Saturday, June 14, 2008

Previewing the Heller Decision

Mike O'Shea at Concurring Opinions writes about what to look for when the Heller decisions comes down, possibly as soon as Monday:

1. Recognition of an Individual Right to Arms? The threshold issue. Will the Court recognize a genuinely individual right to arms, i.e., one that is not contingent upon participation in a state-regulated military organization? Like most observers, I interpreted the oral argument as revealing that there were between five and seven votes among the Justices for a genuine individual right.

2. What Purposes Does the Right Protect? Privately owned firearms can potentially serve a variety of legitimate purposes. Some of these are civic purposes: deterring tyranny; protecting against invasion or internal disorder; promoting military readiness through individual practice with firearms. Others are private, personal purposes: self-defense against criminal violence; hunting; participating in the shooting sports. Assuming that the Court recognizes an individual Second Amendment right to arms, will it interpret that right in a way that stresses protection for the private purposes of citizen arms — as urged by the provocative amicus brief of Professor Nelson Lund? Or will it emphasize the civic purposes of citizen arms — as it seemed to do in the 1939 Miller decision? Or will it (correctly, in my view) embrace both kinds of purposes, as do many state constitutional decisions? The answer to this question will greatly influence the success of future Second Amendment challenges to restrictive gun legislation. ...

Some kinds of restrictions (such as D.C.’s draconian “safe storage” requirements that do not allow a resident to keep any firearm in a usable defensive condition in her home) impinge most strongly on the private purposes of gun ownership. Others, such as bans on modern semiautomatic rifles, seem more likely to come into tension with the civic purposes of gun ownership, to the extent those are recognized as part of the Second Amendment.

There's much more there.

Hattip: Instapundit

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