Tuesday, November 20, 2007

Wording and Votes

My big worry on the DC v Heller comes down to Kennedy. Orin Kerr gives his opinion.
Justice Kennedy and the Second Amendment: What is Justice Kennedy likely to do in the Second Amendment case the Court has granted?

As a general rule, Justice Kennedy's view of the protections afforded by the Bill of Rights is that they apply broadly but often yield to competing interests. If the question is whether a constitutional protection applies in an abstract sense to a new set of facts, Justice Kennedy is often inclined to answer that question in the affirmative. On the other hand, Kennedy is also willing to find that the right gives way to competing governmenet interests such as law enforcement needs, security, finality, etc. (These are obviously enormous oversimplifications, but I think it's a pretty good first cut.)

What does that mean for the Second Amendment case? Well, I looked into my SCOTUS 330CLe Model Crystal Ball (patent pending, with optional GPS system), and it's predicting that Justice Kennedy will conclude that the Second Amendment does in fact create an individual right. It also tells me that Kennedy will endorse a relatively deferential standard of review that will end up allowing a great deal of gun regulation.
That makes me a bit less nervous. I really hope he's right.

The Volokh Conspiracy has had a lot of entries on topic today. That's a link to Eugene Volokh's "Necessary to the Security of a Free State"

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