Month: June 2010

I was a little worried when I saw Scalia authored a separate opinion. I think Justice Scalia’s concurring opinion is pretty much summed up thusly by his own words:

I write separately only to respond to some aspects of JUSTICE STEVENS’ dissent. Not that aspect which dis­ agrees with the majority’s application of our precedents to this case, which is fully covered by the Court’s opinion.

In other words, he didn’t want Justice Alito to have all the fun, and wanted to take some separate shots at Stevens. And that he does, first by attacking his proposed incorporation philosophy as it pertains to other issues:

JUSTICE STEVENS proceeds to urge readoption of the theory of incorporation articulated in Palko v. Connecticut, 302 U. S. 319, 325 (1937), see post, at 14–20. But in fact he does not favor application of that theory at all. For whether Palko requires only that “a fair and enlightened system of justice would be impossible without” the right sought to be incorporated, 302 U. S., at 325, or requires in addition that the right be rooted in the “traditions and conscience of our people,” ibid. (internal quotation marks omitted), many of the rights JUSTICE STEVENS thinks are incorporated could not pass muster under either test: abortion, post, at 7 (citing Planned Parenthood of South- eastern Pa. v. Casey, 505 U. S. 833, 847 (1992)); homosex­ ual sodomy, post, at 16 (citing Lawrence v. Texas, 539 U. S. 558, 572 (2003)); the right to have excluded from criminal trials evidence obtained in violation of the Fourth Amendment[…]

That JUSTICE STEVENS is not applying any version of Palko is clear from comparing, on the one hand, the rights he believes are covered, with, on the other hand, his con­ clusion that the right to keep and bear arms is not cov­ ered. Rights that pass his test include not just those “relating to marriage, procreation, contraception, family relationships, and child rearing and education,” but also rights against “[g]overnment action that shocks the conscience, pointlessly infringes settled expectations, tres­ passes into sensitive private realms or life choices without adequate justification, [or] perpetrates gross injustice.” Post, at 23 (internal quotation marks omitted). Not all such rights are in, however, since only “some fundamental aspects of personhood, dignity, and the like” are protected, post, at 24 (emphasis added). Exactly what is covered is not clear. But whatever else is in, he knows that the right to keep and bear arms is out, despite its being as “deeply rooted in this Nation’s history and tradition,”

Scalia here is accusing Stevens of bringing his personal opinions to the table without having any legal justification for why things are to be this way. He continues:

I can find no other explanation for such certitude except that JUSTICE STEVENS, despite his forswearing of “personal and private notions,” post, at 21 (internal quotation marks omitted), deeply believes it should be out.

Ouch.

JUSTICE STEVENS resists this description, insisting that his approach provides plenty of “guideposts” and “con­ straints” to keep courts from “injecting excessive subjectiv­ ity” into the process.3 Post, at 21. Plenty indeed—and that alone is a problem. The ability of omnidirectional guideposts to constrain is inversely proportional to their number. But even individually, each lodestar or limitation he lists either is incapable of restraining judicial whimsy or cannot be squared with the precedents he seeks to preserve. […]

The idea that interpretive pluralism would reduce courts’ ability to impose their will on the ignorant masses is not merely naïve, but absurd. If there are no right answers, there are no wrong answers either. […]

JUSTICE STEVENS also argues that requiring courts to show “respect for the democratic process” should serve as a constraint. Post, at 23. That is true, but JUSTICE STEVENS would have them show respect in an extraordi­ nary manner. In his view, if a right “is already being given careful consideration in, and subjected to ongoing calibration by, the States, judicial enforcement may not be appropriate.” Ibid. In other words, a right, such as the right to keep and bear arms, that has long been recognized but on which the States are considering restrictions, ap­ parently deserves less protection, while a privilege the political branches (instruments of the democratic process) have withheld entirely and continue to withhold, deserves more. That topsy-turvy approach conveniently accom­ plishes the objective of ensuring that the rights this Court held protected in Casey, Lawrence, and other such cases fit the theory—but at the cost of insulting rather than re­ specting the democratic process.

