Sunday, January 20, 2008

Court to Brave Certain and Uncertain Unenumerated (Penumbrated) Rights


Issues that Can Be Avoided

One issue that the Court will be able to duck, because it isn’t present here, involves the incorporation of the Second Amendment into the Fourteenth. Because the District of Columbia is not a state, but part of the federal government, no incorporation issue appears. Of course, that also means that, regardless of the decision in Heller, the incorporation question will remain for future cases.

In addition, the often-discussed question of what sort of weapons fall within Second Amendment protection should be easy for the Court to avoid should it choose to do so. The Heller plaintiffs are not asking for the right to possess machine guns, bazookas, or nuclear weapons, but ordinary firearms whose inclusion within any individual-rights view of the Second Amendment is unlikely to raise difficult questions.

The Heller case may also allow the Court to avoid, for the moment, any line drawing regarding the extent to which state or federal laws involving licensing or registration of firearms, or requiring licenses for public carrying of firearms, are permissible under an individual-rights view of the Second Amendment. The District of Columbia gun ban under question is so draco­nian that it can plausibly stand only if the Court finds no individual right to arms at all.

II. Issues that Cannot (Easily) Be Avoided

Other issues will require a decision. The most significant is the question whether the Second Amendment protects some sort of individual right to own guns, or merely a “collective right” of states to arm militias. That question is squarely presented in Heller, as is recognized by the Court’s own statement of the issue:

Whether the following provisions — D.C. Code secs. 7‑2502.02(a)(4), 22‑4504(a), and 7‑2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state‑regulated militia, but who wish to keep handguns and other firearms for private use in their homes.

Some observers read the Court’s statement of the issue to presuppose the existence of some sort of individual right,[4] but that seems less clear to us. But the Court can hardly avoid answering this question in deciding the case—or, at least, it cannot do so without contortions that would have made it more politic to simply deny the petition for certiorari.

Even if the Court concludes that the Second Amendment protects an individual right, it must then articulate a standard of review to, in Richard Fallon’s usage, “implement” the Amendment[5] by articulating “decision rules” to guide it and lower courts in future cases.[6] The Court could thus rec­ognize an individual right while prescribing a deferential standard of review that permits anything short of outright prohibition[7]—think Kelo’s review of “public use.”[8] Even if the Court were to announce a more rigorous standard, there is always the possibility that it will be applied in a relaxed fashion. Pace Gerry Gunther, “strict in theory” is not necessarily “fatal in fact.”[9]

Another HT to How Appealing

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