(one can only hope).
Opinion is expected to be released tomorrow.
Tomorrow may be the big day. (Or we might have to wait again. At least I'm improving my calcium intake.) Court-watchers have noticed that, with the issuance of yesterday's opinion by Justice Souter in the right-to-counsel case of Rothgery v. Gillespie County, the only case left from the Supreme Court's March sitting is D.C. v. Heller, and the only Justice who hasn't written any majority opinions from that sitting is ... Justice Antonin Scalia. Tom Goldstein thinks it's "exceptionally likely" that Scalia was assigned to write the Court's lead opinion in the most important Second Amendment case in American history.
What could that mean for the decision in Heller? As I'll explain, I think a Scalia-authored opinion would be great news for those who are mainly concerned with the Second Amendment as a limit on federal gun control, but somewhat ambiguous news -- at least in the short term -- for those who hope for the incorporation of the Second Amendment as a check on state and municipal governments.
In the Heller oral argument, Justice Scalia was the clearest voice in favor of the broad individual rights view of the Second Amendment -- what pro-rights scholars often call the "Standard Model." He emphatically rejected the various "collective rights" theories of the Second Amendment, under which it protects only a prerogative of state governments rather than a right of individuals. Justice Scalia also brought up Blackstone's emphasis on the right to arms as a necessary adjunct of the right of self-defense, and suggested that D.C.'s high crime rates, far from supporting gun prohibition, were instead "
ll the more reason to allow a homeowner to have a handgun." Scalia suggested that under U.S. v. Miller, individuals have a Second Amendment right to keep and use a broad class of firearms in "common use" at this time -- though not arms that are "uncommon" for private citizens, such as machine guns.
If an individual right prevails in Heller, it's not going to be easy to avoid the incorporation of the right to arms, no matter how the Court chooses to approach it. We already have about a century's worth of precedents that gradually incorporated most of the individual amendments in the Bill of Rights against the states via the Fourteenth Amendment's Due Process Clause. The test for whether an amendment qualifies for "selective incorporation" under this approach stresses several factors, such as whether the right has an English antecedent; is widely protected in state constitutions; and continues to enjoy strong support today. Suffice to say that the right to arms satisfies these factors -- more so than many of the rights the Court has already incorporated.
8< ----- SNIP
In the long term, some form of Second Amendment incorporation is probably inevitable. That issue is not on the table in Heller, which deals with the District of Columbia rather than a state, but as I've suggested before, the Court can choose to drop hints about the incorporation question in its opinion. The opinion may be circumspect about this if Justice Scalia writes it. We'll see.
http://www.concurringopinions.com/archives/2008/06/so_lets_say_jus.html
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