Posted Monday, March 17, 2008, at 3:38 PM
Dahlia and Akhil Amar just posted great pieces in Slate about D.C. v. Heller , the guns case to be argued on Tuesday at the Supreme Court. As lots of commentators have already said, this case is irresistible because the court will be writing on a practically blank slate: The relevant precedent is from 1939, and it didn't definitively hold that there's no individual right to bear arms in the Second Amendment, though the court certainly waved in that direction. As Dahlia points out, by staying out of the gun control fray, the court has been practicing a form of judicial restraint for the past 69 years. The big question now is whether it will stick to that path by issuing a decision that recognizes an individual right to bear arms but allows for a lot of gun control regulation, as Solicitor General Paul Clement is urging, or whether it will burn down a whole lot of gun laws in the wake of resurrecting the Second Amendment, as the brief that Vice President Cheney signed, and that David flags for us , would have it. (The court could also cling to the old interpretation of the Second Amendment as speaking only to having a gun for the purpose of serving in a state-run militia, but in light of the recent revisionist scholarship on the subject, I doubt it.) In any case, since this moment is a huge test for judicial restraint and modesty, isn't it also a huge test for Chief Justice John Roberts? Modesty was his mantra during his confirmation hearings. I've argued that he didn't deliver on that promise last term. Is Heller likely to be the big fat data point on this question from 2007-2008? I'm especially intrigued by the question since there's ostensibly a way to duck the looming constitutional question altogether, by treating D.C. as its own oddball scenario since it's not a state. Anyone think that's a likely resolution, or want to weigh in on the Clement v. Cheney face-off?