Robert Levy ponders what's next after Heller

Robert Levy, the man who mostly financed the successful challenge of the D.C. gun ban and was one of the attorneys on the plaintiffs' team with Alan Gura and Clark Neily, opines on what next for gun rights in the wake of the Supreme Court's historic Heller ruling:

Much of the majority opinion and the dissent by Justice John Paul Stevens focused on contrasting interpretations of constitutional text, structure, and history. Without revisiting those arguments, about which volumes have been written, I’d like to comment briefly on four issues that received less attention in the opinions, but which have significant implications for the future. (1) What gun regulations will now be permissible? (2) Will the Second Amendment be “incorporated” so that it can be invoked against state and local governments? (3) Did a purportedly conservative Supreme Court engage in judicial activism? And (4) what happens next on the political front?
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[On standard of review]
Ultimately, the Court agreed with Heller that D.C.’s ban on all functional firearms in the home is unconstitutional “under any of the standards of scrutiny the Court has applied to enumerated constitutional rights.” But the Court did not choose a specific standard, and may hereafter apply something less than the strict scrutiny standard Heller had suggested. On the other hand, the Court categorically rejected “rational basis” scrutiny, which has been a rubber-stamp for virtually all legislative enactments. And the Court also rejected Justice Stephen Breyer’s “interest-balancing” test, which is no more than a repeat of the process that legislatures undertake in crafting regulations. Something higher is demanded, said Scalia, when an express constitutional right is at issue. At a minimum, it appears that the Court will adopt some version of intermediate or heightened scrutiny, as urged by the Justice Department.
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[On incorporation against the states]
Until then, federal courts in Illinois and California will be constrained by Presser. That means Second Amendment challenges will almost certainly be rejected until the Supremes consider incorporation. In the end, the Second Amendment — a fundamental right, expressly enumerated, “implicit in the concept of ordered liberty,” and “deeply rooted in the Nation’s history and traditions” — will no doubt be incorporated. Perhaps the more interesting question is whether the vehicle for incorporation will continue to be the Due Process Clause, or will the Court side with Harvard Professor Laurence Tribe, who wrote in his treatise on American Constitutional Law that Second Amendment rights “may well … be among the privileges or immunities of United States citizens protected by § 1 of the Fourteenth Amendment against state or local government action.”
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[On judicial activism]
Are we to conclude, therefore, that judicial activism — that is, the type of judicial intervention routinely condemned by liberals and conservatives alike — is actually a good thing?

Yes, if activism means engagement — applying the law and the Constitution to scrutinize the acts of the executive and legislative branches. Judges have a responsibility to invalidate all laws that do not conform to the Constitution. Courts would be derelict if they endorsed unconstitutional acts merely because our elected representatives passed them. In that respect, overturning the D.C. gun ban was a clear example of principled judicial engagement.

But if activism means rendering legal judgments based on the judge’s public policy preferences, it should be roundly condemned. Results-oriented jurisprudence, based on subjective value judgments, may be proper for a legislator, but not for a judge. His role is to apply the law, not impose his policy preferences.

The trick, of course, is to distinguish proper from improper judicial intervention. That task is complicated by laws that are often unclear — either because the legislature has not done its job, or has intentionally left gaps for the courts to fill; or because the meaning of the law depends on the meaning of the Constitution, which can also be unclear. Members of the Court must, therefore, have a theory of the Constitution — in particular, a respect for limited government and individual rights. Those were the principles that the Framers applied in crafting the Constitution. The Heller opinion, true to that framework, upheld a right based solidly on the text, purpose, structure, and history of our founding documents.
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[On the political front]
Even as more litigation unfolds, courts are not the only venue for action in the wake of Heller. Congress also has a role to play in enabling D.C. residents to obtain a handgun for home possession. Because of the 1976 ban, there are no stores within the city where a handgun can be obtained. And federal law effectively forecloses handgun purchases by out-of-state residents. Therefore, someone who lives in D.C. cannot acquire a handgun either inside or outside the city. That’s a problem that Congress can address: Allow interstate handgun purchases as long as they follow the law in both the buyer’s state and the seller’s state.

Further, Congress should enact legislation to alter how D.C. processes gun registrations. Currently, the city does not follow the national instant criminal check system, or NICS. Would-be registrants have to jump through extra hoops: multiple pictures, fingerprints, and on and on. The process can take months. Congress should require D.C. officials to accept the NICS system followed by 49 of 50 states.

Read the article here. In a rebuttal article, Brady Center vice-president Dennis Henigan offers the anti-gun perspective on Heller:

Levy’s discussion of judicial activism opens the door to a discussion of the merits of the majority opinion. I can’t resist walking through it. My view is that legal historians will regard the Heller decision as a prototypical misuse of judicial power to advance an ideological agenda. Not Bush v. Gore, but close.
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As indefensible as the majority’s opinion is in addressing the meaning of the Second Amendment, it nevertheless is likely to have a limited practical effect on gun laws less restrictive than a handgun ban. In this, the Heller decision should prove to be a sharp disappointment to the gun lobby and other Second Amendment extremists.

First, it is clear that there are not five votes on the Supreme Court for applying a “strict scrutiny” standard to gun laws. This was an important setback for Heller and a great victory for public safety.
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Although we will no doubt see an avalanche of Second Amendment claims (most by criminal defense lawyers on behalf of their clients seeking to avoid indictments and convictions for violations of gun laws), generally the lower courts are likely to interpret Heller as giving a constitutional green light to virtually every gun control law short of a handgun ban. Regardless of whether the Heller majority’s newly discovered right eventually is incorporated as a restraint on the states, its significance may well prove more symbol than substance.
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In short, the gun lobby needs the debate to be about banning guns that are commonly used by law-abiding Americans. By erecting a constitutional barrier to a broad gun ban, the Heller ruling may have flattened the gun lobby’s “slippery slope,” making it harder for the NRA to use fear tactics to motivate gun owners to give their time, money and votes in opposing sensible gun laws and the candidates who support those laws. This is especially true since the majority of gun owners support reasonable gun control proposals on their merits. A recent poll shows that 83% of gun owners support closing the “gun show loophole” by extending Brady background checks to private sales at gun shows. Conversely, the ruling may make it easier for advocates of stronger gun laws to ensure that gun control is viewed as the public safety issue that it is, rather than as a divisive, cultural issue.

This is the Heller paradox. A conservative majority violated every concept of judicial restraint to create a new constitutional right that may have little practical impact on gun control laws, but may instead weaken the gun lobby’s power to block the sensible gun control proposals that will dominate the debate in the future. Viewing Heller from the perspective of the NRA’s leadership, an old expression comes to mind: “Be careful what you wish for. It could come true.”

Read that article here. While I think the Brady Center's Mr. Henigan overstates the anti-gunners' case, I do agree that the pro-gun side cannot relax or rest on their laurels, lest they win the battle but lose the war. Heller was an important victory for individual human rights, but it was only one battle in a long, and likely never ending war against the enemies of freedom.