The Dissent of Heller

Posted by Mike Merritt in Independence Week, Society on

Anybody who was considering starting up a rebellion against the feds can put away the drawing board now.

For those of you not in the know, today the Supreme Court ruled 5-4 that private citizens can indeed own a gun for themselves for use in self defense and hunting.  The case came due to a handgun ban in the District of Columbia.

You can read the full ruling, majority opinion, and dissenting opinion, here.  I’m not going to repeat the ruling and discussion about it, which you can see at about a thousand other blogs.  Instead, I’d like to do what others are not and focus on the dissent.

I support the majority decision.  I hold the view that private gun ownership is the de facto standard in the country, even if it wasn’t the official standard before today.  The second amendment might say that the rights of the people to bear arms shall not be abridged in order to keep a well established milita (emp. mine), but lets be honest: who’s in a milita now-a-days?  The military is, by common definition, not a militia.  So, besides some elements of the defense contracter industry (Blackwater, etc) and perhaps a few citizens groups, there is no such thing as a militia anymore.  If you want to argue that state reserve troops are militas, you go right ahead; these days, they are more like extensions of the regular army.

I would argue that that the most important part of the text is its second clause, “the right of the people to keep and bear Arms, shall not be infringed.”  Even if the intention of the amendment is to keep militas “well regulated,” isn’t private gun ownership a milestone toward achieving that requirement?  I can see the argument that the gun would be owned by the militia, but just who is the militia?

Stevens, writing the dissent for the minority, would seem to argue that militas are the function of the states, but I’m not so sure.  I like to go back to the Declaration of Independence for advice on some of our most cherished rights.  Now, I know that what goes into any Declaration of Independence might not necessarily be found in a Constitution, but I believe it sets out guiding principles that our Constitution goes by.  Now, take this phrase from it:

That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

I think my bolding says right there why we have a second amendment.  Now, you could argue further that my emphasis still applies to militas, but I’m still going to have to disagree.  It seems to me that to be effective in regulating your milita, your members actually have to know how to use a gun.  They can’t learn everything about them from the milita leaders.  Rather, members would learn the proper handling and responsibility of arms through childhood teaching from parents, or in the case of modern times, through classes.  Therefore, even if you argue that the second amendment refers to militas, unless you have private ownership in order to learn how to use them, your milita is not going to be well regulated.

So, I might actually be somewhat inclined to agree that the second amendment doesn’t say that you can keep arms in order to shoot the burglar attacking your home, but I’m of the mind that if you’re already keeping an arm to use in your local milita, other rights come with the territory.  Tell me, what are you going to do when some criminal is in your home hurting your family?  Unless you’ve been trained in the martial arts, you’re going to need some kind of assistance, and not everybody has a bat.  Oh, and I’m not even going near “no guns, no criminals” in this entry.  Suffice it to say there’s other ways to hurt a person.

What’s interesting is that even though the dissenting justices are likely to be portrayed by conservatives as wanting to take guns out of your hands, one of Stevens’ points actually seems to say differently:

Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia.

It would seem that Stevens et. al are not necessarily against private gun ownership, but that they would rather the legislative branch put the right into the U.S. Code.  That’s the way I see that sentence, anyway.  I think others may see it as the government will restrict all gun ownership unless you’re part of a militia.  Indeed, that could happen, but I’m an optimistic guy, so I’ll respectfully disagree.

Overall, I think that the concept of private gun ownership has been so ingrained into our culture at this point, that a ruling as favored by the minority would have caused a disruption not seen at any other time in U.S. history.  A whole section of the U.S. economy would be nearly obliterated (remember that there really are no militas anymore).  You can bet most conservatives and even a lot of liberals (especially those raised in the South where it is a large part of the culture) would cause an uproar.  I have a feeling most Americans would be against such a ruling.

Now, I’ve never owned a gun, and don’t see going after an opportunity to do so in the future.  As I’ve said before in a comment to another one of my entries, it’s not a huge issue for me in terms of electability.  Yet, I still would not support a ruling other than the one we got today.  I think it’s a huge win for the gun-rights activists; yet, the gun control activists need not fret.  The court also pretty much ruled that current regulations were still probably fair.  Indeed, I would like to see it made more difficult for those with a proven history of mental instability to get a gun.

So, for it being the first really deep look at the Second Amendment, I think the Supreme Court did well.  Until next session, court, have a great break.

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