What the Opinions May Look Like in D.C. v. Heller

Predictions based on oral argument are always highly tentative. With that caveat, here’s my best guess after listening to the Heller audio on C-SPAN:

A 5-1-3 decision in favor of Mr. Heller.

A five-Justice majority opinion authored by Chief Justice Roberts or Justice Kennedy (so I agree with Orin Kerr on the likely authorship) joined by Justices Scalia, Thomas, and Alito. The opinion will uphold the individual rights view of the Second Amendment, recognizing self-defense as a protected purpose of the right to arms, and invalidating at least some of the challenged provisions of D.C. law. The Court will distance itself from U.S. v. Miller and Miller‘s suggestion that the scope of protected “Arms” is closely dependent on what constitutes ordinary military equipment. What we’ll get is a constitutionalization and moderate expansion of the post-1689 English right to arms. Justice Kennedy particularly seemed to favor this sort of approach.

(Justice Thomas will probably concur separately to assert a very robust conception of the Second Amendment right to arms. If the majority opinion does not address the proper standard of review for Second Amendment cases, Justice Thomas will write separately to urge that strict scrutiny be applied. Justice Scalia may join this concurrence.)

Justice Breyer will write for himself only, in an opinion that will probably be styled as a concurrence in part and dissent in part. He will agree with the majority that the Second Amendment protects an individual right that can be asserted outside of the context of active participation in the militia, but will argue that the right is nonetheless closely focused on civic purposes, not self-defense. Since D.C.’s laws restrict armed self-defense but still permit individuals to keep rifles and shotguns for other purposes, Justice Breyer will reason, D.C.’s regulations are reasonable.

Justice Stevens will dissent, in an opinion joined by Justice Souter and Justice Ginsburg. These three Justices will basically accept D.C.’s position: the Second Amendment may confer an individual right to arms, but it is not a right that can be asserted outside of the context of participation in a state-regulated military organization.

(I am hesitant in assigning Justice Ginsburg to this position. She may agree with Justice Breyer, yielding a 5-2-2 configuration.)

More later.

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Media Note: I’ll be appearing tonight to discuss Heller on NRA News’s program “Cam & Company” at 9 p.m. EST. You can watch and listen to the program live at that time at this link.

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6 Responses

  1. Jack Muggle says:

    This seems right, but I wonder if any of the liberals might find an individual right outside of the context of active participation in the militia, strike down D.C.’s law, and differ on what reasonableness means in future cases. It seems this could be the content of a Breyer-Ginsburg concurrence.

  2. Jack Muggle says:

    This seems right, but I wonder if any of the liberals might find an individual right outside of the context of active participation in the militia, strike down D.C.’s law, and differ on what reasonableness means in future cases. It seems this could be the content of a Breyer-Ginsburg concurrence.

  3. Jack Muggle says:

    This seems right, but I wonder if any of the liberals might find an individual right outside of the context of active participation in the militia, strike down D.C.’s law, and differ on what reasonableness means in future cases. It seems this could be the content of a Breyer-Ginsburg concurrence.

  4. Jack Muggle says:

    This seems right, but I wonder if any of the liberals might find an individual right outside of the context of active participation in the militia, strike down D.C.’s law, and differ on what reasonableness means in future cases. It seems this could be the content of a Breyer-Ginsburg concurrence.

  5. Fûz says:

    I agree with commenters Jack, Jack, and Jack, that “any of the liberals might find an individual right outside of the context of active participation in the militia.”

    A commenter elsewhere, Countertop Chronicles I think, noted that Justice Ginsburg will see an analogue between an individual Second Amendment right and a right to abortion. Loss of one will make the other hard to defend. She has made comments amenable to an individual RKBA prior to appointment to the Sup Ct.

  6. Harold says:

    Be sensible! A well regulated militia (Amend II) means just that: INDIVIDUAL CITIZENS BEARING ARMS IS WHAT FORMS A MILITIA!!! It is a constitutional right of free men to keep and bear arms. Amendment II: acurate, presise, and beautifully simplistic!! Of course, ruling masses called governments don’t like being subordinate. So what? People are in control of governments in America. BY PROCLAMATION!