Wednesday Writs for 8/7

Dick Heller

L1: Dick Heller was a “licensed special police officer” — aka security guard — at the Federal Judicial Center in Washington DC who, though permitted to carry a gun on duty, was denied the right to a handgun personally. He became the named plaintiff in one of the most oft-cited, lauded and loathed cases in 2nd amendment jurisprudence, District of Columbia v. Heller, our case of the week.

Similar to the history of Lawrence v. Texas, the Heller case was orchestrated by a special interest group rather than being of an organic origin. Dick Heller was one of a half-dozen plaintiffs vetted and chosen by the Cato Institute to bring the action to challenge a DC statute (notably, the NRA turned the case down when Heller went to them) which prohibited the possession of handguns (it prohibited the registration of handguns, and prohibited the possession of unregistered firearms) and required that any guns in a person’s home be stored “unloaded and disassembled or bound by a trigger lock or similar device.” Another law prohibited the carrying of a handgun without a license. Heller and the other plaintiffs filed suit on grounds that their 2nd Amendment rights were violated. The District Court dismissed the suit, but the appeals court reversed, striking down the relevant ordinances and directing the lower court to enter summary judgment on behalf of Heller, the only plaintiff found to have standing. DC appealed, and what resulted was a 5-4, Scalia-penned decision that had something in it for everyone but totally satisfied no one.

The Court endeavored in depth to parse out and interpret the text of the 2nd Amendment, a structual atrocity of a paragraph. DC contended that the amendment did not confer to an individual the right to individual ownership of a firearm outside of military service; Heller, of course, argued the opposite, and stated that the militia clause was separate from the “right of the people” clause.  Scalia agreed with Heller, opining that the “militia” line was a “prefatory statement” setting forth the purpose of the rest of the text, which comprised the operative clause. He explained:

The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

He went on to state that the militia clause did not limit the applicability of the rest of the text, however, and that “right of the people” meant exactly that. With the assumption then that the right was that of the individual and unrelated to militia service, Scalia moved on to analyze the words “to keep and bear arms,” for which he consulted dictionaries contemporary to the drafting. “Arms” was broadly defined as anything used as a weapon of offense or defense, including bows and arrows as well as any firearm. He then addressed an argument bandied about frequently today- that the framers could only have meant to include the weaponry in existence in their era. Scalia called the argument “bordering on the frivolous” and dispatched it with the also ubiquitous rebuttal, “but what about the first amendment and modern means of communication?”

The majority then addressed the phrase “keep and bear”, which Scalia interpreted to mean “to have weapons” and “to carry weapons for the purpose of offense or defense”, respectively, relying on Black’s Law Dictionary as well as historical texts. But Scalia also had to concede that the phrase “bear arms” also historically had the idiomatic meaning “to serve as a soldier, do military service, fight” or “to wage war”. Scalia averred that it only had such meaning when followed by the word “against” and the target of hostilities. Moreover, he pointed out, that reading of the phrase combined with the conference of a right would result in a provision which grants a soldier the to right to wage war, a decidedly unintended meaning. (The opinion goes much deeper in the weeds in parsing out the language and its historical usage, and you are encouraged to read it if you are interested, but do read the dissents as well for an overall picture.)

The opinion also discussed at length the term “militia”, which DC encouraged the Court to interpret as those in military service. This was rejected in favor of the long-standing interpretation of “militia” as “all males physically capable of acting in concert for the common defense”, separate from a federally organized military force which would be comprised of a subset of the militia- organizing “the” militia, not “a” militia. “Well-regulated” was interpreted to mean “the imposition of proper discipline and training.”

Thus, the majority opined that the 2nd amendment was intended to “guarantee the individual right to possess and carry weapons in case of confrontation” and was therefore meant to enshrine the already existent right to self-defense. An absolute victory for those who favor an unrestrained right to bear arms, and a devastating blow to those who cry for gun control, right?

Not completely, no. As I said, the case was not fully satisfying for either faction, though concededly it was decidedly more so for the pro-gun side. But Scalia threw a bit of cold water with the first line of section C of the opinion: “Like most rights, the right secured by the Second Amendment is not unlimited.” He went on:

From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

Laws like the prohibition of firearm possession by felons and the mentally ill, the prohibition of firearms in certain places like government buildings, laws regulating sales- these were all given as examples of legitimate restraints on second amendment rights. Further, Scalia wrote, the prohibition on the possession of “dangerous and unusual weapons” was a valid restraint. However, the Court found that a handgun was a weapon overwhelmingly popular among the American public and that its prohibition is unconstitutional.

It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon.

Furthermore, found the Court, not allowing individuals to keep a firearm loaded in their homes rendered them unable to exercise their already recognized right to self defense. The DC ordinances were struck down.

There were two dissents, one by the late Justice Stevens and one by Justice Breyer. All four liberal justices signed on to both of the dissents. Stevens maintained that the amendment was applicable to militia only and conferred no individual right. Breyer, on the other hand, accepted for the sake of argument the individual right reading, but believed DC’s ordinances would still be valid. He disagreed with the argument about the common popularity of handguns:

But what sense does this approach make? According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machine-gun…There is no basis for believing that the Framers intended such circular reasoning.

Despite its recognition that the government may impose restrictions on the uninfringeable right to bear arms, the Heller decision remains, on balance, a victory for 2nd amendment proponents. But the most ideologically pure on both sides agree: it doesn’t go far enough.

The depth of the Court’s opinions in Heller cannot be adequately represented in this space; if you have the time, inclination, and patience, you are strongly encouraged to read it yourself. Meanwhile, some interesting backstory and a telling interview with Heller himself-and he does not cover himself in glory here- can be found in Season 2, episode 4 of the More Perfect podcast.

L2: SCOTUS will take up non-unanimous verdicts this October- meet the jailhouse lawyer with the tenth grade education who helped make it happen.

L3: As it tries to settle its massive data breach, giant credit bureau Equifax is attempting to make some money off the backend by selling its credit monitoring services. Elie Mystal thinks the Son of Sam Doctrine, which does not allow criminals to profit from their misdeeds, should apply.

L4: A French school teacher waged an 8 year court battle with Facebook after the website shut his account down over his posting of a painting from 1866, “L’Origine du Monde” (The Origin of the World), citing a violation of its policy against nudity. (Warning: nudity.)

L5: The Motel 6 has settled an lawsuit brought by a Mexican American rights group, in which it was alleged to have handed over its guests personal information to immigration authorities.

L6: Also coming to an end was a multi-year legal battle over the birthplace of Adolph Hitler in Austria, which has become a pilgrimage for neo-Nazis. The government has prevailed over the property’s owner in a dispute about how much the owner should be paid.

L7: The sad backstory to the death of Neil Armstrong, and the malpractice settlement that came after.

L8: The nuanced legal undertones of Beavis and Butthead.

L9: “It’s ok to call an opposing party a bitch because rappers casually use that term and sometimes as a sign of respect” is not an argument that’s going to win when defending your law license against charges of professional misconduct.

L10: The most millennial dumb criminal of the week ever.