The Resurrection of Common Sense

Statement

THE RESURRECTION OF COMMON SENSE

"'This may be considered as the true palladium of liberty…The right to self defence is the first law of nature: in most governments it has been the study of rulers to confine the right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.'"
-Justice Antonin Scalia, quoting St. George Tucker in the majority opinion in District of Columbia v. Heller

The majority decision and expertly-reasoned opinion in District of Columbia v. Heller, more commonly known as the D.C. hand gun ban case, represent a monumental development in 2nd Amendment rights. The excellent history and analysis provides background for future Court decisions and policy debates. With exhausting research and methodical reasoning, Justice Scalia examines the 27 words that comprise the 2nd Amendment to the Constitution. He takes the Amendment apart by word and phrase, examining the grammar, definitions and possible idiomatic meanings therein. His conclusions demonstrate, beyond a doubt, that the 2nd Amendment does indeed protect an individual's right to keep and bear arms, particularly at home, "where the need for defense of self, family and property is most acute."

The Majority Opinion examines the role of firearms in the late 1700s and early 1800s, focusing in part on laws placing prohibitions on these weapons. It notes that many laws placing prohibitions on firearms in fact prohibited the discharge or loading of guns in certain settings, not possession. It also observes that punishment for discharge or loading didn't involve "significant criminal penalties." The opinion likens punishment for such crimes to speeding or jaywalking tickets today. These laws today, the opinion states, don't contain self-defense exceptions, but if someone were fleeing for their life and jaywalked or exceeded the speed limit, it's likely they wouldn't be cited for these infractions. The D.C. hand gun ban imposed one to five years in prison for even obtaining a gun. Clearly, the ban wasn't consistent in the least with the spirit and intent of the 2nd Amendment.

Justice Scalia also criticizes the dissenting opinion's "judge-empowering ‘interest-balancing inquiry,'" stating the Court knows of no other instance when an " enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing' approach." The constitutional 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. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislature or (yes) even future judges think that scope too broad" (my underline). These words signal a refreshing self-limitation wholly in keeping with strict constitutional interpretation and will have significance beyond this case—a very different perspective from appellate court judgements in recent years which resemble legislating rather than determining constitutionality—after all, the only function afforded the Courts by the Constitution.

These are just a few observations about District of Columbia v. Heller. The Internet has made Supreme Court rulings and opinions very accessible and they are highly readable. I recommend you take time to read the opinions. It gives tremendous insight into the mind of the Court and the remarkable power and purpose of our democratic government and Constitution. The District of Columbia v. Heller opinions can be accessed at my website: http://crapo.senate.gov.

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