Justice Stevens’s Speech to the Brady Center to Prevent Gun Violence’s Legal Action Project Luncheon

October 15th, 2012

The speech is here. He talks about Heller and Printz.

While the post-decision commentary by historians and other scholars has reinforced my conviction that the Court’s decision to expand the coverage of the Second Amendment was incorrect, two good things about the Court’s opinion merit special comment. First, the Court did not overrule Miller . . . Thus, even as generously construed in Heller, the Second Amendment provides no obstacle to regulations prohibiting the ownership or use of the sorts of automatic weapons used in the tragic multiple killings in Virginia, Colorado and Arizona in recent years. The failure of Congress to take any action to minimize the risk of similar tragedies in the future cannot be blamed on the Court’s decision in Heller.

I don’t think this is accurate, factually or legally. In most of these shootings semi-automatic weapons were used, not automatic, and Heller would not permit banning semi-automatic weapons.

A second virtue of the opinion in Heller is that Justice Scalia went out of his way to limit the Court’s holding, not only to a subset of weapons that might be used for self-defense, but also to a subset of conduct that is protected. The specific holding of the case only covers the possession of handguns in the home for purposes of self-defense. Part III of the opinion adds emphasis to the narrowness of that holding by describing uses that were not protected by the common law or state practice. Prohibitions on carrying concealed weapons, on the possession of firearms by felons and the mentally ill, and laws forbidding the carrying of firearms in sensitive places such as schools and government buildings or imposing conditions and qualifications on the commercial sale of arms are specifically identified as permissible regulations. Part III of the opinion is admittedly pure dicta, and it is embarrassingly inconsistent with the earlier argument in the opinion that the word “people” as used in the Second Amendment has the same meaning as when used in other provisions of the Constitution. On page 581 the opinion confidently asserts that the term “unambiguously refers to all members of the political community, not an unspecified subset.”

So we have it straight from a retired Supreme Court Justice. The part of Heller that he calls Heller limits the Court’s holding to weapons used for home defense.

Nothing much to see here.