nino
Last fall, this blog openly mocked those who thought that the eventual ruling in DC vs. Heller would be a silver bullet that clarified the nature of the Second Amendment once and for all. I fully expected the justices to punt, passing down a narrowly-scoped decision(s) that resolved the immediate conflict without setting a precedent by which other gun regulations could be interpreted.
Yesterday, Justice Scalia threw my arrogance right back in my face, handing down a decision that did I what I claimed was impossible: it made a solid case for individual gun rights based on a sentence that has more grammatical errors than words. This opinion may end up being the most significant of Scalia's career; he shows no mercy, shooting down each the dissenters' points with an impressive combination of 18th century literature reviews and historical research on the motivations of the laws that preceded the Second Amendment. Whether you like Scalia or not, he makes a hell of an argument. If you haven't read it, you owe it to yourself to at least read the syllabus[1].
This is not to say that the opinion is perfect. It does not include a comprehensive set of instructions for dealing with all of the edge cases surrounding individual gun ownership; it merely states that individuals must be allowed to own guns outside the context of a state organization. The ruling also makes clear that individual acts of self-defense are a constitutional right, but it does not explain why it is permissible to apply heavy regulations to such acts in public but not in private. Scalia himself acknowledges that there is enough fodder among the edge cases to fuel years of lawsuits.
What I find most interesting about this ruling is that the author - an unabashed social conservative who wears his politics on his sleeve - resisted the temptation to strike down state and municipal laws banning certain non-automatic weapons[2]. Most conservatives resist the notion of incorporation, which holds that the Bill of Rights must be applied at a state level because of the Fourteenth Amendment's due process clause; to those that believe in extreme judicial restraint, it is not the duty of the federal government to protect the people from state laws the undercut the Bill of Rights. However, since total incorporation has been in effect for decades now, Scalia could easily have rationalized its application within his opinion, invalidated any state or municipal law banning certain non-automatic weapons, and been a national hero to millions of people.
But he didn't. He stuck to his principles, knowing that his decision would set off a landslide of lawsuits in the lower courts.
I don't think that Scalia is innocent of having injected his personal beliefs into past decisions - he's made many arguments that were really hard to swallow from an alleged small-government conservative - but in this case, he walked away from the opportunity to slam the door on people he considers political opponents. I realize that the other four justices in the majority had input into the decision and would not have signed on if they didn't agree with all of his findings, but Scalia is an imposing personality, and I think he could have strong-armed the others into going along with it. Alternatively, had Justice Kennedy been assigned to write the opinion, and he had tried to apply incorporation, I think the right-wing justices would have been turned off and written a separate majority opinion, resulting in a ruling that favored Heller but did not set judicial precedent (which was my original prediction).
At the very least, we can appreciate this ruling because it means that Democrats will no longer have to reassure midwestern gun-owners of their unwavering gun love by participating in incredibly awkward campaign gimmicks.
[1] Abstract, for the scientists in the audience.
[2] This case is complicated by the fact that D.C. is a municipal oddity: it is a city, but it is run by the federal government. This means that federal law - which is where Scalia's non-incorporative decision will be applied - is the only law that matters. If Dick Heller lived in any other city in America, the findings would probably have been less favorable for him.
Labels: culture, law, narcissism
posted by Dan at
2:16 PM
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