I just have a picture in my head of Machine Gun Sammy standing over a bound copy of Steven’s dissent with a Thompson M1 submachine gun, with Scalia taking it from him saying, “Give that thing to me, there’s still a few pages in that thing that aren’t quite thoroughly shredded.”

JUSTICE STEVENS must there­ fore have in mind some other use for the careful­ description requirement—perhaps just as a means of ensuring that courts “procee[d] slowly and incrementally,” post, at 25. But that could be achieved just as well by having them draft their opinions in longhand.4

Brutal. He goes into Steven’s assertions on Second Amendment incorporation next:

JUSTICE STEVENS begins with the odd assertion that “firearms have a fundamentally ambivalent relationship to liberty,” since sometimes they are used to cause (or sometimes accidentally produce) injury to others. Post, at 35. The source of the rule that only nonambivalent liber­ ties deserve Due Process protection is never explained— proof that judges applying JUSTICE STEVENS’ approach can add new elements to the test as they see fit. The criterion, moreover, is inherently manipulable. Surely JUSTICE STEVENS does not mean that the Clause covers only rights that have zero harmful effect on anyone. Otherwise even the First Amendment is out. Maybe what he means is that the right to keep and bear arms imposes too great a risk to others’ physical well-being. But as the plurality explains, ante, at 35–36, other rights we have already held incorporated pose similarly substantial risks to public safety. In all events, JUSTICE STEVENS supplies neither a standard for how severe the impairment on others’ liberty must be for a right to be disqualified, nor (of course) any method of measuring the severity.JUSTICE STEVENS next suggests that the Second Amendment right is not fundamental because it is “differ­ ent in kind” from other rights we have recognized. Post, at 37. In one respect, of course, the right to keep and bear arms is different from some other rights we have held the Clause protects and he would recognize: It is deeply grounded in our nation’s history and tradition. But JUSTICE STEVENS has a different distinction in mind: Even though he does “not doubt for a moment that many Americans . . . see [firearms] as critical to their way of life as well as to their security,” he pronounces that owning a handgun is not “critical to leading a life of autonomy, dignity, or political equality.”6 Post, at 37–38. Who says? Deciding what is essential to an enlightened, liberty-filled life is an inherently political, moral judgment—the an­ tithesis of an objective approach that reaches conclusions by applying neutral rules to verifiable evidence.

That’s pretty good in and of itself, but it gets better:

No determination of what rights the Constitution of the United States covers would be complete, of course, without a survey of what other countries do. Post, at 40–41. When it comes to guns, JUSTICE STEVENS explains, our Nation is already an outlier among “advanced democracies”; not even our “oldest allies” protect as robust a right as we do, and we should not widen the gap. Ibid. Never mind that he explains neither which countries qualify as “advanced democracies” nor why others are irrelevant. For there is an even clearer indication that this criterion lets judges pick which rights States must respect and those they can ignore: As the plurality shows, ante, at 34–35, and nn. 28– 29, this follow-the-foreign-crowd requirement would fore close rights that we have held (and JUSTICE STEVENS accepts) are incorporated, but that other “advanced” na­ tions do not recognize—from the exclusionary rule to the Establishment Clause. A judge applying JUSTICE STEVENS’ approach must either throw all of those rights overboard or, as cases JUSTICE STEVENS approves have done in considering unenumerated rights, simply ignore foreign law when it undermines the desired conclusion, see, e.g., Casey, 505 U. S. 833 (making no mention of foreign law).

Yesterday I went to my dad’s, and took the smoker so I could smoke some ribs. I used hickory chunks because I wanted the deep smokey flavor they provide. Next time perhaps I need to try to use Justice Scalia’s opinion here to see what flavor his piercing and witty sarcasm conveys to the meat. I think it would be delicious.

