... To compound the problem, various extraneous, ill-considered, and dangerous statements in Justice Scalia’s opinion actually undercut the protections the Second Amendment guarantees, providing proponents of “gun control” with rhetorical ammunition, not simply to resist enforcement of the amendment against statutes already on the books (as the District of Columbia is doing), but even to promote further restrictions on “the right of the people to keep and bear Arms.”
One of the most egregious of such statements in Justice Scalia’s opinion is that the Second Amendment protects “the people’s” private possession of only those “Arms” “of the kind in common use at the time,” and which are not “dangerous and unusual weapons” that have been “prohibit[ed]” by law. Thus, the amendment would supposedly not guarantee common Americans’ acquisition of fully automatic firearms. But why should this be so?
Or for destroying those rights entirely. For on the theory that firearms that are “highly unusual” and not “in common use at th[is] time” can be banned, rogue public officials could make any type of firearm “highly unusual” simply by banning private possession of it, and then using the effect of the ban as a reason for saying the Second Amendment does not apply! Just as they have removed fully automatic firearms from the possibility of “common use” by the National Firearms Act and other statutes. So, on the basis of the loose language in Heller, Americans can expect, not only that fully automatic firearms such as M-16s will continue to be banned from “common use,” but also that political hucksters will attempt to revive the Clinton-era prohibitions of semiautomatic “assault weapons” that merely resemble M-16s, and of high-capacity magazines; then to enact new restrictions on highly accurate, long-range “sniper rifles” in .338 Lapua, .50 BMG, and other supposedly “unusual” calibers; and even to impose draconian regulations on possession of many types of ammunition, so that the firearms chambered for such rounds will be rendered effectively useless.
Yet another counterproductive statement in Justice Scalia’s majority opinion is that “the right secured by the Second Amendment is not unlimited.” Scalia states: “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.” Also: “We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.”
But why are these “regulatory measures” “presumptively lawful”? Statutes that arguably infringe on what the court calls “fundamental rights,” such as the rights included in the First Amendment, are presumptively unconstitutional. Are Second Amendment rights not of constitutional stature equal to those in the First Amendment, even though the Constitution recognizes only “the right of the people to keep and bear Arms” as “necessary to the security of a free State”?
So what good is Heller in the grand scheme of things? It protects only a narrow right for an individual to possess a handgun at home for purposes of self-defense. And it leaves open a wide hole for old and new regulations, which will aim at inhibition, constriction, and ultimately effective prohibition of even the right Heller recognizes.
The author's byline lists him as an attorney who has argued before the Supreme Court. While many pro-gun folks might share his frustration that the majority opinion didn't address the constitutionality of issues and laws not before the Court, such as the incorporation issue, the specific level of constitutional scrutiny required, the ban on post-1986 machine guns, carry bans, etc., the author should know that the Court rarely addresses issues that are not before it. Indeed, the Court would be unwise to do so, as those issues weren't considered in the lower courts, and hence any necessary evidentiary record would be missing or incomplete, and the parties and their amici would not have briefed those issues to allow a full and proper consideration of those other issues.
I suspect that some of the language in the majority opinion the author complains of was added by Justice Scalia in order to get the votes of Justice Kennedy. We may never know.
Finally, as Justice Scalia points out in the majority opinion, this is the first case in seventy plus years to directly address the Second Amendment. We should not expect a single opinion to answer every question and resolve every issue about the contours of that Amendment. Frankly, that's reality, and pro-gun folks should accept and embrace it. It took decades for politicians to chip away at our Second Amendment freedoms, and it will take decades for us to win them back.