Monday, March 17, 2008

D.C. v. Heller Argument Preview

Tomorrow morning at 10:00am, the Supreme Court will hear argument in the most important case before it since Planned Parenthood v. Casey.  The Second Amendment may be the last major constitutional provision, or at least the last major constitutional provision dealing with (arguably) individual rights, that the Court has not yet examined in depth.  The case of  U.S. v. Miller (1979), the only SCOTUS precedent worth mention in the area, has received a fair bit of attention, but the Miller Court merely concluded that the petitioners in that case had provided no evidence that possession of a sawed-off shotgun had "some reasonable relationship to the preservation or efficiency of a well regulated militia. . . ."  Moreover, the Miller Court's discussion of its reasoning is very brief, very vague, and decidedly unhelpful overall.  Thus, in Heller the modern Court is presented with a chance to do something that has not been done by the Court in my lifetime (I'm 25) and may not come again during any of our lifetimes: the opportunity to explore and announce the true meaning of a major constitutional provision with virtually no thought to stare decisis principles.

By my count, there will be four issues that the Court will take up tomorrow.  They are:

  1. Whether the Second Amendment applies to the District of Columbia? (Here's a take-it-to-the-bank prediction: the justices will quickly conclude that it does.)
  2. Whether the Second Amendment creates an individual right to possess firearms, or merely prevents the federal government from interfering with now non-existent state mandates that citizens keep firearms to be ready for militia service?
  3. If the Second Amendment protects an individual right, what standard of scrutiny applies to federal (including D.C.) regulations of firearm possession?
  4. Whether the District of Columbia's remarkably sweeping regulations violate that standard?

As for the views the justices will display tomorrow and ultimately announce in their opinions (expected in late June), I think a majority of justices, and quite possibly maybe even six or seven justices, will adopt the view that the Second Amendment does protect some individual right to possess firearms.  The harder questions are what standard of review a majority deems applicable to firearm regulations and whether the Court itself will apply that standard to the D.C. restrictions or remand the case to the D.C. Circuit to address that point again.  If things go as I expect, everything will hinge on what standard-of-review the Court chooses.  I think it most likely that the Court will eventually decide that some sort of intermediate standard applies, whether that be a fairly undefined "reasonableness" test, an inquiry into how similar the firearms being restricted or banned are to those used at the time of the framing of the Second Amendment (as the D.C. Circuit applied), or something else.  If one thing is clear, however, it is that if the Court adopts a standard that has any bite to it at all, D.C.'s blanket prohibition of the possession of handguns will fall, either at the hand of the Supreme court itself or in the D.C. Circuit on remand.

As for my views on what the court should do in Heller, I'll defer a discussion of that until tomorrow, both because this post is getting long enough as it is and because I'd like to think more about the exact standard-of-inquiry that the Court should apply.

The augment should end at about 11:30 (it's set for 90 minutes), and C-Span will begin a broadcast of the argument audio very shortly thereafter.  If you can get away with it at work, I'm sure you'll be able to listen to a stream of the audio on C-Span's website here.  Also, SCOTUSblog will be liveblogging the C-Span replay, and there will, of course, be a ton of coverage everywhere else (including here) later in the day.  It's almost enough to make me not envy those who are going to see the argument is person.  Well, not quite, but at least I didn't have to camp out for tickets.


Correction: Fixed an awful and misleading grammar mistake in the first paragraph.

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