Below, Alan B. Morrison writes what is to be the first of a series of Discussion Board posts on today’s DC v. Heller decision. Alan, who formerly worked for the District and signed its merits brief in the Supreme Court, is now Special Counsel for the Fair Elections Legal Network and Co-Founder/Former Director of the Public Citizen Litigation Group.

Several things are clear and much is unclear.

This is a wonderful example of two groups of Justices looking at the same cases and history and coming to radically different conclusions. DC made all the arguments it could, and it could not get the fifth vote. No one on either side will be convinced by the other’s side analysis. Based on a quick reading, the most shocking aspect of Justice Scalia’s opinion is his dismissal of those who read the Court’s 1939 decision in Miller as supporting a militia-related reading of the Second Amendment: Miller did not hold that and cannot possibly be read to have held that” (p.49) even though many judges and scholars read it precisely that way. Scalia is persuasive in rejecting the notion that Miller should bind the Court in any way, but his dismissive tone as to a militia-based reading of Miller is indicative of the dismissive manner in which he rejects every argument from the other side as bordering on frivolous. It should also be noted that Justice Stevens says in the opening of his dissent that the answer is “clear” the other way! Looks like clarity, like beauty, is in the eye of the beholder.

Because there were five votes for an individual rights based reading of the Second Amendment, I leave it to scholars to discuss that question. What is most important is what else the Court decided and what it left for another day.

The Court did strike down the ban on all handguns in the home, concluding, without any citation, that they are the most popular self-defense weapon (the District cited articles in “Guns & Ammo” magazine saying that rifles or shotguns are much more effective for those who know what they are doing? There is no mention of harm to family members, suicides or accidents: this part could have been written by the NRA. Justice Breyer’s dissent on this point is much too long to summarize here, but he takes into account a much broader range of interests than does the majority in reaching the opposite conclusion on the gun ban itself.

The Court also struck down the law that said all guns must be inoperable at all times, either by being unloaded or by a trigger lock. It rejected the argument that there was an implied exception for actual use for self-defense, which is probably an unfair way to read the law, but there is no question that the law is unclear and the District would have to clean it up even if it had won. The plaintiffs wanted the Court to tell the District lots more about what gun lock laws it could and could not enact, but the Court stuck to this one narrow aspect.

Three vital issues remain open: Does this apply only to the District & the Federal Government? (Scalia did not even mention an entire argument made by the District that the Second Amendment should not apply here because of the Seat of Government clause.) For gun-rights advocates, the District is small potatoes compared to getting the Second Amendment to apply to states & cities, and Scalia directly refused to take on that question, which will surely be raised very soon (look out Chicago and your gun ban).

Second, what standard of review will apply? Scalia rejects rational basis (note 27 page 56, which the District did not urge) and says that the District law falls under any other standard, without exactly saying why. The SG offered a fairly relaxed standard (except as applied to the DC law), but the Court did not bite. Federal laws regulating guns, and perhaps those increasing sentences for gun use, are likely to be challenged, whatever the standard and chance of success.

Third, what is the fate of other gun laws? Scalia mentions a number of them that he suggests are OK (felons, insane, certain locations) and says that they are illustrative, not exhaustive. But if strict scrutiny will be applied, which is at least hinted at in the rejection of rationale basis, why are all felons to be treated equally – what about Martha Stewart and Scooter Libby – are they really dangerous?

Note also the not-so-gentle chide of Justice Stevens at the conclusion of his dissent that majority was engaged in judicial activism and causing the courts to embark on a case by case determination of what gun laws will & will not survive.

Bottom line: looks like a full-employment decision for lots of gun lawyers and state, federal, and municipal attorneys – but not including me.

Even for those who disagree with the majority in Heller, there is one bright spot in the decision that the Second Amendment contains a private right to bear arms: we won’t have to do battle with the gun enthusiasts who would have immediately begun a campaign to amend the constitution if the dissent had prevailed.

Posted in District of Columbia v. Heller, Uncategorized