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
