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Divided Court Finds Individual Right to Own Guns The U.S. Supreme Court, in a 5-4 ruling, has struck down the District of Columbia's handgun ban. The ruling says Americans have the individual right to own guns for self-defense and hunting, the Associated Press reported. It is the high court's first definitive Second Amendment ruling in U.S. history. The Supreme Court held that "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home." But the court also found limitations: "Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."....
Heller Discussion Board: Incorporation and the Need for Further Litigation It is not hyperbole to describe today’s decision in Heller as the most significant opinion of this century, and likely, of the last two generations. Two particular thoughts immediately come to mind. First, the extent to which today’s decision effectively opens the door for future litigation regarding the Second Amendment to further clarify the extent of the now confirmed, but long understood, individual right to keep and bear arms. Second, this is an election year. This decision, closely divided as it is, will likely provide a rallying cry for the millions of the Americans who recognize that their Second Amendment rights came down to a single vote. In reading Justice Scalia’s opinion, there is an overwhelming theme that to interpret the Second Amendment as not protecting an individual right would gut the amendment of meaning and defy logic. It is, after all, the Second Amendment, not the two hundredth. This is not an obscure line buried among thousands of pages of text. It is inconceivable that the framers would have given it the priority they did, placing it ahead of so many other critical rights, if they only meant it to apply to militias as the dissenting justices suggest. But as emphatic as Justice Scalia’s opinion is, however, it leaves open the question of whether the Second Amendment is selectively incorporated so as to apply to the States through the Fourteenth Amendment. This is a particularly important question for my clients - 47 state rifle associations - on whose behalf I filed an amicus brief. But while the opinion itself is clear in confirming an individual right, it conspicuously leaves the question of selective incorporation dangling. To be sure, this is attributable to the fact that the question was not before the Court...It doesn’t take a mathematician to recognize the narrow margin in this case. Replace any one of the five justices in the majority with a more liberal appointment - many of whom will be waiting in line if Barack Obama wins the presidency - and the outcome would have flipped. Americans would have lost the individual right to keep and bear arms....

Update

The Federalist Society Online Debate Series The Supreme Court’s decision striking down the D.C. handgun ban is an important victory for the rights of American citizens who want to own guns for self defense. It is also an important declaration by the Court of its respect for the original meaning of the Constitution. Justice Scalia’s opinion conclusively refutes the mistaken theory that the Second Amendment protects only a right to have weapons for the purpose of serving in a military organization regulated by the government. The Court, moreover, has firmly rejected the theory that courts should uphold almost any regulation that they think might promote public safety. Many questions about the scope of the Second Amendment remain open, but the core right of Americans to keep arms for personal self defense has now been fixed in our constitutional law. One particularly interesting feature of Justice Scalia’s opinion is its insistence that questions about the scope of Second Amendment rights will be decided on the basis of an historical inquiry. This appears to mean that arguments about the costs and benefits of modern gun control regulations should be almost entirely irrelevant to the constitutional analysis. It is not entirely clear how this historical analysis will be conducted, but Scalia’s opinion suggests that modern gun control statutes will not be upheld unless they have some reasonably close analogue in regulations that were widely accepted in eighteenth century common law or statutory law, or perhaps in regulations that have been widely adopted and accepted in modern times. Among the most urgent questions left open by the Heller decision is whether the Fourteenth Amendment makes the Second Amendment applicable to state and local governments. Justice Scalia’s opinion contains some language suggesting that the Second Amendment will be “incorporated” under the Fourteenth Amendment, but the question was left open. Scalia’s opinion also includes dicta indicating that some important forms of gun control will be upheld. Examples include bans on carrying concealed weapons; disarmament of convicted felons; gun free zones in “sensitive places” like schools and government buildings; restrictions on the commercial sale of firearms; and bans on “dangerous and unusual” weapons, apparently including short-barreled shotguns and machine guns. Some of the examples are problematic. Is it truly consistent with the original meaning of the Second Amendment to leave an American citizen defenseless for the rest of her life because she was convicted of a non-violent felony like tax evasion or insider trading? On what basis will courts decide whether particular places are sufficiently “sensitive” to justify disarming citizens who go there? Did New Orleans become a “sensitive” place after Hurricane Katrina, thus allowing the government to confiscate weapons from law abiding citizens whom the government did not and could not protect from roving bands of looters and criminals? Did short-barreled shotguns, which are very useful for self-defense and in many cases superior to handguns, become “dangerous and unusual” just because Congress decided to restrict them in 1934? These and many other questions remain to be addressed.