JUSTICE STEVENS’ final reason for rejecting incorporation of the Second Amendment reveals, more clearly than any of the others, the game that is afoot. Assuming that there is a “plausible constitutional basis” for holding that the right to keep and bear arms is incorporated, he asserts that we ought not to do so for prudential reasons. Post, at 47. Even if we had the authority to withhold rights that are within the Constitution’s command (and we assuredly do not), two of the reasons JUSTICE STEVENS gives for abstention show just how much power he would hand to judges. The States’ “right to experiment” with solutions to the problem of gun violence, he says, is at its apex here because “the best solution is far from clear.” Post, at 47– 48 (internal quotation marks omitted). That is true of most serious social problems—whether, for example, “the best solution” for rampant crime is to admit confessions unless they are affirmatively shown to have been coerced, but see Miranda v. Arizona, 384 U.S. 436, 444–445 (1966), or to permit jurors to impose the death penalty without a requirement that they be free to consider “any relevant mitigating factor,” see Eddings v. Oklahoma, 455 U. S. 104, 112 (1982), which in turn leads to the conclusion that defense counsel has provided inadequate defense if he has not conducted a “reasonable investigation” into potentially mitigating factors, see, e.g., Wiggins v. Smith, 539 U. S. 510, 534 (2003), inquiry into which question tends to destroy any prospect of prompt justice, see, e.g., Wong v. Belmontes, 558 U. S. ___ (2009) (per curiam) (reversing grant of habeas relief for sentencing on a crime committed in 1981). The obviousness of the optimal answer is in the eye of the beholder. The implication of JUSTICE STEVENS’ call for abstention is that if We The Court conclude that They The People’s answers to a problem are silly, we are free to “interven[e],” post, at 47, but if we too are uncertain of the right answer, or merely think the States may be on to something, we can loosen the leash.

My basic conclusion is that Scalia clearly did not believe the majority opinion savaged Justice Stevens enough, and he wanted to make sure his opinion is thoroughly skewered.

I have made it through the opinion of the Court, so far. I think it’s a very strong opinion. Stronger than Heller. The Court did not address standard of review, but for a right that is fundamental, that standard has traditionally been strict scrutiny. Before people get too excited, a lot of gun laws are going to be upheld even by strict scrutiny. Heller has already acknowledged that that government has an interest in keeping guns out of the hands of criminals, so there will be laws that will be permissible with that in mind. But strict scrutiny is a high standard, and there is much law that will fail to stand up to it. Will that be what the lower courts use? We shall see. But they can no longer hide from the fact that the Second Amendment, through the 14th Amendment, protects a fundamental right guaranteed to all Americans.

The time is getting close, so stay here for continuously updating coverage of the McDonald decision, along with commentary as I read through it. The decision should be coming down shortly.

Reverse and remanded! Opinion by Alito! We win! But how? That’s coming. The opinion is out. Going through it now as fast as I can read.

It’s a 5-4 decision, same as Heller.

The majority is divided on the precise standard, but agree on incorporation. This should be interesting.

Apparently Thomas went with P or I.

It’s a fundamental right:

U. S. 145, 149, or, as the Court has said in a related context, whether it is “deeply rooted in this Nation’s history and tradition,” Washing- ton v. Glucksberg, 521 U. S. 702, 721. Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present, and the Heller Court held that individual self-defense is “the central component” of the Second Amendment right. 554 U. S., at ___, ___. Explaining that “the need for defense of self, family, and property is most acute” in the home, ibid., the Court found that this right applies to handguns because they are “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” id., at ___, ___–___. It thus concluded that citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.” Id., at ___. Heller also clarifies that this right is “deeply rooted in this Nation’s history and tradi- tions,” Glucksberg, supra, at 721. Heller explored the right’s origins in English law and noted the esteem with which the right was re- garded during the colonial era and at the time of the ratification of the Bill of Rights. This is powerful evidence that the right was re- garded as fundamental in the sense relevant here. That understand- ing persisted in the years immediately following the Bill of Rights’ ratification and is confirmed by the state constitutions of that era, which protected the right to keep and bear arms. Pp. 19–22

Typically these are reviewed according to strict scrutiny. Continuing to read, however.

