No Decision Today in D.C. Handgun Case

Bump and Update: The Court did not issue an opinion today in D.C. v. Heller. Scotus Blog says the Court announced all remaining decisions will released tomorrow at 10:00 am ET.


Original Post

Awaiting the Supreme Court's Second Amendment Decision

Will today be the day the Supreme Court issues its long-awaited opinion in D.C. v. Heller, deciding the constitutionality of D.C.'s handgun ban and settling the question of whether the Second Amendment conveys an individual right to bear arms?

Several court watchers think so. Concurring Opinions believes it will be authored by Justice Anton Scalia, who has yet to write an opinion in the March sitting cases. Heller is also the only case remaining among the March sitting cases. [Hat tip Instapundit.][More...]

Court-watchers have noticed that, with the issuance of yesterday's opinion by Justice Souter in the right-to-counsel case of Rothgery v. Gillespie County, the only case left from the Supreme Court's March sitting is D.C. v. Heller, and the only Justice who hasn't written any majority opinions from that sitting is ... Justice Antonin Scalia. Tom Goldstein thinks it's "exceptionally likely" that Scalia was assigned to write the Court's lead opinion in the most important Second Amendment case in American history.

What could that mean for the decision in Heller? As I'll explain, I think a Scalia-authored opinion would be great news for those who are mainly concerned with the Second Amendment as a limit on federal gun control, but somewhat ambiguous news -- at least in the short term -- for those who hope for the incorporation of the Second Amendment as a check on state and municipal governments.

Scotus Blog will be live-blogging the opinions, using the same live-blogging software we used on primary election nights and during the presidential debates. I'm glad to see another blog picking up on it. It's a great way to reduce server load because constant refreshing of the page isn't required.

Goldstein of Scotus Blog believes if Scalia authors the opinion:

So, that’s a good sign for advocates of a strong individual rights conception of the Second Amendment and a bad sign for D.C.

TalkLeft is a strong supporter of the view that the Second Amendment conveys an individual right to bear arms. I don't believe in relinquishing any constitutional right. After all, the Second Amendment is only one away from the Fourth (considering the practical irrelevancy of the Third Amendment since the Revolutionary War.)

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    Heh (5.00 / 1) (#6)
    by Steve M on Wed Jun 25, 2008 at 12:54:44 AM EST
    If Scalia is writing the opinion, it's good news for the individual rights position, but possible bad news for those who hope for a unanimous or near-unanimous decision.  Increasingly, it seems he just can't avoid the rhetorical swipes and overbroad statements that force other Justices to write separately.

    Yeah (none / 0) (#8)
    by phat on Wed Jun 25, 2008 at 12:56:27 AM EST
    What's the over-under on total number of opinions? 4?

    Possibly OT (5.00 / 1) (#17)
    by creeper on Wed Jun 25, 2008 at 01:53:00 AM EST
    and completely speculative, but is there a chance the paternalists on the SCOTUS will determine individual ownership of guns is a bad thing?

    I can't shake the feeling that they don't want us armed.

    Pass the tinfoil.

    I know what you mean. (5.00 / 1) (#38)
    by magisterludi on Wed Jun 25, 2008 at 10:30:07 AM EST
    I've been rethinking my anti-gun position a lot lately. If Scalia goes against individual rights, my head will explode.

    Scalia and Cheney like duck hunting... (none / 0) (#34)
    by ineedalife on Wed Jun 25, 2008 at 09:37:57 AM EST
    a bit too much. Of course somebody does get shot in the face once in a while, but hey, freedom is not free, you know.

    It is short slippery slope from a handgun to a fine Italian-made lady's duck shooter (Cheney's weapon of choice).


    It will be more interesting... (none / 0) (#1)
    by Alec82 on Wed Jun 25, 2008 at 12:37:39 AM EST
    ...to see what kind of standard of review they subject it to.  I've expected an individual rights approach in the decision for some time now.  I'm more interested  in the review they apply, and the potential impact on criminal laws.

