June 27th, 2008

D.C. v. Heller Ruling — The Aftermath

By now, most of you know that the U.S. Supreme Court ruled in favor of Dick Heller, finding that the District of Columbia law barring handguns in the home violated the Second Amendment. That’s great news, but the fall-out from this decision is unclear. The High Court left open the question of how/when this ruling might apply to State gun laws and regulations (via “incorporation” under the 14th Amendment). Likewise, Justice Scalia’s majority opinion acknowledged that individual Second Amendment rights were not without limitation. Many wonder how this case will change American jurisprudence, and more importantly, how this case will impact future challenges to restrictive gun laws.

We’ve read many comments on the Heller decision. Ironically, one of the most cogent analyses of the decision was recently posted on the Democratic Underground Forum. We reprint this here, because it explains what the decision does and does not do, and illustrates how it created a “sea change” in the way courts must consider the Second Amendment from now on:

“The initial impact [of Heller] is tiny — two DC laws will have to be modified. The ruling as it stands has no impact on any other city or state. But it was a TREMENDOUS ruling nonetheless. The Supreme Court has NEVER said anything substantial about what the Second Amendment means. They have finally spoken and settled many arguments.

* It protects an INDIVIDUAL right unconnected to service in a militia.
* It is a right to personal self-defense, that also happens to enable the militia. It is not a ‘hunting and sportsman’s’ right.
* It is a right that pre-existed the Constitution, not one created by the Constitution.
* That right is entitled to at least some degree of protection (to be determined at a later date).

Even if the initial impact is tiny, this ruling is groundbreaking. This is the ‘Roe v. Wade’ of gun rights. The details will have to be fleshed out by future courts and future rulings, but the overall right is established.

Prior to today, there were many who argued that there was no individual right and that guns could be outright banned. After today, the right has been established, and now the long process of defining the limitations on that right begin.

None of our rights are considered absolute by the courts; they all withstand some level of restriction. Now the right to bear arms has been elevated to that position.” — by “SlipperySlope”

Justice Antonin ScaliaWhat Level of Scrutiny Will Apply?
One key legal question remaining is how, in the future, should courts analyze laws that constrain Second Amendment rights. Must the courts apply a “Strict Scrutiny” standard, as with First Amendment cases, or will there be some kind of intermediate standard? The Majority Opinion did NOT enunciate, outright, that “strict scrutiny” shall apply.

In his dissenting opinion, Justice Stevens called for an “interest balancing inquiry” that asks “whether the statute burdens a protected interest in any way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.”

Scalia rightly savaged Stevens’ concept, noting that a vague “balancing inquiry” is never applied to other Constitutional rights. Scalia wrote: “We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach. The very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon. A Constitutional guarantee subject to future judges’ assessments of its usefulness is no Constitutional guarantee at all.

For more insight into the D.C. v. Heller case, read this Wall Street Journal article by Georgetown Law Professor Randy Barnett: News Flash: The Constitution Means What It Says.

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