Evidence of the 14th Amendment being about the right to bear arms:

In Congressional debates on the proposed Amendment, its legislative proponents in the 39th Congress referred to the right to keep and bear arms as a fundamental right deserving of protection. Evidence from the period immediately following the Amendment’s ratification confirms that that right was considered fundamental.

This opinion, so far, is hammering the hell out of the Second Amendment being a fundamental right. Take that Bradys!

It should be noticed that the fate of the Chicago handgun ban is now in the hands of the 7th circuit, but as SCOTUSBlog points out, its fate is clear, as Heller clearly applies to the situation.

We’d like to thank the Court for putting the “fun” back in fundamental.

Here’s how the majority opinion treats the Privileges or Immunities argument:

As previously noted, the Seventh Circuit concluded that Cruikshank, Presser, and Miller doomed petitioners’ claims at the Court of Appeals level. Petitioners argue, however, that we should overrule those decisions and hold that the right to keep and bear arms is one of the “privi- leges or immunities of citizens of the United States.” In petitioners’ view, the Privileges or Immunities Clause protects all of the rights set out in the Bill of Rights, as well as some others, see Brief for Petitioners 10, 14, 15–21, but petitioners are unable to identify the Clause’s full scope, Tr. of Oral Arg. 5–6, 8–11. Nor is there any consen- sus on that question among the scholars who agree that the Slaughter-House Cases’ interpretation is flawed. See Saenz, supra, at 522, n. 1 (THOMAS, J., dissenting).

So the idea is that since we can’t really identify the scope of this we should just ignore it? Seems wrong to me, but I understand the Court not wanting to open that can of worms. Thomas’ opinion should be interesting. Here’s more:

We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter- House holding.

But they do mention:

At the same time, however, this Court’s decisions in Cruikshank, Presser, and Miller do not preclude us from considering whether the Due Process Clause of the Four- teenth Amendment makes the Second Amendment right binding on the States. See Heller, 554 U. S., at ___, n. 23 (slip op., at 48, n. 23). None of those cases “engage[d] in the sort of Fourteenth Amendment inquiry required by our later cases.”

In other words, “Oh yeah, you know when we said this in Heller? We were serious, you know.”

The Court also touches on some of the mid 19th century history behind the Second Amendment:

By the 1850’s, the perceived threat that had prompted the inclusion of the Second Amendment in the Bill of Rights—the fear that the National Government would disarm the universal militia—had largely faded as a popu- lar concern, but the right to keep and bear arms was highly valued for purposes of self-defense. See M. Doub- ler, Civilian in Peace, Soldier in War 87–90 (2003); Amar, Bill of Rights 258–259. Abolitionist authors wrote in support of the right. See L. Spooner, The Unconstitution- ality of Slavery 66 (1860) (reprint 1965); J. Tiffany, A Treatise on the Unconstitutionality of American Slavery 117–118 (1849) (reprint 1969). And when attempts were made to disarm “Free-Soilers” in “Bloody Kansas,” Senator Charles Sumner, who later played a leading role in the adoption of the Fourteenth Amendment, proclaimed that “[n]ever was [the rifle] more needed in just self-defense than now in Kansas.” The Crime Against Kansas: The Apologies for the Crime: The True Remedy, Speech of Hon. Charles Sumner in the Senate of the United States 64–65 (1856). Indeed, the 1856 Republican Party Platform pro- tested that in Kansas the constitutional rights of the people had been “fraudulently and violently taken from them” and the “right of the people to keep and bear arms” had been “infringed.” National Party Platforms 1840– 1972, p. 27 (5th ed. 1973).17

The racist roots of gun control:

