I realize firearms policy is an emotional subject, but I would like to share a few thoughts in light of the specific facts in the case actually heard by the high court. First, let me repeat the text of the constitutional amendment in question:
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.
The right at issue in District of Columbia v. Heller was not the right to participate in a state's militia, but the right of an individual subject to Congress' express grant of power "[t]o exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States" -- a power identical to Congress' power over "forts, magazines, arsenals, [and] dockyards[.]" U.S. Const. Art. I Sec. 8, cl. 17. In other words, Heller wasn't in a state at all. The power granted to Congress within the District of Columbia is not limited to the few powers outlined in the Constitution, but is as broad as Congress sees fit to exercise short of violating the Constitution.
Since the District of Columbia is not a state, but instead a federal zone ceded by states to the central government, the area is insulated from the purpose identified in the Second Amendment. What would a person do in an exclusively-federal zone, outside the borders of a state, to secure a state or its liberty? The Second Amendment thus arguably had no express application to Heller, and it is curious that Heller, living in the District, had recourse to the right.
One wonders how one might apply to others the law articulated in Heller. Does the rule mean that Congress' power is limited by the Second Amendment, but that a state (in its presumably protected role of regulating militias well) might be able to exercise closer discretion over the persons who will and will not be permitted to bear arms -- or the type or kinds of arms or training or storage facilities that would be required? Liability insurance as a condition of firearm permits, for example? Proof of competence at arms as a condition of permits? Routine training as a condition of permit renewal? Demonstration of ownership of special frangible ammunition unlikely to penetrate urban dwellings' exterior (or even interior) walls, as a condition of permit issuance or renewal? Proof of bona fide membership in a well-regulated militia, as a condition of weapons permits?
It's worth noting here the argument advanced by the Cato Institute in its amicus brief. The argument advanced in the Cato amicus is that the Second Amendment does not mean just exactly what it says. The Second Amendment, according to Cato, meant to protect an already-existing right, predating the Constitution, whose content should be ascertained from contemporary sources and not the exclusively from the literal text of the Constitution itself. This is certainly the kind of original-meaning argument that might seduce D.C. v. Heller author Antonin Scalia to endorse an interpretation that calls for pronouncing seemingly new individual rights never expressly articulated by the Court and free of obvious grounding in the text. And -- heh, heh -- Scalia is a hunter.
Maybe the real lesson in Heller is that weird facts make weird law. Heller wasn't an ordinary citizen but a special policeman -- an individual one expects to bear a both a special responsibility to protect the rights of those in his jurisdiction and a special susceptibility to reprisal from criminal elements against which he is routinely pitted by virtue of his career battling crime. Had the United States Supreme Court found that Heller had no right to protect himself off-duty in his home, it would in effect have declared open season on law enforcement officials residing in the District.
The future questions this case raises seem to include this whopper:
What happens when the regulator is not the federal government trying to prevent a citizen from keeping and bearing arms at home, but is (a) a state, the very entity whose security is specifically invoked by the Second Amendment and/or (b) the regulator tries to establish regulations governing militias and their membership rather than non-members and unrelated use of arms? Remember, the fact the United States does not require mandatory service does not mean a state may not do so -- and most countries do. Switzerland requires males up to age fifty to be at least reservists, unless they can prove disqualification.
It's worth noting here the argument advanced by the Cato Institute in its amicus brief. The argument advanced in the Cato amicus is that the Second Amendment does not mean just exactly what it says. The Second Amendment, according to Cato, meant to protect an already-existing right, predating the Constitution, whose content should be ascertained from contemporary sources and not the exclusively from the literal text of the Constitution itself. This is certainly the kind of original-meaning argument that might seduce D.C. v. Heller author Antonin Scalia to endorse an interpretation that calls for pronouncing seemingly new individual rights never expressly articulated by the Court and free of obvious grounding in the text. And -- heh, heh -- Scalia is a hunter.
Maybe the real lesson in Heller is that weird facts make weird law. Heller wasn't an ordinary citizen but a special policeman -- an individual one expects to bear a both a special responsibility to protect the rights of those in his jurisdiction and a special susceptibility to reprisal from criminal elements against which he is routinely pitted by virtue of his career battling crime. Had the United States Supreme Court found that Heller had no right to protect himself off-duty in his home, it would in effect have declared open season on law enforcement officials residing in the District.
The future questions this case raises seem to include this whopper:
What happens when the regulator is not the federal government trying to prevent a citizen from keeping and bearing arms at home, but is (a) a state, the very entity whose security is specifically invoked by the Second Amendment and/or (b) the regulator tries to establish regulations governing militias and their membership rather than non-members and unrelated use of arms? Remember, the fact the United States does not require mandatory service does not mean a state may not do so -- and most countries do. Switzerland requires males up to age fifty to be at least reservists, unless they can prove disqualification.
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