre cautions,
practices in safe places the use of it, and in due time teaches his sons to
do the same, exercises his individual right. No doubt, a person whose
residence or duties involve peculiar peril may keep a pistol for prudent
self-defence.” B. Abbott, Judge and Jury: A Popular Explanation of the
Leading Topics in the Law of the Land 333 (1880) (hereinafter Abbott).
At 47:
“The right to bear arms has always been the dis tinctive privilege of
freemen. Aside from any neces sity of self-protection to the person, it
represents among all nations power coupled with the exercise of a certain
jurisdiction. . . . t was not necessary that the right to bear arms
should be granted in the Constitu tion, for it had always existed.” J.
Ordronaux, Consti tutional Legislation in the United States 241–242 (1891).
At 47-48:
We described the right protected by the Second Amendment as “‘bearing arms
for a lawful purpose’”22 and said that “the people [must] look for their
protection against any violation by their fellow- citizens of the rights it
recognizes” to the States’ police power. 92 U. S., at 553.
At 49-50:
United States v. Miller, 307 U. S. 174 (1939) - the type of weapon at issue
was not eligible for Second Amendment protection: “In the absence of any
evidence tending to show that the possession or use of a [short barreled
shotgun] at this time has some reasonable rela tionship to the preservation
or efficiency of a well regu lated militia, we cannot say that the Second
Amendment guarantees the right to keep and bear such an instru- ment.” 307
U. S., at 178 (emphasis added). “Certainly,” the Court continued, “it is
not within judicial notice that this weapon is any part of the ordinary
military equip ment or that its use could contribute to the common de
fense.” Ibid. Beyond that, the opnation of the content of the right.
This holding is not only consistent with, but positively suggests, that the
Second Amendment confers an individ ual right to keep and bear arms (though
only arms that “have some reasonable relationship to the preservation or
efficiency of a well regulated militia”).
At 52:
We think that Miller’s “ordinary military equipment” language must be read
in tandem with what comes after: “[O]rdinarily when called for [militia]
service [able-bodied] men were expected to appear bearing arms supplied by
themselves and of the kind in common use at the time.” 307 U. S., at 179.
The traditional militia was formed from a pool of men bringing arms “in
common use at the time” for lawful purposes like self-defense. “In the
colonial and revolu tionary war era, [small-arms] weapons used by
militiamen and weapons used in defense of person and home were one and the
same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980)
At 53:
We therefore read Miller to say only that the Second Amendment does not
protect those weapons not typically possessed by law-abiding citizens for
lawful purposes, such as short-barreled shotguns.
At 54-55:
Like most rights, the right secured by the Second Amendment is not
unlimited. From Blackstone through the 19th-century cases, commentators and
courts rou tinely explained that the right was not a right to keep and
carry any weapon whatsoever in any manner whatsoever and for whatever
purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153;
Abbott 333. For exam ple, the majority of the 19th-century courts to
consider the question held that prohibitions on carrying concealed weapons
were lawful under the Second Amendment or state analogues. See, e.g., State
v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see
generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G.
Chase ed. 1884). Although we do not undertake an exhaustive historical
analysis today of the full scope of the Second Amendment, nothing in our
opinion should 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 impos ing conditions and qualifications on the
commercial sale of arms.26
We also recognize another important limitation on the right to keep and
carry arms. Miller said, as we have explained, that the sorts of weapons
protected were those “in common use at the time.” 307 U. S., at 179. We
think that limitation is fairly supported by the historical tradi tion of
prohibiting the carrying of “dangerous and unusual weapons.”
At 55-56:
It may be objected that if weapons that are most useful in military
service—M-16 rifles and the like—may be banned, then the Second Amendment
right is completely detached from the prefatory clause. But as we have said,
the conception of the militia at the time of the Second Amendment’s
ratification was the body of all citizens capable of military service, who
would bring the sorts of lawful weapons that they possessed at home to
militia duty. It may well be true today that a militia, to be as effective
as militias in the 18th century, would require sophisticated arms that are
highly unusual in society at large. Indeed, it may be true that no amount of
small arms could be useful against modern-day bombers and tanks. But the
fact that modern developments have lim ited the degree of fit between the
prefatory clause and the protected right cannot change our interpretation of
the right.
