A victory for civil rights

I’ve just read the Supreme Court’s opinion in the Heller handgun-ban case, issued this morning. It’s a somewhat better result than I was expecting.

The good news: The ruling declares the District of Columbia’s ban on the possession of handguns facially unconstitutional. It also voids the trigger-lock requirement.

The better news: The majority opinion comes down firmly on the side of an individual-rights interpretation of the Second Amendment, thoroughly demolishing the “militia” and “collective-rights” theories with a detailed historical analysis that confirms the Standard Model. The language is very strong on this point.

The bad news: The Justices declined to specify the standard of judicial review appropriate for firearms legislation, and declined to rule on whether incorporation of the Second Amendment via the 14th Amendment constrains state firearms laws.

The worse news: it was a 5-4 split along predictable liberal-conservative lines. Scalia wrote the majority opinion.

Future implications…

The majority opinion suggests strongly that the Court will rule for incorporation when a case reaches it from the state courts (D.C, being a district directly under Federal jurisdiction, is an odd special case). The opinion also signaled a willingness to hear cases bearing on state regulation — and I’m told the NRA launched lawsuits today in San Francisco, Chicago, and New York. (Turns out I misheard on the last one.)

I think it is now virtually certain that possession bans such as New York City’s will not stand longer than it takes a case to make its way through the appeals process. That is, unless the composition of the Court changes between now and then.

Accordingly, this ruling may have an impact on the 2008 elections. Most observers were expecting a pro-individual-rights finding, and the conventional wisdom had been that this would help Democrats by taking the whole issue of gun bans out of play. But I think the 5-4 split is going to reverse that and help Republicans — it has already been pointed out in public that McCain would be smart to campaign for votes among the 67% of Americans who agree with the individual-rights interpretation by pointing out that one more anti-gun Supreme court justice could swing the Court the other way.

UPDATE: Nice potshot by McCain: “Unlike the elitist view that believes Americans cling to guns out of bitterness, today’s ruling recognizes that gun ownership is a fundamental right — sacred, just as the right to free speech and assembly,” Uh huh. Obama supporters may be hoping this issue is going to go away, but it’s not going to if McCain is smart enough to keep hammering on the links between Obama’s anti-gun record, his stated contempt for small-town America, and his ties to radical-left terrorists like Bill Ayers.

UPDATE**2: Blogger Sayuncle writes: “In other news, 5-4 was bit too close for comfort in my opinion. I was figuring on 6-3 or 7-2, honestly. Sure, this quiz was pass/fail but we were only one heart attack away, my friends. I hate to say it but that one reason is why I’ll hold my nose, get good and hammered, and pull the lever for John McCain. And I’d have to shower after that too.” I think a lot of pro-gun swing voters who loathe McCain for various reasons (mine is the McCain-Feingold rape of the First Amendment) are going to reason the same way.

In retrospect, I shouldn’t have expected the Court to rule on the incorporation issue until the facts of a pending case required it. My main remaining disappointment is therefore that I was hoping for the Court to set a strict-scrutiny standard as with the First Amendment. This will doubtless be decided in a future case, since the Court has clearly indicated a willingness to grant certiorari on related issues.

The struggle to reassert firearms owners’ civil rights is far from over, but this is a major victory.


  1. For that matter Obama was on the board of the Joyce Foundation for years. The Joyce Foundation is the bankroll for most of the gun control movement. Meaning that this is an issue he can’t distance himself from easily.

  2. With respect to your opinion that the 5-4 decision was a bad thing, I must respectfully dissent. The author of the decision has a lot of influence on how closely the court will split, depending on how his negotiations go with the others writing concurring opinions.

    Scalia could probably have found common grounds with one or more additional Justices, widening the margin but watering down the opinion. Instead of “leaving money on the table”, he decided to make the opinion as clear and forceful as possible while preserving the majority. This tactic also allowed him the opportunity to directly address the opposition arguments in his wonderfully combative style.

    Another contingency to consider is a 4+2-3 split, with Justice Kennedy writing the opinion for himself and another Justice. Only the holdings in common between Scalia’s opinion (writing for 4) and Kennedy’s opinion (writing for 2) would have been binding on lower courts. The result would again be a watered down opinion.

    Scalia is to be praised for writing such a solid opinion while keeping Justice Kennedy on board. Good job — well done.

  3. The relevant question here is — will the damage done by a close-shave SCOTUS ruling equal or exceed the tarnishment done to the “Republican brand” done by seven years of Shrub?

    In light of this I stand by my earlier prediction that barring 2000 or 2004-style shenanigans, Obama will take the Presidency by a landslide.

  4. I think a landslide looks increasingly unlikely, given that Obama’s support has dropped from 59% to 54% among Democrats since he was nominated.

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