As long-time readers of Whitetail News know, the Whitetail Institute is committed to not only helping its customers improve the quality of their deer and deer-hunting experience, but also promoting the health of our entire hunting way of life. On June 26, 2008, the United States Supreme Court issued its final ruling on what is certainly the most important gun-rights case, and arguably the most important individual rights case, in recent memory, District of Columbia v. Heller. Accordingly, I wanted to do something a little different in this issue and, instead of answering a specific customer question about deer management, provide a brief synopsis of the Heller opinion and what it means to all Americans, gun owners and non-gun owners alike.
WHAT THE HELLER CASE WAS
ABOUT
Until the Heller decision, Washington D.C.’s gun
laws had been among the strictest in the nation for many years. The Heller case
was brought as a challenge to two things those laws did as administered by the
D.C. government. First, they prohibited anyone in Washington D.C. from having a
handgun in the home for self defense. Second, they required that shotguns and
rifles, possession of which was allowed in the home, be kept in such condition
that they would be unavailable as a practical matter for self defense
(unloaded/disassembled/triggerlocked). In Heller, the United States Supreme
Court struck down the D.C. gun laws on the ground that they violated the right
to keep and bear arms protected by 2nd Amendment to the United States
Constitution. Here's the link to the Supreme Court’s opinion:
The
critical issue resolved in the case was whether the right protected by the 2nd
Amendment is an “individual” right, or a “collective” right. The 2nd Amendment
is part of our Bill of Rights, and any explanation of the difference between
individual and collective rights requires an understanding of what the Bill of
Rights, including the 2nd Amendment, actually does, and what it does not
do.
INDIVIDUAL RIGHTS VERSUS COLLECTIVE
RIGHTS
The amendments that make up the Bill of Rights set out specific, or “enumerated,” rights including freedom of religion, freedom of speech, freedom of the press, and in the case of the 2nd Amendment, the right to keep and bear arms. Almost all of the freedoms protected by the Bill of Rights have been fairly universally understood to be inherent “individual” rights, meaning that each of us has these rights simply by virtue of being a free person. Accordingly, the amendments in the Bill of Rights do not “give” these rights to us (and, in fact, they couldn’t since we already have them), but instead guarantee that the government can never blanketly take those rights away from us. Until Heller, though, the nature of one such right, the right to keep and bear arms enumerated in the 2nd Amendment, had been the source of heated debate for about a century. The D.C. government argued in Heller that the right to keep and bear arms is not an individual right, but a “collective” right of the citizenry of the United States as a whole to keep and bear arms as part of a state militia. Had the court agreed, it could have meant that the government has the authority to completely disarm every citizen of the United States who is not a member of the National Guard, do so any time it wants, and without reason. If you want an example of how unconscionable the “collective-rights” theory is, consider that it would make perfectly legal the very sort of mass confiscations of guns from law-abiding citizens we saw in Louisiana during the aftermath of Hurricane Katrina!
Thankfully, the court clearly stated in Heller that
the right to keep and bear arms is an inherent individual right guaranteed by
the 2nd Amendment. As such, the court held, the D.C. gun laws as administered by
the D.C. government violated the 2nd Amendment because, in effect, they
prohibited all D.C. residents from legally having any kind of firearm readily
accessible in the home for self-defense, a lawful purpose that the court noted
was at the very core of the right to keep and bear arms.
This clear
statement that the 2nd Amendment guarantees an individual right is potentially
one of extremely broad implication. It’s also the only logical inference one can
draw as to what our Founding Fathers intended the 2nd Amendment to do. They
crafted the Bill of Rights in 1789, which was right after the Revolutionary War
— a war prompted in large measure by England’s attempt to subjugate the people
living in her American colonies by disarming them. With the Revolutionary War
still fresh in their minds, the Founding Fathers took great care when creating
the new American government to ensure that it could never prohibit the people it
was created to serve from keeping and bearing arms for self defense in the home,
for hunting and, if necessary, to prevent tyranny. In fact, that’s the very
reason for the entire Bill of Rights, including the 2nd Amendment — to prevent
the government we set up to serve us from taking more power than the people
choose to give it.
HELLER’S SHORT-TERM FUTURE
EFFECT
Obviously, the Heller decision is a huge sigh of
relief to law-abiding residents of Washington D.C. Thankfully, folks like the
NRA are also already moving forward to have other unconstitutional gun laws in
other parts of the country overturned based on Heller, and that is truly great
news for Americans who live in other places where the government may have
overreached its authority. How far the NRA will be able to go in helping us
remove other unconstitutional restrictions on our freedoms remains to be seen.
They certainly deserve all the support we can give them.
As for the rest
of us law-abiding gun owners, the Heller decision may not change our lives much
as a practical matter, at least in the short term. The Heller court made a
special effort to point out that other freedoms guaranteed in the Bill of Rights
are subject to reasonable regulation, and that the right to keep and bear arms
is no exception. For example, even though the Bill of Rights guarantees the
right to free speech, that doesn’t mean we’re allowed to yell “Fire!” in a
crowded theater when there’s no fire, or that we can slander someone without
consequence. Likewise, the court said that most current forms of regulation of
the right to keep and bear arms are okay. That means unless and until such
existing forms of regulation are overturned, we still must comply with
carry-permit requirements and prohibitions against carrying guns in sensitive
places such as schools and government buildings. The opinion also doesn’t roll
back any prohibitions of weapons not currently in common use in our society,
such as machine guns. What the Heller opinion does change, though, for gun
owners and non-gun owners alike, is that ALL
Americans are finally assured
that the most basic protection of individual liberty is intact, at least for
now.
We must do two things if we are to protect this hard-won victory.
First, we must elect a president who will appoint only non-activist judges to
the Supreme Court. Second, we must continue to support the NRA in its tireless
efforts to protect our rights.
At least, that’s the case for the near
future. As wonderful as this news is, no court ruling is written in stone
forever, and the Heller decision is no exception. Even with this victory,
there’s nothing to prevent the court from holding completely the other way later
on, and if the wrong kind of justices are appointed to replace those who will
likely retire from the Supreme Court soon, there is a very distinct possibility
that this entire victory could be completely wiped out.
