Doherty on Heller

Brian Doherty’s “How the Second Amendment Was Restored: The inside story of how a gang of libertarian lawyers made constitutional history” in the December 2008 issue of Reason is worth reading. It does paint the Heller decision as a victory, but does allude to aspects of this case that some libertarians are less than sanguine about–see some excerpts below:

When it was Gura’s turn, he was asked to explain the meaning of the militia reference. He said it was to describe a purpose of the right of the people that the Amendment protected. He angered some in the hardcore gun rights movement when he concluded that the weapons protected by the Amendment should be ones that combined a militia purpose and a normal civilian purpose, since people were expected to supply them from their own everyday collection of weapons they typically used. Gura did not want to be pressed into arguing that machine guns should have unlimited Second Amendment protection.

He did ably defend the idea that personal self-defense was built into weapons rights during the Founding era. He granted that reasonable licensing doesn’t necessarily violate the Second Amendment. He also granted that empirical considerations about such matters as murder rates could play into policymakers’ decisions about what made for a reasonable gun regulation—but added that the very purpose of a constitutional right is to make sure that not everything is up for grabs just because a legislature thinks regulations are “reasonable.”

Many Internet gun-rights activists accused Gura of selling out on the machine gun issue. “We wanted to win,” Gura responds. “And you win constitutional litigation by framing issues in as narrow a manner as possible. I could not tell the justices honestly that I hadn’t thought about machine guns. ‘Gee, I don’t know, maybe…’ That’s a bunch of crap. I would have lost credibility, it would have been obviously a lie and I’m not going to lie to the Court, and I would have lost the case.”

Still, the decision wasn’t everything devotees of gun rights might have hoped for. Scalia also wrote: “The Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Heller, then, by no means settled the entire gun control debate. …. most gun laws short of total bans will likely survive under the Heller standard, even if it is authoritatively established that the Second Amendment ruling in the case applies to state and local actions. In the near term at least, Heller will heat up the gun debate instead of ending it.

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12:26 pm on November 18, 2008