7. Blocs of Justices. While I believe that the Court will be able to generate a majority opinion in Heller, I suspect that the Justices will use concurring and/or dissenting opinions to express different views on how to interpret the right to arms.Prof. O'Shea opines on several aspects of the case that the Court might address (or not address), including the level of scrutiny that applies to Second Amendment issues, the post-Heller status of the Court's 1939 Miller decision, and incorporation (that is, whether the Second Amendment applies to the states, or only to the federal government).
I expect Justices Scalia and Thomas to take a strong pro-rights stance, endorsing a version of Miller than gives broad protection to those militia-useful firearms that are commonly owned by Americans today, and protects both civic and private purposes.
I think Justice Kennedy (possibly joined by Chief Justice Roberts and Justice Alito) is likely to endorse a conception of the right to arms that distances itself from Miller, and focuses more narrowly on private purposes. This might allow legislatures somewhat more latitude to regulate the types of firearms owned than the than the view I’m (tentiatively) ascribing to Scalia, Thomas, and Miller. But it would still require government to respect a range of traditional uses for private arms, definitely including self-defense, and possibly hunting and recreation as well. I predict either Justice Kennedy or Chief Justice Roberts will write the Court’s opinion, and this bloc’s view of the Second Amendment is likely to govern the case.
In oral argument, Justice Breyer seemed interested in a conception of the right to arms that would protect individual arms ownership to some degree, but would focus tightly on civic purposes, and therefore allow potential militiamen to keep ordinary rifles and shotguns in order to practice with them. However, it seemed that Breyer’s conception would not give much weight to private purposes for arms ownership, such as self-defense. Justice Ginsburg’s views were hard to ascertain in the oral argument, but if forced to guess, I think she may embrace Justice Breyer’s view.
Finally, Justice Stevens seemed to support the formerly received, 1970s-vintage view of the Second Amendment, under which it protects no sort of individual right to possess arms that is enforceable apart from the say-so of a state government and an organized state military force. Justice Souter’s unrelentingly negative questioning in oral argument leads me to think he will join Justice Stevens’s view.
Read the rest of his observations here.