Question on 4 Dissenting Justices in Heller

[RDak]

I have a question for you guys:

In Heller, supra, we had four Justices who said the 2nd Amendment only applies to individuals connected with a militia.

The majority ruled, however, that the 2nd Amendment applied to individuals not connected with a militia also.

So, the not connected with a militia is now the law of the land.

In the incorporation case now before the SCOTUS do all the Justices have to move forward with their analysis and accept the fact that the 2nd Amendment now applies to individuals not connected with a militia?

I mean, don't the remaining three minority opinion Justices (Souter now retired) have to accept the majority's decision and make their judgment on incorporation within the boundaries of Heller?

I'm unaware of any cases where this has occurred with the same Justices on the Court (Souter retired though). Maybe there are some cases that were decided under similar circumstances?

It would seem to me that the three dissenting Justices who went against Heller would have to respect the holding in Heller as much as I would have to? Am I wrong?

ETA: If you guys don't mind, I'm going to ask this same question at the various gunsites I'm a member of.

[maestro pistolero]

The SCOTUS is bound by it's own precedent unless it overturns it, which is very rare, in fact almost unheard of.
By the way, all the Heller justices agreed it was an individual right. It's just that, incredibly, the 4 dissenters thought the DC ban didn't infringe on it!

[RDak]

Yes but maestro, Stevens wrote that an individual had to be a member of a well regulated militia before the 2nd Amendment protected his/her ability to own a firearm.

So, in essence, he wasn't saying all people had an individual right in the true sense of the term IMHO.

One of Stevens opening paragraphs:

"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. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution."

("Private civilian uses", being even the right to own a firearm in the first place IMHO.)

[Bartholomew Roberts]

The obvious argument from the anti-incorporation side is that the individual right to own a firearm was enshrined in the Constitution in order that the State could form effective militias and therefore, the State can regulate that individual right however it sees fit.

So, it would not be very difficult to fashion an argument that upheld Heller in theory, while having the practical effect of gutting it substantially.

On the flip side - from the anti point of view, the problem with that argument, if it is successful, is that you have opened a BIG can of worms with respect to the various "Firearms Freedom Acts" lawsuits from different states winding their way through the court system. You can't very well make the above argument in favor of stricter regulations and then turn around and argue the opposite if a State wishes to make laws less restrictive.

That is really the wild card in my opinion. Without that implicit threat, I think you would see another 5-4 decision with very similar reasoning to Heller (with incorporation winning). However, if the dissenting Justices realize that they may be creating a bigger problem for themselves (and weakening the foundation of Wickard at the same time) by making the above argument, they might see some future opportunities in non-firearms related law by overruling Slaughterhouse.

And yeah, I wouldn't characterize the dissenting opinion as "individual rights." Several of the Justices in the dissent used that phrase as though they supported it; but the clear point of the dissent was that the Second protected only a collective right.

Another thing I noticed in RDak's quote is the implied disdain for the common-law right to self defense in general. I noticed that same theme in Posner's opinion on incorporation. I expect it signals that people who don't care for the Second Amendment will start trying to undermine the general common law right of self-defense - because if you don't have that, then there really isn't any point in an individual right to arms is there? And as Stevens asserts "The Constitution did not enshrine a common law right to self defense" so you don't have to deal with that awkward "We found all these implicit rights in the Constitution but ignored this explicit one."

[maestro pistolero]

Yes but maestro, Stevens wrote that an individual had to be a member of a well regulated militia before the 2nd Amendment protected his/her ability to own a firearm.

So, in essence, he wasn't saying all people had an individual right in the true sense of the term IMHO.

True. And unfortunately, that ridiculous statement was only a sliver of the grand-canyon-sized gap in Steven's logic in the Heller decision. His dissent was an embarrassment to his profession. Really.

[USAFNoDak]

Judge Stevens opined:

Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution."

Well, don't the writings of any of the founders regarding the citizens being armed count for anything if you are trying to figure out what they were trying to enshrine in the Constitution? I'm not a lawyer, so maybe the founders writings on the subject don't count when it comes to the USSC making decisions. However, I thought it was imperative to try and determine what was meant at the time the constitution was written, by the writers. There are so many writings by the founders on that topic that it seems one would have to live in a vacuum not to have discovered any of those writings. The 4 dissenting justices most likely do not believe that citizens should be able to keep and bear arms without any government permission or regulation, and thus came up with a jaundiced dissenting opinion to justify their lack of confidence in "The People".

[htjyang]

Justices have been known to consistently adhere to their previous dissents. See Justice O'Connor in Ring v. Arizona and Justice Breyer in College Savings Bank.

I agree with RDak's interpretation of the Stevens dissent in Heller. I think it was Dave Kopel who asked the key question: Exactly under what circumstances can an individual assert his 2nd Amendment right under Justice Stevens's framework?

The only way I can think of is if there's a foreign invasion of the US, the militia is called out, and the state failed to arm the militia properly.

