Friday, June 27, 2008

Having done a little reading...

Well, I actually read the Heller opinion. I must say that Scalia has written one of the most entertaining and interesting decisions I've seen. Very few Justices would insult the dissenters quite as directly and strongly as he has. He derides their faulty conclusions with such choice phrases as "bizarre" and "worthy of a mad hatter" (and uses a good lead-up for that one, saying that "A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass").

One of my favorite parts reads:
Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.
I also enjoyed the citations of Joseph Story, one of my favorite Justices, and the lengthy discussion of the grammatical side of the Second Amendment. Yes, that probably makes me a history nerd and grammar nerd, but I do enjoy these things.

I must admit, though, I was disappointed by the bit on the Miller case. Scalia mentions that the NFA ban on machineguns would be unconstitutional under a reading of that decision, were it not for the "common use" portion, implying that only those weapons good for personal protection and home defense would be acceptable. I have to say that this reading leaves a lot to be desired, since the common military weaponry is outlawed, and therefore impossible to have in common use, no matter its utility. There was a time when privately held weapons were generally superior technologically to military weapons, but we have legislated common use to the point of keeping the citizenry from having the means to defend against oppression from within.

Scalia also makes sure to mention that this should not "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." I would have much rather had him remain silent on this, since there is no reason for comment. There were, to my knowledge, no arguments on these restrictions, so he shouldn't be affirming them, even if they were all just (which, mind you, is not my opinion of them).

In total, the decision is mediocre--banning an entire class of weapons commonly used for defense is unconstitutional and requiring legal weapons to be rendered inoperable is similarly unconstitutional. While it's a fun read, the scope of the decision is limited and it affirms some restrictions (full-auto, commercial sale, etc.) that should have been struck down or left alone (the latter would, of course, be more likely, considering the arguments put forth in the case).

1 comment:

Hammer said...

It's a mixed bag for sure. Still the liberals are crying about it so it xan't be all bad.