A Closer Look at the DC Handgun Ruling

By Texas Law Prof

DC v. Heller: A Dismaying Performance By The Supreme Court

One can interpret today's decision in the Heller case from both "external" political perspectives or from a more "internal" legal one. I begin with the former: My own hope, which was spectacularly unrealized, was that the Supreme Court would unanimously accept the very well-written and -argued brief by the Solicitor General, in behalf of the Bush Administration, which argued both that the Second Amendment indeed protected an individual right to "keep and bear arms" and disagreed with the particularly rigorous test that the Court of Appeals for the District of Columbia had applied to the D.C. ordinance. Thus, according to the Solicitor General, the Court should remand the case back to the court below for reconsideration under a proper, somewhat looser, standard that would still have easily supported invalidating the ordinance.

Unanimous acceptance of his sensible view might have helped to diminish at least some of the culture war that has been waged now for at least four decades between advocates of "gun rights" and "gun control," who have their own interests in demonizing their opponents. Instead, the Court fractured along an all-too-predictable 5-4 axis, with the five conservatives supporting the rights of gun owners and the four liberals (or, more accurately, "moderates") seemingly supporting the most extreme version of gun "control," which is outright prohibition. The Solicitor General also offered a way for the Court to make sure that gun control would not become a key issue in this year's presidential race. Now there is no avoiding it, though, as a partisan Democrat, I confess to being relieved that the dissenters did not prevail, for the upholding of the D.C. ordinance would, in effect, have served as a massive in-kind campaign contribution to John McCain.