A Little More Analysis of the Heller Decision

A Little More Analysis of the Heller Decision

1. The decision is narrow; Scalia was careful not to go much beyond the actual question of this case: did D.C.'s ban on handgun ownership at home exceed the Second Amendment? That's why he made a point of saying that any standard of review would find that this law was unconstitutional.

2. By focusing on the question of handguns (which is what the D.C. law banned), Scalia avoided the question of what sort of arms are protected. This is probably wise, since there are a number of categories of guns that are clearly protected under any revolutionary theory of the Second Amendment, but which would cause even some gun owners to start making exceptions (assault weapons and machine guns, for example).

3. The dissents are astonishingly bad--rather like Saul Cornell and Nathan Kozuskanich had written them. They pick and choose facts that they want, ignoring what doesn't fit their model. You would never know from reading the dissents that overwhelmingly, the courts in the 19th century recognized the Second Amendment as protecting an individual right to arms. Arms and the Law points to some embarrassingly gross factual errors in Stevens' dissent.

4. The discussion of the 14th Amendment is clearly an encouragement for us to file a suit challenging a state or local law. You should have heard Chicago Mayor Daley this afternoon--he sounded like he was about to pop a gasket over this. How horrifying: they might have to allow law-abiding Chicagoans to defend themselves!

5. Because our side didn't challenge the constitutionality of licensing or registration--only that such can't be arbitrary or restrictive--I expect that D.C. will create some system of licensing of handguns. Okay, I'm not happy about that, but as long as it is comparable to a driver's license in how hard it is to get, that's an improvement--and in time, the absurdity of this will become apparent to every person of normal intelligence. In even more time, it will even become apparent to the subnormals that make up D.C. government.