Tushnet: Court likely to recognize individual right to bear arms
March 18, 2008
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Professor Mark Tushnet is a leading expert in constitutional law and history, and he is the author of "Out of Range: Why the Constitution Can't End the Battle over Guns." Here, he comments on today's Supreme Court oral argument in District of Columbia v. Heller, which presents a constitutional challenge to the Washington, D.C. gun ban. |
As a leading expert on the Second Amendment and as someone who has followed this case, what was your reaction to today's argument? Was there anything -- perhaps in the lines of questioning pursued by the justices -- that might indicate which way the Court will decide?
Although inferring outcomes from what happens at oral argument is always hazardous, it seems reasonably clear that a majority -- perhaps even a substantial majority -- of the Court will find that the Second Amendment protects an individual right. But that's hardly surprising these days.
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The real issue is, What sorts of regulations of that right are permissible? My sense is that the justices favoring the individual-rights view are also looking for a way to issue a narrow decision. And -- though this is even more speculative -- my sense is that they are inclined to think that the District's ban on handgun possession in the home is too broad, and isn't saved by the provision for possession of shotguns and rifles with trigger-locks. They could therefore strike down the District's ban without saying much about any other forms of gun regulation.
There was a moment in the argument where it appeared as if some -- but it's not clear how many -- would be interested in remanding the case to the lower courts to determine whether the District's ban satisfied either a reasonableness rule or some slightly heightened standard, as was proposed by the Solicitor General. That certainly seems to be the best outcome the District could hope for, given the tenor of the argument -- and it might not happen.
If I were to bet, I'd put a lot of money on the question that a majority of the Justices seem to think easy: Does the Second Amendment protect an individual right? I'd take slight odds favoring a decision to invalidate the District ban, but I wouldn't put a lot of money on that bet.
Related links:
- Harvard Law Bulletin: Lawyers, guns and money
- Fried: The view from Cambridge: Professor Fried on the guns case (SCOTUS Blog)
- Tribe: Sanity and the Second Amendment (Wall Street Journal)