Monday, March 17, 2008

Heller Cheat Sheet, Pt. 2: The Issues

The Heller case offers an obscene array of issues for Con Law wonks. Some are obvious to the casual observer; some that are a little more obscure.

Here's a basic summary and a couple of predictions.

1. Is there an individual right? This of course is the core argument. The Second is singular Constitutional amendments in providing its own preamble. The first clause of the amendment gives essentially the reason for it's existence (because a militia is necessary "to secure the security of a free state"), then concludes with what sounds like a prohibition on prohibition. As Lithwick notes, the Court's last statement about the Amendment essentially said that part two isn't really necessary for part one.

2. What extent of regulation is permissible? While the amendment says "shall not be infringed" all but the most nutty libertarians will concede that such absolute sounding prohibitions aren't really absolute. The First Amendment's statement that "Congress shall make no law . . . abridging freedom of speech" nonetheless allows Congress to make lots of laws abridging freedom of speech given the right circumstances. As an extreme example, conspirators on trial for their statements furthering a conspiracy can't seek refuge behind the First Amendment.

So the question is open which government interests the will court deem acceptable exceptions to whatever individual right they find. This is related to the issue discussed in Charles Fried's piece on SCOTUS Blog: what is the standard of review. As Fried notes, the most fundamental rights are subject to "strict scrutiny" which the Court states means the government needs a "compelling purpose" and must use the "least restrictive means" to achieve that purpose. For other rights, the court might apply the "rational basis test" (basically a straight face test -- can you say with a straight face that the government has a rational basis for its action) or something in between.

3. What gets weighed against the government purpose? Part of the Court's methodology is weighing the governmental purpose against the individual interest. Sometimes, in particular in the Court's cases about free exercise of religion, the Court never states why the right exists, making it very difficult to weigh individual versus government interests. Hopefully the Court will offer some finding regarding why the right exists. If they follow the wording of the amendment, they would presumably weigh some reduction in security against the government interest. If the Court reads that more broadly -- a right to self defense, for example, the weighing is different.

4. How much will the Court defer to legislative determinations. This is the essence of Dahlia Lithwick's piece. At some point the most activist courts say that they will defer to legislative findings. Deference is particularly salient in this area. The government purpose in regulating firearms is public safety. Given the proliferation of somewhat dubious social science purporting to find that gun access deters crime, a court could always strike down gun laws by holding that the laws won't improve safety. That level of judicial activism would make the Warren Court squirm a little.

5. Will the Second Amendment be incorporated against the states? This question won't be answered in this case, but it will raised in later cases. The Bill of Rights as originally written applied only to the national government. Then the nation ratified the Fourteenth Amendment after the Civil War and, over a number of decades, the Supreme Court held that the due process clause of the amendment incorporates certain fundamental rights against the states.
Because the case involves the District of Columbia -- essentially a political subdivision of the Federal Government -- the question of incorporation isn't on the table this time.


Jill said...

Thanks for these two posts. I'm about to post what I think the outcome will be. You know, all us lawyers - we are really getting good pickings lately of issues to discuss and debate. Thanks for these summaries.

Ben said...

I can see them saying the 2nd Amendment does grant the indiviidual a right to bear arms, but the District gun ban can be upheld on the grounds that DC isnt a state.

Pho said...


You're not following me. The Bill of Rights always applies to the Federal government and DC is considered part of the Federal government. So the incorporation question will not be part of this case (I haven't yet listened to oral argument. It may have come up but the Court won't settle that issue in this case.)

Jill said...

Didn't listen but read the liveblog - the issue didn't appear to come up.

Scott did you at any point in thinking about the case entertain the thought that Scalia should recuse himself - or is that just too flip? :)