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March 17, 2008

District of Columbia v. Heller Preview

by Doug Mataconis

Tomorrow, the Supreme Court will hear oral argument in District of Columber v. Heller, the case challenging the District of Columbia’s decades-old and near-complete ban on gun ownership by city residents. At stake is interpretation of an Amendment that has received almost no judicial scrutiny in 209 years since it was enacted.

One blogger, former Washington area talk-show host Chris Core, makes this point about what we might expect:

I, for one, have wanted a Supreme Court case on this for years. Let’s have the court finally tell us which side has the correct take on what the Founders meant. Both gun control and gun owner advocates have been trying to avoid such a case for fear of losing in the Court. Until now. Finally, probably in June, when the Court hands down its decisions, we will have clarity.

Or will we? I am betting we won’t. As often happens, I think the court will parse this one too finely to please either side. My thinking focuses on two of the words: “bear” and “arms”. There is a lot of wiggle room here. Does “bear” literally mean the right to carry a gun with you wherever you go, or is the fact that you can have one in your home enough? And “arms”–does that mean you can have absolutely any kind of weapon you want and can afford, or does the state have the right to say which arms are permitted and which are not? As much as I, and probably you, would love a definitive answer, I doubt we will get one. Nonetheless, this is the most interesting Supreme Court case to watch since Roe v. Wade.

Chris is right that we are unlikely to see complete resolution of the gun control issue from this case, and part of that has to do with the fact I noted above — since the Second Amendment was ratified in 1791, there have only been a handful of cases that addressed it and none of them have dealt with one of the central issues in Heller.

The other reason is because Heller isn’t just a simple question of whether or not the Second Amendment protects an individual or collective right to gun ownership. To make a complex case simple, Heller really comes down to two questions:

  1. Does the Second Amendment create an individual right to keep and bear arms, or does it merely mean that the states can maintain militias made up of members of the citizenry ?
  2. Assuming that the right is an individual one, what constitutes an infringement of that right ?

On the first question, I think there’s a good chance that the Court will find that the Second Amendment right is an individual one. From an historical perspective, which is really the only guide that the Justices will have, the argument that the drafters of the Bill of Rights did not intend to protect the right of individual citizens to keep and bear arms is simply absurd. Yes, it’s possible that they will reverse the Court of Appeals — and, if they do, that is essentially the end of the day and, I think, the end of individual gun rights in the United States.

The second question, though, is much more nuanced and, as SCOTUSBlog’s Wiki on the case notes, the two sides disagree significantly on the answer:

Even if the Court should opt for an individual, private right to have guns, the two main briefs divide on how to judge when such a right were violated by a gun control law. The city government backs a reasonableness standard, the gun rights challengers favor “strict scrutiny.” And, it is no surprise, applying the standards that each advances would determine the fate of the handgun ban in the District.

In previous cases, the Supreme Court has held that nearly all of the other rights guaranteed by the Bill of Rights are subject to a “strict scrutiny” standard; meaning that any law that would abrogate those rights would have to pass the following test:

First, it must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.

Second, the law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (over-inclusive) or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored.

Finally, the law or policy must be the least restrictive means for achieving that interest. More accurately, there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive. Some legal scholars consider this ‘least restrictive means’ requirement part of being narrowly tailored, though the Court generally evaluates it as a separate prong.

Under that standard, obviously, almost no restriction on a constitutionally protected right can pass muster.

There are lesser basis of review, though; under “rational basis review” all that the government needs to show is that there is some rational basis for the law, and, under so-called “intermediate scrutiny” where the government only needs to show that the law or regulation involves important governmental interests that are furthered by substantially related means.

The Court could decide that the regulations that impact Second Amendment rights only need to pass one of these lesser standards of review, meaning that some forms of gun control legislation would be acceptable.

Finally, it’s important to note that whatever happens in D.C. v. Heller may not have the widespread impact that some believe because the Supreme Court has never ruled that the Second Amendment applies to the states:

It is a somewhat curious fact of the history of the Second Amendment that, unlike most of the other parts of the Bill of Rights, it simply does not apply to state or local laws. Thus, the numerically much greater array of state laws on gun control — such as laws against carrying a concealed gun — are not immediately affected by the Amendment, however it is interpreted.

