No Decision Today in D.C. Handgun Case

By Jeralyn, Section Supreme Court
Posted on Wed Jun 25, 2008 at 09:28:00 AM EST
Tags: Second Amendment, gun rights (all tags)

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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.

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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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No Decision Today in D.C. Handgun Case | 50 comments (50 topical)

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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

The linked firearm is quite legal where I live, and in the locales I travel to for competition. But it seems a bit much to be turned into a criminal just because your plane gets diverted to a different city.


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

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