As scholars such as Adam Winkler, and the Solicitor General’s brief made clear, recognition of an individual right does not doom all gun control regulations to constitutional oblivion. Subsequent litigation offers an opportunity for litigants to educate lower courts about the choices they have and offer the guidance the Court declined to provide about crafting rules that implement the guarantee Heller recognized. Scholars, too, have an opportunity to enter into the sort of dialogue with courts that both academics and judges agree is far too rare.
This will be especially true of cases involving state and local restrictions—laws whose constitutionality was not squarely presented in Heller. Litigants ought to study and develop responses to Justice Breyer’s “interest-balancing” standard of review. Likewise, those defending existing or proposed gun controls—especially those that do not go as far as the District’s did—have another opportunity to argue against categorical rules and presumptions of unconstitutionality. In truth, this is probably the debate that we should have been having all these years: which regulations of private firearms are the “reasonable” ones that most people—including most of those who support an individual rights reading of the Second Amendment—can support. At the very least, the Court’s interring of the “collective rights” or “military purpose” interpretation of the Second Amendment has cleared the way for that debate to begin.
If a Supreme Court vacancy opens up between now and the end of the year, Republicans should fill it. Given the vital importance of the Court to rank-and-file Republican voters and grassroots activists, particularly in the five-decade-long quest to overturn Roe v. Wade, it would be political suicide for ... Read More
Justice Ruth Bader Ginsburg lived an extraordinary American life and leaves it with glowing admiration from even those who disagreed with her. That’s all any of us can hope for. It is an unseemly but by now commonplace sign of our times that, even though she passed away just as Rosh Hashanah had begun, the ... Read More
In a classic episode of Seinfeld, Jerry is accused by his new girlfriend, a police officer, of being a fan of the tacky 1990s soap opera Melrose Place. When Jerry lies and denies it, she suggests putting him on a polygraph to find the truth. In an effort to beat the machine, Jerry seeks the advice of his ... Read More
I worked in the criminal-justice system for a quarter century. It is run, day-to-day, by the crème de la crème of graduates from America’s top law schools. Those institutions wear their progressive bona fides on their sleeves and proclaim it for all the world to hear. In their offhand rhetoric — ... Read More
Over the past several years, a new certainty was added to death and taxes: Jared Kushner would fail in his role as the administration’s Middle East point man. It caused considerable merriment among President Donald Trump’s critics (and even some of his well-wishers) when he put his son-in-law in charge of ... Read More