One of the co-counsels involved in prosecuting the case is a former colleague of mine, Bob Levy. He has intimated to me, as well as in public now, that the NRA tried numerous times to talk the plaintiffs in this case out of pursuing it, or otherwise stop the case from getting heard. For exactly the reasons Josh outlines. The NRA would be almost ruined if it allowed a decision to go to court that definitively stated the 2nd Amendment does not protect an individual’s right to bear arms. Such a decision would open the floodgates on restrictions.

This case is so clean cut that it really seems impossible for the courts to decide on a technicality. Though the one dissenting judge in the most recent opinion chose to dissent because DC is not a state, and the 2nd Amendment “clearly” applies only to states (Huh??? Now talk about a rigid reading, but this sounds like a Thomas opinion to me). So I guess anything is possible, and of course they could just not touch it and not offer an excuse… but personally, I expect Congress will pass something that nips this in the bud before Roberts has his hands on it.

Handicapping this one in the Supreme Court is incredibly tough though. Since the court hasn’t touched the issue in so long, none of the long-time Justices have seriously expounded on the issue in ages. In my gut, I have a hard time believing that it wouldn’t be a 7-2 decision affirming the lower court decision, or thereabouts, but this court is hard to pigeonhole, and it could easily go 7-2 the other way.

Now, can anyone here possibly defend the opinion that the 2nd Amendment only protects a collective right to bear arms, “a well-regulated militia.” This seems to me an absurdity, despite its constant acceptance by many. Did the founders really find it so important to codify a right to have a military? Can it really be imagined that they worried a State might outlaw a group designed to protect it from insurgency? That seems silly, especially when one understands that the military was already established in the preceeding articles of the document (specifically 1 and 2.) The 2nd Amendment, in my opinion, is clearly an individual’s protection against the illegitimate use of force, whether from a domestic or foreign power. It might seem absurd that we would need such protections today (though I assure you that it didn’t then, see War of 1812.) However, especially in a time of expanding executive power, and an increase in the power wielded by non-state actors, it seems imperative that we stand for this fundamental natural right.

Another interesting angle of this case, which probably won’t get aired in the Supreme Court, is an argument under 9th Amendment grounds. The DC ban even prohibits the use of a legal, registered firearm for self-defense, (the ban allows for disassembled or locked “long guns” as well as handguns that were grandfathered in for their original owners before the ban, but these must also be kept locked and unloaded.) There is a strong argument that the 9th Amendment reserves the right of self-defense for the people (which does not contain any reference to States.)

Thanks again to everyone…

(For an intro into the Court’s avoidance of politically volatile issues, often even when the “right” ruling is blatantly obvious [and is so in hindsight–Korematsu anyone?–] you can start with the papers that came from the Univ. of Missouri law school symposium I attended in Spring of 2004 http://law.missouri.edu/lawreview/archives/vol69iss4.html Also there is a lot of literature on judicial deference and the role the Court plays in politics and in relation to the “more responsive” branches of government. I don’t have the citations with me, but my thesis and its footnotes are also a decent starting point, though focused on a different issue –I can email them when I get home if anybody wants them– )

I had not read this, but if the NRA is backing legislation to preempt a ruling, that makes sense. First, the NRA always backs legislation to make gun rights more clear and substantive; that’s the NRA’s reason for existence and a wise path for it to take. But more to the point, the NRA may not be as optimistic or hopeful for a ruling on this issue as it appears in public. If the Court avoids ruling, due to some technical issue or because it simply feels like not taking the case (which is its right), we are left with the status quo in which DC can and will craft a new law that is slightly less restrictive then an outright ban. Then it may be back to the courts… If the Court takes the issue and decides on whether the Second Amendment protects an individual right to bear arms, there is no reason to be certain it will go in the NRA’s favor. I suspect, though I don’t know, that prevailing opinion is the Court is split 4-4 on this issue with Kennedy the swing. Gun rights activists may infer that Kennedy is on their side (and I presume they assume Roberts & Alito are as well), but I don’t. First, Roberts & Alito are untested on this issue on the Supreme Court. Even if they ruled on it at lower levels, the Supreme Court is known to change people’s opinions/understanding of the role of the Court (look at Hugo Black who in the 1930s railed against Supreme Court intervention into his beloved New Deal endeavors, then became one of the staunchest defenders of Judicial action in regards to protecting Individual liberties — and as always there is the Republican Governor of California Earl Warren appointed by Eisenhower…) Also Kennedy has had years to show some support for an individual right to bear arms, so does he? I have no idea, does anybody else? Besides a 5-4 ruling in favor of the individual right settles little; a 6-3 or 7-2 ruling (it could always happen) when tacked onto 70 years of precedent is more or less the end of debate.l