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Everyone Balances


There’s something of a curious disconnect between two passages of Scalia’s opinion in Heller:

After an exhaustive discussion of the arguments for and against gun control, Justice Breyer arrives at his interest-balanced answer: because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED.

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach.


Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

In other words, both Scalia and Breyer are for all intents and purposes engaged in “interest balancing.” Both are that the scope of the right to bear arms are limited by important states interests; they differ only in where they draw the line. I am inclined to believe that Scalia rather than Breyer draws it in the right place where the D.C. gun ban is concerned, but claim that Breyer’s interest-balancing is somehow unusual is odd. Especially since the majority’s balancing seems just as “free-standing” as Breyer’s.

That aside, the second passage is of course the critical one: what this decision means will be determined by how the Court applies the right in the future, and especially since the Court didn’t articulate a clear standard for evaluating future regulations we simply don’t know how this will affect more reasonable types of regulation. One could be concerned that the precedent will lie around like an, er, loaded weapon and will have much broader consequences.

Taking Scalia’s assertions at face value, though, I don’t see anything objectionable about the Court’s judgment: the D.C. gun ban is too ineffective and overbroad to justify the restriction of a constitutional right. And since I generally take the Stevens/Marshall position that dividing rights into discrete categories of scrutiny isn’t useful in itself and often fails to accurately describe what the Court actually does in practice, I’m not concerned that the Court left a lot of unanswered questions per se. Even if the Court had tried to develop a standard, the direction of the Court’s Second Amendment jurisprudence would be determined by future presidential elections and other political developments in any case.

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