Saturday, July 12, 2008

A Missed Point About Heller

I never got around to posting an analysis of DC v. Heller. There have been so many others on the web who have, and have done a better job than I probably could, that I just didn't do it. (And I succumbed to a bit of Heller "burnout" reading so many of them.) But there's one point I've noticed missing from most of those otherwise excellent blog posts. I've mentioned it in a couple of comments, but haven't really seen it anywhere, so here it is:

Heller will eventually lead to a ruling that a state may prohibit either open carry or concealed carry, but not both.

There are two key passages:
As the quotations earlier in this opinion demonstrate,the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute.Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster.
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.
DC v. Heller, 554 U. S. ____ (2008), p. 56-57, (PDF p. 59-60)

dealt only with carrying firearms within one's home. However, by so inextricably joining the 2nd Amendment to the right to self-defense, the Court has left the door wide open to a future ruling that some form of carry (open or concealed) must be allowed outside the home as well. This follows from the simple fact that a person's right to self defense does not end when he leaves his home. There is ample case law supporting an individual's right to self defense, and most of it deals with situations where the individual in question is not at his home or place of business.

From this it is simple. If I have the right to self defense outside my home, and that right is "central to the Second Amendment right," then a law restricting my Second Amendment right only to my home cannot be constitutional. I have that right in any place that I have the right to self defense.


straightarrow said...

Your take on this is pretty apt. However, I fully believe we will see a lot of rulings that uphold any restriction except firearms for self defense in the home.

I said this the day the decision came down because Scalia redefined the basic purpose of the second amendment to just that set of parameters. It is false, it is immoral, it flies in the face of history, and all the writings of founders who wrote and ratified the constitution, but it gives cover to any judidical or legislative body that wishes to restrict the right that "shall not be infringed" to only the home and its confines.

You may well be right that if such happens there will be correction, but it could take years. And a Hell of a lot of harm can be done to the republic in that time.

Riposte3 said...

I'd have to say yes and no. It does give cover, but it is very thin cover. The right to self-defense has never been restricted to one's own home, even if the best tools have been. Since the Court tied the 2A so tightly to self-defense, it should be fairly easy to expand Heller beyond the home as well. The problem will be getting past judges who let their personal preferences rather than the rule of law control their decisions (9th Circuit Court of Appeals, anyone?). This will take time, possibly a long time.

This illustrates why we need to be involved in the selection of judges as much as we are in the election of congress critters and other politicians. When judges are elected, we need to take part. When they are appointed, we need to pressure the appropriate elected officials. Because our system is (supposed to be) a balance of the 3 branches, judges are just as important to us as the other government officials.