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A Wider Majority Than Reported?

I haven't read the dissents on this morning's ruling (and don't know if or when I will, given time constraints), but is it possible that the majority isn't as narrow as it looks? Four justices ruled that the DC ban was Constitutional, but they didn't necessarily do so on the basis that the right to keep and bear isn't individual. For instance, as Ed Whelan notes:

Stevens doesn't dispute that the Second Amendment protects an individual right, but he finds the scope of that right limited to using weapons for certain military purposes. He argues that the text of the Second Amendment (5-17), its drafting history (17-27), and the Court's precedents--especially its 1939 ruling in United States v. Miller (42-45)--support his reading.

Breyer argues that even if the Second Amendment does protect a right of personal self-defense, D.C.'s law is constitutional because the burdens it imposes are not disproportionate in light of the law's legitimate objectives. (That sure sounds like a meaningful test, doesn't it?)

So now we have at least six justices who agree that it is an individual right (Whelan doesn't say what Breyer's opinion on that score is, since Breyer doesn't accept that the ban would be Constitutional under that interpretation). And since Ginsburg and Souter joined the Stevens dissent, and didn't write one of their own disputing the individual right interpretation, doesn't it really make it at least eight to one?

I think that it's going to be pretty untenable at this point to argue that the right is a collective one in light of both the ruling and the dissents.

[Evening update]

Dale Carpenter agrees with me, and confirms that the acknowledgment of it as an individual right was in fact unanimous:

Chief Justice Roberts came in with the hope of producing more unanimous decisions from the Court. While today's decision was 5-4, it was actually unanimous on one point: there is an individual right protected by the Second Amendment. The split came over the important question of the scope of the right and whether the D.C. law itself was constitutional, but the underlying individual-right theory prevailed over a collective- or states-right interpretation that would give no single person the ability to challenge any type of arms regulation. Thus, an idea that not so long ago seemed radical and even frivolous to many academics and judges now has the assent of all of the Justices, representing a wide range of views about constitutional law and theory.

Emphasis mine. It was a huge victory when Bellesilles' propaganda was shown to be fraudulent. I think that it was the beginning of the end for the nonsensical notion that the right only applied to members of the National Guard, partly because the proponents had so overreached with his nonsense about few people having or using guns in colonial times. He has a lot of other good comments about the ruling as well.


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Brock wrote:

Hah! Yeah right!

If people refused to remember that it was the Senate during the Clinton/Gore Administration that rejected Kyoto, do you really think a distinction of this nuance will be readily accepted?

FC wrote:

Per Stevens, it should be trivial for a governor and his adjutant-general to declare all armed citizens members of the militia on active duty. QED, tautologically.

Ralphe wrote:

It's all about Climate Change don't cha' know.

I can understand how reasonable individuals
can disagree about the merits of strict gun control as a crime-control measure, even in a totally urbanized area. But I cannot understand how one can take from the
elected branches of government the right to decide
whether to insist upon a handgun-free urban populace in a city now facing a serious crime problem and which, in the future, could well face environmental or other emergencies that threaten the breakdown of law and order.

BREYER, J., dissenting

I have to admit I was surprised about that part of the dissent but silly me! I will never be surprised again till the next time.

Andy Freeman wrote:

Hmm. Various midwest states recently had an environmental emergency and they didn't have the problems that Breyer is concerned about.

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This page contains a single entry by Rand Simberg published on June 26, 2008 12:05 PM.

Senators Lecture George Bush was the previous entry in this blog.

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