The American Spectator

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What Heller Doesn't Do, And What it Does

By John Tabin on 6.26.08 @ 12:56PM

Orin Kerr emphasizes the narrowness of the Court's gun ruling: It "does not resolve the degrees of scrutiny, does not address incorporation, and indicates (without establishing) that traditional gun restriction laws are valid." That's all true, but let's not slight the significance of firmly establishing the Second Amendment as protecting an individual right. The attention to detail that Justice Scalia has paid will make it difficult for a future Court to claw back this precedent without overturning it. And Scalia provides a useful guide for adjudicating the constitutionality of federal gun laws in his discussion of US v. Miller the precedent that the dissent leans on, which concludes:

We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.

Scalia goes on to argue that DC's ban on handguns doesn't meet that standard, because handguns are the most popular weapon for self-defense. This is huge, whichever way the open questions are answered. Even if gun owners lose on the incorporation question (that is, the question of whether the ruling applies to states and localities, as opposed to the federal government), a national handgun ban can't pass muster unless a future Court throws this decision out. That's hardly insignificant.

topics:
Constitution, Law