The Second Amendment provides: 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. Please review the summary of the case Heller v. District of Columbia, and listen to the Oral Arguments as well as Opinion Announcement. Then discuss the arguments you find to be most persuasive. Identify the Justice by name as well as a reference to the specific argument you are discussing. Then discuss your view of the Courts Opinion as well as whether you think there should be restrictions on handguns. The above hot link can be reached outside of the Discussion Post by cutting and pasting the following into your browser: www.oyez.org/cases/2000-2009/2007/2007_07_290/
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In the 2008 decision by the U.S. Supreme Court in District of Columbia, et al. v. Dick Anthony Heller, one of the most politically sensitive and contentious issues confronting the American public and its elected representatives was seemingly revolved. The nation’s capital, Washington, D.C., is a unique political entity within the United States. It is not a state, and does enjoy the level of sovereignty entertained by the 50 states. It is a district: the District of Columbia and, as such, stands apart from the rest of the country in terms of political representation and freedom to pass laws. The District of Columbia is a federal entity, yet has its own city government, and elects its own mayor and city council. As the seat of the federal government, though, it has long maintained the strictest gun control measures in the country. The Firearms Control Regulations Act of 1975 banned handguns in the District, and required that all other firearms be registered. It was this law that became the subject of intense legal deliberations culminating in the 2008 decision in District of Columbia v. Heller.
One of the more interesting elements of the debate over the District of Columbia’s gun law was the degree to which the eventual Supreme Court decision or, more specifically, the opinions rendered by the Justices, reflected the classic, almost stereotypical perspectives of the advocates for each side. Those perspectives were presented by Justice Antonin Scalia, representing the majority, and by Justice John Paul Stevens writing on behalf of the dissenting minority. Justice Scalia’s argument, predictably, held tight to the concept of “original intent,” devoting most of his energy to dissecting the words and phrases of the Second Amendment for the purpose of demonstrating that the amendment’s authors (principally, Madison and Mason) hadn’t intended to prevent the common citizenry from being free to possess firearms, including handguns. Unsurprisingly, at the core of the debate over the Second Amendment is the phrase “well-regulated militia,” which formed what Scalia refers to as the “prefatory clause,” and about which he wrote “That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause . . . But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.” In other words, the most important part of the Second Amendment is the declaratory clause prohibiting the government from infringing on the individual’s right to keep and bear arms. With respect to the operative clause, then, Scalia wrote the following:
“The first salient feature of the operative clause is that it codifies a ‘right of the people.’ The unamended Constitution and the Bill of Rights use the phrase ‘right of the people’ two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology. . .All three of these instances unambiguously refer to individual rights, not ‘collective’ rights, or rights that may be exercised only through participation in some corporate body.”
With respect to definitional issues surrounding the meaning of “arms,” Scalia noted the following:
“The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined ‘arms’ as ‘weapons of offence, or armour of defence.’ . . . Timothy Cunningham’s important 1771 legal dictionary defined ‘arms’ as ‘any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.’”
In strengthening his argument, Scalia also references the African American experience throughout much of the nation’s history, when blacks, especially in the South, justifiably felt threatened – Ku Klux Klan attacks and other violent acts by white supremacists and others did in fact pose a continuing grave threat to the lives of African Americans. The issue of former slaves in the post-Civil War era, who were citizens of the United States, and who had justifiable recourse to possess firearms, especially in the South, formed the basis of one of Scalia’s most emotionally salient arguments. The Second Amendment, then, provided a vital element of legal protection for blacks without regard to membership in any kind of militia, well-regulated or not.
In opposing Justice Scalia, Justice Stevens, writing for himself, Justices Souter, Ginsberg, and Breyer, reflected the more liberal perspective with regard to a document most sacrosanct and written during an entirely different era and in an entirely difference context. Whereas Justice Scalia argued that the Second Amendment applied to all firearms, and not just those used by a formal military organization (“The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity”), Justice Stevens drew distinctions between types of firearms and the uses to which they were put. As Stevens wrote in his dissenting opinion:
“Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes. Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case. . .
“The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms.”
So, two opinions from two learned, experienced jurists on the same issue that arrive at vastly different conclusions. Deciding which perspective is the more valid is entirely a matter of opinion. As the student’s question requests an assessment of which of the two perspectives is most valid, this educator has to conclude that the tone of Justice Stevens’ opinion is more meritorious, but that the arguments set forth by Justice Scalia should not be discounted. Where I draw my distinctions with many gun control opponents is in where I would draw the line on types of weaponry that can be legally owned by private citizens. Firearms, including handguns, are an important component of self-defense, but only when used by citizens who have received some training in their proper use. There are also weapons that I personally do not believe should be permitted for private use, most prominently, very large caliber sniper rifles (thinking here of .50 caliber sniper rifles designed for military use but which some gun enthusiasts believe should be available to the public). Admittedly, I enjoy firing semi-automatic assault rifles, but also believe that such weapons are not required for self-defense and could be banned without the citizenry being left vulnerable to a hypothetical emergence of a totalitarian government. In addition to guns, however, is the issue of ammunition. To me, there is absolutely no justifiable reason for the citizenry to possess the kinds of ammunition designed solely for law enforcement and military needs, such as armor-piercing bullets, as well as ammunition designed to penetrate the protective vests worn by police. That said, the greatly expanded militarization of civilian police departments combined with growing fears of a more intrusive, less democratic government has given gun control opponents all the ammunition (no pun intended) they need to counter the arguments of gun control proponents.
Specific to the issue of handguns, however, the only restrictions I would support involve bans on types of ammunition that have no legitimate recreational purpose, and I would support competency requirements before purchase – in effect, the gun-buyer should be required to take a firearm safety course. Shooting a gun is not hard; anybody can do it. Knowing when to shoot, however, is an entirely different matter, especially in the context of extremely stressful circumstances, such as when somebody breaks into your home at night while you’re sleeping and you reach for your gun. What is called in military (mainly special forces) parlance “target discrimination,” meaning the ability to instantaneously identify the target as hostile and armed or innocent and unarmed, or innocent and armed is a skill developed through extensive training. I also support background checks, and addressing the so-called gun show loophole, in which individuals attending gun shows can purchase firearms directly from vendors without undergoing the kind of scrutiny involved in purchasing guns at a licensed gun store.
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