Jay Reding.com

Tomorrow, the Supreme Court will hear oral arguments in District of Columbia v. Heller (07-290), a case which may see the Supreme Court determining whether or not the Second Amendment confers an individual right to own firearms.

The ScotusWiki has all the briefs and amici on the case. Unsurprisingly for a case of this importance, there are plenty of amicus briefs on both sides.

Ultimately, what this case may come down to is the appropriate standard of review. The Department of Justice concurs in the idea that the Second Amendment does give an individual right. However, the amicus brief for the United States argues that the standard of review should be less categorical than the one suggested by the Court of Appeals:

Although the court of appeals correctly held that the Second Amendment protects an individual right, it did not apply the correct standard for evaluating respondent’s Second Amendment claim. Like other provisions
of the Constitution that secure individual rights, the Second Amendment’s protection of individual rights does not render all laws limiting gun ownership automatically invalid. To the contrary, the Second Amendment, properly construed, allows for reasonable regulation of firearms, must be interpreted in light of context and history, and is subject to important exceptions, such as the rule that convicted felons may be denied firearms because those persons have never been understood to be within the Amendment’s protections. Nothing in the Second Amendment properly understood—and certainly no principle necessary to decide this case—calls for invalidation of the numerous federal laws regulating firearms.

Reading the tea leaves, I think it’s quite possible that the Supreme Court will follow the argument of the United States in this case. A holding that the Second Amendment does confer an individual right to gun ownership, but that a restriction on that ownership must merely pass something like a rational basis test, seems a very likely outcome to me. This Court is a very conservative court—and I mean that in the dictionary rather than the political sense. Chief Justice Roberts does not seem inclined to upset the apple cart and sweep away a wide variety of state and federal statutes by having the Court issue a broad holding. Rather, it seems more likely that the Court will remand this case back to the Court of Appeals for rehearing based on a new set of criteria.

If that happens, it’s not going to be an outright win for anyone. The NRA and gun-owners groups will not be happy with a standard of review that’s likely to see most restrictions on gun ownership upheld. Anti-gun groups like the Brady Center are not going to be happy with the Court saying that the Constitution protects the rights of gun owners. Yet in terms of the law, it’s the best way for the Court to avoid making sweeping changes in policy one way or the other.

The Second Amendment does give individuals the right to own firearms. The history and intent of the Second Amendment is difficult to rationally interpret in any other way. I don’t see the Court being split on that issue. The real issue may be the standard of review, and if the amicus brief from the United States has as much weight with the Court that I suspect it will, my rough guess is that this decision will result in a remand to the Court of Appeals with an instruction to determine whether the District of Columbia’s gun regulations meets the appropriate standard of review. It could well be that the result of this process is a confirmation that the Second Amendment does protect an individual right, but that the D.C. gun laws don’t violate the standard of review. If so, this controversy isn’t going to be settled by this case, but will continue on for some time.

The Supreme Court has decided to grant a writ of certiorari in the case of District of Columbia v. Heller which involves the DC gun ban. For the first time in 60 years, since United States v. Miller, the Supreme Court will visit the issue of whether the Second Amendment protects an individual right to own firearms. As always, The Volokh Conspriracy will be following the case closely, and has some excellent commentary on what all of this means.

As seems to be the case with this Court, it all comes down to Justice Kennedy (now in the spoiler position formerly occupied by Justice O’Connor). Justices Scalia, Thomas, Alito and Chief Justice Roberts are almost certain to advocate for the individual right position. Justices Ginsberg, Breyer, Souter and Stevens are highly likely to come down on the side of the Second Amendment being a collective right for the “militia.”

I think Orin Kerr’s prediction is right: Justice Kennedy will endorse an individual rights view of the Second Amendment but would support a relatively lax standard of review for reviewing restrictions on firearms. What that means is that he’d be likely to support regulations which have only a rational relationship with some state interest rather than requiring strict scrutiny of state gun laws.

A holding that the Second Amendment does confer an individual right to fireamrs, but that any law that has only a rational basis to some state interest would be a Pyrrhic victory for gunowner’s rights groups. It wouldn’t do much to change the status quo, and it would still allow for significant restrictions on gun owners. Instead of settling the issue, it would probably cause more lawsuits as gunowners and groups like the NRA litigate exactly what regulations do and do not infringe upon the Second Amendment.