D.C. v. Heller: The Court's Liberal Wing Shoots Itself In The Foot
By David T. Hardy
July 15, 2008
Page 2 of 2
3. When James Madison drafted the Bill of Rights, he worked from the Virginia ratifying convention's proposals. He put the Second Amendment in. He omitted the separate clause about States arming the militia.
4. When the Bill of Rights came up in the First Senate, Virginia senators moved to put the militia-arming clause back in. The first Senate voted the idea down.
Yes, there were Framers concerned about having States able to arm their militias. But they weren't calling for the Second Amendment, but for a different provision. And they lost.
Did the dissenting Justices either (1) not read the Heller-side briefs or (2) were willing to take this position in spite of its having been proven utterly ahistoric?
Justice Breyer's dissent focuses, not upon the meaning of the Amendment, but upon whether D.C.'s handgun ban is "reasonable regulation." It likewise contains a critical error.
Breyer argues that the main purpose of the Amendment is to ensure military preparedness, and the D.C. law does not much impair this: "the only weapons that cannot be registered are sawed-off shotguns, machine guns, short barreled rifles, and pistols not registered before 1976."
Breyer did not closely read the law he defends: D.C. defines any semiautomatic rifle that can take a magazine holding more than 12 rounds (which is almost all of them) as a forbidden "machine gun." Its residents are thus forbidden to own and practice with the semiautomatic version of any American military rifle made in the last half-century.
Both dissents are not merely mistaken, but (if I may be blunt) shoddy. Prior decisions and statutes seem to have been skimmed rather than researched. Historical theories that were clearly disproven are invoked as fact. The logical conclusion is that the dissenters cared not so much about constitutional law as about policy, and what they find good policy simply had to be constitutional.
And they came within one vote....
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David T. Hardy is a Tucson AZ attorney specializing in constitutional law. He directed the documentary "In Search of the Second Amendment" (www.secondamendmentdocumentary.com) and filed an amicus brief in Heller.
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