Waiting For Heller
Is There A Gun In My Tea Leaves?
By Dan McLaughlin Posted in D.C. v. Heller | gun control | Justice Scalia | Law | Second Amendment — Comments (6) / Email this page » / Leave a comment »
The Supreme Court's Term is likely to end this Wednesay or Thursday. I noted last Thursday, with the usual cautions about this kind of thing, SCOTUSBlog's observation that Justice Scalia was the most likely Justice to be writing the Court's opinion in DC v. Heller, given that only he and Justice Souter had yet to write majority opinions from cases the Court heard in March. Well, this morning the Court handed down the other remaining case from the March sitting, and it was written by Justice Souter. So the odds would seem now to strongly favor Justice Scalia.
How good is that news for fans of the Second Amendment? Well, it's unlikely that a Scalia opinion will be a bad one when an express provision of the Constitution is involved, but bear in mind that (1) even if he does write the opinion, there's no guarantee that it will be a majority opinion; it could be a plurality that leaves matters more unsettled than ever (e.g., 4 Justices favoring a strong individual right, 4 supporting DC's position, and 1 - usually Justice Kennedy, under the Court's current alignment - refusing to join either side's analysis) and (2) it's very possible that the Court will decide only the scope of the right against federal interference under the unique legal status of the District of Columbia, and won't address the thornier issue of whether the Second Amendment prohibits gun control measures by state governments. And of course, the guesswork could simply be wrong - even if Justice Scalia was originally assigned the opinion, it could end up as a dissent if some Justices changed their minds before it was finalized.
In other words: we can guess all we like, but until we see the opinion we can't know.