Blogging Heller

Over at SCOTUS Blog, we learn that Heller will be the last decision announced this morning. I suppose that means that Scalia or Kennedy wrote the majority opinion. I can't imagine that it could be Stevens.

Update: It's Scalia suggesting a broad ruling.

Update: And it is. I am skimming through it but am immediately struck be a few things. As has been reported elsewhere, the Court held that the operative clause of the Second Amendment ("the right of the people to keep and bear Arms, shall not be infringed") creates an individual right to bear arms that is not limited by the preceding prefatory clause ("A well regulated Militia, being necessary to the security of a free State ..."). This has too implications. First, the right exists unconnected to service in the militia. The right exists to keep firearms for traditional use, such as self defense in the home.

This also means, Scalia appears to say, that the right is not limited to those firearms that would be useful to service in a militia, i.e., the right applies to handguns. This is so, the majority seems to say, because, although the prefatory clause does not limit the operative clause, it informs its interpretation and "[t]he traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense."

But its not an unlimited right. Indeed, interpretation of the amendment to firearms in common use would justify prohibition of those that are not (the Court mentions short barreled shotguns. Thus, in a latter passage, the Court makes clear that the amendment does not bar the prohibition of "dangerous and unusual weapons.

Other limitations may be permitted as well. Here's a passage that will be seized upon by gun control advocates:

Like most rights, the right secured by the Second
Amendment is not unlimited. From Blackstone through
the 19th-century cases, commentators and courts routinely
explained that the right was not a right to keep and
carry any weapon whatsoever in any manner whatsoever
and for whatever purpose. See, e.g., Sheldon, in 5 Blume
346; Rawle 123; Pomeroy 152–153; Abbott 333. For example,
the majority of the 19th-century courts to consider the
question held that prohibitions on carrying concealed
weapons were lawful under the Second Amendment or
state analogues. See, e.g., State v. Chandler, 5 La. Ann.,
at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2
Kent *340, n. 2; The American Students’ Blackstone 84, n.
11 (G. Chase ed. 1884). Although we do not undertake an
exhaustive historical analysis today of the full scope of the
Second Amendment, nothing in our opinion should be
taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive places
such as schools and government buildings, or laws imposing
conditions and qualifications on the commercial sale of
arms.26


My initial reaction is that the opinion may not restrict most regulation that is politically possible in most places. There will be no handgun bans. There may be gun regulation.

But this is really preliminary. More later.

Update: David Schenck writing at SCOTUSblog, notes that more Second Amendment litigation is likely. Is the Second incorporated against the states? What standard governs firearm regulations and what regulations are permissible. Strictly speaking, Heller only establishes that a federal ban of the possession of a handgun in the home is unconstitutional. As he points out, four justices would not have even found that. Whether Heller has legs, i.e., whether it establishes a robust right to bear arms, will turn on the future composition of the Court. While Obama says that he agrees with the Court's decision, it seems unlikely that he would appoint Justices who would decide it the same way.