From a National Journal interview with UCLA law professor Adam Winkler on his take on Heller:
Q: Justice Stevens lamented in his dissent that the court's decision overturns a longstanding precedent. Do you think the Heller decision represents a huge departure from previous decisions?
Winkler: Yes and no. It is a huge departure from the over 40 cases of federal court decisions interpreting Miller to protect the state militia and only the state militia and not to have any impact on an individual right to bear arms for private purposes.... On the other hand, the Supreme Court case law was pretty weak. There had only been that Miller case.... One side in the case -- [Jack] Miller, the defendant -- didn't even appear in the Supreme Court, refused to file a brief. All they had was one perspective -- the government's perspective -- on that case.... Prior to Miller there had been several decisions that had not been Second Amendment cases, but the court had referred to the Second Amendment as protecting an individual right to bear arms. So, I think that the Supreme Court precedent was not all that strong. But nonetheless, the legal rule was strongly recognized in the federal courts in general.
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Q: The New York Times wrote that with this decision the court "began writing a new chapter of constitutional law." Do you agree?
Winkler: I do, but I don't.... The idea that the right to bear arms is somehow some new right seems to me totally far-fetched. The New York Times is right, there is a new chapter of constitutional law being written -- a Second Amendment chapter. But, that said, the "right to bear arms" chapter has been written over the last 200 years. Almost every state in the union recognizes an individual right to bear arms for private purposes under their state constitutions.... Many states put these provisions in their original founding constitutions; other states have more recently added them. But it's a very well established constitutional right that individuals have under American constitutional law, broadly defined to include the American constitutional tradition at the state level.
There have been hundreds of cases challenging gun control laws at the state level, and it's always been true, despite what all of the extremists say in the gun debate, that we've had an individual right to bear arms and we've had reasonable gun control regulations. And they've coexisted peacefully with occasional controversies over particular kinds of bans. But the truth is that courts are not going to allow guys with bazookas to wander down Pennsylvania Avenue, and they're also not going to allow government to completely disarm the people. Because that right to bear arms is part of the American tradition. So is it a new chapter? Yeah, there's going to be a lot more cases. There's a Second Amendment chapter. But... you might think of this as just one more story in a larger chapter about the right to bear arms in American constitutional law.
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Q: What are the political implications of the Heller decision, particularly in regards to the presidential election?
Winkler: I think the implications are less than they would have been had the Supreme Court ruled against the individual right to bear arms. I think had the court ruled in a different way than it did, it might well have stirred up a lot of anger in the gun rights community. Those are a very intense set of voters. There are a lot of single-issue voters in the gun community.... And that could have had an effect on the election by bringing out gun rights supporters, had the Second Amendment been interpreted otherwise. I think the effect is less now.... There are some questions about the position of Sen. [Barack] Obama on gun control issues, and this makes that issue all the more salient by reminding people that gun rights are a big issue in every election. But it's certainly diminished from what it would have been.
Q: Some have argued that the NRA won the battle but lost the larger war in terms of political implications. Do you agree? If the Supreme Court has guaranteed an individual's right to own a gun, can the NRA still legitimately claim that Democrats are coming to take everyone's guns away?
Winkler: Well it's a nice effort to make lemonade out of lemons. And it's true in part. It's certainly true to the extent that one of the powerful arguments the gun rights community has used against gun control is that every gun control law is just a step toward total disarmament of the people. The court has made clear now that total disarmament of the people is not going to be allowed, is not constitutionally permissible, is not an option for legislatures.
But I still think that much of the opposition to gun control comes from sort of a larger sense of gun culture, of opposition to government, of a sense that this is a natural right that is being interfered with by regulation. And I would not expect, all of a sudden, [for] a very strong, powerful anti-gun-control movement to simply fade away because one of their arguments has been taken away from them. They still have other powerful arguments. And they're dealing with a moral question of right.
Think of it in the abortion context. The Supreme Court has repeatedly said that women have the right to choose abortion and, while the court has allowed more and more regulation of the right, the court has continued to insist that the basic right is protected. Do people in the pro-choice community feel that that's a great security to them? No, they feel themselves under attack and feel that that kind of constitutional rule is not necessarily one that can be counted on to last forever. So, I don't think this [the Heller decision] strengthens the gun community a lot.
Q: How do you expect the election to shape the court?
Winkler: There are always six or seven more justices rumored to retire than will retire in the next term, as evidenced by the fact that the turnover has been so minimal in the last 15 years. So, it is true that Justice [John Paul] Stevens is 88 years old and is likely to retire under the next administration simply because of age. My understanding is that Justice [Ruth Bader] Ginsburg has battled cancer and may retire in the next term. And then I think there are a bunch of rumors about some others, which I just don't give much credence to -- that [Justice David] Souter has had enough of Washington and that Justice Scalia is bored on the Supreme Court. I don't buy that those two people are leaving or going anywhere.
So, there's probably going to be some appointments. They wouldn't necessarily affect Second Amendment questions in light of the fact that the two people likely to be replaced were dissenters in the Heller case. No matter who gets to pick their replacements, it doesn't alter the five-person majority. It might add to it. But it's not going to subtract from it. So, in that sense it won't have a huge impact on the Second Amendment.
But that said, there are a lot of Second Amendment controversies that are going to come up now. What laws are allowed, what laws are not? What standard of review applies, whether it's incorporated -- these are questions that ultimately are going to have to be answered by the Supreme Court and they'll be answered over the next 10 or 15 years, presumably. I think the appointments to the court, by whoever gets to be president in this next term, has a lasting effect because those people are going to be on the court for many years to come and will probably rule on a number of Second Amendment issues.... And there are always long-term effects, too.... With a 5-4 majority this is clearly still an issue and there are questions that need to be resolved. This is still an issue for which appointments to the Supreme Court clearly matter in the long term.
Read the full interview here.
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