In both my updated post last night dealing with the spree shooting/mass murder in Kalamazoo and in Hillary’s post on it this morning several comments were made pertaining to the late Associate Justice Scalia and the majority opinion he wrote in Heller vs District of Columbia. Since we don’t have enough fun ripping into each other in the primary/campaign related posts, I figured we should embrace the bloodsport and carnage that is the Balloon Juice comment section and talk about the 2nd Amendment.
Jeffrey Toobin made a very interesting point in his commentary on the passing of Associate Justice Scalia: that he was so extreme that Chief Justice Rehnquist rarely assigned him opinions to write for fear of alienating Associate Justice O’Connor. And his first major (blockbuster) opinion was really Heller. While one can argue over whether the history of the 2nd Amendment as delineated by Associate Justice Scalia was accurate, it is important to keep the Heller decision in perspective and understand what it really did. Heller vs District of Columbia did find that there is an explicit, individual right to keep and bear arms in the 2nd Amendment. This was a major change. Prior to this the explicit right to keep and bear arms, as explained in United States vs Cruickshank; Presser vs Illinois; and United States vs Miller all found the explicit right to keep and bear arms only in conjunction with membership in/service in the well regulated militia. An implicit right to individually keep and bear arms could, and often was, teased out of these decisions, but it is in Heller that that right is found to be explicit. Moreover, the majority opinions in these three cases make it clear that the Federal, state, and/or local government may reasonably regulate firearms ownership, carry, and use. Such regulation has been going on since the establishment of the US. In fact the first Federal mandate, issue by President Washington himself, had to do with firearms.*
Associate Justice Scalia’s majority opinion in Heller did not remove the power to reasonably regulate firearms ownership, carry, and/or use from the Federal, state, and/or local governments. He explicitly affirmed it:
2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. 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. Pp. 54–56.
As a result there is nothing in the Heller decision that would have prevented Michigan from having stricter firearm laws.**
For good or for bad we are stuck with the 2nd Amendment. The only way to get rid of the actual amendment would be through one of the two delineated amendment processes. There is no chance of an amended 2nd Amendment getting through Congress, let alone being ratified by the requisite number of states. And calling for a (Constitutional) Convention of the States to amend the 2nd Amendment – either in part or to amend the Constitution to remove it from the Bill of Rights, is a terrible idea. The last time we had a Constitutional Convention, the guy who lobbied for it hijacked it. If you want to see the United States come undone really quickly, call a Constitutional Convention.
Where does that leave us? Even if the majority block on the Supreme Court shifts to left of center and a case that would allow Heller vs District of Columbia to be reconsidered were to come before it, the most that is likely to happen is that Heller would be overturned. This would return things to the pre Heller status quo: there is an implicit right for individuals to own a firearm and it can be reasonably regulated by the Federal, state, and/or local government. Since it is unlikely that any meaningful statutory law pertaining to firearms regulation will make it through Congress in the foreseeable future, this means that we will continue with the hodge podge of state by state by state differences. Some states have equivalents to the 2nd Amendment in their state constitutions that are older than the Federal 2nd Amendment, some are younger, and about ten have no explicit language at all. Some states have much stronger 2nd Amendment equivalent language than the Federal 2nd Amendment and some much weaker. In many ways if Heller were to be overturned we would be in just about the same place we are now. A place that seems to make almost no one in the US happy. Not those wanting greater regulations, nor those who think that no regulation is reasonable at all.
* Interestingly enough the second Federal mandate, made by President Madison – you know, the guy that actually wrote the Constitution – was a requirement for sea men to have the early 19th Century equivalent of health insurance.