     I also suspect they will avoid the incorporation issue (they have no reason to address it, after all), which means that will start popping up in other courts.  

    what's the incorporation issue? (none / 0) (#3)
    by DandyTIger on Wed Jun 25, 2008 at 12:42:50 AM EST
    for us non lawyers out here.

    Oh, just... (none / 0) (#4)
    by Alec82 on Wed Jun 25, 2008 at 12:45:23 AM EST
    ...whether or not the Second Amendment is "incorporated" against the states, as opposed to only the federal government (this was a DC handgun law, so regs are all federal) through the 14th amendment.  In other words, whether this would have any impact on state and municipal firearm regulations.

    Conceal-carry laws (none / 0) (#5)
    by phat on Wed Jun 25, 2008 at 12:54:26 AM EST
    Would this have an impact on conceal and carry laws?

    I curious.


    does that then mean (none / 0) (#7)
    by DandyTIger on Wed Jun 25, 2008 at 12:54:49 AM EST
    that if the state side of things isn't mentioned, that this ruling will not really be that important?

    Or would it likely be an indication of where the court leans on the topic if and when a new case that related directly to the state issue (if it's incorporated against the states), comes up? And if so, would they hint at that in the opinion even if they didn't deal directly with the incorporation issue (for now with this case)?


    Well (none / 0) (#9)
    by Steve M on Wed Jun 25, 2008 at 12:57:03 AM EST
    If the ruling makes a clear determination in favor of the individual rights position, then states seeking to ban firearms would basically have nothing to hang their hats on BUT the notion that the Second Amendment is not incorporated.  In other words, if the decision comes down that way, incorporation becomes the last battleground.  And frankly, it's a thin reed for the states to cling to if it comes right down to it.

    One other possibility... (none / 0) (#13)
    by Alec82 on Wed Jun 25, 2008 at 01:06:17 AM EST
    ...is the standard of review.  

     But, assuming it is incorporated and it is a fairly exacting standard, the states will lose left and right.

     On the other hand, the issue in this case is so narrow, the DC ban so relatively unusual and total, that the impact will take years of litigation and incremental steps.


    incorporation is (none / 0) (#10)
    by Jeralyn on Wed Jun 25, 2008 at 01:01:44 AM EST
    legal doctrine by which portions of the Bill of Rights are applied to the states through the Due Process Clause of the Fourteenth Amendment.
    Wikipedia has a section explaining it here.

    As to the Second Amendment (none / 0) (#11)
    by Jeralyn on Wed Jun 25, 2008 at 01:03:43 AM EST
    Wikipedia says "This provision has been held not to be incorporated against the states. See Miller v. Texas, 153 U.S. 535 (1894)."

    An Explanation of (none / 0) (#12)
    by Jeralyn on Wed Jun 25, 2008 at 01:05:51 AM EST
    the incorporation issue for the DC handgun case is here. Read the comments too.

    Interesting (none / 0) (#14)
    by Alec82 on Wed Jun 25, 2008 at 01:11:14 AM EST
    We're still kind of in the dark on incorporation if they find an individual right, by the looks of that article, since the original decision predates the incorporation of the other provisions of the Bill of Rights, and since the incorporation standard is a bit of an odd fit with the Second Amendment.

     We shall see...  


    this will be interesting (none / 0) (#2)
    by DandyTIger on Wed Jun 25, 2008 at 12:41:21 AM EST
    I agree that if Scalia is writing it, it will almost certainly be for keeping those rights.

    Another thing to look for is if the opinion could have any other reach or interpretation with respect to things like gun safety or safety requirements (gun locks), given the reasons behind the DC law.

    I have to admit, I have mixed feelings about guns in this day and age. But I think your view of keeping those individual rights is probably the way to go.

    I'm with you on this - Mixed feelings. (none / 0) (#21)
    by Grace on Wed Jun 25, 2008 at 04:26:26 AM EST
    I've long held that gun laws should be local, not national.  What works in New York City won't work in the rural parts of Wyoming.

