Even the Chief and Justice Scalia are content to damn gun possession with faint praise

I have now read the Supreme Court's work in the Hayes gun possession case, and it confirms my sense that none of the Justices (even those who championed individual Second Amendment rights in Heller)have any interest in giving real force or even serious attention to the constitutional right to gun possession in the home.  Consider first this passage from the majority opinion in Hayes, authored by Justice Ginsburg and joined by Justices Alito and Kennedy:

Practical considerations strongly support our [broad interpretation of this federal criminal statute prohibiting gun possession by certain persons].  Existing felon-in-possession laws, Congress recognized, were not keeping firearms out of the hands of domestic abusers, because “many people who engage in serious spousal or child abuse ultimately are not charged with or convicted of felonies.” 142 Cong.Rec. 22985 (1996) (statement of Sen. Lautenberg).  By extending the federal firearm prohibition to persons convicted of “misdemeanor crime[s] of domestic violence,” proponents of §922(g)(9) sought to “close this dangerous loophole.” Id., at 22986.

Construing §922(g)(9) to exclude the domestic abuser convicted under a generic use-of-force statute (one that does not designate a domestic relationship as an element of the offense) would frustrate Congress’ manifest purpose.  Firearms and domestic strife are a potentially deadly combination nationwide.  See, e.g., Brief for Brady Center to Prevent Gun Violence et al. as Amici Curiae 8–15....

I highlight here key sentences because they reveal the willingness of a majority of the Supreme Court, including two of the Justices in the majority in Heller, to embrace and endorse assertions by proponents of broad gun bans and by the Brady Center as to just when certain types of firearm possession are sufficiently "dangerous" and "potentially deadly" to obviate any apparent constitutional concerns with using federal criminal prohibitions to restrict broadly any gun possession in the home by certain persons.

Perhaps even more telling, however, are the punches pulled by even Chief Justice Roberts in his closing statements in his Hayes dissent (which was joined by the surprisingly silent Justice Scalia, author of Heller majority opinion):

It cannot fairly be said here that the [statutory] text [prohibiting prohibiting gun possession by certain persons] “clearly warrants” the counter-intuitive conclusion that a “crime of domestic violence” need not have domestic violence as an element.  That leaves the majority’s arguments about legislative history and statutory purpose.  This is not the “rare” case in which such grounds provide “fair warning,” especially given that there is nothing wrong with the conduct punished — possessing a firearm — if the prior misdemeanor is not covered by the statute.

If the rule of lenity means anything, it is that an individual should not go to jail for failing to conduct a 50-state survey or comb through obscure legislative history.  Ten years in jail is too much to hinge on the will-o’-the-wisp of statutory meaning pursued by the majority.

I highlight here a key phrase that sure seems to damn "possessing a firearm" with faint praise.  Note that the Chief says merely that "there is nothing wrong with the conduct" of possessing a firearm.  In the wake of Heller, it is telling that he does not say instead that "there is a provision of the Constitution that protects an individual right to engage in the conduct" of possessing a firearm in the home for self-protection.  Moreover, in light of Heller, wouldn't reference to the Second Amendment have been appropriate at the close of this dissent?  Why didn't the Chief (or Justice Scalia) add something like this:

If the Second Amendment and Heller means anything, it is that an individual should not forever lose his right to possess a gun just because he may have long ago pled guilty to a misdemeanor that the state now says makes him too dangerous to retain his constitutional right to personal self-defense in the home.  Ten years in jail is too much to threaten on the will-o’-the-wisp of potential misdemeanor prosecutions secured by states that might be eager to pursue back-door limits on who can exercise Second Amendment rights.

Especially in light of the disrespect Heller has been given in so many other criminal justice settings, I am not at all surprised with the outcome in Hayes.  I am troubled, however, that all the Justices seem content to hope that nobody will notice their gutting of Heller is the case is simply not mentioned.  And I will be further troubled if the gun rights community fails to take even their favorite Justices to task for trying to sweep these issues under the statutory interpretation rug.

Some related Second Amendment posts:

• SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
• What if no lower court judges participate in a "Second Amendment Revolution"
• Has there been a single pro-gun-rights rulings in lower courts since Heller?
• Still more proof that federal courts have no real interest in gun rights
• "The New Second Amendment: A Bark Worse Than Its Right"
• Is anyone (other than me) discussing the apparent insignificance of Heller?
• SCOTUS takes new gun case ... is this a Heller tea leaf?
• Media coverage of Hayes oral argument is not gun shy
• What might 2009 have in store for . . . Second Amendment jurisprudence?

UPDATE:  I see Tony Mauro in this coverage of the Hayes ruling has this money quote from the folks at the Brady Center:

The Brady Center to Prevent Gun Violence applauded the decision. "In its first gun case since the landmark Hellerdecision, the Court wisely upheld this reasonable restriction, said center president Paul Helmke. "Today's ruling is the right one for victims of domestic abuse and to protect law enforcement officers who are our first responders to domestic violence incidents."

Similarly, this coverage of Hayes from The Hill has various anti-gun advocates commenting that this ruling shows Heller does not mean a hell of a lot:

Gun control advocates hailed the ruling as a good sign following the Court's decision in District of Columbia v. Heller, a 2008 decision that defined the Second Amendment as covering an individual's right to possess weapons.... "That's a good sign that Heller is the limited ruling we thought it was," said Daniel Vice, a senior attorney at the Brady Center to Prevent Gun Violence.

“Today, the Supreme Court sided with abused women and children and against the gun lobby,” said Sen. Frank Lautenberg (D-N.J.), a gun control advocate and the author of the original amendment. “Today's decision means we can continue keeping guns out of dangerous hands and saving innocent lives.”

Gun control advocates spun the decision as a blow to gun rights groups. The National Rifle Association and major gun rights backers in Congress did not immediately comment for this story.