Limiting gun rights

I see that the Wall Street Journal has an editorial today coming down just about exactly where I did yesterday. I appreciate the confirmation. Just because the Second Amendment grants individuals the right to keep and bear arms doesn't mean that the state cannot, with valid reasons, limit that right.

By the way, a victory for gun rights in Heller would not ban all gun regulation, any more than the Court's support for the First Amendment bars every restraint on free speech. The Supreme Court has allowed limits on speech inciting violence or disrupting civil order. In the same way, a judgment that the Second Amendment is an individual right could allow reasonable limits on gun use, such as to protect public safety.

Who knows what level of scrutiny the Supreme Court would apply to gun rights. As the WSJ says, it's probably all up to Justice Kennedy.

As a practical matter on the Court, the outcome in D.C. v. Heller might well be decided by one man: Anthony Kennedy, the most protean of Justices. However, in recent years he has also been one of the most aggressive Justices in asserting any number of other rights to justify his opinions on various social issues. It would seriously harm the Court's credibility if Justice Kennedy and the Court's liberal wing now turned around and declared the right "to keep and bear arms" a dead letter because it didn't comport with their current policy views on gun control. This potential contradiction may explain why no less a liberal legal theorist than Harvard's Laurence Tribe has come around to an "individual rights" understanding of the Second Amendment.

Yes, it's hard to keep arguing for implied rights to privacy and abortion and then turn around and deny a right that is explicitly there. It is hard to insist on an individual right to be protected from a warrantless search under the Fourth Amendment which prefaces that right by speaking of "the right of the people" just as the Second Amendment does.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.