After falling into desuetude for the better part of a century, the Second Amendment is back in the forefront of American constitutional law. In the case of D.C. v. Heller, the Court finally takes up the question which has languished since its 1930s-vintage decision in Miller: Does the Constitution guarantee an individual a right to bear arms. In this case, the Court will decide whether the a state may ban handguns outright, and also will weigh in on the propriety of various other regulations of firearms. Perhaps sensing the importance of the case itself, the Supreme Court has provided a quick copy of the transcript , and has released the audiotape of the oral argument immediately.
There is superficial good news for those who believe in a strong Second Amendment. The Court seems strongly inclined to find that the Second Amendment protects an individuals’ right to keep and bear arms. This is opposed to the view, set forth by many (though not all) academic liberals, that the Second Amendment merely protects a broad right of “the people’ to be armed, and that this does not translate to an individuals right to own a particular gun.
The Court is likely to reject the latter view. At least five Justices strongly telegraphed their view that the individual rights view is the correct one. Chief Justice Roberts and Justices Alito and Scalia were, unsurprisingly, on the side of the individual right. Justice Thomas did not ask questions — he almost never does — but has previously expressed a view that is consistent with the individual rights view.
Perhaps the biggest surprise was Justice Kennedy, who strongly defended the individual rights view. In Justice Kennedy’s apparent view, the first and second clauses of the Second Amendment — the source of much of the confusion regarding the Amendment — actually work hand-in-glove, with the first clause providing the rationale for the guarantee, and the second clause providing the guarantee itself. He delved into the early antecedents of the right to keep and bear arms, in the English Bill of Rights of 1689 and elsewhere. And perhaps most tellingly, he referred to Miller as “deficient.”
Even two of the more liberal Justices, Justices Ginsburg and Breyer, seemed interested in recognizing an individual right, with Breyer being the more sympathetic. Only Justices Souter and Stevens seemed clearly poised to embrace the collective rights view of the Second Amendment.
But, as is often the case, the devil is in the details. Once it is established that there is an individual right to keep and bear arms, the question inevitably follows: Of what breadth? Other clauses in the Bill of Rights, such as the First Amendment’s guarantee of free exercise of religion, are subject to various balancing tests and exceptions to the general rule. Should a similar exception be applied here?
It is here that the Court was much more difficult to read. Justice Breyer seemingly expressed the view that the right to keep and bear arms was subject to “reasonable” regulation, and that in a city with high crime rates, a ban on handguns would be reasonable. In essence, Justice Breyer seemed to recognize the basic right, yet render it meaningless by subjecting laws which affected the right to exceedingly low levels of scrutiny.
Justice Scalia, and presumably Justice Thomas, seemed to agree that strict scrutiny was the property standard, and that the ban should be swiftly struck down. Justices Alito and Roberts were more circumspect.
This left Justice Kennedy, as he often is, as the swing vote. Justice Kennedy seemed to embrace the idea that the individual right to keep and bear arms stemmed from the protection of the home and self, an idea that seems inconsistent with District’s gun ban. How such an interpretation would affect other areas of the gun control, such as trigger locks and other regulations is unclear.
From the argument, it seems plain that the Court will recognize some individual right to keep and bear arms. It also seems likely that that the District’s gun ban will be struck down. And it seems likely that there will be a fractured opinion on the proper legal standard, leaving it to future Courts — possibly with much less favorable compositions to conservatives should the Democrats win in the fall — to sort out the details.
Of course, when the Justices sit down to put pen to paper, anything can happen. Justice Kennedy has changed his mind in important cases before, including most famously Planned Parenthood v. Casey. What will ultimately come out from the Court is anybody’s guess.