Reflections on Heller
In what can be modestly described as a landmark decision, the U.S. Supreme Court yesterday held that the Second Amendment confers an individual to possess firearms.1 The decision has been much discussed and will undoubtedly continue to be dissected for decades to come. My intention here is not to contribute to that effort or even express my personal view on the correctness or wisdom of the decision, but rather to share how I intend to enjoy the aftermath.
First, expect a flood of litigation. Already today, a mere day after the decision was handed down, the NRA has brought suit challenging a ban in San Francisco. Count the number of times the media refers to the lawsuits as "frivolous" and contrast this with lawsuits brought by civil rights organizations to vindicate the constitutional rights of prisoners.
And here's where the real fun begins. Watch what happens as social conservatives, having finally found a right they can get behind,2 encounter the plethora of procedural and substantive roadblocks their forebears have placed in the path of vindicating rights. Step one? Extending the Second Amendment to apply against the states. The traditional test has been to show that the right is "fundamental to the American scheme of justice" and whether it is "essential to ordered liberty." Given that the Nation survived 232 years without recognition of an individual right, can one argue with a straight face that it meets this formulation? And oh the delight of rational basis review! Admittedly, the Court hasn't established a standard of review yet, but if it's good enough for the 14th Amendment, why not the 2nd? We already know that the right is far from absolute. Let us not forget the state action requirement! Individual rights are only protected against abridgment by the government, not by your employer, landlord, or condo association.3
Sit back, relax, and enjoy the show! (And for heaven's sake watch for stray bullets.)
1 I hasten to note that the Court also articulated a non-exhaustive list of "presumptively lawful regulatory measures" including restrictions on possession in schools or government buildings or by the mentally ill and convicted felons (apparently the justices don't want to be shot themselves) and the imposition of conditions and qualifications on commercial sale. It also noted that the type of weapons one has a right to possess may be limited.
2 I exaggerate here, of course. Working at the ACLU this summer, I'm keenly aware of how often we find ourselves in "strange bedfellows" situations.
3 This may come up in the San Francisco case noted at the outset which applies to public housing. The state there is acting as a landlord and thus may be entitled to additional deference. Not sure I buy it, but we'll see.
First, expect a flood of litigation. Already today, a mere day after the decision was handed down, the NRA has brought suit challenging a ban in San Francisco. Count the number of times the media refers to the lawsuits as "frivolous" and contrast this with lawsuits brought by civil rights organizations to vindicate the constitutional rights of prisoners.
And here's where the real fun begins. Watch what happens as social conservatives, having finally found a right they can get behind,2 encounter the plethora of procedural and substantive roadblocks their forebears have placed in the path of vindicating rights. Step one? Extending the Second Amendment to apply against the states. The traditional test has been to show that the right is "fundamental to the American scheme of justice" and whether it is "essential to ordered liberty." Given that the Nation survived 232 years without recognition of an individual right, can one argue with a straight face that it meets this formulation? And oh the delight of rational basis review! Admittedly, the Court hasn't established a standard of review yet, but if it's good enough for the 14th Amendment, why not the 2nd? We already know that the right is far from absolute. Let us not forget the state action requirement! Individual rights are only protected against abridgment by the government, not by your employer, landlord, or condo association.3
Sit back, relax, and enjoy the show! (And for heaven's sake watch for stray bullets.)
1 I hasten to note that the Court also articulated a non-exhaustive list of "presumptively lawful regulatory measures" including restrictions on possession in schools or government buildings or by the mentally ill and convicted felons (apparently the justices don't want to be shot themselves) and the imposition of conditions and qualifications on commercial sale. It also noted that the type of weapons one has a right to possess may be limited.
2 I exaggerate here, of course. Working at the ACLU this summer, I'm keenly aware of how often we find ourselves in "strange bedfellows" situations.
3 This may come up in the San Francisco case noted at the outset which applies to public housing. The state there is acting as a landlord and thus may be entitled to additional deference. Not sure I buy it, but we'll see.