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The Individualized Second Amendment

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The first question about the D.C. gun case is, how will they rule? Reporters who observed the oral argument today seem nearly certain that 1)a majority of the Court will find some individual right to gun ownership in the Second Amendment, and 2)the D.C. gun ban will be struck down. All observers also point out that most of the interesting questions will come in the scope of the Second Amendment rights identified by the Court: what kind of regulations short on an outright ban of a large class of gun might pass constitutional muster? Given the minimalism that tends to characterize the late Rehnquist and Roberts Courts, my guess is that they will say very little about how the newly identified right will apply in future cases. (Scalia’s dismissal of Dellinger’s claim that finding an individual right would make it harder to ban machine guns or armor-piercing bullets makes it unlikely that even he will press for a particularly broad rule.)

The other question is whether this is a good thing. As with most constitutional issues of any interest, the text is unclear and can plausibly support both positions, so we’re left with a largely pragmatic judgment. I don’t really have a problem with where the Court seems headed. At least in a context of a federal system where weapons can be easily acquired right outside District limits, it’s hard to argue that the D.C. ban is an especially effective public safety measure, and it’s a very broad restriction. And although I’m often skeptical of minimalism, I think in this case leaving future cases open to particularized judgments that balance Second Amendment rights against the reasonableness and effectiveness of regulations makes a lot of sense.

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