Heller Case

Heller Case

By John (July, 2008)

            Before we gun nuts celebrate the holding in the Heller case too much, perhaps we need to look more closely at just what the Heller decision did and what it didn’t do.  There will be substantial fallout as lower courts grapple with the meaning of Heller, especially since it was a 5-4 decision with the dissent trying to read the 2^nd Amendment out of the Constitution altogether.

            First, as in all Supreme Court holdings, the case is limited to the facts.  In Heller, the case was initiated within the jurisdiction of the District of Columbia, a federal government enclave, questioning the Constitutionality of District of Columbia ordinances.  Early in American History, the Supreme Court held the first eight amendments to the Constitution were applicable only to the federal government and not other levels of government.  Only after the Civil War and the passage of the 13^th and 14^th Amendments by the Radical Republican Congress, beginning with the slaughterhouse cases, the Supreme Court created the new legal concept of “substantive due process,” and thereafter, through the selective incorporation doctrine, has made the Bill of Rights applicable to political entities below the federal level.  It is easy to see therefore, this Heller decision applies only to federal law.  It is not an incorporation case and certainly does not make the 2^nd Amendment applicable to state law case.  That issue was simply not presented by the facts of the Heller case.

            Secondly, the majority opinion accepts the historically inaccurate insertion of two additional commas in the 2^nd Amendment, commas which are not contained within the original body of the 2^nd Amendment as originally adopted into the United States Constitution.*   In fact, much of the majority opinion, as well as the Steven dissent, spend pages of written word dissecting the exact wording of the 2^nd Amendment, each applying differing standards to reach their respective conclusions.  Without the additional commas, the analysis is much simplified because as any High School level grammar student understands, the words before the comma clearly make a prefatory phrase and are therefore not the substance of the declaration.  The substance of the declaration is, “,,, the right of the people to keep and bear arms shall not be infringed.”  Again, I leave out the historically incorrect placing of a comma between the words Militia and being, and again between the words Arms and shall. (See Presser v. State of Illinois, 116 U.S. 252 (1886), where the United States Supreme Court sets out the 2^nd Amendment verbatim with only one comma).

Thirdly, and perhaps as important, nowhere within the opinion of either the majority or the dissents did the justices address the federal militia composition as set out in 10 U.S.C. Section 311, United States Code.   This Militia law is a very old federal statute contained within the “Armed Forces” section, Title 10, of the United States Code.   (Title 10 of the United States Code entitled Subtitle A provides for the General Military Law, Subtitle B provides for the Army, Subtitle C provides for the Navy and Marine Corps and finally Subtitle D provides for the Air Force.  Title 10 provides the legislative authority and direction for the United States Armed Forces.)

10 U.S.C., Section 311, reads as follows:

“Section 311.  Militia: composition and classes.

(a)  The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32 [32 U.S.C. Section 313**], under 45 years of age who are, or who have made a declaration to become, citizens of the United States and of female citizens of the United States who are commissioned officers of the National Guard.

(b)  The classes of the militia are—

            (1)        the organized militia, which consists of the National Guard and the Naval Militia; and

            (2)        the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.”

That’s it.  Section 312 provides exceptions from serving in the militia for those one would expect, such as the Vice President, judicial and executive officers, members of the armed forces “….except members who are not on active duty,” customhouse clerks, mailmen, e.t.c.

            Current member of the United States Supreme Court ought to be embarrassed, not only because of the specious opinions when considering all of the briefs filed in this case and all of the legal talent supplying the briefs to say nothing of the justice’s briefing clerks and support staff, but the common ability of a Second year law student to look in the Federal Code.  How could they simply overlook a federal statute that would seem to clearly apply to the facts of this case as set out in the case?  Mr. Heller was a federal guard, not in the National Guard or the Naval Militia, and it would seem he clearly falls within the composition class of (b)(2) above.  He’s a member of the militia.

            Justice Stevens in his dissent argues in some 60 plus pages that the 2^nd Amendment applies only to preserving state militias and is not a personal right.  The argument is silly on the surface since the states created the Constitution, and would be the only state right protected in the Constitution.  Justice Stevens would read out of the Constitution the 9^th and 10^th Amendments and he would vest a personal right to bear arms in an entity, the States.  That aside, Stevens’ argument becomes clearly frivolous when you take into consideration the express wording of the federal militia statute cited above.  After all, the 2^nd Amendment even without incorporation to the states is applicable to the federal system and this is a federal statute, very old federal law at that.

            Justice Breyer in dissent would in addition subordinate the Second Amendment to local ordinances passed by subordinate governmental entities thereby ignoring the supremacy clause.

            Given 10 U.S.C. Section 311 is a federal statute and the statute clearly defines the composition of the militia, it would seem a very good legal argument that the Supreme Court is under an affirmative duty to protect the federal militia from encroachment by the Congress, the States and other subordinate governmental entities by holding, at every opportunity, that any law, federal, state, local, et. seq., that infringe on the right to keep and bear arms is unconstitutional, federal law by express wording, the rest on the basis of federal preemption.

            Finally, Justice Scalia for the majority at the end of the Heller opinion ignores the express wording of, “shall not be infringed.”  Rather, like most if not all previous Supreme Court opinions in interpreting the Bill of Rights, the Court reserves the right of the government to infringe on the rights of certain classes of citizens where guns are concerned, such as felons, lunatics, etc.  After all, even when the 1^st Amendments says, “Congress shall pass no law, ….. ,” the Court finds exception, such as fire in a crowded theater, or more recently, legislative limitations on free speech prior to elections.  The Court is, after all, a branch of the government and will in the end protect the government.

           

_______________________

* Punctuation can create interpretation problems.  In the September 22, 1957 first ever episode on the Maverick television series, War of the Silver Kings, Bret Maverick is disputing title to underground minerals and having won at the trial court with a holding by the drunken Judge Josh based on the old federal “Apex Law,” they were awaiting the appeal decision.  A telegram is received advising Phinias King he was the winner.  But, the telegram was briefly intercepted by Big Mike McComb.  Big Mike changed the punctuation inserting a comma and a period thereby making it possible to interpret the meaning to be otherwise, at least until the lawyer returned the next day.  It worked.  Phinias King gave in to the Maverick proposal and Bret left town before the lawyer returned to tell Phinias that he’d been had by the punctuation change.  By inserting two commas in the Second Amendment, are we citizens being had?

**National Guard legislation.