There were two dissenting opinions in the Heller case, authored by Stevens and Breyer. Stevens takes the tack that the 2nd Amendment does not, and was never intended to, protect the right of individuals to keep and bear arms. He argues fervently that history suggests a militia-oriented power, rather than a right.
Of course, this flies in the face of innumerable sources, several of which are illuminated by Scalia.
Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. DC vs Heller, Majority Opinion, p. 19
Scalia’s assertion that the 2nd Amendment “recognizes the pre-existence” of the right to keep and bear arms seems a pre-emptive strike on Stevens’ argument:
With all of these sources upon which to draw, it is strikingly significant that Madison’s first draft omitted any mention of nonmilitary use or possession of weapons. Stevens dissent, p. 25
Madison didn’t mention nonmilitary use of weapons because it would have been redundant. “The right of the people to keep and bear Arms, shall not be infringed” means what it says, and he would have expected that fact to be obvious.
But the right the Court announces was not “enshrined” in the Second Amendment by the Framers; it is the product of today’s law-changing decision. (…) The Court’s announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding, but leaves for future cases the formidable task of defining the scope of permissible regulations. (…) Given the presumption that most citizens are law abiding, and the reality that the need to defend oneself may suddenly arise in a host of locations outside the home, I fear that the District’s policy choice may well be just the first of an unknown number of dominoes to be knocked off the table. Stevens, p. 45-46
Again, he’s missing the point. The Heller decision doesn’t make any new laws, and the 2nd Amendment did not create a right out of thin air. The right of self-defense was sacred to Blackstone, sacred to the Founding Fathers, and it existed long before 1791. The 2nd Amendment simply guarantees that said right is protected, and the Heller decision is neccessary to clarify its scope, at least in part.
As for the “District’s policy choice” being the first of many firearms regulations to be overturned, it’s a moot point. Those laws are unjust by nature, and anyone with a healthy respect for civil rights should seek their abolishment.
Then there’s the flawed Miller ruling. This is the only precedent the Court has to justify a militia-based interpretation of the 2nd Amendment, and when Justice Kennedy posulated during oral arguments that Miller “may be deficient,” I could almost hear the air being sucked out of the room.
Miller was a bad case, heard by a politically-motivated Court, in which the respondents were not present. Blatantly false information was presented by the petitioners, and no effort was made to clarify it. Still, Stevens attempts to defend it:
Perhaps in recognition of the weakness of its attempt to distinguish Miller, the Court argues in the alternative that Miller should be discounted because of its decisional history. It is true that the appellee in Miller did not file a brief or make an appearance (…) But, as our decision in Marbury v. Madison, 1 Cranch 137, in which only one side appeared and presented arguments, demonstrates, the absence of adversarial presentation alone is not a basis for refusing to accord stare decisis effect to a decision of this Court. Stevens, p. 43
While technically true, he stumbles here:
Of course, if it can be demonstrated that new evidence or arguments were genuinely not available to an earlier Court, that fact should be given special weight as we consider whether to overrule a prior case. But the Court does not make that claim, because it cannot. Ibid
The prosecution in Miller never mentioned, though they must have been aware, that the weapon in question (a short-barreled shotgun) had, in fact, been used frequently by the military during the early 20th Century. Winchester 1897 shotguns were found to be effective in the trenches of World War I, and it was not uncommon for soldiers to saw the barrels down to increase their efficiency at close quarters.
The short-barreled shotgun is a militia-class weapon, and therefore, under the terms established by Miller, taxing and regulating it is unconstitutional. Given that the status of said weapon was the fulcrum of Miller, the case and subsequent judgment must be thrown out.
Thank you all…I’ll be here all week.
Now, on to Breyer. He’s a Clinton appointee and a big fan of the “living Constitution.” He seems more inclined to interpret the law with an eye on its consequences, provable or not, rather than whether or not it is just.
Far more important are the unfortunate consequences that today’s decision is likely to spawn. Not least of these, as I have said, is the fact that the decision threatens to throw into doubt the constitutionality of gun laws throughout the United States. I can find no sound legal basis for launching the courts on so formidable and potentially dangerous a mission. In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas. Breyer, p. 44
Notice his tone and articulation. With the majority having established that handguns are “Arms,” which are protected by the 2nd Amendment, he’s left to argue for the status quo. Of course, Heller “threatens to throw into doubt the constitutionality of gun laws throughout the United States.” That’s the point; those laws are unjust and unconstitutional.
He is a Justice of the Supreme Court of the United States. It is his duty to strike down unconstitutional laws, not protect them.
In the end, his only argument falls into the “think of the children” category:
The reason there is no clearly superior, less restrictive alternative to the District’s handgun ban is that the ban’s very objective is to reduce significantly the number of handguns in the District, say, for example, by allowing a law enforcement officer immediately to assume that any handgun he sees is an illegal handgun. And there is no plausible way to achieve that objective other than to ban the guns. Breyer, p. 34
It isn’t the Court’s job to determine the “plausibility” or utility of a law. It’s their job to weigh it against the spirit of the Constitution and the intent of its authors. If that law is found to be in conflict, it must be overturned, no matter what its effect might be.
Though I’m disappointed in the politicized responses of the dissenting Justices, I still find great relief in the final ruling.
In conclusion, I’d like to point out that Scalia’s language discounts any argument against “modern” weapons of any sort:
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35—36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. Majority Opinion, p. 8