    I'll be interested to hear what the ruling is on this.  


    This makes for difficult travel. (none / 0) (#25)
    by Abdul Abulbul Amir on Wed Jun 25, 2008 at 07:31:38 AM EST
    Don't you have to put (none / 0) (#43)
    by Grace on Wed Jun 25, 2008 at 12:31:08 PM EST
    those things in checked baggage when you travel?  

    Yes (none / 0) (#44)
    by Abdul Abulbul Amir on Wed Jun 25, 2008 at 01:33:01 PM EST

    Absolutely.  I always do.  But you can never be certain where your plane may be diverted to and given your luggage to spend the night.  

    Or if returning from a match, it is not easy to find all applicable state, county, and city law that might apply for just passing through a far away airport.  


    Difficult travel (none / 0) (#45)
    by Carolyn in Baltimore on Wed Jun 25, 2008 at 01:33:06 PM EST
    Also if you're gay and travel. You can be married in one state and legal strangers in the next.  So any area where full faith and credit is not followed can be a potential disaster.

    So should DC (none / 0) (#47)
    by Abdul Abulbul Amir on Wed Jun 25, 2008 at 03:28:57 PM EST

    honor my Minnesota carry permit?

    Well they probably shouldn't arrest you - (none / 0) (#54)
    by Carolyn in Baltimore on Thu Jun 26, 2008 at 10:33:55 AM EST
    - if you had a lockbox and other precautions for your gun. Or you can leave your gun at the sheriff's office until you leave town.

    I was just pointing out that that there are other laws more problematic when crossing state borders.


    it will be great to read something (none / 0) (#15)
    by befuddledvoter on Wed Jun 25, 2008 at 01:27:05 AM EST
    this momentous that does not really involve the primaries or GE.  Nice reprieve and very significant case.  I am glad to hear Scalia will be authoring the opinion.  

    Am I the only one (none / 0) (#16)
    by ConcordiaDem on Wed Jun 25, 2008 at 01:45:22 AM EST
    That still holds a collectivist view on this issue. If we open up the idea that it is an individual right don't we give up much of the ground that could be used for gun-control and regulation?

    If they take the traditional view (none / 0) (#18)
    by myiq2xu on Wed Jun 25, 2008 at 02:40:47 AM EST
    that the Second Amendment applies to "well regulated militias" then the handgun ban wins.

    If they focus on "the right to keep and bear arms shall not be infringed" then the handgun ban and most gun laws will be tossed out.

    That's a bit oversimplified (none / 0) (#31)
    by MikeDitto on Wed Jun 25, 2008 at 09:05:12 AM EST
    But generally the idea. I believe the traditional view (and it's a view I share) to be that in order to call up a militia, you have to have a populace that is armed and knows how to fire a weapon.

    At the time the amendment was being discussed, it was at the same time as the framers were discussing a provision in the Constitution that would have banned having a standing Army. That provision failed by one vote if I remember my history correctly. The general idea was that in the need of a militia, a governor could call one up and in short order defend their territory. (The states' militias have evolved into the National Guard in modern times.)

    So, according to that view, an armed populace is a prerequisite for having a well-regulated militia. But it's an individual right, and readiness (i.e. owning a gun and learning how to operate it) is an individual responsibility.


    i dont see an open thread (none / 0) (#19)
    by boredmpa on Wed Jun 25, 2008 at 03:18:39 AM EST
    But I'm really interested in comments on
    Laptop copying/seizures

    And the upcoming senate hearing...the policy is extremely disturbing to me.

    Doesn't "the right to bear arms shall not be (none / 0) (#20)
    by Left of center on Wed Jun 25, 2008 at 04:18:01 AM EST
    infringed" mean that technically, Bill Gates could legally buy himself some nukes if he wants?

    That's one view (none / 0) (#22)
    by myiq2xu on Wed Jun 25, 2008 at 05:49:28 AM EST
    Of course when the Constitution was written muzzle-loaded black powder rifles and cannons were state-of-the-art.