Imagine how ludicrous this scenario is. During a foreign invasion, an ill-equipped militiaman will... run to the nearest federal courthouse to file suit against the state?

Stevens's dissent fails the test of common sense. But it does very well in fulfilling the liberal dream of disarming the population.

[RDak]

Thanks for the opinions guys.

Yes, it seems almost all of the members at all the gunsites I belong to have stated, in so many words, that precedent is important but not ironclad.

I guess that is logical and all I could ever hope for.

It's just that I'm so strong a believer in the 2nd Amendment that I wanted to believe precedent in this current situation would be ironclad. Oh well, wishful thinking on my part.

[basilisk4]

There is no such thing as "ironclad precedent" in our court systems; any prior precedent is subject to being overturned at any time. The good news that it takes a majority opinion to do so, and as another poster hinted, the U.S. Supreme Court has historically relied heavily on past decisions. In fact, the doctrine of "stare decisis," which our courts have followed basically since their inception, constrains the Supreme Court to rely on this decision in making future decisions.

One might feel better about the decision if it were unanimous or at least 6-3 or 7-2, but as a practical matter, many 5-4 decisions have held up for a very long time to date.

[ADB]

Well, don't the writings of any of the founders regarding the citizens being armed count for anything if you are trying to figure out what they were trying to enshrine in the Constitution?

The problem with the constitutional argument is the underlying assumptions. Take privacy for instance. It's generally considered a given that a person has a constitutionally protected right to privacy--for instance, that the police can't sweep neighborhoods with infrared sensitive cameras to scan for marijuana growers through walls. But nowhere in the constitution does it say "you have an explicit right to personal privacy and not to be spied on." It's only inferred by the 3rd, 4th, 5th, and 9th amendments.

Back in the 1790s, privacy wasn't a big issue. There were no thermal cameras then, no X-ray machines, no medical records or listening devices. There was also no reason to think that self defense was in question, and thus no need to more explicitly protect it in the constitution.

There's also the exclusionary issue, which was mentioned during the constitutional convention by a member from Georgia: the belief that if they specifically enumerated a set of personal rights, it would in the future be taken that rights NOT enumerated were not protected.

Obviously you can't protect every "right" not mentioned in the constitution. If somebody says they have the right to take anything they wanted, that's not constitutionally protected. But it does outline a broad scope of things and areas of life that should be protected: expression, privacy, property, and legality.

To that end, the constitution is a little bit of a vague document, in that it says "rights are protected" but it doesn't completely specify what rights, how protected they are, and under what circumstances. I personally prefer a more liberal reading of the protection for individual rights, since there's a natural tendancy on the part of some people to try to insulate themselves from the uncertainty of the world by passing laws restricting things that they find scary/distasteful/immoral/whatever. But in absolute terms, it's not quite as easy as just running down a constitutional list and checking off what is or is not protected.

[Tom Servo]

There is no such thing as "ironclad precedent" in our court systems; any prior precedent is subject to being overturned at any time.

In fact, we're counting on that next session.

[paull]

As Maestro stated in post #2, I recall that there was some consensus amongst the court regarding the "individual rights" issue.

We should be fairly safe on that part of the whole thing.

We should focus on the specifics now, ie: CCW, OC, reciprocity, NFA, etc.
p

[Bartholomew Roberts]

Originally Posted by ADB

There's also the exclusionary issue, which was mentioned during the constitutional convention by a member from Georgia: the belief that if they specifically enumerated a set of personal rights, it would in the future be taken that rights NOT enumerated were not protected.

You also have to remember that the Constitution was not yet ratified and that many things were left vague in order to assure wide acceptance. That is a political trick that still goes on today - write legislation vaguely and then claim really broad powers that probably would have killed the bill if you had expressly written them in the legislation. This is why gunowners should be doubly cautious around vague wording (i.e. "sporting purposes" - which apparently doesn't include the most popular rifle in rifle sports).

Originally Posted by paull

As Maestro stated in post #2, I recall that there was some consensus amongst the court regarding the "individual rights" issue.

Based on your quote and your interpretation of the dissent's opinion, I am guessing you are more of a "skim it quick" type of reader?

[publius42]

Well, there were two dissents, and Breyer's does assume an individual right, but just says it doesn't cover a handgun in the home.

[Bartholomew Roberts]

Well, there were two dissents, and Breyer's does assume an individual right, but just says it doesn't cover a handgun in the home.

Breyer's dissent isn't anymore about individual rights than Steven's dissent...

Let's look at what Breyer says:

1. "The Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred."

HOWEVER,

2. "As evidenced by its preamble, the Amendment was adopted “[w]ith obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces.”

3. "The Amendment “must be interpreted and applied with that end in view.”

4."The right protected by the Second Amendment is not absolute, but instead is subject to government regulation."

OK, so under Breyer's dissent, the individual right protected is only protected to the extent that it effects the "continuation and effectiveness of militia force." Also, that right is subject to not just government regulation but FEDERAL government regulation...

