Tomorrow may be the big day. (Or we might have to wait again. At least I’m improving my calcium intake.) Court-watchers have noticed that, with the issuance of yesterday’s opinion by Justice Souter in the right-to-counsel case of Rothgery v. Gillespie County, the only case left from the Supreme Court’s March sitting is D.C. v. Heller, and the only Justice who hasn’t written any majority opinions from that sitting is … Justice Antonin Scalia. Tom Goldstein thinks it’s “exceptionally likely” that Scalia was assigned to write the Court’s lead opinion in the most important Second Amendment case in American history.
What could that mean for the decision in Heller? As I’ll explain, I think a Scalia-authored opinion would be great news for those who are mainly concerned with the Second Amendment as a limit on federal gun control, but somewhat ambiguous news — at least in the short term — for those who hope for the incorporation of the Second Amendment as a check on state and municipal governments.
In the Heller oral argument, Justice Scalia was the clearest voice in favor of the broad individual rights view of the Second Amendment — what pro-rights scholars often call the “Standard Model.” He emphatically rejected the various “collective rights” theories of the Second Amendment, under which it protects only a prerogative of state governments rather than a right of individuals. Justice Scalia also brought up Blackstone’s emphasis on the right to arms as a necessary adjunct of the right of self-defense, and suggested that D.C.’s high crime rates, far from supporting gun prohibition, were instead “[a]ll the more reason to allow a homeowner to have a handgun.” Scalia suggested that under U.S. v. Miller, individuals have a Second Amendment right to keep and use a broad class of firearms in “common use” at this time — though not arms that are “uncommon” for private citizens, such as machine guns.