n Gun owners shouldn’t be too enthusiastic. They almost lost this one. The majority was only 5-4, and the court pre-emptively announced that some gun bans were constitutional. The court went out of its way to make this announcement even though those bans were not part of the case.
n All the justices relied heavily on historical evidence of the Constitution’s original understanding (sometimes inaccurately called “original intent”). You might expect this of Justice Scalia, but it was also true of the lead dissent by Justice Stevens, who earlier in his career tended to disregard such “originalist” material. This is part of a real shift in the Court toward focusing on the Constitution’s original understanding. You can see it also in the recent habeas corpus case of Boumediene v. Bush.
n The District of Columbia argued that the Second Amendment doesn’t apply there because D.C. isn’t a state. This was historical nonsense, since a major purpose of the Bill of Rights was precisely to protect people within the capital district from federal oppression. Fortunately, the justices didn’t buy the argument.
n The dissent conceded that, even if the Second Amendment was mostly about protecting the states, individuals could sue to ensure that the Amendment was honored. This is a change. Throughout the 20th century, liberal jurists generally denied individuals the right to sue to protect the federal-state balance. Perhaps there is a new recognition that federalism is not just about “states’ rights.” It also protects the rights of individuals.
n The modern Supreme Court treats some constitutional rights as more important than others by applying different “standards of review” n degrees of protection n to different rights. For example, the Court gives the right to choose an abortion much more protection than it gives the right to choose a job. The Heller decision doesn’t tell us what standard of review will apply to the right to keep and bear arms.
n The holding applies only to federal gun laws, not state laws. We do not know whether some future Court will decide that the Second Amendment, like most other parts of the Bill of Rights, protects individuals against the states.
The narrow holding and the narrow majority disproves once again the common claim that the Supreme Court is now “conservative.” On the contrary, four of the nine justices are fairly reliable liberals (Stevens, Breyer, Souter and Ginsberg). Only one is a thoroughly reliable traditionalist (Thomas), although one other usually votes that way (Scalia). Two justices seem focused on preventing big changes in any direction, including changes away from the liberal jurisprudence of prior decades (Roberts and Alito). One justice flips back and forth (Kennedy).
Thus, a single appointment by a President Obama could make the court firmly liberal, but it would take at least two, and probably three, by a President McCain to make it firmly traditionalist.
Rob Natelson teaches federal constitutional law at the University of Montana, and is a nationally recognized authority on the adoption of the U.S. Constitution. See www.umt.edu/law/faculty/natelson.htm. His opinions are his own, and do not necessarily represent the views of any other person or institution.
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