After the Civil War, many of the over 180,000 African Americans who served in the Union Army returned to the States of the old Confederacy, where systematic efforts were made to disarm them and other blacks. See Heller, 554 U. S., at ___ (slip op., at 42); E. Foner, Reconstruction: America’s Unfinished Revolution 1863–1877, p. 8 (1988) (hereinafter Foner). The laws of some States formally prohibited African Americans from possessing firearms. For example, a Mississippi law provided that “no freed- man, free negro or mulatto, not in the military service of the United States government, and not licensed so to do by the board of police of his or her county, shall keep or carry fire-arms of any kind, or any ammunition, dirk or bowie knife.” […]

Throughout the South, armed parties, often consisting of ex-Confederate soldiers serving in the state militias, forcibly took firearms from newly freed slaves. In the first session of the 39th Congress, Senator Wilson told his colleagues: “In Mississippi rebel State forces, men who were in the rebel armies, are traversing the State, visiting the freedmen, disarming them, perpetrating murders and outrages upon them; and the same things are done in other sections of the country.” 39th Cong. Globe 40 (1865). The Report of the Joint Committee on Reconstruction— which was widely reprinted in the press and distributed by Members of the 39th Congress to their constituents shortly after Congress approved the Fourteenth Amend- ment19—contained numerous examples of such abuses.

The Court has more to say on the subject of the passage of the 14th Amendment:

In debating the Fourteenth Amendment, the 39th Con- gress referred to the right to keep and bear arms as a fundamental right deserving of protection. Senator Sam- uel Pomeroy described three “indispensable” “safeguards of liberty under our form of Government.” 39th Cong. Globe 1182. One of these, he said, was the right to keep and bear arms:
“Every man . . . should have the right to bear arms for the defense of himself and family and his home- stead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the pol- luted wretch to another world, where his wretched- ness will forever remain complete.” Ibid.
Even those who thought the Fourteenth Amendment unnecessary believed that blacks, as citizens, “have equal right to protection, and to keep and bear arms for self- defense.”

Let’s hope the Court realizes the modern day equivalent of that well-loaded musket is an AR-15. The Court also notes that Congress, despite the problems in the Reconstruction South, chose not to disarm individual citizens:

Fifth, the 39th Congress’ response to proposals to dis- band and disarm the Southern militias is instructive. Despite recognizing and deploring the abuses of these militias, the 39th Congress balked at a proposal to disarm them. See 39th Cong. Globe 914; Halbrook, Freedmen, supra, 20–21. Disarmament, it was argued, would violate the members’ right to bear arms, and it was ultimately decided to disband the militias but not to disarm their members. See Act of Mar. 2, 1867, §6, 14 Stat. 485, 487; Halbrook, Freedmen 68–69; Cramer 858–861. It cannot be doubted that the right to bear arms was regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner.

Just hammering home the notion that this doesn’t have anything to do with membership in a well-regulated militia, one more time, just in case it wasn’t clear in Heller. And congratulations to Steve Halbrook and Clayton Cramer for multiple citations. Dave Hardy made it too, along with Eugene Volokh. Volokh was cited in the dissent too.

The Court doesn’t mince words here:

Municipal respondents’ remaining arguments are at war with our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home. Municipal respondents, in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause.

Municipal respondents’ main argument is nothing less than a plea to disregard 50 years of incorporation prece- dent and return (presumably for this case only) to a by- gone era. Municipal respondents submit that the Due Process Clause protects only those rights “‘recognized by all temperate and civilized governments, from a deep and universal sense of [their] justice.’” Brief for Municipal Respondents 9 (quoting Chicago, B. & Q. R. Co., 166 U. S., at 238). According to municipal respondents, if it is possi- ble to imagine any civilized legal system that does not recognize a particular right, then the Due Process Clause does not make that right binding on the States. Brief for Municipal Respondents 9. Therefore, the municipal re- spondents continue, because such countries as England, Canada, Australia, Japan, Denmark, Finland, Luxem- bourg, and New Zealand either ban or severely limit handgun ownership, it must follow that no right to possess such weapons is protected by the Fourteenth Amendment. Id., at 21–23.

