District of Columbia v. Heller

In deciding the long-awaited Heller case, the Supreme Court today decided that "the right of the people to keep and bear Arms, shall not be infringed." means that people actually have a right to keep and bear arms. That's a good thing, I suppose, though it's sad that it was only a 5-4 decision. And it is very likely that, had President Kerry appointed the last two Justices rather than President Bush, the decision would have come down the other way. So it's good that the second amendment lived to fight another day, but frightening to consider that 60,000 changed votes in Ohio, just over 1% of the electorate, would have likely resulted in its evisceration. That's not a good thing, and it is scary to watch the decisions continue to come down.

In any event, one of the things that leaps out of the decision is a comment from Justice Stevens' dissent, a comment that I've seen quoted approvingly in some of the less-conservative corners of the blogosphere (if the blogosphere can be said to have corners...) Writing for the minority, and joined by Justices Souter, Ginsburg and Breyer, Stevens noted that

The Court properly disclaims any interest in evaluating the wisdom of the specific policy choice challenged in this case, but it fails to pay heed to a far more important policy choice—the choice made by the Framers themselves. The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Court’s opinion, I could not possibly conclude that the Framers made such a choice.

I included the whole paragraph for context, but want to consider, for the moment, just that highlighted phrase.

The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons...

What are some of the tools that might be useful to "elected officials wishing to regulate civilian uses of weapons?"

• The ability to commit "unreasonable searches and seizures" might be a "useful tool" but unfortunately (from the minority's point-of-view) the fourth amendment provides a "limit [on] the tools..."


• If the well-meaning "elected officials" were to have soldiers "in time of peace be quartered in any house, without the consent of the Owner," that could be a very useful tool, but alas, that pesky third amendment gets in the way.


• If "excessive bail" could be required, or "excessive fines imposed," or "cruel and unusual punishments inflicted," well, those would all be enormously useful tools in the hands of a group of "elected officials" trying to "regulate civilian uses of weapons" - or do anything else, for that matter. But those damned Framers lacked the foresight to leave out the eighth amendment.


• Hey, what if people could be held without "presentment or indictment of a Grand Jury?" Or "compelled in any criminal case to be a witness against [themselves]?" Or "be deprived of life, liberty, or property, without due process of law?" One could easily picture those being super-"useful tools" in the "regulat[ion of] civilian uses of weapons." But no, the Framers were not as enlightened as Justices Stevens, Souter, Ginsburg and Breyer, and they foolishly "made a choice to limit the tools available to elected officials" by including the fifth amendment.

One could go on, of course, but what's the point? The minority embarrasses itself by including that rationale for gutting the second amendment. Of course the Framers “made a choice to limit the tools available to elected officials” – that is why the United States Constitution exists in the first place. Its entire purpose is to limit elected officials, to limit the power of the government. The fact that these four Justices want to ignore those limits in this case doesn’t change the fact that the limits exist. There are any number of tools that elected officials are not constitutionally allowed to use, and outright banning of handgun ownership is clearly one of them.