Thursday, June 26, 2008

DC v Heller, first thoughts

First, the decision was broadly correct: ownership of arms is an individual right, and it was meant to be one. This means that McCain was on the correct side of this decision (helping him come back from his over-the-top and incorrect opinion of previous cases). Obama was on the wrong side of this; his statement that DC's ban was constitutional is flat-out wrong. I guess this puts the candidates at 1-1 with regards to the Supreme Court.

But I do have a criticism of one small part of the opinion. The majority, written by Scalia, states: "The prefatory clause does not suggest that
preserving the militia was the only reason Americans valued the ancient
right; most undoubtedly thought it even more important for self-defense
and hunting."

I'm not convinced of this at all; the founders probably would have seen little difference between militia use and self-defense use, since the guns of their day were slow to load and impossible to reload in a critical situation. The idea of a person carrying a gun on their person to prevent robbery would have been foreign. This doesn't mean it's not protected, I just object to the statement that the Founders would have felt hunting uses more important than militia uses after winning a war for freedom that depended largely on popular militias to win. The Second Amendment was put in place because the Founders felt only an armed population could resist illegitimate governmental tyranny, and that government had to be prohibited from being able to deprive people of the means to resist it by voting, protesting, speaking and writing, meeting with likeminded people, and by force of arms if totally required. A huge bundle of the rights in the Bill of Rights are directed to maintaining the freedom won in the American Revolution by preventing the government from curtailing the means by which people could undo tyranny.

When the Constitution was written, I think the most important meaning was for militias. This in no way means militias only. It simply means that I find it ridiculous that of all the concerns on the Founders' minds, they found time to make sure people would be able to hunt in the future and protected it in a specific right.

Let's not make this decision into a partisan shouting festival. Let's not overreact. There's a lot of moderation and good-sense arguments in the decision, and most Americans broadly agree with it. For the second time in a short while, I have to applaud the Supreme Court for issuing a correct decision to complement Boumediene. In that case, the liberal bloc issued a correct decision. In this one the conservative bloc did. But in both cases, the Court curtailed government overreaching and micromanagement.


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