Supreme Court Upholds Individual Second Amendment Right

The Supreme Court ruled today in District of Columbia v. Heller that the District of Columbia's ban on possession of a handgun for self-defense within the home violated an individual right to bear arms protected by the Second Amendment to the United States Constitution. The majority in the 5-4 decision of the Court was written by Justice Scalia, with Justices Breyer and Stevens dissenting.

Congratulations to Alan Gura, Bob Levy, and Clark Neily, attorneys for the respondent, on their successful work to extract a clear ruling from a Court that has avoided the Second Amendment almost entirely since the nation's founding.

While the ruling clearly supports an individual right, it does not answer some important questions like:

• Does the Second Amendment apply to state governments?


• What standard of review should courts apply to gun laws challenged under the Second Amendment?


• Are systems of gun licensing constitutionally permitted?

All of these questions will come up in the future, as this ruling opens the door for challenges to other gun laws. Likely first on the list for challenge is Chicago's prohibition on handguns.

My prediction is that any Supreme Court nominee that doesn't agree with Heller will be swiftly and immediately filibustered. This prediction stands no matter who the President is and no matter who controls the Senate. Congressmen are particularly sensitive on the issue of gun control, especially after the bloodbath following the Assault Weapons Ban, and this will just make them even more sensitive.


UPDATE: Looks like my prediction about Chicago's gun ban being next to be challenged was correct. From the press release at ChicagoGunCase.com:

Following Thursday’s (5-4) ruling by the U.S. Supreme Court in the case of District of Columbia v. Heller that the Second Amendment protects an individual civil right to keep and bear arms, and that a municipal gun ban violates that right, the Second Amendment Foundation (SAF) and the Illinois State Rifle Association (ISRA) filed a federal lawsuit (complaint) challenging the City of Chicago’s long-standing handgun ban.

Previous posts on the D.C. Gun Case:
Supreme Court to hear D.C. Gun Case
ABA Journal article on the D.C. Gun Case

 

ABA Journal article on the D.C. Gun Case

The November issue of the ABA Journal has a feature article about the D.C. Gun Case. This is the first article I've seen that carefully examines the role of the NRA in trying to torpedo the case and obtained comment from all of the lawyers.

After they had assembled a group of six plaintiffs, Levy and Neily filed Parker on Feb. 10, 2003. Also on board by then was Alexandria, Va., litigator Alan Gura. He would do most of the heavy lifting, crafting pleadings and arguments as the case slogged on for four years. But Levy and his lawyers hadn’t heard the last of the NRA.

Seven weeks later, on April 4, the NRA filed Seegars through veteran outside counsel Stephen P. Halbrook of Fairfax, Va. Without even calling the Parker lawyers first, he moved to consolidate Seegars and Parker. Levy and his colleagues were not pleased.

“You just don’t do that to another lawyer,” Neily says. “Honestly, that set the tone for things. It was not well-received.”

Instead of the Second Amend­ment claim the Parker plaintiffs had envisioned, the NRA loaded its case with a Fifth Amendment due process claim, another mixed due process and equal protection argument, a civil rights claim under section 1981 of the Civil Rights Act of 1866, and a theory that the district lacked the authority under its municipal code to enact the ban in the first place.

It's well worth the read if you're interested in the political underpinnings of gun rights in America.

The plaintiffs have a blog with links to all of the filings, if you want to keep up with developments.