How Gunloons Can Still Lose The Biggest Gun Case Since Miller

With the Supreme Court Poised to Redefine the Right to Bear
Arms, Far-Reaching Questions Loom

By MICHAEL C. DORF

Monday, Mar. 24, 2008

Last week, the Supreme Court heard oral argument in District
of Columbia v. Heller. The case presents the question whether
the District's law banning nearly all handguns, and regulating
the storage of licensed shotguns and rifles, violates the
Second Amendment. To resolve that question will require the
Court to enter a long-simmering debate among academics and
activists.

The Second Amendment provides as follows: "A well regulated
Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be
infringed."

Emphasizing the introductory language, the District and its
allies argue that the right "to keep and bear Arms" exists
only in the context of service in a state militia. In
contrast, offering a view of the militia as indistinct from
the individuals who comprise it, plaintiff *** Anthony Heller
and his allies read what they call the "operative clause" --
that is, the language following the Amendment's second comma--
as protecting a right to private possession and use of
firearms for self-defense, regardless of one's service in an
organized militia.

The questions Justices ask at oral argument are not always a
reliable guide to how they will ultimately vote to resolve a
case. Nonetheless, no one seemed to be playing devil's
advocate last week. Based on my reading of the oral argument
transcript, four Justices--Chief Justice Roberts and Justices
Scalia, Kennedy, and Alito--endorsed the private use view
favored by Heller. Justice Thomas almost never speaks at oral
argument, and last week was no exception, but he can
nonetheless be counted as a very likely vote for Heller, based
on his prior statements on the Second Amendment and his
general ideological leanings.

Accordingly, the Supreme Court appears poised to rule that the
Second Amendment protects a private right to possess and use
firearms. In doing so, it will raise a host of new questions,
including: What counts as a protected "Arm?" To whom may
government deny the right to possess and use firearms? What
standard of judicial scrutiny applies to laws burdening that
right? Does the right afford the same protection against
regulation or prohibition by the states as it affords against
regulation or prohibition by the federal government?

Chief Justice Roberts frequently espouses a form of
methodological conservatism under which, he suggests, the
Supreme Court should eschew broad decisions, instead sticking
narrowly to the facts of each case before it. He made the same
suggestion during last week's oral argument. Resisting
Solicitor General Paul Clement's argument for a
"reasonableness" standard for evaluating firearms
restrictions, the Chief Justice suggested, instead, that the
case could be resolved without deciding upon any general
standard and without addressing the broader implications of
the decision.

As I explained in an earlier column, there are sound reasons
to worry that the methodological conservatism Chief Justice
Roberts favors carries hidden costs for the legal system as a
whole. But even if one were to favor methodological
conservatism in general, there are features of the Heller case
in particular that will render it impossible for the Court to
resolve the case fairly without addressing far-reaching
questions about the permissibility of gun control.

If the Court Finds a Private Constitutional Right to Possess
and Use Firearms, Must it Strike Down the District's Law?

Suppose the Supreme Court finds that the Second Amendment does
protect an individual right to possess and use firearms. Does
it follow that the District's law is unconstitutional?

Not necessarily. Although the District bans nearly all
handguns, it does permit licensed long guns--shotguns and
rifles--in the home, so long as they are stored under trigger
lock or disassembled. Heller argues that the latter
restriction effectively prevents him from ready access to a
working firearm to use against an intruder, but the District
counters that it would construe its law, if challenged, to
permit self-defense with a licensed long gun. And, says the
District, if the case were remanded to the trial court, it
could prove that the storage restrictions permit a long-gun
owner to have a working firearm ready in seconds if necessary.

Yet even assuming that the District's law does, in fact,
permit working long guns to be available for self-defense
against an attacker, there remains the question of the
validity of the handgun ban component of the District's law.
The Court of Appeals decision in the Heller case said that the
Second Amendment right is subject to reasonable regulation but
that a near-complete ban on handguns is no mere regulation.
(The law exempts retired police officers and handguns that
were licensed prior to 1976.) Because modern handguns are
"lineal descendants" of the pistols that militiamen carried in
the Eighteenth Century, and because they are in common use,
the appeals court reasoned that the District ban could not be
sustained.

The District argued before the Supreme Court that the
particular dangers posed by handguns--their portability,
concealability, and ease of use by children--justify a ban.
The District received some support for this argument from
Solicitor General Paul Clement, who worried that the appeals
court's reasoning would also invalidate the federal machine
gun ban, as machine guns are standard-issue firearms in the
modern armed services.

What is the Standard of Review?

Who will win this argument? That may depend on what standard
of judicial review applies to firearms restrictions. Although
the appeals court inquired into whether the District ban is
"reasonable," other aspects of its opinion suggested that a
standard more like the "strict scrutiny" applicable to
restrictions on free speech should apply. If that is indeed
the standard, then, Heller argues, just as the government
cannot ban an entire medium of communication on the theory
that it leaves open other media, so too, the government cannot
ban an entire category of firearms.

