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District of Columbia v. Heller

July 18, 2012
Justice Scalia and the Misuse of History
Guest Post

By Jeffrey M. Shaman, a professor at DePaul University College of Law and author of the just-released ACS Issue Brief, “Nevada Commission on Ethics v. Carrigan: Recusing Freedom of Speech.”

Arrogant, defiant, and dogmatic, Supreme Court Justice Antonin Scalia is a true believer in the theory of originalism — the idea that the Constitution should be interpreted according to its original meaning when first adopted in 1787. Originalism is based on the notion that the Constitution has a fixed meaning that does not change with the passage of time. Given the bully pulpit of his high office, Justice Scalia is the nation’s most prominent advocate of this extreme and deeply conservative ideology.

The problem is that originalism is a fraud that misrepresents the nature of history by presuming that it has an objective meaning that can be discovered through study of the past. However, the belief in a hard core of historical facts existing objectively is an illusion. The meaning of the Constitution does not reside in the past, and any attempt to ascertain the original meaning of the Constitution necessarily entails reconstructing the past in one’s mind. Originalism, then, perpetrates a pretense of objectivity that functions as a facade for policy-making.

The illusory propensity of originalism is strikingly apparent in District of Columbia v. Heller, the 2008 decision in which the Supreme Court ruled by a slim 5-4 majority that the Second Amendment of the Constitution protects an individual right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home.
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Fidelity to the Constitution, Methods of interpretation, Originalism, Speech and expression, Supreme Court, Constitutional Interpretation and Change, First Amendment, Commission on Ethics of the State of Nevada v. Carrigan, District of Columbia v. Heller, Guest Post, Justice Antonin Scalia, Second Amendment
September 1, 2011
Defying the Extremes on Guns
BookTalk

Gunfight

The Battle over the Right to Bear Arms in America

By:
Adam Winkler

Available Here

By Adam Winkler, a professor at UCLA School of Law.

I’ll never forget the scene outside the Supreme Court building the day of oral argument in District of Columbia v. Heller. Scores of reporters and camera crews were there to cover the hundreds of protestors who turned First Street into a lively theatre of debate over the meaning of the Second Amendment. A man with a bullhorn boomed, “More guns!” In response, gun rights supporters in the crowd hollered, “Less crime!” “More guns!” “Less crime!” A group of gun control proponents whispered among themselves and the next time the man with the bullhorn chanted “More guns” they yelled, “More crime!” As in the gun debate more generally, however, the gun controllers were easily drowned out by the more numerous and vocal gun rights advocates.

Although the language of the Second Amendment has confused generations of lawyers, the protestors in front of the famous marble steps of the Supreme Court knew exactly what it meant. To gun rights supporters, the amendment clearly guaranteed individuals the right to own guns and placed strict limits on gun control. To proponents of gun control, the amendment merely provided for state militias and had little relevance for ordinary gun laws. Although the two sides reached very different conclusions, they shared a common view of the right to bear arms. Both sides believed an individual right to have guns was fundamentally incompatible with gun control. We must choose one or the other.

Gunfight: The Battle over the Right to Bear Arms in America shows that, contrary to the extremists on both sides, we’ve always had both a right to bear arms and gun control. The founding fathers who wrote the Second Amendment had gun laws that the modern gun lobby would never accept. Not only did they prohibit free blacks and slaves from owning guns to promote public safety, they also restricted the gun rights of political dissenters. They required ordinary citizens to buy military style firearms — an early version of an “individual mandate”—and ordered them to appear for mandatory “musters” where their guns would be inspected and registered on public rolls. To them, the Second Amendment was not a libertarian license. We the people were the militia, but that militia was required to be “well regulated.”

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Supreme Court, Individual liberties, Constitutional Interpretation and Change, Criminal Justice, Adam Winkler, BookTalk, District of Columbia v. Heller, Gun Control, Second Amendment
October 15, 2010
Gun Regulation After Heller and McDonald
Two recent Supreme Court cases that recognized an individual right under the Second Amendment have not had the revolutionary impact on gun rights that some envisioned, UCLA School of Law professor Adam Winkler said during an ACS panel discussion on gun regulation in the wake of District of Columbia v. Heller and McDonald v. City of Chicago.

Some 200 federal court gun regulation decisions have come down since Heller and McDonald struck down gun bans in Washington, D.C. and Chicago, and not one has invalidated a law on the basis of the Second Amendment, Winkler said, although he noted that some settlements have resulted in changes to laws.

"In many ways, Heller's bark was worse than its right," said Winkler, who coauthored a recent ACS Issue Brief on the Second Amendment.

Moderator Jamal Greene, an associate professor at Columbia Law School, noted the history of the Second Amendment, which, until the 1980s, was understood as "implying a right to keep and bear arms in connection with the duties of a state militia. It was not understood to be an individual right or something that is justiciable as an individual right."

Heller affirmed that there is an individual right to bear arms, Greene explained, but it did not announce a standard of review "or tell us very much about other gun laws that implicate rights."

This was the challenge presented to the District of Columbia following Heller, explained Councilmember Mary Cheh, who represents Ward 3 on the D.C. Council, and is a professor at George Washington University School of Law.

"What we did was adopt a series of regulations that probably are the strictest in the nation and might set us on this path of figuring out what's permissible and what's not permissible," Cheh explained.

She said the key to passing new regulations was ensuring that written testimony, oral testimony or other evidence was available to justify the law in court.

"Because we are the nation's capital, I think we are a special jurisdiction," Cheh said. "And I think we've done the best we can in terms of a legal challenge to insulate ourselves. Whether we prevail or not is going to be another question."

Watch the full discussion below.

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Supreme Court, Constitutional Interpretation and Change, Criminal Justice, District of Columbia v. Heller, McDonald v. City of Chicago, Second Amendment