Glenn Reynods and Brannon Denning, on Heller

The Supreme Court has released its long-awaited opinion in District of Columbia v. Heller,[1] and the buzz has been considerable. Though much has been made of the majority’s historic ruling and of the narrowness of that majority, many commentators have missed an important point. What Heller is most notable for is its complete and unanimous rejection of the “collective rights” interpretation that for nearly seventy years held sway with pundits, academics, and—most significantly—lower courts.

The repudiation of this extensive body of case law[2] suggests that the real test of Heller will occur once the lower courts, traditionally hostile to an individual rights interpretation of the Second Amendment, face the inevitable follow-up cases challenging other restrictive gun laws. Experience with other seemingly groundbreaking Supreme Court decisions in recent years, such as United States v. Lopez, suggests that lower-court foot-dragging may limit Heller’s reach, though this time around there will likely be considerably more scrutiny and more vigorous litigation efforts.

If the lower courts present a challenge to the implementation of Heller, they also provide litigants with an opportunity. Given the fact that the Heller majority declined to give a detailed accounting of the proper standard of review to be used in subsequent Second Amendment cases, litigants have a rare opportunity to write on a tabula much more rasa than is ordinarily the case in constitutional litigation, making use of recent scholarship on the crafting of constitutional decision rules that implement constitutional provisions.

In the pages that follow, we take a look at these aspects of Heller. The triumph of the Standard Model of the Second Amendment is examined in Part I. Part II asks whether Heller is merely the opening volley in the coming judicialization of the gun control debate, or whether like the Court’s attempt to rein in congressional power under the Commerce Clause, Heller will ultimately be seen as largely symbolic. Finally, in Part III, we discuss the possibility that recent scholarship on constitutional doctrine might play a role in separating permissible from impermissible gun controls post-Heller.

It’s worth a read, but prepare to spend a little time with it.

My own read (Now that I’ve actually had the chance to read the ruling) is that the court, in this case, was no freind to gun rights with this one. Or, individual rights, in general, for that matter. Granted, that the court did strike down DC’s ban on handguns, but in not specifying where, exactly, the border lies between constitutional and unconstitutional, what we have here is ammunition for the Gun Grabbers who will doubtless be hauling these questions through the lower courts all over again. Quite a boon to the lawyers, certainly, but not to individual freedom.

In my view, this ruling does reinforce the concept of the need of a conservative in the White House. Perhaps just as importantly, however, does it point to the need for less in the way of Senate Liberals, who after all, the White House has to get it’s Surpeme Cout Nominees by. this because for all the fighting and namecalling and so on that goes on during the confirmation process, those who are nominated, are nominated by Republican Presidents because they’re conservatiuve, but more for their ability to get by the Senate. As such instead of real conservatives such as Scalia, we end up with more centrists like Arthur Kennedy, who at best slow the growth of liberalism somewhat, rather than reverse it…. and reversing it is decidedly what is needed.

Tags: , , , , , , , , , , ,