In a process that began in the late 19th Century, the Court has “incorporated” almost all of the other guaranteed constitutional rights into the scope of the Fourteenth Amendment, thus applying them as limits on state and local government activity. But the Supreme Court has never reconsidered an 1886 decision, in Presser v. Illinois, saying that the Amendment is not binding on the states.

The most likely outcome of the Court’s decision in Heller, whatever it might be, is that it will merely be the beginning of an entirely new area of Constitutional jurisprudence. Ten years from now, Second Amendment cases may be as common in the Supreme Court as First Amendment cases once were, and that will continue until the Court hammers out a coherent Second Amendment case law.

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9 Comments

  1. [...] got some thoughts about the issues at stake and possible outcomes in the gun control case that will be argued before the Supreme Court tomorrow up at The Liberty [...]

    Pingback by Below The Beltway » Blog Archive » D.C. v. Heller Preview — March 17, 2008 @ 1:17 pm
  2. [...] Mr. Mataconis closes his analysis of the case with the following thought: The most likely outcome of the Court’s decision in Heller, whatever it might be, is that it will merely be the beginning of an entirely new area of Constitutional jurisprudence. Ten years from now, Second Amendment cases may be as common in the Supreme Court as First Amendment cases once were, and that will continue until the Court hammers out a coherent Second Amendment case law.  -=SOURCE=- [...]

    Pingback by A good PRE-analysis of DC v. Heller » Scott’s Morning Brew — March 17, 2008 @ 3:16 pm
  3. I think the court will rule in favor of a collective right. It would fit in ideologically with Kelo and Raich. It would also fit in with the government, faced with the decision of backing up its own power or leaving such power in the hands of the individual, will side with keeping its own power.

    I hope I am in wrong but I think the individual gun rights crowd are going to be handed a devestating defeat.

    Comment by tkc — March 17, 2008 @ 6:10 pm
  4. Chris is right that we are unlikely to see complete resolution of the gun control issue from this case

    Constitutionally, the Court cannot completely resolve the gun control issue. It is limited to the case or controversy before it.

    Comment by Joshua Holmes — March 17, 2008 @ 6:17 pm
  5. [...] of the best commentary on this for laymen is over at the Liberty Papers which walks readers through a pretty thorough look at the legal landscape. The Raising Kaine folks [...]

    Pingback by BLACK VELVET BRUCE LI : The 2A Superbowl Kick-Off — March 17, 2008 @ 7:55 pm
  6. tkc,

    I could easily see them going for the “individual right” and the “rational basis” test instead of the “strict scrutiny” test.

    That way, they get to tell you you have a right to bear arms, but don’t actually enact any meaningful limits on the government regulation of that right.

    Comment by Brad Warbiany — March 17, 2008 @ 11:00 pm
  7. [...] Brad Warbiany: tkc, I could easily see them going for the “individual right” and the “rational… [...]

    Pingback by The Liberty Papers »Blog Archive » Gun Rights On The Docket Today At The Supreme Court — March 18, 2008 @ 6:19 am
  8. The Declaration of Independence, the United States Constitution and the Bill of Rights, these documents all have one thing in common and that is they are about “We the People.” All these documents place the emphasis on the individual and the States, ..”Government of the people, for the people and by the people ..” the government derives its powers by the consent of the governed, that is the people, why have we forgotten this?

    There is nothing in any of these documents referring to the “collective” anything. So, why in a series of documents proclaiming the “individual,” why would the Founding Fathers pick the second spot in the Bill of Rights to proclaim that gun ownership was a collective right of the government, especially when the Constitution commands the Federal Government to have a standing Army, one cannot have a standing Army without guns, now can one? Then for what reason would the Founding Fathers be redundant on this subject?

    Only in a liberal mind can one read into a statement the exact opposite of what that statement says. The government is not all-powerful, it is the people who hold the power and the sovereignty of this Republic. Take another look at the Tenth Amendment sometime.

    Comment by VpatS — March 18, 2008 @ 7:49 am
  9. [...] VpatS: The Declaration of Independence, the United States Constitution and the Bill of Rights, these documents all… [...]

    Pingback by The Liberty Papers »Blog Archive » District of Columbia v. Heller Gets Its Day In Court — March 18, 2008 @ 12:25 pm

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