At 57-58:
It is enough to note, as we have observed, that the American people have
considered the handgun to be the quintessen tial self-defense weapon.
There are many reasons that a citizen may prefer a handgun for home defense:
It is easier to store in a location that is readily accessible in an emer
gency; it cannot easily be redirected or wrestled away by an attacker; it is
easier to use for those without the upper- body strength to lift and aim a
long gun; it can be pointed at a burglar with one hand while the other hand
dials the police. Whatever the reason, handguns are the most popu lar
weapon chosen by Americans for self-defense in the home, and a complete
prohibition of their use is invalid.
At 58:
We must also address the District’s requirement (as applied to respondent’s
handgun) that firearms in the home be rendered and kept inoperable at all
times. This makes it impossible for citizens to use them for the core lawful
purpose of self-defense and is hence unconstitu tional. The District argues
that we should interpret this element of the statute to contain an exception
for self- defense.
At 61-62:
A broader point about the laws that JUSTICE BREYER cites: All of them
punished the discharge (or loading) of guns with a small fine and forfeiture
of the weapon (or in a few cases a very brief stay in the local jail), not
with sig nificant criminal penalties.29 They are akin to modern penalties
for minor public-safety infractions like speeding or jaywalking. And
although such public-safety laws may not contain exceptions for
self-defense, it is inconceivable that the threat of a jaywalking ticket
would deter someone from disregarding a “Do Not Walk” sign in order to flee
an attacker, or that the Government would enforce those laws under such
circumstances. Likewise, we do not think that a law imposing a 5-shilling
fine and forfeiture of the gun would have prevented a person in the founding
era from using a gun to protect himself or his family from violence, or that
if he did so the law would be enforced against him.
At 63:
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. We would not apply an “interest-balancing”
approach to the prohibi tion of a peaceful neo-Nazi march through Skokie.
See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per
curiam). The First Amendment contains the freedom-of-speech guarantee that
the people ratified, which included exceptions for obscenity, libel, and
disclo sure of state secrets, but not for the expression of ex tremely
unpopular and wrong-headed views. The Second Amendment is no different. Like
the First, it is the very product of an interest-balancing by the
people—which JUSTICE BREYER would now conduct for them anew. And whatever
else it leaves to future evaluation, it surely elevates above all other
interests the right of law-abiding, responsible citizens to use arms in
defense of hearth and home.
At 63:
But since this case represents this Court’s first in-depth examination of
the Second Amend ment, one should not expect it to clarify the entire
field, any more than Reynolds v. United States, 98 U. S. 145 (1879), our
first in-depth Free Exercise Clause case, left that area in a state of utter
certainty. And there will be time enough to expound upon the historical
justifications for the exceptions we have mentioned if and when those
exceptions come before us.
At 64:
In sum, we hold that the District’s ban on handgun possession in the home
violates the Second Amendment, as does its prohibition against rendering any
lawful fire arm in the home operable for the purpose of immediate
self-defense. Assuming that Heller is not disqualified from the exercise of
Second Amendment rights, the Dis trict must permit him to register his
handgun and must issue him a license to carry it in the home.
[NB – apparently, the requirement that a license be required and renewed
annually for a firearm in the home was not examined by the Court.]
at 64:
But the enshrinement of constitutional rights necessarily takes certain
policy choices off the table. These include the absolute prohibi tion of
handguns held and used for self-defense in the home. Undoubtedly some think
that the Second Amendment is outmoded in a society where our standing army
is the pride of our Nation, where well-trained police forces provide
personal security, and where gun violence is a serious problem. That is
perhaps debatable, but what is not debatable is that it is not the role of
this Court to pronounce the Second Amendment extinct.
[NB – the Second Amendment may be changed only by a Constitutional
Amendment.]
[END MAJORITY OPINION]
[My own belief is that the Dissent is irrelevant as it is highly unlikely to
be espoused by any new Justices that come onto the Court in the foreseeable
future.]
:dude:
