I have to apologize for not posting a more thorough analysis of the Heller decision. I was holding space for the story in the next Hard Corps Report which I delayed publishing waiting for the decision to come down. I have been focused on getting the newsletter put together – and overcoming some technical disasters – and failed to be thorough here on the site.
I'm afraid that's going to continue for another day or two as I finish up the news letter and get it in the mail. I did take a minute to put some clarification notes in the original story and will do my best to have more information soon.
In the mean time, let me just say that in the current climate I think that the decision that was rendered is absolutely as good as we could have hoped for and there are some subtle nuances in the language Justice Scalia used that I believe purposely leave certain doors open wider than my first quick reading indicated. I believe that some of the bothersome thoughts in the opinion were necessitated by one or more "squeamish" members of the majority – possibly the Chief Justice – who wanted to provide some cover for some existing laws. Most of that was phrased in such a way as to leave a hole though.
The bottom line is that according to the syllabus there were three main points that the Court "Held":
1. The Second Amendment protects an Individual Right for self-defense and other lawful purposes and without a requirement of some sort of militia connection beyond, the militia is us.
2. Like most other Rights, some limits can be placed on it (and they offer examples of what they are not saying are unconstitutional, which does not make those things, by default, constitutional – one of the cracks in the door. I also don't see how this – or at least most of it – could be considered part of the "Holding" since it doesn't address any specific question in the case. The question was basically, "Do these two laws in the District of Columbia violate the Second Amendment?" Answering that by saying Yes, because the 2A protects an individual right to arms such as these laws deny. Everything else – including this section – is just explaination of their thinking to reach their conclusion.)
3. DC laws banning handguns and requiring all guns to be unavailable for defense violate the Second Amendment.
The suggestion that the Court's order; " the District must permit Heller to register his handgun and must issue him a license to carry it in the home," is a defacto stamp of approval on licensing and registration (an early assumption of my own,) is not true. The Court specifically declined to consider the constitutionality of such laws in the context of this case and practically invited a future challenge of those laws. Such a challenge will, of course, have to wait until people are actually issued or denied licenses so they can have standing.
This ruling is a good solid foundation and now the bricks that can restore the Second Amendment can be laid on this foundation one tier at a time with each level setting up the next. It is a slow and tedious process and there will be setbacks, but it can be done and is being done.
We need to look at this ruling in the best possible light and interpret every word of it to our best advantage, conceding nothing. We must stick our collective foot into every crack in every door that the opinion left available and not let the opposition slam any of them shut without a bloody battle.
Now back to the Hard Corps Report. If you don't subscribe, I would encourage you to do so. It is our primary source of revenue and I think you'll find it very worthwhile. No hype, just facts and well reasoned analysis – if I do say so myself.
Drop us a note if you'd like to receive a review copy or just send us the cost of a box of ammo (or the ammo itself – pretty much any gauge or caliber will do) and we'll put you on the list.
Yours for the Second Amendment,