« The Sentencing Project reponds to prison-crime commentary | Main | Justice Scalia sells out felon gun rights, but on what basis exactly? »

June 26, 2008

Supreme Court declares Second Amendment protects individual right

The much-anticipated Supreme Court ruling on the Second Amendment in Heller has been released, and it appears to be the expected 5-4 split decision with Justice Scalia writing the majority opinion for the Court.  Here is the early report from SCOTUSblog:

The Court has released the opinion in District of Columbia v. Heller (07-290), on whether the District’s firearms regulations — which bar the possession of handguns and require shotguns and rifles to be kept disassembled or under trigger lock — violate the Second Amendment. The ruling below, which struck down the provisions in question, is affirmed.  Justice Scalia wrote the opinion. Justice Breyer dissented, joined by Justices Stevens, Souter and Ginsburg.

As regular readers know and as explained in prior posts, I think this ruling could have a profound impact on federal criminal law and sentencing, though the exact terms of the majority opinion will determine how significant this impact will be.

UPDATE: The full opinion in Heller runs 157 pages, and everyone can read along with me at this link.  I will quote passages in a future post that could be important for the federal criminal justice system.

June 26, 2008 at 10:17 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Supreme Court declares Second Amendment protects individual right:

» Xanax. from Xanax.
Generic xanax 2 mg no prescription. Pharmacy order generic xanax. Buy xanax online without a prescription. Xanax. No prescription xanax generic. Cheap generic xanax 2mg bars. Xanax 2mg. [Read More]

Tracked on Sep 14, 2009 9:30:28 AM


Scotusblog updated - 2 dissents - one from Stevens and one from Breyer - both dissents were joined by the four liberal members of the Court.

Posted by: NewFedClerk | Jun 26, 2008 10:26:22 AM

"The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque."

Posted by: Classic Scalia | Jun 26, 2008 10:41:03 AM

Here's an excerpt from p. 24: "nothing in our opinion should be
taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons ..."

Posted by: Kent Scheidegger | Jun 26, 2008 10:42:48 AM

"not the role of this court to pronounce the second amendment extinct"

Except to those who have committed a felony. I guess the right to self defense does not apply to felons!

Posted by: noway | Jun 26, 2008 10:48:56 AM

Amazing, Justice Scalia only offers a conclusory statement that the District's law fails under any standard the court has ever used to evaluate an individual right. No analysis running the law through such analyses, however.

Further, Scalia's response to Justice Breyer's criticism on this point is exceptionally weak. Breyer argues that applying rational basis isn't as crazy as the majority claims (and the majority again only reaches that conclusion in a conclusory footnote, #27). Breyer argues that a balancing test would be better. Scalia deceitfully claims that is unprecedented, failing to note Breyer's numerous examples: election law, speech cases (commercial speech) and due process (Matthews v Eldridge, anyone???)

Justice Scalia's opinion is truly sloppy and rather embarrassing. I expected better from him on this big stage. But maybe the sloppiness & lack of thorough reasoning just stems from the underlying position being utterly untenable. Honestly -- this ban is flatly improper under *any* standard, but, as the Opinion carefully assures us, felons still can't have guns, guns can't be in schools, etc, etc

None of it makes any sense or is in any way consistent. Terribly shoddy work.

Posted by: Reader | Jun 26, 2008 10:56:00 AM

Reader, your claim about Scalia's issues with felon-in-possession laws seems wrong. Remember, Scalia (and Thomas) think that punishments are pretty much ok, unless they are cruel and unusual, so they don't really get into "balancing" tests to see whether, for example, prisoners get to read Playboy.

Posted by: federalist | Jun 26, 2008 11:07:46 AM

It looks like the Supreme Court after declaring that the 2nd Amendment protects an individual right to bear arms then proceeds to treat that right with about the same level of respect they treat, say, the 4th Amendment.

Posted by: Zack | Jun 26, 2008 11:09:40 AM

federalist -- Scalia argues that the right to self-defense is the "core" of the 2-A and this law, banning the most popular firearm (by the way -- so an "evolving standard of firearm popularity" is OK for the 2d Amendment, but a similar evolving standard of decency is just plain craziness for the 8th??), violated any standard the Court has ever used for individual rights (and, again, Breyer shreds that).

My question is -- how can Scalia be so confident that it' just A-OK to say that laws banning felons from possessing firearms pass whatever yet-to-be-announced standard applies?

Yes, yes, I know that was not a question presented. But still -- I can't see how he can so confidently declare that such laws are basically OK when we don't know what the standard is, but the standard is apparently high enough that the DC bar *clearly* fails it.

Posted by: Reader | Jun 26, 2008 11:18:04 AM


I think he can do that because it is dicta.

Posted by: Anonymous | Jun 26, 2008 11:29:28 AM

Because Scalia doesn't think that laws that take away rights (even core ones) from criminals is an issue from a constitutional standpoint.

Posted by: federalist | Jun 26, 2008 11:29:32 AM

Not having gone all the way through the dissents yet, I think Scalia's point on felon-in-possession is premised on his interpretation that that the Second Amendment's reference to "the people" only refers to law abiding citizens. I don't know if I agree with that interpretation, but it certainly justifies his conclusion.

Posted by: NewFedClerk | Jun 26, 2008 11:35:14 AM

Boldly results oriented. I would expect nothing less from ideologues. It reads much as I imagine a secret John Yoo legal opinion would read.

Posted by: DK | Jun 26, 2008 11:44:07 AM

You libs need to get a life.

Posted by: Hybrid Joke | Jun 26, 2008 12:15:10 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB