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June 26, 2008

BREAKING: Supreme Court Holds D.C. Gun Ban Unconstitutional

The justices split 5-4 on ideological lines (with Kennedy joining the conservative justices). Justice Scalia wrote the majority opinion, as predicted. I'm surprised that Scalia managed to convince enough of his fellows to have a majority opinion, rather than dueling pluralities.

The ruling: the Second Amendment protects an individual right to have firearms. The prefatory clause, "A well regulated Militia, being necessary to the security of a free State,"merely announces the amendment's purpose, but does not affect the operative clause, "the right of the people to keep and bear Arms, shall not be infringed."

On my first skim of the lengthy opinions, it seems that the holding is limited to the federal government, for now. We'll have to wait for a later case to incorporate the holding through the Fourteenth Amendment to the states.

Justices Stevens and Breyer wrote dissenting opinions.

I will update with some key quotes in a minute. The opinion can be found here (PDF). Also, be sure to see Jack M.'s comments below.

First Update: While Justice Scalia seems poised throughout his discussion of the historical background of the Second Amendment to declare that it applies to the States as well as the federal government, he draws back from that conclusion in a footnote on page 48 of his opinion:

With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, and Miller v. Texas, reaffirmed that the Second Amendment applies only to the Federal Government.

The question not being presented, Scalia manfully restrained himself in a way that Kennedy could not in Boumediene. (Kennedy declared that Boumediene was a "special case" and went on to address issues not decided by the lower courts.) But it seems to me his note is giving states fair warning: the early understanding that the First Amendment did not apply against the states was overruled; the same is possible with the Second Amendment. And, as I said, his discussion of the Second Amendment's history leans strongly in favor of a like finding.

Second Update, More Legalish: The Court follows several recent cases in failing to make clear just what standard is being applied to invalidate the law. According to the dissenters, it's something greater than rational basis review and Scalia writes that the D.C. gun laws would "fail constitutional muster" under any of the standards of scrutiny. Does that mean that gun bans will be evaluated according to the almost always fatal strict scrutiny standard, or a more relaxed "intermediate" standard? It depends on who you ask.

Scalia seems to be leaving the question open (no doubt because the courts are about to enjoy a barrage of litigation over state and municipal gun restrictions. But Breyer, very clearly, is attempting to convince people that something less than strict scrutiny applies:

Respondent proposes that the Court adopt a “strict scrutiny” test, which would require reviewing with care each gun law to determine whether it is “narrowly tailored to achieve a compelling governmental interest.” Abrams v. Johnson, 521 U. S. 74, 82 (1997); see Brief for Respondent 54–62. But the majority implicitly, and appropriately, rejects that suggestion by broadly approving a set of laws—prohibitions on concealed weapons, forfeiture by criminals of the Second Amendment right, prohibitions on firearms in certain locales, and governmental regulation of commercial firearm sales—whose constitutionality under a strict scrutiny standard would be far from clear.

I think Breyer is a little quick to suggest that each of those restrictions would not pass strict scrutiny. Breyer himself once joined an opinion by Justice O'Connor which derided the phrase "strict in form, fatal in fact" as an exaggeration of strict scrutiny's true effect.

Third Update, My Final For The Day: Justice Stevens' dissent is interesting in that it acknowledges an individual right to firearms, but holds that the government can restrict that right based on the prefatory clause. He emphasizes that stare decisis requires that conclusion.

While stare decisis is not an inexorable command, the careful observer will discern that any detours from the straight path of stare decisis in our past have occurred for articulable reasons, and only when the Court has felt obliged ‘to bring its opinions into agreement with experience and with facts newly ascertained.’

Most appeals to hold to precedent are opportunistic. The interesting thing here is that Scalia has not explicitly overruled any prior cases.

That will be my last update of the day. I see that there are several noteworthy observations in the comments, both to this post and to the others about Heller, so poke around, folks, for the stuff I missed. I'll be back this evening, probably with more on this case and also on the campaign finance reform case that also came down today.


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posted by Gabriel Malor at 10:20 AM

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