On the following blustery, rainy Wednesday morning the Chief Clerk of the Supreme Court released a bound pamphlet containing the Court’s Bench Opinion in the matter of Hoffkemper vs. The State of California.
The attorneys were accommodated first and then hundreds of copies were made available to the horde of reporters. While those endowed with speed reading skills madly flipped pages, more seasoned journalists focused on the name of the Justice who authored the opinion. Upon one reporter’s announcement that the decision had been written by Mr. Justice Wheeler jubilation spread among the citizens opposing Lyla’s Law and dread reigned in those supporting it as Justice Wheeler was generally considered to be leaning toward finding the statute unconstitutional.
Those interested in only the headline now jumped to the end to see if the opinion of the Court of Appeals had been affirmed or reversed while the rest scanned the decision for the details of the reasoning behind the ruling.
The opinion commenced with a recitation of the facts and the case’s judicial history ending with the finding of the Ninth Circuit Court of Appeals that the law’s provisions were unconstitutional as being in violation of the provisions of the Second Amendment. For the next several pages Wheeler summarized the arguments of the parties, pro and con and then, finally, got to the heart of the matter.
“The Constitution is a living document that must be read in a reasoned, reasonable and intelligent context against the background of the society that exists at the time each case is decided. When the Fourth Amendment was adopted there were no tape recorders, movie cameras, telephones, emails, automobiles or a thousand other such devices yet on many occasions this Court has been called upon to determine if, without a search warrant, the government’s recording of a telephone call, reading of an email, emplacement of a camera in a private residence, or the search of an automobile is or is not a violation of the Fourth Amendment. To do so we have had to understand the intentions of the Founders in enacting that provision and apply those intentions facts of the case.
“When the Second Amendment was adopted ‘arms’ were single-shot, black powder, muzzle-loading rifles and America was a rural, agricultural society. There were no machine guns, multi-round clips, armor-piercing bullets, or the like. Nor was the country anything like the highly urbanized nation we have today.
“In the case at bar we must determine if it would have been the intention of the drafters that any citizen at any time should have the unrestricted right to freely possess and carry these modern weapons amongst crowds of thousands of people no matter how fearsome or dangerous those firearms might be. In short we must interpret a more than two-hundred year old rule in the context of modern technology and an urbanized society, both unimagined and unimaginable at the time the Second Amendment was adopted.
“The Respondents have argued that the language of the Second Amendment is absolute. Under their interpretation we would be living in a society reminiscent of the Wild West where armed men roamed the streets at will, immune to any governmental restrictions on their ability to carry loaded firearms. If that were the case then today we would be in an even more extreme position than the residents of Tombstone or Dodge City were a hundred and fifty years ago.
“In the days of Wyatt Earp and Billy The Kid at worst the weapons were single-action six-shooters with black-powder bullets while the modern-day gunslingers that the Respondents contend should be free to walk the public streets will be carrying semi-automatic pistols holding fifteen rounds or more or armor-piercing military-assault rifles with fifty shots in the clip. The notion that the Founding Fathers ever intended or would have ever countenanced such a proposition verges on the surreal.
“As the Petitioner has pointed out, even though the First Amendment absolutely prohibits the government from making any law limiting the freedom of the press it is clearly constitutional for the government to prohibit the publication of falsehoods, private information without the consent of the owner, child pornography and numerous other classes of printed materials, the apparently absolute language of the First Amendment notwithstanding.
“The Second Amendment is no less sacrosanct than the First. As such the right to bear arms is subject to the same level of reasonable interpretation and limitation in support of a compelling state interest as are the rights to the freedom of speech, freedom of the press and freedom of religion. If the government can constitutionally prohibit shouting ‘Fire!’ in a crowded theater in spite of the right of freedom of speech, prohibit having multiple wives in spite of the right of freedom of religion, prohibit the publishing of pictures of naked children in spite of the right of freedom of the press then the government can similarly constitutionally prohibit citizens who are not members of law enforcement, the military, or a recognized militia from owning high-capacity weapons so long as the prohibitions imposed are reasonable and are adopted in support of a compelling state interest.
“Given the frequency and lethality of the shootings of innocent citizens, not to mention members of law enforcement, with such high-capacity, rapid-fire weapons and the obvious danger they pose to the general public, we find that such a compelling state interest exists in this case. The so-called Lyla’s Law does not violate the provisions of the Second Amendment.
“The decision of the Court of Appeals is reversed.”
The vote was six to three with Mr. Justice Hopper siding with the majority. He did not write a separate opinion and said nothing at all beyond “I concur.”
The Respondents promised to place a measure repealing Lyla’s Law on California’s November ballot. Pollsters gave it a fifty-fifty chance of being successful.
When he heard the decision Kane wondered if saving Justice Hopper’s life had made any difference at all. Even if Hopper had died it still would have been a vote of five to three in favor of the law. Or would it?
Kane had to wonder what had made Mr. Justice Wheeler apparently switch sides. Had the attacks on the life of one of their own affected the Court’s thinking? If Carl Feeney hadn’t dispatched an assassin to murder Hopper would the result have been six to three to uphold the law or perhaps five to four to strike it down?
Kane figured that no one would ever know.