That's not a perfect analogy. As Walter Dellinger said during
the oral argument for the District, there is a key difference
between freedom of speech and freedom to arm oneself. We
generally think that more speech is better than less speech,
so that a law restricting people to possession of no more than
five books would be obviously invalid. By contrast, Dellinger
explained, the point of an individual right to arms is to have
weaponry sufficient to defend oneself--not as much weaponry as
one would like to stockpile. Five (or even one or two) working
firearms would typically suffice for self-defense.

Chief Justice Roberts rightly observed during the oral
argument that terms like "strict scrutiny" do not appear in
the Constitution but were the product of numerous free speech
cases. He also expressed the view that this dispute --the
first Second Amendment case the Court has confronted in almost
seventy years--could be resolved without the articulation of
"an all-encompassing standard."

Yet the question whether the District handgun ban leaves
residents with adequate means of armed self-defense depends on
the resolution of important factual questions, such as how
quickly trigger locks can be removed, or long guns assembled.
It also turns on normative questions such as whether citizens
have a right to armed self-defense outside the home. Which
side bears the burden of proof? By what measure? It is hard to
see how these issues can be resolved without first defining
some standard--even if not an all-encompassing one.

Does the Second Amendment Restrict the States as Well as the
Federal Government?

The Heller case involves a federal restriction on gun
ownership and possession. It therefore does not directly
present the question of whether the Second Amendment limits
state laws regulating firearms. However, a victory for Heller
will likely inspire putative gun owners in other jurisdictions
to challenge restrictive gun laws passed by states and cities.

Many state constitutions protect an individual right of
firearm possession, but some do not. Will stringent handgun
licensing requirements--such as those in force in New York
City--be vulnerable to Second Amendment challenge?

The Supreme Court has held that most of the provisions of the
first eight amendments to the Constitution--which originally
only restricted the federal government--were made applicable
to state and local laws by operation of the Fourteenth
Amendment. In lawyer's jargon, we say that the Fourteenth
Amendment "incorporates" most of the provisions of the Bill of
Rights.

Most, but not all. For example, the first clause of the
Seventh Amendment, which guarantees the right to a jury trial
in lawsuits seeking more than twenty dollars in damages, has
not been incorporated against the states. Likewise, two
Nineteenth Century decisions say that the Second Amendment
does not apply against the states.

There is a twist, however: Those Nineteenth Century cases were
decided before the Supreme Court began to take seriously the
notion that the Fourteenth Amendment incorporates any of the
provisions of the Bill of Rights. Accordingly, it is an open
question whether the criteria the Court has used in its modern
incorporation cases favor or disfavor incorporation of the
Second Amendment.

And that question is presented in the Heller case, at least
indirectly. Federal power over the District of Columbia,
Dellinger argued for the District, is not the same as federal
power over the rest of the country. With respect to the
District, the federal government (and the District itself, via
the Home Rule Act) stands in the shoes of a state.

Accordingly, if the Second Amendment is not incorporated
against the states via the Fourteenth Amendment, the District
says, then the Second Amendment also does not limit the
ability of the federal government to legislate for the
District of Columbia. It would be extraordinarily anomalous,
the District argues, for every state in the Union to have the
power to regulate firearms in its urban areas, but for the
federal government to lack that power with respect to the
nation's capital.

The Court can reject this argument, but only by saying that
the Second Amendment in fact is incorporated against the
states. If the Second Amendment is indeed incorporated, then
the Court could avoid the anomaly of denying the federal
government, in D.C., a power that states would still possess:
the authority to impose serious restrictions on firearms. To
strike down the D.C. law, in other words, the Court would have
to first find that the Fourteenth Amendment does incorporate
the Second Amendment.

What the Court Will Actually Do

The foregoing considerations show that the Heller case is not
merely the modern Court's first entry into the Second
Amendment area. It is likely to be the leading case on the
matter for quite some time.

Granted, the Justices could doubtless find some way to duck
the hard questions that will arise should they find a personal
right of armed self-defense under the Second Amendment. The
Court might, for example, resolve the core issue and then punt
the matter to the lower courts via remand. Or the Court could
write a less-than-fully-forthright opinion invalidating the
District's ban without coming to grips with the arguments
about the applicable standard and incorporation.

Dodging the key questions that Heller presents would not be an
exercise in methodological conservatism, however. Chief
Justice Roberts is fond of saying that if it is not necessary
to decide an issue to resolve a case, then it is necessary not
to decide that issue. Maybe so, but the converse is
undoubtedly, indeed tautologically, true: If it is necessary
to decide an issue to resolve a case, then it is necessary to
decide that issue.

The apparent inclination of five Justices to rule that the
Second Amendment protects a personal right, unconnected to
militia service, obligates them to resolve far-reaching
questions about the scope of that right. Whether they fulfill
that obligation, or dodge it, remains to be seen.

http://writ.lp.findlaw.com/dorf/20080324.html



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Yours truly,

The Lone Weasel

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