The Supreme Court wakes after a lengthy nap to the war over gun control.
The Supreme Court wakes after a lengthy nap to the war over gun control.
The law, lawyers, and the court.
Nov. 20 2007 6:53 PM

They've Slept On It

Sixty-eight years after last taking on a gun case, the Supreme Court awakens to a violent debate.

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That the court finally agreed to do so isn't surprising. After Emerson and the D.C. case, there is a whopping split between the appeals courts. And parties on both sides of the D.C. case urged the court to take the case. Also, since the court has been napping, life has changed dramatically in America, as have guns, militias, and gun laws. But the thing that has both gun opponents and gun supporters terrified and hopeful in equal parts is that this court that is rubbing the sleep from its eyes is not the court of 1939, or 1959, or even 1999. The days of 25-paragraph unanimous decisions in cases as explosive as Miller are long gone. Most school kids probably think the sawed-off shotguns at issue in Miller are adorable, and four sitting members of the Supreme Court were on hand to celebrate the Federalist Society's 25th anniversary last week. * The current justices are well aware of the debate that has raged in the law reviews about the meaning of the Second Amendment, and they also know full well what happened at Virginia Tech.

There are many small and great ways in which a truly humble, minimalist Roberts court could make the D.C. gun case go away, as it has made so many other worthy cases go away in the past two years. There are looming disputes over whether the plaintiffs have standing to sue, as well as questions about whether the District of Columbia, a federal enclave, is even covered by the Second Amendment. There are, as well, enormous questions—on both sides—about what kind of regulations are "reasonable" and how to gauge that. But there are also, for the first time in decades, four strong conservatives on the high court, who have each, at different times and in different ways, telegraphed some small interest in revisiting this question, although not all would go so far as Clarence Thomas, who has written that he would like to restore the Second Amendment as the "the palladium of the liberty of a republic."


And so we have both sides warily hoping the court will do something bold and authoritative in District of Columbia v. Heller, so long as it tips the scales their way. It's a monstrous gamble for both groups, a gamble the gun rights crowd wouldn't have considered taking three years ago, and one the gun control folks wouldn't believe it could have lost until very recently.

Anyone who's ever attempted to smooch something that's been sleeping for 70 years knows full well that—even if you can get past the morning breath—it's awfully hard to control what happens next. Heller—which will inform the 2008 election in ways we haven't even begun to contemplate—is poised to turn the Supreme Court from everyone's Sleeping Beauty to somebody's slumbering Beast.

* Correction, Nov. 20, 2007: The joke originally, incorrectly, read: "most school kids probably think the sawed-off shotguns at issue in Heller are adorable." (Return to the corrected sentence.)

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