What the Hell does Heller really mean?

OK, so the Supreme Court has finally ruled that the Second Amendment refers to an individual right. Well, duh, basic literacy should get one that far, but in spite of the language specifically forbidding infringement of that right, the decision goes on to list a number of permissible infringements. So, what, in practical terms, does the decision mean to us?

Most importantly, the burden shifts from those of us wishing to assert our right to those wishing to limit them. Perhaps the most important statement in the decision is “But the enshrinement of constitutional rights necessarily takes certain policy choices off the table.” That is enormously important. Rights trump policy decisions.

No longer should we approach the legislature entreating them to give us permission to bear arms in a specific venue. It is our right to bear arms as we choose unless the government can provide a compelling reason to make an exception for a particular type of arm or for a particular sensitive place.

Apply this principle to the Virginia Tech Policy banning the carrying of firearms on campus by employees and students, while the surrounding State laws permit it. Clearly, the ban is a violation of the constitutional rights of students and faculty. The desire of the university President to keep their ivory tower free of arms is a policy decision(and a goofy one at that) and does not overcome the basic rights of students and faculty to bear arms for their defense. Unless Tech can show some reason by which a college campus is a special place, like a prison or courtroom, where the presence of firearms creates a special hazard that overcomes the basic right, their policy violates the Constitution.

How many other prohibitions we have come to think of as ‘just the way things are’ fit into this new way of looking at those restrictions. What is special about a post office that is not special about some other place of business? What about schools? Perhaps there are good reasons to deny students permission to carry arms at school, but do those special reasons also apply to parents conducting business at the school? Every restriction we now endure must be reexamined in the light of this shifted burden. Lawyers are going to be busy as these things are sorted out, but from this day forward, we must demand every restriction be justified.

But there are other meanings to be found in this decision and not all are good. Most of all, this decision should have been unanimous and yet it was only 5-4. The dissents are available in the decision and you are advised to read them closely. Compared to the scholarship and depth of Scalia’s majority opinion, they are weak and vapid wishful thinking, based on the prejudices of the dissenting justices, but we should all take alarm that four of nine justices were willing to rewrite not just law, but the very Constitution from the bench simply because they disagree with the wisdom of the second amendment. This should put us all on notice that all of our rights hang by a thread so long as activists are on the bench. This is not a caution that should be applied on a Liberal/Conservative axis, Conservative activists are to be feared every bit as much as Liberals. We must all work to prevent the politicization of the courts and restore the Supreme Court to its proper role as an impartial referee interpreting the Constitution and its amendments as they were understood when they were ratified.

Note that I wrote “ratified” not “written.”  It is not what Mason had in mind when he authored the second Amendment that made it our basic law, it was how it was understood by the State legislatures that ratified it. Scalia properly refers to the concurrent laws passed by the States to establish their views on the right to keep and bear arms. The records of the State legislatures in their ratification debates are where scholars and judges should look for meaning, and not their own prejudices or the political theory of the day.

So, we have a narrow decision, but one which turns gun control legislation on its head, placing the burden squarely on those who wish to limit our rights, but also one that could be swept away if the wrong appointees rise to the bench.

We have a lot of work to do if our rights are to remain secure.

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One Response to What the Hell does Heller really mean?

  1. This should put us all on notice that all of our rights hang by a thread so long as activists are on the bench.

    All of our rights hang by a thread so long as government exists.

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