The problem with this opinion is in the dicta that indicate the Court would accept as reasonable restrictions on the exercise of the right that could render it meaningless in too many situations. It is possible that these dicta are concessions that Justices Scalia, Roberts, Alito, and Thomas felt they had to make to win the swing vote of Justice Kennedy. However, it would have been better to omit them, since they are dicta and thus not necessary to reach the decision.
One thing missing from the decision is a holding on the level of scrutiny to be applied to any restrictions. Heller had moved for scrict scrutiny, which would bar most of the restrictions, federal, state, and local, that are presently enacted. The Court, as indicated by Justice Roberts, did not decide on the motion since it was not necessary to reach the decision on the DC statute.
In what follows I will be examining the points made in some detail, and expect to revise and extend this article over the days ahead, so readers may want to revisit it from time to time to get the latest version.
Troubling indications of what restrictions might be held reasonable
While in oral argument Justice Scalia indicated that only restrictions at the time the amendment was adopted might be reasonable, in this opinion he went far beyond that.
The only restrictions that existed at the time of ratification included:
- Local militia commanders, but not state governments, could require militia participants to declare the numbers and kinds of weapons each could bring to a muster. There were no serial numbers in that era, but it is not too much of a stretch to require serial numbers for the limited purpose of making sure weapons could be returned to their owners if they got misplaced during operations.
- Local militia commanders, but not state governments, could require militia participants to sign a roster and thus disclose their names.
- Local militia commanders, but not state governments, could require militia participants to drill and practice with their weapons unloaded to prevent accidental discharges.
- Local militia commanders, but not state governments, could require militia participants to use one kind of weapon in an operation rather than another, as best suited for the mission of each.
Misreading of Miller
Although the decision in U.S. v. Miller, 307 U.S. 174 (1939), was not examined in depth, what was said about it missed what it was about.
The National Firearms Act (NFA) was a tax statute. The government was asserting a power to make it a crime to possess an object on which a tax had not been paid (unconstitutional), while refusing to accept payment of the tax if it were tendered (voiding the obligation). The Court had to decide whether the weapon in question was tax-exempt, as militia firearms were under the precedent of the Militia Act of 1792. It couldn't just find that anything useful for militia was tax-exempt, because almost anything can be used in militia under some scenario. The Court wanted a closer connection to militia than, say, a pair of combat boots or a canteen. Otherwise it would be creating a precedent that could be used to find all taxes void on everything.
About the only thing in the opinion that offers hope of incorporation under the 14th Amendment is Footnote 23:
With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.
But that is a slim reed.