Counting to Five in D.C. v. Heller


In one of the threads about the D.C. gun ban case, at least one commenter was skeptical that there are (at least) five votes on the Supreme Court in favor of an individual-right interpretation of the Second Amendment. If you read the transcript of yesterday's oral arguments, you'll see that John Roberts, Antonin Scalia, Samuel Alito, and Anthony Kennedy are pretty clearly on board:

Roberts [addressing Walter Dellinger, D.C.'s attorney]: If [the right to keep and bear arms] is limited to State militias, why would they say "the right of the people"?…

That concedes your main point that there is an individual right and gets to the separate question of whether the regulations at issue here are reasonable….

So if you have a law that prohibits the possession of books, it's all right if you allow the possession of newspapers? [referring to the distinction between handguns and long guns] 

Scalia: I don't see how there's any contradiction between reading the second clause [of the amendment] as a personal guarantee and reading the first one as assuring the existence of a militia….The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed….

[Blackstone] thought the right of self-defense was inherent, and the framers were devoted to Blackstone. Joseph Story, the first commentator on the Constitution and a member of this Court, thought it was a personal guarantee.

Alito: If the amendment is intended at least in part to protect the right to self-defense in the home, how could the District code provision survive under any standard of review where they totally ban the possession of the type of weapon that's most commonly used for self-defense, and even as to long guns and shotguns…they have to be unloaded and disassembled or locked at all times, even presumably if someone is breaking into the home?

Kennedy: The amendment says we reaffirm the right to have a militia, we've established it, but in addition, there is a right to bear arms….

In my view [the Second Amendment] supplemented [the Militia Clause] by saying there's a general right to bear arms quite without reference to the militia.

Clarence Thomas, as is his wont, did not say anything during the oral arguments. But if any justice could be counted on to support a Second Amendment that imposes significant restraints on gun control, it would be him. Thomas is an avowed "original intent" jurist, and the contemporaneous evidence on the meaning of the Second Amendment, as demonstrated in the respondent and amicus briefs (not to mention the appeals court decision overturning D.C.'s gun ban), strongly favors the view that it is about more than state militias.