The Law

A Victory For Individual Rights

Today’s Supreme Court opinion in District of Columbia v. Heller is a landmark decision in that it restores the original individual rights interpretation to the Second Amendment. What is frustrating about Heller is what it doesn’t say. Justice Scalia hinted at a standard of review that’s quite probing—but could also be something less than the usual strict scrutiny given to other constitutional rights. Heller leaves the door open for more cases in the future.

For all the commentators calling Heller “judicial activism,” it’s anything but. It restores the original intent of the Framers in drafting the Second Amendment. In fact, even Justice Stevens admits in his dissent that: “The question presented by this case is not whether the Second Amendment protects a ‘collective right’ or an ‘individual right.’ Surely it protects a right that can be enforced by individuals.” What is most intriguing from a lawyering standpoint is that Justice Stevens’ dissent is written on Scalia’s grounds. Only Justice Breyer uses the typical policy-laden arguments of Court liberals. Justice Stevens’ dissent, like Scalia’s majority opinion, is based almost solely on the question of original intent.

Does this suggest that originalism will be the dominant mode of constitutional interpretation used by the Court? It seems doubtful, but the fact that Stevens waged his war on Scalia’s battlefield is interesting.

Stevens’ dissent was quite well done, but ultimately Scalia’s dissent seemed to have a firmer grasp on history. The language of the Second Amendment is less than clear, but the idea that the phrase “keep and bear arms” is confined solely to having weapons to be used for the militia seems historically and linguistically obtuse. Justice Scalia puts it wryly:

In any event, the meaning of “bear arms” that petitioners and JUSTICE STEVENS propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving “bear Arms” its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war—an absurdity that no commentator has ever endorsed. See L. Levy, Origins of the Bill of Rights 135 (1999). Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.

Scalia knows how to twist the knife a bit.

The majority opinion hints that the Second Amendment applies to the states as well. What’s odd about Heller is that the Court never discusses the issue of how D.C. should be treated. That issue was a major issue in the D.C. Circuit, but does not get raised by the Court. It is possible that the Court will settle the issue of incorporation in a later case.

And make no mistakes, there will be later cases. The Court has only provided one step, and the various sides will end up hashing out the rest.

Still, this is a good day for our Republic. Once banished, constitutional rights rarely return. To see the Court affirm that the Second Amendment recognizes an individual right to keep and bear arms is to see the Court reaffirm the values of our Founders. They incorporated the common-law right of self defense into the founding of this Nation, and for good reason. The Court has not made law, nor have they violated principles of stare decisis. They have done what the Court should do—”say what the law is.” Marbury v. Madison, 5 US 137, 177 (1803). The law is that individual American citizens have the right to keep and bear arms. That conclusion is not a conclusion of five Justices, but an affirmation of what the Bill of Rights says. Those who take issue with that conclusion should not take umbrage at the Court, but at the Founders who made that decision in 1783.

The Law

The Second Amendment’s Last Stand

This morning, the Supreme Court will hand down its decision in District of Columbia v. Heller, a case which will likely decide as a matter of law whether the Second Amendment creates an individual right to keep and bear arms.

To follow the Court’s session, SCOTUSblog‘s live coverage will provide instant results and links to the opinions.

My prediction: a clear majority of the Justices will decide for the individual rights interpretation. A closer majority will decide the issue of what standard of review should be used—and there may not even be a majority on that. Either the standard of review will be narrowly decided to be strict scrutiny, or we’ll see a plurality opinion that allows for some reasonable regulation of firearms along the lines of the Solicitor General’s amicus brief.

Gun owners will be happy that the Court has recognized the Second Amendment for what it is—but if the standard of review is too lenient, then it may be less of a victory than some had hoped. My guess is that the Roberts Court is not about sweeping changes, and will temper the individual rights aspect of the decision with than a less than searching standard of review.

UPDATE: Affirmed 5-4. Individual right upheld. More this evening.

The Law

Supreme Court Grants Cert In Second Amendment Case

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.