A Stitch in Haste

“Let’s be honest about it. This is an actual, enumerated right in the Constitution.”
–Orrin Hatch

You can get the straight reporting elsewhere. I will stick to items within my sphere of influence.

Two preliminaries:

1. The biggest story was not so much the adoption of the individual rights view of the Second Amendment; that was widely expected. What was surprising was that the Court did not establish a standard of review, nor did it directly address the question of incorporation to the states. More on both below.

2. In my opinion the objective (i.e., non-interpretative) elements of Justice Scalia’s opinion — especially the historical and the linguistic analyses — are unassailable. He quite frankly cleaned Justice Stevens’ clock.

On to the meat of the opinion:

I previously wrote:

[I]t would be absurd to suggest that, e.g., the First or Fourth Amendments did not guarantee individual rights but rather some contorted “collective right,” which is exactly what opponents of the Second Amendment try to do. “The people” means, well, the people! Persons, individuals. Freedom of speech for persons. Freedom from unreasonable searches and seizures for persons. Freedom to bear arms for persons. Not states — persons!

Justice Scalia writes:

The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (”The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.

So Justice Scalia is willing, when it suits him, to acknowledge that the Ninth Amendment actually exists? Go figure.

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way.

Oh really? We do not interpret constitutional rights that way? That seems odd coming from Justice Scalia, who repeatedly insists that “of course” state governments can (among many other things): ban abortion, criminalize homosexual sodomy, employ chaplains and execute the incompetent, simply because they had such authority “in the 18th century.”

It is true that Justice Scalia has previously been amenable to “modernizing” some rights, as he seems to be here. Kyllo v. U.S., 533 U.S. 27 (2001), is the classic example. I am not accusing him of being inconsistent in that regard. I am merely accusing him of being schizophrenic in his peculiar form of “originalism,” since he appears to be amenable to allowing the Constitution to evolve where technology is concerned, but not where morality or societal norms are concerned. I simply don’t see why the distinction is robust.

[I]t 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.”

True that. But would Justice Scalia be so kind as to explain why one cannot replace the word “Second” with the word “Ninth” without losing any legitimacy? As I said above: “willing, when it suits him.”

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

Here’s that bizarre “technology exception” to Scalian originalism again. The “original meaning” of the Second Amendment can’t possibly suggest, Scalia insists, that “arms” only means what it meant in 1791 (e.g., muskets and hunting knives). But Scalia is infamous for insisting that “due process” — or “establishment of religion” or “cruel and unusual punishment” — can’t possibly mean anything other than what they meant in 1791 (or 1868). I just don’t get it.

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.

I couldn’t agree more. So why do we allow such “case-by-case bases” in matters such as defining “public use” under the Fifth Amendment or “reasonable” under the Fourth Amendment? (Note: I am directing that question into the ether and not to Justice Scalia, who voted correctly on both Kelo and Kyllo.

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As I mentioned above, two huge questions remain unanswered:

–Incorporation to the states. Tim Sandefur has some interesting thoughts; see also SCOTUSblog. My thoughts are as follows: The two famous exceptions to incorporation (under modern due process jurisprudence) — the entire Seventh Amendment and the right to a grand jury indictment in the Fifth Amendment — were both special cases that involved complicated questions that are simply not relevant to the Second Amendment. Footnote 23 of the decision, meanwhile, strongly hints that the pre-modern cases holding against Second Amendment incorporation are no longer good law. Expect incorporation to flow quickly from future litigation.

–Standard of review. I wonder whether the reason no standard was declared was because the five Justices in the majority couldn’t agree on one. In any event, I have no doubt that strict scrutiny will not be the standard eventually crafted (the decision already crafts out too many exceptions for strict scrutiny to be the standard). Rational basis, meanwhile, is rejected wholesale in Footnote 27. I hope that something more exacting than mere reasonableness comparable to the Fourth Amendment obtains (or, worse, the de facto absolute deference standard of Kelo). Justice Scalia’s dismissal of the “interest-balancing” quoted above is a good sign. Stay tuned…

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The case is District of Columbia v. Heller, No. 07-290 (June 26, 2008) (PDF - 157 pages)