Posted on June 27, 2008 at 11:36 am by Ben Winograd
The following post was authored by David Kopel of the Independence Institute, who filed an amicus brief in Heller in support of the respondents on behalf of the International Law Enforcement Educators and Trainers Association and others.
The first thing that should be said about Heller is that it was a well-lawyered case on both sides. What a contrast to United States v. Miller — which, as detailed in a law review article cited by the Scalia majority, was apparently a collusive test case, in which the passive defense attorney and a compliant federal district judge did the bidding of the U.S. Attorney to bring the weakest possible Second Amendment case before the Court, and then to ensure that only the U.S. Attorney’s side even presented a brief. (Frye, The Peculiar Story of United States v. Miller, 3 N. Y. U. J. L. & Liberty 48 (2008).)
Alan Morrison’s opening brief for D.C. did about the best job possible with the available materials in arguing against the Standard Model of the Second Amendment. His supplemental argument that the Second Amendment, even under the Standard Model, does not apply to the District of Columbia was a long shot that, ultimately, did not work; but it was worth trying, given the uphill fight that D.C. faced in defeating the Standard Model or in getting a Court majority to declare a handgun ban valid.
Carl Bogus’s historical brief also did a fine job of assembling historical materials, and arguing against the Standard Model. The brief was obviously an important resource for Justice Stevens’ dissent.
Although I don’t agree with some of the claims in Alan‘s and Carl‘s commentaries here on Scotusblog, today isn’t the day to continue those arguments; the various briefs filed on both sides provide plenty of material thereon.
The speculation about the post-Heller scope of permissible gun controls is interesting, and both sides of the debate will use the same words of the majority’s language to argue for or against bans on various classes of guns, such as small handguns, big .50 caliber rifles, and so on. Whatever the results of those arguments, it does seem clear at least one type of gun ban is going to have a very tough time passing judicial review.
D.C. outlaws any self-loading rifle or handgun for which there exists a magazine holding more than 12 rounds. For example, the Colt .45 handgun has been, since its invention in 1911, one of the most common American handguns. The Colt .45 comes with a standard 7-round ammunition magazine. It’s possible, if you search long enough, to buy a 15 or 20 round magazine for the Colt. Except as a novelty, these magazines have no use on a Colt .45. They make the handgun much too large to carry, and they extend so far below the grip that they make the gun awkward to handle.
In the District of Columbia (but nowhere else in the United States), the Colt .45 is banned. Not just banned if you have a 20 round magazine for the gun, but banned even if you only have the standard 7 round magazine. Preposterously, the D.C. ordinance classifies the 7-round Colt as a “machine gun,” and outlaws civilian possession of these so-called “machine guns.”
Heller says that there may not be bans on guns “typically possessed by law-abiding citizens for lawful purposes.” This surely encompasses the Colt .45, and the thousands of other models banned by D.C.’s overbroad “machine gun” law. The D.C. ordinance prohibts over half of the handguns made in the U.S. in a typical year, and a very large fraction of rifles, including low-powered .22 caliber rifles from venerable companies like Winchester.
The D.C. City Council would do well to re-write its machine gun ban so that it applies only to real machine guns. If not, it will be close contest to see whether the ordinance is removed first by Congress or by the courts.
One aspect of the Heller majority opinion that has not yet attracted the attention of commentariat, but may be greatly important of the long run, is the presence of natural law.
Heller reaffirms a point made in the 1876 Cruikshank case. The right to arms (unlike, say, the right to grand jury indictment) is not a right which is granted by the Constitution. It is a pre-existing natural right which is recognized and protected by the Constitution:
“it has always been widely understood 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…”
This is consistent with Blackstone’s language, quoted by the majority, that the right to arms protects the “natural right of resistance and self-preservation.” The majority writes Â that “Justice James Wilson interpreted the Pennsylvania Constitution’s arms bearing right, for example, as a recognition of the natural right of defense â€˜of one’s person or house’ — what he called the law of â€˜self preservation.’”
Likewise quoted with approval is the 1846 Georgia Supreme Court decision Nunn v. State, which “construed the Second Amendment as protecting the â€˜natural right of self-defence’.” Similarly, “A New York article of April 1769 said that â€˜[i]t is a natural right which the people have reserved to themselves, 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…”
Self-defense has generally been highly regarded by the American public, and it can be argued that self-defense is the epitome of an unenumerated Ninth Amendment right. See Nicholas J. Johnson, “Self-Defense?” 12 Journal of Law, Economics & Policy 187 (2006). But some federal and state courts have been hostile to self-defense as a right (rather than as a mere privilege which can be withdrawn by government, or even forbidden).
Heller moves self-defense from the shadowy limbo of the Ninth Amendment into the bright uplands of the Second Amendment. It is now beyond dispute, in an American court, that self-defense is an inherent right, and that it is protected by the United States Constitution.
American constitutional law has a long record of infiltrating into other civilized nations. American protection for freedom of speech and freedom of the press, as well as American anti-discrmination laws, have had significant influence in our fellow democracies. Sometimes that influence is direct, with foreign courts citing American precedents. But more influential, in the long run, is the effect that the American example has on the rights-consciousness of the public in those nations.
The right to arms has already shown that it travels. In 2006, the people of Brazil overwhelmingly rejected a referendum to ban gun ownership, and proponents of the referendum noted with dismay the success of anti-referendum advertising which urged Brazilians not to surrender their rights.
The idea that self-defense is a natural right long predates the European discovery of the New World. Yet in some nations today, such at the United Kingdom and the Netherlands, the principle that there is a right even of unarmed self-defense is in grave danger-at least among the judiciary and the rest of the governing elites.
So while we wonder whether Heller will affect the often-capricious enforcement of New York City’s pistol licensing laws, perhaps one of the greatest influences of Heller (and, I hope, its progeny) will be in other nations, where the explicit affirmation of the natural right of self-defense by the most influential court in the world will bolster our democratic brothers and sisters in their efforts to preserve and strengthen their own natural right of resistance and self-preservation.
If you are interested in the topic of a natural law right of self-defense (and the derivative right of defensive arms), you might be interested in:
Kopel, Gallant, & Eisen, “The Human Right of Self-Defense,” 22 BYU Journal of Public Law 43 (2008).
Kopel, “Self-defense in Asian Religions,” 2 Liberty Law Review 79 (2007).
Kopel, “The Catholic Second Amendment,” 29 Hamline Law Review 519 (2006).