Post-Heller, the work starts now
Obviously, everybody has heard by now the fantastic news about the Supreme Court upholding the lower court decision in D.C. v. Heller. Here is the best part of the Opinion of the Court, on Page 67 of the decision:
We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 54–55, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.
Once and for all, the Supreme Court has affirmed while most people knew all along: that the United States Constitution unquestionable affirms the right of individuals the opportunity to bear arms. Of course, this decision should not have been a surprise seeing that the founders considered the right to bear arms a pre-existing right dating back to English Common Law and the Assize of Arms of 1189. Something that Lyle Denniston at SCOTUSblog points out the Court included in their decision:
The individual right interpretation, the Court said, “is strongly confirmed by the historical background of the Second Amendment,” going back to 17th Century England, as well as by gun rights laws in the states before and immediately after the Amendment was put into the U.S. Constitution.
What Congress did in drafting the Amendment, the Court said, was “to codify a pre-existing right, rather than to fashion a new one.”
Nor is it a surprise when one considers that all of the other Amendments within the Bill of Rights are affirming individual rights, but hey….
But supporters of the Constitution should not sit back and rest on our laurels. Yes, the Heller decision does affirm the the individual right of the citizen. However, Dave Kopel notes that there are many areas of law that are not addressed by Heller:
As for the constitutionality of other gun controls: “nothing in our opinion should be taken to 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.” The word “commercial” in the last sentence could suggest that there might be constitutional problems on some laws which applied to non-commercial arms transfers. (However, there are few federal laws on non-commercial transfers, other than criminal penalties for transferring guns to prohibited persons.)
The majority opinion also affirmed the validity of bans on gun carrying in “sensitive” locations such as schools and government buildings. The language may imply that a total ban on gun carrying in ordinary public places is unconstitutional. But Heller does not attempt to answer the question of whether the Fourteenth Amendment makes the Second Amendment enforceable against state and local governments, and most carrying restrictions in public places are created by state and local governments. For now, Heller limits only the federal government — and entities such as the D.C. City Council, whose powers are granted by the federal government.
Which means that while the individual right has been affirmed, Heller does not universally cast aside any and all gun controls laws. Nor does the decision cast aside provisions that prohibit the purchase of firearms by criminals or those with mental issues. The rights of gun ownership and possession in Maryland have been left, realistically, unchanged by the facts of the decision. Since the Heller decision only the D.C. law, that means many issues are still living in a Constitutional shade of gray.
How would this Court rule on issues such as Concealed Carry permits? What about Waiting Periods? What about trigger lock laws? The fact of the matter is that now the right to own a firearm has be universally affirmed once and for all by the Court, we now must move on to address these other issues as a nation.
Nowhere is that more true than here in Maryland. We must fight the nonsensical gun laws that remain on the books. We must combat nonsensical politicians like Delegate Curt Anderson who wish to use the Court’s affirmation of this civil right as a reason to pass even more restrictive gun laws in Maryland. We need to bring Maryland into the 21st Century, and pass appropriate concealed carry laws. These laws have reduced the rates of violent crime in the 40 states that have now passed them. The stats are there, and no type of cockamamie arguments from politicians like Anderson can change the fact that these common sense carry laws save lives. Liberals can be entitled to their opinions on the issue, but not their own facts.
The Heller decision is a great victory for the Constitution, and a great day for liberty in America. However, we in Maryland have a long way to go to fully enjoy the fruits of this victory. The work starts now.