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DC v. Heller: Ending the Term with a Bang

By Ronald A. Cass

Court-watching is a uniquely American sport, much like cricket is uniquely British. Like cricket, the rules that govern the sport are sufficiently complex that few, apart from a hard core of devotees, really understand what's going on - and many aren't so sure that the pretense of a rule-based sport isn't just a ruse cooked up to fool the unwary.

Yesterday the Supreme Court ended its 2007-2008 term with a much-anticipated decision on the constitutional right to possess guns. The 5-4 decision in District of Columbia v. Heller will give grist to those who see the Court through simplistic political lenses, viewing decisions as the outcome of justices' individual biases tilting left or right. Another split decision with conservatives on one side, liberals on the other, and the Court's newest King of Swing, Justice Anthony Kennedy, in between. On this view, as goes Kennedy, so goes the Court.

Discussion of Heller will focus to a large degree on the political divide. But the dominant message that readers should take away from the case is that the justices did their job. Both the majority and the dissenters examined exactly what the justices should have, considered carefully the mountain of material before them, and critically evaluated the arguments about it - and together came to a result that is not only reasonable but also advances our freedom under law.

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The issue in Heller was the constitutionality of the District of Columbia law subjecting all legal firearms to licensing, banning all hand guns, and requiring all legally permitted weapons, such as rifles and shotguns, to be kept in homes only if "unloaded and disassembled or bound by a trigger lock or similar device". Dick Heller, a special police officer, objected that the law unconstitutionally deprived him of the chance to defend himself effectively against threats in his home.

The Second Amendment to the Constitution declares: "A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Before Heller, the Court had never directly decided whether that language created a right for individuals or a collective right of state militias.

The language of the amendment gives some basis for both of these opposing views. So, too, does the history of the amendment's adoption. Some of the provisions that were rejected in the drafting process clearly would have limited the amendment to protecting arms used for the common defense. Others would clearly have made the right an individual one. Contemporaneous adoptions of related provisions in state constitutions provide tangential support for both positions.

The justices - both in Justice Scalia's opinion for the majority (finding an individual right) and Justice Stevens' opinion for the four dissenters (which would have limited the amendment to a collective right) - labor over the amendment's text and history, debating just what was understood by those who wrote and ratified the amendment. While Justice Stevens scores some points, especially about how often discussion of a right to bear arms was associated with concerns over protection of state militias against federal encroachment, by and large Scalia has the better arguments, not least about how the rights of "the people" are used elsewhere in the Constitution and the most natural way to read the amendment's operative clause.

Beyond the existence of an individual right, the justices differ over the scope of that right. Justice Scalia and the majority declare that the right to bear arms is subject to reasonable regulations, such as the limitations on gun possession by felons or on use of weapons in proximity to schools. They conclude, however, that the complete ban on guns and the requirement of disabling all other weapons in the home cannot be squared with the Second Amendment. Justice Breyer's opinion (for the same four dissenters) parries the majority's arguments and urges the reasonableness of the rules at issue, using a decidedly softer standard of review.

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At the end of nearly 160 pages, the three opinions show the justices took great care in looking at the legal materials that should bind them, their meanings and implications. More than anything else, Court-watchers should come away from Heller confident that the justices did the hard work of constitutional interpretation the way it should be done. And yet, looking beyond these opinions, there is still the temptation to see justices as driven by political predilections rather than inquiries into language and history.

Take, for instance, Justice Stevens. His dissent in Heller tackles the relevant issues with gusto. But where was the critical examination of language and history in his decisions involving abortion rights (like Stenberg v. Carhart), cases based on the filmiest creation of a constitutional "privacy" right derived from the "penumbras formed by emanations" from provisions in the Bill of Rights that manifestly have nothing to say about abortion? Where was the deference he urges to elected officials when he saw those officials interfering with newly found rights to engage in specific sexual acts (Bowers v. Hardwick and Lawrence v. Texas) or when officials decided that rape of a child was so heinous a crime it merited the ultimate punishment (Kennedy v. Louisiana)?

Justice Stevens is the perfect poster child for the Supreme Court as über-legislature - but only when he likes the result. His deference to the political branches comes and goes. He was the author of Kelo v. New London, which approved state takings of private property for the use of private developers. In a decision strikingly oblivious to personal liberty, Justice Stevens blithely gave scope for elected officials to do whatever they want. Where property rights are at stake, Justice Stevens trusts elected representatives. When rights less firmly grounded in constitutional command are at issue, the good justice morphs into Oliver Stone, sparing nothing in his defense against the danger electoral influence represents.

Fortunately, Justice Stevens did not carry this day. Politicians now will debate what our gun laws should be. They will still have to decide how much regulation of what sort helps protect us and how much only serves to make life easier for criminals and more perilous for ordinary citizens. But they will do this now against a background rule that protects individual liberty, acknowledging the right of self-defense as a constitutional right - not the fanciful hope of those who bitterly "cling to guns and religion". And they will do this knowing that the courts, at least for now, stand ready to protect the rights guaranteed by our Founders. Together with the support of the people for a nation governed by the rule of law, that is the best and most secure protection of liberty.

Ronald A. Cass is Dean Emeritus of Boston University School of Law and Chairman of the Center for the Rule of Law.

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