This line of argument is, of course, inconsistent with the long-established standard we apply in incorporation cases. See Duncan, 391 U. S., at 149, and n. 14. And the pre- sent-day implications of municipal respondents’ argument are stunning. For example, many of the rights that our Bill of Rights provides for persons accused of criminal offenses are virtually unique to this country. If our understanding of the right to a jury trial, the right against self-incrimination, and the right to counsel were necessary attributes of any civilized country, it would follow that the United States is the only civilized Nation in the world.

Tell us how you really feel, Justice Alito. But it gets better:

Municipal respondents maintain that the Second Amendment differs from all of the other provisions of the Bill of Rights because it concerns the right to possess a deadly implement and thus has implications for public safety. Brief for Municipal Respondents 11. And they note that there is intense disagreement on the question whether the private possession of guns in the home in- creases or decreases gun deaths and injuries.

The right to keep and bear arms, however, is not the only constitutional right that has controversial public safety implications. All of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category […] Municipal respondents cite no case in which we have refrained from holding that a provision of the Bill of Rights is binding on the States on the ground that the right at issue has dis- puted public safety implications.

The first bit of read meat for our opponents:

Unless we turn back the clock or adopt a special incorporation test applicable only to the Second Amendment, municipal respondents’ argument must be rejected. Under our prece- dents, if a Bill of Rights guarantee is fundamental from an American perspective, then, unless stare decisis counsels otherwise,30 that guarantee is fully binding on the States and thus limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values. As noted by the 38 States that have appeared in this case as amici supporting petitioners, “[s]tate and local experimentation with reasonable firearms regula- tions will continue under the Second Amendment.”

The bit in parentheses is what I mean. Expect the Bradys to latch on to that one in order to suggest that the Second Amendment allows for such reasonable things as banning categories of scary guns, arbitrarily denying the right based on presence on a secret government list, denying and abridging the right to bear arms, and anything else you can really think of.

Interest balancing is out, for sure, but more red meat for our opponents:

Municipal respondents assert that, although most state constitutions protect firearms rights, state courts have held that these rights are subject to “interest-balancing” and have sustained a variety of restrictions. Brief for Municipal Respondents 23–31. In Heller, however, we expressly rejected the argument that the scope of the Second Amendment right should be determined by judicial interest balancing, 554 U. S., at ___–___ (slip op., at 62– 63), and this Court decades ago abandoned “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guar- antees of the Bill of Rights,” Malloy, supra, at 10–11 (in- ternal quotation marks omitted).

As evidence that the Fourteenth Amendment has not historically been understood to restrict the authority of the States to regulate firearms, municipal respondents and supporting amici cite a variety of state and local firearms laws that courts have upheld. But what is most striking about their research is the paucity of precedent sustaining bans comparable to those at issue here and in Heller. Municipal respondents cite precisely one case (from the late 20th century) in which such a ban was sustained. See Brief for Municipal Respondents 26–27 (citing Kalodimos v. Morton Grove, 103 Ill. 2d 483, 470 N. E. 2d 266 (1984)); see also Reply Brief for Respondents NRA et al. 23, n. 7 (asserting that no other court has ever upheld a complete ban on the possession of handguns). It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recog- nized that the right to keep and bear arms is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U. S., at ___ (slip op., at 54). We made it clear in Heller that our hold- ing did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and gov- ernment buildings, or laws imposing conditions and quali- fications on the commercial sale of arms.” Id., at ___–___ (slip op., at 54–55). We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms.

Now I’m getting into Alito’s treatment of the dissenting opinions. Stevens basically argued for a two pronged approach to incorporation, namely that you could incorporate some aspects, and not others, thus treating the right differently at the federal level than the state level. The Court responds thusly:

As we have explained, the Court, for the past half- century, has moved away from the two-track approach. If we were now to accept JUSTICE STEVENS’ theory across the board, decades of decisions would be undermined. We assume that this is not what is proposed. What is urged instead, it appears, is that this theory be revived solely for the individual right that Heller recognized, over vigorous dissents.
The relationship between the Bill of Rights’ guarantees and the States must be governed by a single, neutral principle. It is far too late to exhume what Justice Bren- nan, writing for the Court 46 years ago, derided as “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights.”

