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Scalia opinion for DC v Heller tomorrow? (Update: It’s Thursday)
Posted by: Bryan Pick on Tuesday, June 24, 2008

Mike O’Shea at Concurring Opinions talks about the probability and implications of Justice Antonin Scalia writing the opinion for DC v Heller. Noting that “[t]omorrow might be the big day” for the much-anticipated decision, he writes,
Court-watchers have noticed that [...] the only case left from the Supreme Court's March sitting is D.C. v. Heller, and the only Justice who hasn't written any majority opinions from that sitting is ... Justice Antonin Scalia. Tom Goldstein [of SCOTUSblog] thinks it's "exceptionally likely" that Scalia was assigned to write the Court's lead opinion in the most important Second Amendment case in American history.

What could that mean for the decision in Heller? As I'll explain, I think a Scalia-authored opinion would be great news for those who are mainly concerned with the Second Amendment as a limit on federal gun control, but somewhat ambiguous news — at least in the short term — for those who hope for the incorporation of the Second Amendment as a check on state and municipal governments.
Do read the whole thing, because an awful lot is riding on this. Scalia is about the best the gun-rights crowd can hope for in the current Court, at least as far as federal laws go. Incorporation might be another matter.

The Left, seeing the writing on the wall of public opinion, has mostly backed off of guns as an election issue in recent years; the 1994 Assault Weapons Ban sunsetted in 2004 without much fuss, and as McQ pointed out a couple of weeks ago, even groups like the Brady Campaign are falling back to a lower-key, incremental approach, which would be considerably eased by an opinion that resisted incorporation.

Beyond the historical implications of a strong pro-individual rights ruling on the Second Amendment, I'll be interested to see how the presidential campaigns respond to the Heller decision. McCain may not be golden on the Second Amendment, but the gun-rights crowd is piling up the ammunition on Obama's record and there may be an opportunity on the Right to make Obama confront the issue. Time will tell.

UPDATE: SCOTUSblog reports:
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).
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Previous Comments to this Post 

I believe in the Bill of Rights. The whole deal. The Second Amendment clearly recognizes the right of an individual to bear arms.

Go Heller!
Written By: mkultra
URL: http://
I dunno... I liked the idea of it only aplying to military weapons, and not pistols...

I wanted my Colt M4...
Written By: Scott Jacobs
URL: http://
Whether Scalia writes the opinion or not, I don’t think the Heller court will address incorporation. If they do, great, but if they don’t, and the individual rights position wins by anything less than a 7-2 margin, it will underscore how crucial the strategy was of bringing the case in DC first. I’m cautiously optimistic that we have at least a 5-4 majority in favor of the individual rights view, and a 5-4 majority in favor of incorporation, but not necessarily the same 5 vs. the same 4.

Then again, anything less than a 7-2 ruling in favor of individual rights would also underscore how crucial it was to re-elect an imperfect Republican President in 2004, rather than intentionally losing in 2004 in hopes of "really" winning with a better Republican now.
Written By: Xrlq
even groups like the Brady Campaign are falling back to a lower-key, incremental approach, which would be considerably eased by an opinion that resisted incorporation.

I don’t see how. They currently act as if the 2nd doesn’t exist at all.
Written By: Don
URL: http://
Assuming that the Court finds in the Second Amendment an individual right, incorporation will make lower-level activism much more difficult vis a vis if there’s no incorporation.
Written By: Bryan Pick

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