Submitted by Jim Aune on June 26, 2008 - 6:52am
Update: 5-4, striking down the DC law, and affirming an individual right to bear arms. Scalia for the majority, and 2 dissents (Breyer and Stevens). I haven't finished reading it quite yet, but there's an unusual amount of linguistic/grammatical analysis. Here are the opinions. --Finished reading. This is a highly teachable set of opinions. [btw: if you or your students aren't used to reading appellate opinions, skip the introductory "syllabus" completely--it's just a summary and usually of no rhetorical interest. I've found that the syllabus really seems to intimidate students.] All three are well-written and respond to each others' arguments. Remarkable. This holding does not mean an end to all gun control legislation--DC's law effectively banned the use of handguns entirely--but there will no doubt be further litigation to clarify. Another interesting feature of Scalia's opinion (a strategy i've noticed in a lot of NRA propaganda lately) is the heavy use of the race card--emphasizing the use of gun control against African-Americans after the Civil War. I remember back in 1975 being at the home of the then-president of the NRA (after whom the NRA's largest shooting center is named) in Amarillo, Texas. We were standing on the patio of his house having cocktails, and he turned to me and said, "You know, Jim, a friend of mine says, if we lined up every nnnnnnnnnn-nonwhite in the US and shot every other one, we'd solve a lot of problems in this country. What do you think?" To my everlasting shame, I just choked on my gin gimlet and changed the subject.
The Washington DC gun control ruling should come down from the Supremes around 9 a.m. central time. If you want the live blog, check here. It would appear that Scalia will be issuing the majority opinion (since he hasn't written a majority opinion for this particular sitting, and the CJ usually distributes them as evenly as possible). It seems unlikely to me that there will be a clear majority for an individual-rights (rather than group, militia-based rights) reading of the 2nd Amendment that will effectively invalidate local, state, and federal gun laws. Some commentators I respect are predicting a clear rejection of gun laws at the federal level, and then some ambiguous language about local and state laws (that pesky problem of how the 14th Amendment did or did not "incorporate" the fundamental rights in the Bill of Rights still dogs us). I just hope Scalia decides to be a consistent textualist for once and say that since the first clause of the Second Amendment controls the meaning of the second half, the 2nd Amendment is literally as relevant as the 3rd Amendment is now. If he cites Blackstone on arms and right to self-defense, he never gets to reject legislative intent as a standard ever again. He also doesn't get to invoke stare decisis as a core legal value in our tradition. For an intriguing analysis of the confusing state of the commas in the Second Amendment (are there 2 or 3?), see this short piece by U of IL English professor Dennis Baron in the LA Times last year.
In the interests of full disclosure: I hate guns. No one in a civilized society, with relatively good access to food, needs to hunt. Part of the social contract involves giving the state a monopoly on arms. On the other hand, as Russ Feingold and other liberals from rural areas or the South know, there is a absolutely no point in pushing this issue. It's the culture, stupid. And culture is the hardest thing to fix.
Jim, I enjoyed your take on the recent decision. I'll have to look at those rulings you link to. However, I think this is a bad argument(s): "No one in a civilized society, with relatively good access to food, needs to hunt. Part of the social contract involves giving the state a monopoly on arms." First of all, the washington decision still allows "hunting weapons." Second, and to your larger target (gun ownership in general, I suppose), there are many things we don't "need" (TV? Organized colleges? Tila Tequila?), yet I'm sure we wouldn't want to advocate their extirpation. Fishing, email, probably cars, etc. could all be claimed to be "unneeded." "Need" arguments seem to be as troubled as those "it isn't natural" arguments employed in other areas (viz., the debates over sexual orientation). I doubt there's a principled definition of need that we could give, just as I doubt there's a principled notion of "natural" we can apply to action. If one advanced one, I doubt then that one would be willing to go with it all the way! The only close example of someone who tries to take need-arguments all the way down that I could think of would be Peter Singer, with his takes on human non-survival needs and giving away 70% of your "unnecessary" earnings each year. Even he (with houses in NYC and Princeton), admits that he falls a bit short of that standard.
As for the second part, I'm not sure what social contract theory (as problematic as that line of thinking gets) would advocate giving up all ability to use force (or the implements thereof). Hobbes' version (the most extreme in terms of deference to the soveriegn) definitely never gives up the fundamental right to defend oneself with whatever force you have available once threatened in your person (think here of his "prisoner in chains" example). I don't see anything in Kant (esp. in his 1790's work) that would not allow ownership of weapons.
Again, thanks for the post!
Sandy Levinson has an interesting read and take on the Heller decision at Balkinization:
http://balkin.blogspot.com/2008/06/some-preliminary-reflections-on-helle...
John Lucaites
Hi Scott, yes, you're absolutely right in your two arguments. I should have fleshed them out a bit more. There is no way to translate my "need" point into a legal or political principle--it's shorthand for two things: a. my deeply held religious belief that hunting is wrong, since it is not hedged about with the laws for ritual slaughter of animals, but that particular religious belief is not part of a Rawlsian "public reason," any more than, say, Catholic objection to stem cell research should be; b. my continued lack of comprehension of gun culture; I grew up in part of the country where we got 2 days off each fall for deer hunting season, and it didn't make sense to me then; I'm not much of one for Freudian interpretations, but the identification of firearms with masculinity is so intense in rural areas and the South (in ways that they weren't in the 1950's, as I remember them), that there is something deeply obsessive going on here. This gun thing really is "American exceptionalism" at its most grotesque; there doesn't seem to be any point in regulating it. On the social contract point, I only mean that in a very loose sense as well: wouldn't most people agree that a minimal function of the State is to preserve individual life and safety? If that state function were working properly, which it has obviously not, at least since the 1960's (for whatever reason), there would be less felt need to own a handgun.
Dahlia Lithwick has a lovely point in her discussion at Slate: "I must first pass along this rather brilliant observation from professor Stephen Wermiel from American University, who wonders why none of the dissenters cautioned the majority that today's decision "will almost certainly cause more Americans to be killed." (Boumediene, Scalia, J. dissenting.) So, it's okay to torture people, in Scaliaworld, to save lives, but not to ban handguns.
One more thing: weirdly, Scalia does not clarify the Incorporation Problem at all (whether the 2nd Amendment applies to the states). More litigation, I guess. Andrew Sullivan has a good selection of blog/campaign reactions here:
http://andrewsullivan.theatlantic.com/the_daily_dish/2008/06/heller-reax...
The McCain campaign is already using this decision as a justification for why he should be elected (gun rights hang by a thread!), while Obama is apparently flipflopping--he was for the DC handgun ban before he was neutral on it. Meh. . . . Americans are just plain batshit crazy about guns. I'm still waiting for Texas to decide, like Utah already has, to allow students to carry concealed weapons on campus (even though Scalia thinks that's a reasonable restriction). I hear rhetoric is really big in Denmark these days. . . .