Update 2

So, what’s next on guns? First among the open questions, and perhaps one of the most important of them, is whether this ruling applies beyond the federal government and the District of Columbia government (assuming that it is settled that those two entities at least are now covered). It is absolutely clear that the Bill of Rights’ specific guarantees of individual rights do not apply to any level below the federal government – that is, to state, county and city governments — unless the Court has ruled explicitly that they are to apply at those levels by a process that is called “incorporation.” The Court has read into the Fourteenth Amendment — an amendment written to restrict state and local government powers — many of the rights in the first ten amendments. That process began in the late 19th Century, and continued up through the first three quarters of the 20th Century. But the process has not meant a total absorption of the Bill of Rights in the Fourteenth Amendment. The Fifth Amendment right to be charged by a grand jury has not been applied to the states; neither has the Seventh Amendment right to a jury trial in a civil case. And neither has the Second Amendment. But conservative jurists, like those who made the majority in the Heller case, usually are not fond of lifting parts of the Bill of Rights out for inclusion under the Fourteenth Amendment. Given the glowing rhetoric applied to the virtues of an individual right to have a gun, perhaps that reluctance might be overcome. If, as expected, the NRA or some other litigant goes after a state or local gun law, relying on the Second Amendment, the Court may well have to answer explicitly whether it applies at all to such laws. Some already are reading the Heller decision to signal a willingness say “yes” to that question; the evidence of that is of an uncertain nature, though. Second among the issue not resolved Thursday is the standard of review that the Court will apply to judge the constitutionality of any other law that differs, even in a small detail, from the District of Columbia handgun ban that was nullified. Justice Scalia’s opinion definitely rules out mere “rational basis” as the standard that a gun control law would have to satisfy. As most lawyers know, rational basis is enough to uphold a good many laws. The opinion also rules out a test for balancing the interest in having a gun against a government interest in regulating guns. But further than rejecting those two standards, the Scalia opinion does not go. The right, as he describes it, sounds as if it were fundamental in nature, deserving the highest constitutional protection. It does not say that explicitly, however. Third, there is uncertainy about just why some forms of gun regulation already appear to have passed whatever test the Court did apply, perhaps only temporarily, in Heller. Why does the Amendment not protect, for example, carrying a concealed weapon, as the opinion seems to say?....

Update 3

News Flash: The Constitution Means What It Says Justice Antonin Scalia's majority opinion in yesterday's Supreme Court decision in District of Columbia v. Heller is historic in its implications and exemplary in its reasoning. A federal ban on an entire class of guns in ordinary use for self-defense – such as the handgun ban adopted by the District of Columbia – is now off the table. Every gun controller's fondest desire has become a constitutional pipe dream. Two important practical issues remain. First, will this ruling also apply to states and municipalities? That will depend on whether the Supreme Court decides to "incorporate" the right to keep and bear arms into the 14th Amendment. But in the middle of his opinion Justice Scalia acknowledges that the 39th Congress that enacted the 14th Amendment did so, in part, to protect the individual right to arms of freedmen and Southern Republicans so they might defend themselves from violence. My prediction: This ruling will eventually be extended to the states. Second, how will the court deal with firearms regulations that fall short of a ban? The majority opinion strongly suggests that such regulations must now be subjected to meaningful judicial scrutiny. The exact nature of this scrutiny is not clear, but Justice Scalia explicitly rejects the extremely deferential "rationality" review advocated by Justice Stephen Breyer...Justice Scalia's opinion is exemplary for the way it was reasoned. It will be studied by law professors and students for years to come. It is the clearest, most careful interpretation of the meaning of the Constitution ever to be adopted by a majority of the Supreme Court. Justice Scalia begins with the text, and carefully parses the grammatical relationship of the "operative clause" identifying "the right to keep and bear arms" to the "prefatory clause" about the importance of a "well-regulated militia." Only then does he consider the extensive evidence of original meaning that has been uncovered by scholars over the past 20 years – evidence that was presented to the Court in numerous "friends of the court" briefs. Justice Scalia's opinion is the finest example of what is now called "original public meaning" jurisprudence ever adopted by the Supreme Court. This approach stands in sharp contrast to Justice John Paul Stevens's dissenting opinion that largely focused on "original intent" – the method that many historians employ to explain away the text of the Second Amendment by placing its words in what they call a "larger context." Although original-intent jurisprudence was discredited years ago among constitutional law professors, that has not stopped nonoriginalists from using "original intent" – or the original principles "underlying" the text – to negate its original public meaning....