I enjoyed the use of the word exhume here. Nothing like using digging up the dead to describe your opponents approach. Next it their treatment of Justice Bryers dissent. Breyer, who’s opinion was joined by Ginsburg and Sotomayor, argued that the right just isn’t fundamental:

JUSTICE BREYER’s conclusion that the Fourteenth Amendment does not incorporate the right to keep and bear arms appears to rest primarily on four factors: First, “there is no popular consensus” that the right is funda- mental, post, at 9; second, the right does not protect mi- norities or persons neglected by those holding political power, post, at 10; third, incorporation of the Second Amendment right would “amount to a significant incur- sion on a traditional and important area of state concern, altering the constitutional relationship between the States and the Federal Government” and preventing local varia- tions, post, at 11; and fourth, determining the scope of the Second Amendment right in cases involving state and local laws will force judges to answer difficult empirical questions regarding matters that are outside their area of expertise, post, at 11–16. Even if we believed that these factors were relevant to the incorporation inquiry, none of these factors undermines the case for incorporation of the right to keep and bear arms for self-defense.

I haven’t read the dissents yet, but this is certainly an interesting point of view. Kagan’s hearings are going on right as we speak, so this should have some effect on her lines of questioning, I would hope. It’s disturbing to me three justices even argued for this.

First, we have never held that a provision of the Bill of Rights applies to the States only if there is a “popular consensus” that the right is fundamental, and we see no basis for such a rule. But in this case, as it turns out, there is evidence of such a consensus. An amicus brief submitted by 58 Members of the Senate and 251 Members of the House of Representatives urges us to hold that the right to keep and bear arms is fundamental. Another brief submitted by 38 States takes the same position. Brief for State of Texas et al. as Amici Curiae 6.

Second, petitioners and many others who live in high- crime areas dispute the proposition that the Second Amendment right does not protect minorities and those lacking political clout. The plight of Chicagoans living in high-crime areas was recently highlighted when two Illi- nois legislators representing Chicago districts called on the Governor to deploy the Illinois National Guard to patrol the City’s streets.31 The legislators noted that the number of Chicago homicide victims during the current year equaled the number of American soldiers killed dur- ing that same period in Afghanistan and Iraq and that 80% of the Chicago victims were black.32 Amici supporting incorporation of the right to keep and bear arms contend that the right is especially important for women and members of other groups that may be especially vulner- able to violent crime.33 If, as petitioners believe, their safety and the safety of other law-abiding members of the community would be enhanced by the possession of hand- guns in the home for self-defense, then the Second Amendment right protects the rights of minorities and other residents of high-crime areas whose needs are not being met by elected public officials.

Without diminishing the efforts of anyone else on this case, I would like to point out that this section is where NRA brings home the bacon, because it was their political muscle that put this consensus together, and the Women’s Lawmaker brief was put together by Carol Bambery, an NRA Board Member, and Sarah Gervase, from NRA General Counsel’s office.

Third, JUSTICE BREYER is correct that incorporation of the Second Amendment right will to some extent limit the legislative freedom of the States, but this is always true when a Bill of Rights provision is incorporated. Incorpora- tion always restricts experimentation and local variations, but that has not stopped the Court from incorporating virtually every other provision of the Bill of Rights. […] Finally, JUSTICE BREYER is incorrect that incorporation will require judges to assess the costs and benefits of firearms restrictions and thus to make difficult empirical judgments in an area in which they lack expertise. As we have noted, while his opinion in Heller recommended an interest-balancing test, the Court specifically rejected that suggestion.

Take that Justice Breyer! Now to wrap it up:

In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. See Duncan, 391 U. S., at 149, and n. 14. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amend- ment right recognized in Heller. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.

It is so ordered.

This is getting long, so I’m going to do more analysis and cover the other opinions in a separate post.