So how would Breyer determine whether a law violated the Second Amendment if it did by chance happen to fall into the very, very narrow area he has defined the Second Amendment as covering?

"I would simply adopt such an interest-balancing inquiry explicitly."

So, better than rational basis scrutiny (or at least it appears so at first); but not anywhere near the strict scrutiny that the First Amendment receives. As a bonus, this method gives more power to the Court.

Under this test, Breyer looks at the D.C. laws and says: Licensing? Clearly OK. Provision requiring disassembly? Well since D.C. didn't explicitly say it WASN'T ok in cases of self-defense and just left the homeowner wondering whether they might be prosecuted for defending their life, I am going to assume D.C. would never do that and say that provision is OK too.

Then we hit the big point - if licensing is OK, then what happens when the government won't issue the license?

"For these reasons, I conclude that the District’s statute properly seeks to further the sort of life-preserving and public-safety interests that the Court has called “compelling.”

In essence, Breyer says that all of the briefs and evidence offered in support of the fact that the D.C. gun law does not serve a compelling government interest were strong; but the legislature always gets the benefit of a doubt unless the evidence is overwhelming.

Now looking at Breyer's decisions, I would ask as a practical matter:

1. What kind of individual right does that protect?
2. How strongly does it protect it?

Calling Breyer's dissent a "pro-individual rights" dissent is a joke. It makes for a good soundbite when you are arguing on the evening news (All 9 Justices agreed the Second protected an individual right") but as a factual matter, it plays fast and loose with the truth and confuses many gunowners who don't understand just how close they came to losing a really big fight.

[paull]

BR,
Thank you for the clarification...
You seem to feel strongly about that.
p

[Bartholomew Roberts]

You seem to feel strongly about that.

Yeah, I get irate when I read that because I felt strongly that the two Justices who wrote those decisions were not as forthright in those decisions as they should have been.

Both Justices characterized their decisions as "individual rights" and then proceeded to whittle it down until there was literally almost no conceivable situation that could ever be protected by that individual right - and in fact, their decision looked suspiciously like the "collective rights" theory in result.

Given that both men are certainly clever enough to know the practical outcome of their decision and have a lifetime appointment, it irritates me that they didn't just come right out and say what they meant.

So every time I see that statement, it reminds me that there are at least two Justices on the Court who, for whatever reason, felt a need to characterize their decision as an individual rights decision; but did everything in their power to make sure it did not change the results from the "collective rights" doctrine at all.

[RDak]

I agree Bart. Why do you think they clouded their true opinions?

[alloy]

I watched an informal moderated debate between Breyer and Scalia on c-span the other nite on a few topics with gun rights being one, and even the militia topic was mentioned...with Scalia actually using it as an aside...mentioning it, but stating the 2A was not only for that purpose(militia) but that it obviously protected individual rights as well.

Breyer's views, are the typical liberal position of abandoning the original intent in favor of a modern adaptation.

Obviously off topic a bit, but very interesting show. I never realized Scalia was so pro-gun(and massive supporter of originalist thought) when caught in an impromtu setting.

[Bartholomew Roberts]

Why do you think they clouded their true opinions?

I have not the slightest idea why they wrote their opinions that way. From my personal perspective, one problem with arguing the collective rights position is that it looks strange from a drafting perspective since there aren't really any "collective rights" in the Bill of Rights except maybe the 10th.

You can debate that of course and try to stretch some of the other enumerated rights to make a comparison; but it isn't a strong argument. By defining the right as an individual right; but an extremely narrow one that can't be used practically by anyone, you do avoid that issue entirely.

[Jim March]

The other big thing going on is that the grabbers (both on the bench and their various supporters doing law review articles) are now scrambling like mad to figure out how to separate "keep" from "bear".

In other words, they've been hanging all their arguments pre-Heller on the idea that we have neither as personal individual rights. Now that a personal right to KEEP has been established, they have no ready-made fallback position for how we might have a right to "keep" but not "bear".

This has them in a serious panic.

When Gary Gorski went before an all-female three-judge panel of the 9th recently on a CCW case, at least one of the "ladies" in robes said that since the Heller case was about "keeping" arms, obviously "bearing" could be banned. With no good backing for it of course .

[maestro pistolero]

With no good backing for it of course.

And no good retort from Gorski.

[Tom Servo]

I never realized Scalia was so pro-gun(and massive supporter of originalist thought) when caught in an impromtu setting.

Scalia's rumored to own several NFA weapons, and word was that he'd been sharpening his claws for a 2nd Amendment case for awhile.

[alloy]

Scalia's rumored to own several NFA weapons, and word was that he'd been sharpening his claws for a 2nd Amendment case for awhile

Well, not being a legal brainiac I was hoping someone had seen the show that might have a better assessment than I can provide...but it was nice to see the two opposing thought process' when making decisions on a wide variety of subjects. The results were as predictable as left and right, emotional vs logical. Very interesting.