Now, for Heller: Affirmed, quite naturally. Wow! It came down 5-4, with none of the traditionally ‘liberal’ Justices joining the pro-gun rights majority. Scalia must have written an incredibly strong majority opinion and the ‘conservatives’ must have been unwilling to budge.

Opinions are straight 5-4, one majority and two dissent. No concurring, partials. I’m surprised to see that happen. In a term where we’ve seen a remarkably low rate of 5-4 standard ideological splits, this clear delineation resonates loudly enough that I can hear it a thousand miles away.

HELLER OPINION HERE.

Justice Scalia drops a classic lesson in Second Amendment textual interpretation. According to Justice Stevens, he “discusses the prologue last.” Whatever you want to call it, Scalia talks about the right of individual people first.

It is only on Page 56 that he finally gets to DC’s specific legislation. He declares the ‘inoperable’ requirement to be unconstitutional:

We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.

We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 54–55, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

Try not to act too surprised, but Stevens talks at length about how the Court’s shouldn’t reverse every decision it makes and that at a certain point, a decision like Miller is set in stone.

Even if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself, would prevent most jurists from endorsing such a dramatic upheaval in the law.


0 Responses to “DC v. Heller Thoughts and Analysis”

  1. No Comments

Leave a Reply





Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Categories

Random Posts

  • Updated Advocate Scorecard (OT00-10): The Court's hearing list for this month completes the list of attorneys who will argue before the Supreme Court during October Term 2010. I'...
  • Advocate Watch: With the Term quickly approaching it's midway point, we can take a look at which advocates have made the biggest mark on the Term. Hearing L...
  • Updates: I've updated a lot of the information on the Term Case Index in preparation for today's cases. I expect the Supreme Court to hand down 1-2 o...
  • Opinions Released as a Percentage of Total Term Opinions: I've created a little chart that shows opinions released as a percentage of total opinions for a given term. For the current term, I've used...
  • Frequency of Consecutive Opinions Release Days: I've taken a look at the number of opinion days in a given week from OT06 to OT10. In other words, I've taken a look at the number of times ...