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

 

Supreme Court to hear D.C. Gun Case

The announcement from the Plaintiff/Respondent:

Today, the U.S. Supreme Court announced that it will hear the case of Heller v. District of Columbia, and decide whether the Second Amendment to the U.S. Constitution protects the right to own guns. At issue is a 31-year-old Washington, D.C. law banning handguns and requiring that all shotguns and rifles be kept unloaded and either trigger-locked or disassembled at all times. There is no exception for self-defense.

Alan Gura, lead counsel for the Heller plaintiffs said, “The Bill of Rights does not end at the District of Columbia’s borders, and it includes the right to keep and bear arms. After three decades of failure trying to control firearms in the District, it’s time for law-abiding city residents to be able to defend themselves in their homes. We are confident the Supreme Court will vindicate that right in Washington, D.C., and across the nation.”

Coverage at SCOTUSblog here.

Gun Control on the Way to the Supreme Court

The D.C. Circuit has denied a petition for en banc rehearing of Parker v. D.C., so the way is clear for the Supreme Court to hear the case.

Analysis of the denial and the likely timeline for Supreme Court review.

Interesting article about how liberal law professors have been instrumental in shifting the gun control debate in this country.

Michigan Proposition 2

In the wake of Gratz v. Bollinger, 539 U.S. 244 (2003) (invalidating a hard 20-pt advantage for racial minorities in admissions) and Grutter v. Bollinger, 539 U.S. 306 (2003)
288 F.3d 732, affirmed (upholding flexible racial preferences in admissions), Proposition 2 passed in Michigan. The language of the proposition, which won despite opposition from the Democratic governor and her Republican opponent.

The language of the proposition is as follows:

"The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting."

Is the passage of this initiative a good thing or a bad thing, and why? Cathy Young's Boston Globe column argues that it's progress in ending racism, while Cheryle Jackson argues in the Chicago Sun Times that affirmative action is still vital.

My biggest problem with affirmative action is that you don't get what you want by settling for something you don't want. Law students that want to do public interest work don't get there by joining big firms. I can't see the path to ending racial discrimination that stops at institutionalizing racial preferences on the way.

If affirmative action is necessary to dismantle years of institutionalized racism, when will it no longer be necessary? Furthermore, are any of the affirmative action laws and policies written with these success criteria?

Institutions have their own momentum and are much harder to stop than they are to start. We should be careful about trying to destroy one institution (racism) by starting another one (affirmative action).

Scalia v. Breyer

Having to work, I caught most of the discussion between Justices Scalia and Breyer held at my law school via C-SPAN (first on the web and then in the car), but I got to school in time to see the last bit from one of the multiple viewing rooms on campus.

As I was telling John, "I heart Scalia". I was quite pleased when he referenced the Framers' dim view of, "Continental powers who didn't trust their subjects with arms," as an example of why looking to foreign law was not necessarily a positive thing, even in 1789. He has a clarity of thought and delivery that was refreshing and insightful. Justice Breyer is also wicked smart, but in more of a gentle thinking out loud kind of way.

The event was highly entertaining, but it seemed as though the Justices were really talking past each other. Scalia was saying that foreign law citations should have no force in American Constitutional jurisprudence, whether one is an originalist or not. Breyer was saying that reading foreign opinions was helpful to understanding the law. They're both right, but in the end I agree with Scalia's conclusion of this exchange (from the Washington Post story):

"What does the opinion of a wise Zimbabwean judge . . . have to do with what Americans believe," Scalia asked Breyer, "unless you think it has been given to the courts" to make moral judgments that properly should be left to elected representatives. "Well, it's relevant in this way," Breyer replied. "They are human beings there, just as they are here. You're trying to get a picture of how other people have dealt with it."

"Indulge your curiosity," Scalia joked, "just don't put it in your opinions."

On the other hand, Breyer had the most stirring quote, a paraphrase of James Madison, saying the the American Constitution is, "a document of power granted by liberty, not liberty granted by power." The original Madison is longer and less eloquent, but the sentiment is the same.

I recommend watching the whole thing, which can be found at C-SPAN's website for the next 15 days or so.

There was a reception afterwards, but I had Constitutional Law class to go to (oh, the irony). I ran upstairs to get a soda before class. The soda machines are in an alcove behind the dining room (which had been screened off for the reception). As I was about to turn down the hallway to walk back to class, a Secret Service agent asked me to stand out of the hallway for a minute. I backed off and about 30 seconds later Dean Claudio Grossman, Justice Scalia, and Justice Breyer walked right in front of me, no more than five feet away. I got closer to the Justices by grabbing a soda than I likely would have in the press of the reception. More irony.

Yours truly,
Mr. X

...back to studying...


UPDATE: Professor Kenneth Anderson has posted an excellent analysis of the implications of Breyer's position at his blog.

UPDATE: A full transcript has been posted on the WCL homepage.