| Breaking Down the SCOTUS Ruling - Part I |
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| Written by Daniel White | |
| Thursday, 26 June 2008 | |
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Now that the Supreme Court Of The United States has ruled that the Right to Keep and Bear Arms is truly an individual right and struck down the DC gun ban, proponents on both sides of the issue are planning their next move. While the NRA and other groups are planning to file more lawsuits against other cities with similar bans (Chicago and San Francisco to name two), gun control groups are scrambling to find ways of using the ruling to their advantage. To understand the next steps, we have to first understand just what the Court said. As a non-lawyer, I will attempt to give my interpretation. The full text of the ruling, with dissenting opinions, is available here. In ruling in this case, the SCOTUS made three determinations.
All three of these are being spun by the opposition to favor their viewpoints. When trying to argue that the Right to Keep and Bear Arms is a collective right that applies to the militia or national guard, gun ban advocates often seized the "comma argument". They claimed that the comma in "A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed" was simply a pause; and that text before the comma was restrictive to the text after the comma. SCOTUS ruled that this is not the case, and affirmed an individual right by explaining that the "prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause." In other words, the clause mentioning the militia simply explains one possible purpose of the second clause, which declares the right of the people (individuals). However, in the text of the first finding, Justice Scalia put a comma and wrote "such as self-defense within the home." Some gun control pundits are claiming that rather than being an example of a "traditionally lawful purpose," that this instead means that you only have that right within your own home. I believe they will find very little traction with that argument. In finding that the Second Amendment, like all rights, is not unlimited, anti-gunners hope to continue to press for more gun control laws that fall short of a total ban. This is where a lot of court and legislative battles will be fought to determine what is a constitutional limitation. The Court singled out restrictions on concealed carry, bans for felons and the mentally ill, law banning in places such as schools and government buildings, and prohibitions on "carrying of dangerous and unusual weapons" as acceptable. One tactic the opposition will use under this finding is to say that "assault weapons" (which they can define as loosely as they choose) are "dangerous and unusual". The DC mayor has already gone on record as saying semi-automatic handguns will continue to be illegal in his city. The counter to that is that the finding also states that weapons “in common use at the time” are protected. Semi automatic handguns are, of course, very much in common use. Hurting the anti-gun argument under that finding even further is the third finding that the DC ban was unconstitutional because it prohibited an entire class of arms that are overwhelmingly chosen by Americans for self-defense. However, this finding also purported that a licensing requirement is constitutional, leaving open the possibility of excessive fees or requirements for obtaining the license to become a ban loophole. The last sentence of that finding stipulated that "the District must permit Heller to register his handgun and must issue him a license." This would seem to indicate that fees or requirements cannot be excessive and prohibitive. However, that sentence ended with "to carry it in the home", which could further lead to attempts to restrict firearms rights to the home. This has been Part I of a three part series examining the SCOTUS ruling. Part I covered the Syllabus introduction and findings. Part II will cover the majority opinion, and Part III will cover the dissenting opinions. |