The Occasional Observer

And SCOTUS Blog is confident enough to make this predicition: "We can now predict that in addition to Justice Scalia likely writing Heller, Justice Alito is likely writing Davis v. FEC." Scalia writing the decision is basically a best case scenario.

To recap Heller, here's the short, short version:

The case was originally Parker v The District of Columbia, in which Shelley Parker, and 5 others, filed suit against DC saying the District was abridging their Constitutional right to own firearms and defend themselves.

The District Court threw out the case:

"The court held that the Second Amendment does not bestow any rights on individuals except, perhaps, when an individual serves in an organized militia such as today’s National Guard." [text from the apellate decision]

The case was appealed to the D.C. Circuit Court of Appeals, which overturned the District Court's Decision. A 3 judge panel split 2-1, with Judge Silberman issuing the opinion (Silberman, it should be noted, was passed over as a choice for the Supreme Court seat now held by Justice Kennedy after the Bork defeat and Ginsburg withdrawl). From the NY Times:

The basic question in the case was whether the first clause in the amendment limits the last one. Most federal appeals courts have said that the amendment read as a whole protects only a collective right of the states to maintain militias.

In yesterday’s decision, the majority focused on the final clause, saying that the amendment broadly protects the rights of individuals to own guns.

“It seems passing strange,” Judge Laurence H. Silberman wrote for the majority, “that the able lawyers and statesmen in the First Congress (including James Madison) would have expressed a sole concern for state militias with the language of the Second Amendment. Surely there was a more direct locution, such as ‘Congress shall make no law disarming the state militias’ or ‘states have a right to a well-regulated militia.’”

The District chose to appeal the decision to the Supreme Court, which accepted the case and is now preparing to rule.

The key constitutional issue is whether the right to own guns is an "individual right" or a "collective right." The language of the 2nd Amendment reads:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

So it becomes a chicken and egg type of argument. Do you need guns to have a militia? Or do you need a militia to have guns?

It seems to me the very idea of a militia was individual citizens coming together of their own free will to defend themselves. The political power in our democracy rests with the individual citizen (the people). Not with some some official organization ("the militia") that exists to bestow its imprimatur upon the worthy, who are then afforded certain rights as a result.

Of course, as SHK noted, the question then becomes, how do you define "arms". The attorney for the District made the same case before the Court, saying that if you believe the right to own guns is an individual right that State's cannot regulate, everyone has the right to a machine gun.

Scalia said, off the cuff, that machine guns weren't around in the 1780's so they could probably be regulated.

It'll be interesting to see how the Court rules.