Constitutional Law

Second Amendment Opinion May Lack Firepower

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Harvard Law School professor Mark Tushnet believes Justice Antonin Scalia’s recent majority opinion striking down a ban on handguns in the home was a compromise decision, crafted to appeal to a swing voter such as Justice Anthony M. Kennedy.

As evidence of a compromise, Tushnet points to Scalia’s statement in the 5-4 decision, District of Columbia v. Heller, that the right protected by the Second Amendment is not unlimited.

Nothing in the opinion, Scalia said, should be taken to cast doubt on laws banning possession of guns by felons or the mentally ill, or barring firearms in sensitive places, or imposing conditions on the commercial sale of guns.

But compromises are inherently unstable, Tushnet said Friday during a session at the ABA Annual Meeting. He predicts that in 10 years or so, the U.S. Supreme Court will issue a new ruling finding the Second Amendment right applies only to overturn complete bans on handguns. Any other regulation will be found acceptable.

In the interim, lower courts will have to sort out a variety of questions. Tushnet listed several.

Does the Second Amendment limit state as well as federal regulation of guns? What type of weapons are “dangerous and unusual,” making them subject to regulation under Scalia’s opinion? What standard of review will courts use? What kind of gun storage laws are permissible? Is there a right to carry weapons on the streets?

Other panelists agreed that Heller will likely have a limited impact in the long run, including Walter Dellinger, the former solicitor general who argued and lost the Supreme Court case. Dennis Henigan, vice president for law and policy at the Brady Center to Prevent Gun Violence, said the opinion “may turn out to be more symbol than substance.”

But Alan Gura, the lawyer who argued the case and won, said gun opponents appear to be going through stages of grief. They’ve experienced anger, denial and bargaining, he said. Now they need to reach acceptance.

The primary sponsor of the session was the ABA Special Committee on Gun Violence.

Annual Meeting 2008:

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