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DC v. Heller Roundup of Scattershot Blog Posts

Yesterday's oral argument in D.C. v. Heller, addressing the issue of whether the District of Columbia's expansive handgun ban violates the Second Amendment, provided plenty of ammunition for law bloggers to discuss.  Based on the oral argument, some are predicting that a narrow Supreme Court majority is on target to recognize an individual right to keep firearms under the Second Amendment and thus, may shoot down the D.C. ban.  Here's a bullet point summary of some of the other interesting Heller posts.

Supreme Court is gun-shy - Over at Slate, Dahlia Lithwick writes that the Supreme Court has been gun-shy in addressing the meaning of the "right to bear arms" under the Second Amendment, avoiding the question for 69 years.  Lithwick suggests that after the passage of time, perhaps it makes more sense for special interest groups to decide these matters before a legislature rather than having the court step in.  Professor Jack Balkin picks up on Lithwick's point, though he suggests that the court's result will likely mirror prevailing social attitudes that develop over time in the absence of judicial intervention.  He argues that while many might not like the ultimate outcome of Heller, the same forces that will produce the likely result (i.e., an individual right to bear arms) also produced decisions that liberals have embraced.

Gunpowder Residue - Once the smoke clears from Heller, Professor Doug Berman reminds us of the implications for felon gun possession prosecutions.  Right now, federal law categorically prohibits any person who has ever been convicted of a felony to ever possess a firearm either inside or outside the home.  Though Berman doesn't believe that a Supreme Court decision recognizing a Second Amendment right to possess firearms would invalidate the federal felon gun possession law, he does foresee that it could lead to litigation in marginal cases -- e.g. where an individual convicted of a non-serious felony might want to possess a handgun in the home.  In this kind of case, the state interest in the felony gun ban is not sufficiently compelling to trump the individual's constitutional right. 

Berman's post also indirectly responds to Scott Greenfield's question about how we can justify felon gun possession laws if handgun ownership is a fundamental right.  As Berman (and others) point out, recognition of gun possession as a fundamental right doesn't automatically invalidate gun control laws.  Instead, it merely triggers a balance between the individual's right to possess the gun and the state's right to protect public safety.

Posted by Carolyn Elefant on March 19, 2008 at 03:13 PM | Permalink | Comments (1)

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