Friday, October 31, 2008

Life after Heller

Article in Guns and Ammo by attorney Don Kates, on life in a post-Heller world:
In June, the Supreme Court held that the Washington, D.C. gun bans violate the Second Amendment's guarantee that law-abiding, responsible adults may have guns for the protection of their homes, families and selves. (District of Columbia v. Heller.) This has understandably been an occasion of great joy for advocates of the right to self-defense. Nevertheless, we must understand how fragile this result is and how limited the opinion is.

The case was decided by the scantest of majorities: 5-4. The dissenting opinions are, to put it bluntly, ahistorical garbage that treat the Second Amendment in ways in which no other portion of the Bill of Rights is treated. The case for the right to arms is so overwhelming that both sides call it the Standard Model view of the Second Amendment, which has been accepted not just by gun owners but also by many honest scholars who are anti-gun.
But despite the intellectual weakness of the anti-Standard Model argument, the four dissenters clung to it. This emphasizes the fanaticism of the opponents, particularly given how extreme the D.C. gun bans were: Handguns were totally illegal; long guns could be owned but only for sporting purposes; and no gun could be kept loaded and available for defense of the home.

As I am writing it appears that Barack Obama will likely be the next president. If so, we can expect every justice he appoints to the court to be unscrupulously dedicated to reversing Heller. This is not quite as ominous as it seems because Obama may not have a chance to appoint a replacement for any of the five justices who made up the majority in Heller. They are relatively young compared to the four dissenters. Most likely any justices who die or retire during Obama's term in office will be among the four dissenters, so Obama's new appointees to replace them will still be in the minority.

But it is always possible that one of the majority will retire or die, whereupon Obama will be able to appoint someone whose vote will reverse Heller.

Read the rest of the article here.

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