    OTOH` (none / 0) (#26)
    by Abdul Abulbul Amir on Wed Jun 25, 2008 at 07:37:44 AM EST

    When the constitution was written, the Second Amendment applied to state of the art military firearms.  

    Similarly, when the First Amendment was written, freedom of the press applied only to sheet at a time hand set type, and freedom of speech was speech without electronic amplification and distribution.


    Is it the liberal-left view that (none / 0) (#23)
    by lentinel on Wed Jun 25, 2008 at 05:50:55 AM EST
    we should all be allowed, as private citizens, to go into a local store, and purchase a handgun?

    I see that as a libertarian position.

    But I can't say that I would be very happy about it if this is the place that the Supreme Court finally comes down on the side of individual rights.

    Get with the program (5.00 / 1) (#36)
    by ineedalife on Wed Jun 25, 2008 at 09:46:33 AM EST
    The liberal-left view for the next 4 months is what-ever will get Obama elected. If he decides we need to all be gun-toting, rootin-tootin cowboys, then that is the liberal-left position.

    Snark aside, whatever way this decision goes is good for him. He is in a very uncomfortable place on this once the campaign swings to gun-control, as it always does. He can now point to the settled law-of-the-land and claim it is all moot.


    The lib-left -- including (5.00 / 1) (#37)
    by brodie on Wed Jun 25, 2008 at 10:18:58 AM EST
    some very prominent legal scholars -- has been shifting away from the collective right stance in favor of the individual right argument since at least the past decade.  Politically the strong gun control position just isn't as widespread and outspokenly confident as it was, say, during the debate leading to the passage of the Brady bill in the 90s or in the immediate aftermath of Columbine.

    Perhaps this was a lib reaction to how some observers perceived that Gore's firm gun control stance hurt him in the 2000 election.  Kerry, by contrast, came out in 2004 wanting to be seen as a strong backer of the 2A -- recall the awkward pheasant hunting photo op outing.

    I don't expect, nor would I encourage, Obama to be photographed goin' duck huntin' with a large firearm -- it would be his Dukakis in the tank moment.  

    But he still has room to argue in favor of bans on assault rifles and large magazine clips and cop killer bullets.  At least I don't think the citizenry has gone so far around the bend about  arming themselves that they can't see the necessity of some minimum regulations.


    who supports gun control now? (none / 0) (#53)
    by SueBonnetSue on Thu Jun 26, 2008 at 01:07:52 AM EST
    Didn't democrats abandon that idea years ago?  

    Right to life (none / 0) (#24)
    by Enoch on Wed Jun 25, 2008 at 06:54:06 AM EST

    Something to ponder...

    1. The Constitution says we have the right to life, but...

    2. does that right to life actually exist without the right to defend that life (or that of anyone else) and...

    3. does a right to self defense (or defense of anyone else) actually exist without the right to the means?

    I don't know much about the legalese (none / 0) (#28)
    by moe21885 on Wed Jun 25, 2008 at 08:08:45 AM EST
    but I think it's fascinating to watch old culture war issues become basically irrelevant from a political perspective. Not good for the old-school liberals who pushed gun control, obviously. But the way the political calculus is changing has a lot of ramifications for how campaigns are run and issues are framed.

    It just makes me wonder what we'll be debating next.

    When the "well regulated militia".... (none / 0) (#29)
    by Dadler on Wed Jun 25, 2008 at 08:52:16 AM EST
    ...is factored in, it becomes apparent that an originalist like Scalia will be contradicting his own philosophy.  One can talk individual rights 'til the cows come home with guns, but what the founders intended was a sitting army in every house ready to stand and fight the British at a moment's notice.  

    But my opinion means squat, guns are everywhere in our society, and we might as well just be honest and admit we couldn't care less about what the constitution actually says, but what we want it to say in this day and age.  On other issues, what it says is fine.  We pick and choose.  The second amendment is a miltary amendment, just as the third is.  The ony personal aspect of it is that persons were necessary to fire guns against the British.  The issue of personal fireamrs in today's society has as much to do with the second amendment as a fish has with a bicycle.

