Somin in Legal Times: Heller Only the Beginning

"Judicial recognition of a constitutional right is only the beginning of the struggle to provide effective protection for that right," states Professor Ilya Somin in a July Legal Times article that examines the potential effectiveness of District of Columbia v. Heller as a protection of the individual right to possess arms.

While the decision in Heller struck down the District of Columbia's strict gun-control law and affirmed the high court's view that the Second Amendment offers protection for the right of individuals, not simply militias, to bear arms, Justice Scalia's majority opinion "outlines a large number of presumptively lawful regulatory measures" to restrict gun rights. In that way, Heller leaves wide open a jurisdiction's ability to make it extremely difficult, if not impossible, for Americans to exercise the very right guaranteed them by the case. 

Somin points out, as well, that the narrow division of the justices along ideological lines, with Justice Anthony Kennedy as the swing vote in Heller, illustrates the difficulty in establishing strong protection for any constitutional right supported only on one side of the aisle.

Locked Liberties, Legal Times, week of July 28, 2008. By Ilya Somin.

"In Heller, the four liberal justices made clear their strong opposition to any meaningful protections for individual rights under the Second Amendment. Thus at least in the short term, protection for gun rights depends on the five conservative justices sticking together. As on many other issues, Justice Anthony Kennedy may turn out to be a crucial swing vote. And it is unknown whether he is willing to uphold gun rights against any but the most extreme infringements on them.

"The ideological division on the court also leaves any gains vulnerable to future reversal if a Democratic president is elected. Even if he doesn't pick his nominees with the specific objective of undermining Heller, the fact that he will choose generally liberal nominees is likely to mean that they will oppose gun rights as well. He will also likely choose lower-court judges who will interpret Heller's scope narrowly."

Read the article