Tuesday, March 18, 2008

Heller Thoughts and Predictions

Just finished listening to my DVR of the argument. First off, some logistical notes. CSpan has been playing the argument throughout the day. For whatever reason I haven't becen able to pull it up on the CSpan site, but I've been having computer issues with media files generally so you might have a better chance. Also, Ben pointed out what I didn't, the SCOTUSBlog Wiki page about the case which gives you as comprehensive a listing as you could want.

Now on to the argument. own as one of Walter Dellinger's best, though it is understandable. Dellinger has a solid textual argument that the amendment is entirely about guarantying the continued viability of state militias. Unfortunately, it's an open secret that a majority of the Court is prepared to find an individual right and not worry too much about its militia-relatedness so for the most part he is in damage control mode.

Even more explicitly working damage control is Solicitor General Paul Clement. He is taking the Bush side in the Bush/Cheney split in the case, arguing for an individual right, but cabined to allow reasonable regulations including all those currently on the Federal books.

Alan Gura arguing for Heller sounds a fairly conciliatory tone regarding reasonable regulations. For all the anger in Gunnutistan over the possibility that the Second Amendment may be less than perfectly absolute, the debate over regulation is disappointingly peaceful.

By my count five justices will find an individual right and not tether it to the purpose of protecting militias. They are Chief Justice Roberts and Justices Kennedy, Scalia, Alito and Thomas. The first four made their positions clear in oral argument. Justice Thomas, as is his custom, uttered not a syllable in argument, but telegraphed his position ten years ago in a concurrence in Printz v. U.S.

Justices Breyer and Stevens also seem inclined to find an individual right, but tie it to the militia clause. Justices Ginsberg and Souter seem to be leaning away from finding an individual right at all.

Scalia and Roberts appear inclined to uphold the DC Circuit opinion. Roberts says at one point that the gradated standards of review are extraconstitutional "baggage" that some rights have picked up along the way (it would be a separate post to explain it, but let me say that's the most chilling utterance of the day.) He would be happy deciding this case on its merits without offering a test to guide future courts. Scalia is inclined to apply the strict scrutiny test as the DC Circuit did, under at least some readings.

Alito and Kennedy spend the most time talking about self defense as a core value underlying the individual right. In Alito's case he spends a great deal of time discussing the implications of the DC handgun ban for self defense, and seems especially concerned with a provision mandating trigger locks for long guns. Kennedy has the oddest take of the day, arguing that the second amendment must have been past to guarantee that settlers on the frontier have the right to weapons to defend themselves against "grizzlies or whatever" -- a concern he apparently would transplant to the wilds of Anacostia.

What I didn't get is a reading on what sort of standard of review Kennedy might apply. He's the key vote on that issue. Probably Thomas will side with Roberts and Scalia in establishing the broadest, strictest right. Quite likely Alito will as well. Kennedy once again finds himself in what passes for the middle on this Court and, if history is a guide, will tread carefully. Probably his opinion will closely tie the right to self defense and probably his standard will be somewhat less than strict scrutiny -- something like the intermediate scrutiny advocated by Clement.

That's the legal predictions. I'll save political and policy implications for another day.


Swanny said...

First of all, I think it is a foregone conclusion that the SCOTUS will recognize the 2nd Amendment as an individual right.

Second, I think they will side with the circuit court and rule DC's gun ban as unconstitional. They will say that all rights can be regulated, but that an outright ban is too strict.

If for some reason they upheld DC's ban, I can see it playing out along the lines of DUI checkpoints. In the case of Michigan v. Sitz (496 U.S. 444), the SCOTUS admitted that while DUI checkpoints were a violaton of the 4th Amendment, that they were still consitutionally permissible. Chief Justice Rehnquist began his majority opinion by admitting that DUI roadblocks do, in fact, constitute a “seizure” within the language of the 4th Amendment. In other words, yes, it’s a blatant violation of the Constitution.

The case was sent back to the Michigan Supreme Court to change its original decision which struck down drunk driving roadblocks as unconstitutional. But the Michigan Supreme Court sidestepped Rehnquist by holding that DUI checkpoints, if permissible under the U.S. Constitution, were not permissible under the Michigan State Constitution, and ruled again in favor of the defendant — in effect saying to Rehnquist, “If you won’t protect our citizens, we will”.

That is exactly what I can see happeneing here should the SCOTUS side with DC and uphold their ban as being constitutional. Most states already recognize the right to gun ownership in their state constitutions as an individual right.

Needless to say, regardless of the decision, a whole lot of attorneys will be fully employed for at least another quarter century trying to sort it all out.

Pho said...


First off, I should have explicitly said that, yes, the Court will indeed strike down the DC law. By the way, I'm in favor of reasonable gun control and I find the DC law excessive and bad policy, though I'm not convinced it is constitutionally suspect.

As for your analogy to Sitz, I disagree with your analysis of the earlier decision. It's true that the Court found that DUI checkpoints infringe on the interest protected by the fourth amendment, but that's not the end of the analysis. The amendment protects against unreasonable seizures. A seizure may not violate the amendment if it is reasonable. In that case the Court balanced the level of intrusion against the state's interest in curbing DUI.

So yes, I think Sitz is analogous, but not because the Court punted but because the Kennedy opinion may well apply a similar balancing test to gun regulations.

swanny said...


What I find interesting about the Stitz decision is that the "balancing test" that you describe was built upon a baseless assumption, which was that DUI checkpoints are effective enough at getting drunk drivers off the road to warrant a seizure. Just about any cop will tell you that DUI checkpoints are a waste of time and money because they are the least effective tool for getting drunks off the roads. Roving patrols that make suspicion-based stops consistently yield a higher number of DUI arrests, and statistics have proven this time and again.

My point is that if the SCOTUS wants to base standards and balancing tests for what is reasonable, then they should at least seek to use the best available statistics.

Ben said...

I also agree that they will say the 2nd Amendment is an individual right, either 7-2 or 6-3. As far as the gun ban goes, I could see them dodging that based on DC not being a state.