    Time for a new constitutional convention.


    I don't understand (none / 0) (#32)
    by Steve M on Wed Jun 25, 2008 at 09:05:31 AM EST
    The Founders were concerned about the possibility that the federal government would disarm people in order to leave us unprotected against the British?

    Some people believe (none / 0) (#33)
    by myiq2xu on Wed Jun 25, 2008 at 09:35:21 AM EST
    that the right to keep and bear arms was intended to give the people the means to fight against a well regulated militia.

    That was the view of some of the founding fathers too.


    Declaration of Independence...not (none / 0) (#30)
    by Enoch on Wed Jun 25, 2008 at 08:53:03 AM EST
    To Dark Avenger:

    You're only partly correct...actually, there is no U.S. historical document titled "Declaration of Independence".

    Are you suggesting no right to be alive exists in the United States of America?

    I am just thankful that (none / 0) (#39)
    by eric on Wed Jun 25, 2008 at 10:31:19 AM EST
    the Second Amendment does not apply to the states.

    That may change tomorrow (none / 0) (#41)
    by Abdul Abulbul Amir on Wed Jun 25, 2008 at 12:19:34 PM EST
    It might be tough to justify why the first applies but the second does not.

    I don't think that could be (none / 0) (#42)
    by eric on Wed Jun 25, 2008 at 12:25:01 PM EST
    part of the holding because there is no state involved in that case.  It's DC.  If there IS one place the Second should apply, its there.

    To militias only, of course.  ;)


    As discussed above, however... (none / 0) (#46)
    by Alec82 on Wed Jun 25, 2008 at 03:21:55 PM EST
    the decisions holding that the 2nd amendment was not incorporated were decided well before the modern line of incorporation cases.  It is far from clear that the result would be the same today.

     But it will not be decided tomorrow, because this case concerns DC, and not the states.


    Did anyone see Scalia's (none / 0) (#40)
    by Robot Porter on Wed Jun 25, 2008 at 11:58:22 AM EST
    "charm offensive" on Charlie Rose last week?

    The key message he was sending: "I'm really cuddly and not as conservative as you think.  C'mon, wine and cheese crowd, I even like Opera!"


    Declaration of Independence...not (none / 0) (#48)
    by Enoch on Wed Jun 25, 2008 at 05:46:07 PM EST

    To Dark Avenger:

    I repeat...There is NO historical document titled "The Declaration of Independence".

    There is a document of extreme historical importance that contains a declaration of independence from jolly old England. I think I'll let y'all look it up and discover a part of our history for yourselves.

    Gun Rights (none / 0) (#50)
    by Cajunrebelrouser on Wed Jun 25, 2008 at 06:47:02 PM EST
    I hope that we as a nation, are entering into an era where the liberties of the individual are triumphed. I refer to the recent upholding of the habeus corpus ruling. How great could it be if the left and the right would come together and say in a unifying voice that the citizens of this Republic hold certain individual rights and that no one , nor any political party will be given allowance under use of fear of crime or national security to take this rights given to us and have been kept washed clean by the blood of millions of patriots.Long live the Bill of Rights and long live Liberty for every human!

    "Declaration of Independence" (none / 0) (#51)
    by Enoch on Wed Jun 25, 2008 at 07:18:27 PM EST
    To Dark Avenger,

    You've got it! I'm envious, I've never seen it up close and personal.
    Yes, it's known to almost all school children by that name and probably taught that way in most schools...a shame because the result is that almost no American adult knows this documents true title.
    I had a discussion on it with someone who should have known better. He had no idea that it actually makes reference to a "Creator".

    Happy Independence Day!

    "I've had the privilege of seeing the above-mentioned when I was in Washington, D.C. some 37 years ago."

    ""This is the document that is known to every American schoolchild as "The Declaration of Independence"."