Thursday, June 26, 2008

Some Skepticism on Heller (D.C. Gun Law Ruling)

Radley Balko Nails it again! Too often "patriots" hear what they want to hear and NOT what was actually being said. Yes, Heller is a win but it only goes so far. When dealing with the religion of law it is wise to remember that just as with a theistic religion, interpretations of "holy writ" are subjective to the personalities involved and the contemporary times. SCUSA has reversed itself before as has the Vatican and other major religions on what were thought to be immutable positions.

Some Skepticsm on Heller

By Radley Balko

I hate to pee in the pool, here, but I’m having a hard time getting too excited about today’s decision.

Justice Antonin Scalia’s opinion avoids any decision on incorporating the Second Amendment to the states, and his history suggests a strong reluctance to incorporate individual rights. Scalia’s opinion does interpret the Second Amendment as an individual right, but only for self-protection, and only in the home. The concept of the Second Amendment as a bulwark against an overly oppressive government seems dead.

In the past, when Scalia’s limited government principles have conflicted with his law-and-order instincts, law and order has won handily. He’s been a happy federalist when it comes to allowing states to infringe on individual rights, but will bring down the hammer of the federal government on states that defy the feds by giving their citizens a bit more freedom.

As Jacob Sullum noted earlier, Scalia also goes out of his way to note that the "individual right" the Court found today doesn’t undo onerous regulations on the sale of guns, leaves untouched bans on "unusual or dangerous" weapons, and doesn’t overturn existing bans on concealed carry.

So what’s the real practical effect of today’s ruling? Seems to me, it’s limited to the following:

• A future Congress is barred from passing a uniform federal ban on handguns or rifles in the home. Just about any other federal regulation would probably still be okay, provided it meets the minimal Commerce Clause test in U.S. v. Lopez.

• The 600,000 residents of Washington, D.C. and residents of other federal protectorates now have the constitutional right to own a handgun, provided they meet a set of conditions put forth by the city council—the limits of which will be litigated at a future date. Also, even this right for this small group of people extends only to handguns or rifles kept in the home.

Any other city, state, or locality may still pass a gun law just as restrictive as the one struck down in D.C. And even the D.C. city council can still make its citizens jump through a number of hoops before allowing them to own a handgun.

Today’s ruling gave the right a rhetorical victory (remember, elections are "all about the judges!"), but I’m not sure what it accomplished in actually protecting Second Amendment rights. To be fair, Scalia explains that Heller was basically a case of first impression, and there’s much to still work out through litigation. But given the narrow reach of his opinion, I guess I’d just caution against too much optimism that any new litigation will come out the right way.