Supreme Court Heller Decision Due 10am Thursday US Eastern

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At the close of Wednesday's public session, Chief Justice John G. Roberts, Jr., announced that the Court will issue all remaining decisions for the Term at 10 a.m. Thursday. The test case on whether the Second Amendment protects an individual right to possess a gun is among those remaining (District of Columbia v. Heller, 07-290). For instant analysis, live from the Supreme Court, go to: ... [SCOTUSBlog (Washington DC), Blog, via gunpolicy.org ]

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[Edubya]

So Let's Say Justice Scalia Writes D.C. v. Heller ...

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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.

[...]
[A] Scalia-penned majority opinion in Heller is likely to give Second Amendment advocates all that they can realistically expect from this Court.

The question of incorporation is thornier. Justice Scalia wrote about the Second Amendment in his stimulating book A Matter of Interpretation: Federal Courts and the Law (1997). (I was reminded of this passage by a recent discussion thread on a popular firearms forum.) There, Scalia seemed to embrace a broad individual-rights view of the Amendment, consistent with his remarks a decade later in the Heller argument. But he also seemed skeptical about incorporating the Amendment:

[T]he Second Amendment [i]s a guarantee that the federal government will not interfere with the individual's right to bear arms for self-defense. ... Dispassionate scholarship suggests quite strongly that the right of the people to keep and bear arms meant just that. ... [T]here is no need to deceive ourselves as to what the original Second Amendment said and meant. Of course, properly understood, it is no limitation upon arms control by the states.

Concurring Opinions