(1) that the 2nd amendment protects an individual right, (2) that this right applies against laws in federal territories like the District of Columbia, (3) that a relatively deferential standard of reasonableness applies, and (4) that, even under this relatively deferential statute at least one part of the D.C. gun control law is unconstitutional. That is to say, I predict a decision that tries to split the difference and is aimed roughly at the middle of public opinion, even if not the exact center.That sounds right to me.
Will people get stirred up if the outcome is that hedged and bland? Balkin thinks the newspaper headlines will scare people — and they'll scare people into the embrace of the Democrats:
[I]f the Court strikes down any part of the D.C. handgun ban, the headlines in the newspapers will announce that the Court has protected gun owners rights and that gun control laws around the country are now constitutionally vulnerable....So, just as a decision favoring abortion rights fires up pro-life politics, a decision recognizing gun rights will stir up the people who support gun control.
Obviously if I am wrong in my predictions, and the Court adopts the collective rights theory, conservatives will benefit. But I think there is very little chance that the Court would take this case if it a majority did not want to embrace the individual rights position. And even if members of a conservative majority understood that the appearance of a conservative result would help liberals and Democrats, I do not think it would change their decision in the case.Is Balkin trying to mess with Justice Kennedy's head?
Anyway, Balkin's prediction is that the Court will slice it down the middle, but people, under the sway of inflammatory newspaper headlines, will misunderstand the case and vote for Hillary Clinton.
Very interesting. I think he's missing something, though.
The decision won't come for many months. (Oral argument should be in March.) During this time, it won't be a court opinion affecting voters minds, it will be a debate about gun rights and, more broadly, how to interpret the Constitution. Candidates will be asked all sorts of questions as this issue comes to the forefront.
The issue will get intertwined — I predict — with the abortion question. How should we interpret the text of the 2d Amendment, and how does that fit with the way you interpret the Constitution to protect the right of privacy? What kind of Justice will you put on the Supreme Court? If you support Roe v. Wade, you can't suddenly switch to strict constructionism to beat that pesky 2d Amendment into submission.
Things can get complicated, and it will be a difficult dance — more difficult for some that others. I'm not ready to assume Hillary Clinton will be the Democratic candidate.
Barack Obama ought to see an opportunity here. He was a constitutional law professor. He may have the skill to speak elegantly about constitutional rights when asked questions that leave Hillary Clinton spluttering for answers that don't sound hypocritical. John Edwards has legal skill too, and he may find a way to speak clearly and persuasively to people about constitutional law.
Meanwhile, the Republicans can make progress promoting a coherent approach to constitutional interpretation and sound judicial appointments, but they too are vulnerable to stumbing over the complexities. Who will do the worst? There are lots of contenders! But it's quite likely Giuliani will do the best, given his extremely strong legal background.
ADDED: Glenn Reynolds assesses the effect on the election. Unlike Balkin, he concentrates on the pre-decision debate about the issue:
[T]he court has ensured that the gun-rights issue will move to the forefront this election season, at both the presidential and congressional levels. This is probably bad for Democrats, given that most Americans believe they have some sort of right to arms under the Constitution.
It's also probably bad for Rudy Giuliani and Mitt Romney, who have generally been less supportive of gun rights than the other GOP contenders. But maybe Hillary Clinton will prove flexible: Bill Clinton said that the gun issue cost the Democrats control of Congress in 1994, and Hillary no doubt remembers that.