Too good to check: Scalia writing the majority opinion in the upcoming Second Amendment case?
posted at 3:25 pm on June 23, 2008 by Allahpundit
Just a theory, but so tantalizing that it warrants a post all its own.
There is very little information that can be gleaned with confidence about the authorship of the remaining opinions from the Term.
It does look exceptionally likely that Justice Scalia is writing the principal opinion for the Court in Heller – the D.C. guns case. That is the only opinion remaining from the sitting and he is the only member of the Court not to have written a majority opinion from the sitting. There is no indication that he lost a majority from March. His only dissent from the sitting is for two Justices in Indiana v. Edwards. So, that’s a good sign for advocates of a strong individual rights conception of the Second Amendment and a bad sign for D.C.
Indeed: Scalia and Thomas are evidently already on record as supporting an individual rights reading of the Amendment, and from what observers could tell from the oral argument back in March, Anthony Kennedy was himself leaning that way. The decision should drop tomorrow morning so take advantage of the slow news this afternoon and read Mike O’Shea’s primer at Concurring Opinions to prepare yourself. A big win on the threshold question of whether the right is individual or collective is already assumed; the key subsidiary question is whether the Court will limit the individual right to “private purposes” (e.g., home defense against burglars), which would conceivably allow for regulations limiting ownership to handguns and rifles, or whether they’ll expand it to include “civic purposes” (e.g., resisting martial law), which could guarantee a right to possess automatic weapons(!). Another question per O’Shea: Is “keep and bear” a single right or are they two separate rights? The constitutionality of concealed carry laws may turn on the answer.
Anyway, big shakes. Exit question for legal eagles: Why would Roberts, who’s presumably in the majority here, assign an opinion this momentous to Scalia instead of to himself? Is it just an act of deference on his part to a justice who may care more about this issue than he does? Is he trying to leverage Scalia’s rhetorical skills, knowing that this is going to be pored over like few other opinions in the last 10 years? Or is there something else to it? What’s strange is that, per O’Shea, there’s likely to be a majority on the threshold question but then all kinds of splits within the court on the subsidiary questions — and Scalia, being more of an absolutist on this issue, is unlikely to represent the majority on all or most of those subsidiary questions. Roberts himself, or Kennedy, would seem to be a better bet. Is that a hint that maybe the Court’s not going to reach those subsidiary questions at all, and will content itself with a simple ruling on the individual rights issue?