These two law-enforcement officers did what police officers tell the public to do: Don't intervene. Get a description of the offender. Call the police. Be a good witness.

Much debate ensued about whether the officers' behavior was appropriate, but the real tragedy is that the victims of this rampage did not have the legal opportunity to arm themselves. To them, the message was clear: Be a good victim.

In Marin County, the jurisdiction where those two officers work, Sheriff Robert Doyle requires residents to demonstrate "extreme need" before they can get concealed-handgun permits. Among the few who have met this burden are private investigators, jewelry dealers, and a former district attorney.

Ten states still use a system that subjects lawful self-defense to the whim of a functionary such as Sheriff Doyle, a practice known as a "may issue" policy. (Two more refuse to grant concealed-carry permits to anyone.) The decision rests with the local chief law-enforcement officer, who may employ whatever criteria he deems valid — or deny permits for no reason at all. The result is that only those who are wealthy or politically connected are able to secure permits. Sean Penn got one after he claimed that a former employee was stalking him and that he had received a number of crank calls and letters.

This is not the case in most of the nation. Thirty-eight states have "shall issue" permit systems, which essentially require the chief law-enforcement officer to issue permits to everyone who passes background checks and training requirements. Many of these states have established reciprocity agreements, making the permits they issue valid in much of the nation. Years of experience have shown that permit holders are far more law-abiding than the general populace.

The propriety of "may issue" permitting is now being challenged in court on the opposite coast. The District of Columbia maintains a "shall issue" or, more appropriately, a "no issue" policy. After the Supreme Court struck down the District's ban on handgun possession within the home last year, the District repealed the police chief's power to issue permits to let gun owners carry their weapons outside the home. Several plaintiffs have filed a lawsuit challenging this refusal to issue handgun-carry permits.

In the Heller decision last year, the Supreme Court affirmed the Second Amendment right of individuals to keep arms in their home and have them in a condition useful for self-defense. The Court stressed that the individual right to arms was not an unlimited one, leaving undisturbed bans on carrying guns into "sensitive places" such as schools and government buildings. The D.C. suit does not challenge this power, but asks the court to recognize that the whole of the District of Columbia cannot be a "sensitive place."

The District will almost certainly mention that the Heller decision also did not call into question 19th-century bans on concealed carry. This ignores the fact that while concealed carry was considered the mark of a brigand, open carry was accepted and legal. Modern feelings are the reverse; concealed carry is now practiced far more often than open carry. The plaintiffs do not specify the method of carry — open or concealed — merely that the Second Amendment does not stop at your front door.

The lawsuit intends to make the District face reality. Criminals have guns. They brandish them when the police are not on the scene and victims are outside of their homes. The D.C. government should not handicap the honest, law-abiding citizens who wish to carry arms in order to defend themselves.

One of the plaintiffs, Tom Palmer (disclosure: Tom is my colleague at the Cato Institute), once used a handgun to deter a mob of violent aggressors who were yelling death threats at him. Tom's right, and the right of any other citizen, to arm himself should not be subject to approval by a civil servant who will not be present to protect them. Even if the police are present when someone is being assaulted or killed, they don't necessarily have a duty to intervene — as evidenced by the praise given to the two Marin County officers by their sheriff after the aforementioned incident.

Just as the Supreme Court affirmed a right to be armed in the home for self-defense, the courts of the District of Columbia should affirm the right of law-abiding citizens to be armed and defend their own lives outside of their homes. Ending "may issue" policies that work to ensure the victimization of average people will make the District, and eventually the nation, a safer and more just place to live.

After Heller, the District relaxed its ban on residents seeking "to register a pistol for use in self-defense within that person's home." But D.C. law still states that "[n]o person shall carry within the District of Columbia either openly or concealed on or about their person, a pistol, without a license." Currently, the city affords no process by which to issue such a license. A first violation of the carry ban is punishable by a fine of up to $5,000 and imprisonment for up to five years.

Does the Constitution mandate that the nation's capital allow firearms to be carried outside the home? The right to bear arms, the court said in Heller, is an "individual right unconnected to militia service." To "bear" means to "carry." More specifically, when used with "arms," the opinion said, "bear" means "carrying for a particular purpose — confrontation." Nothing in that formulation implies a right that can be exercised only within one's home.

Indeed Justice Ruth Bader Ginsburg, although she dissented in Heller, cited Black's Law Dictionary to suggest in a prior opinion that the Second Amendment entails a right to "wear, bear, or carry ..... upon the person or in the clothing or in a pocket, ..... armed and ready ..... in a case of conflict with another person." That language, says Michael O'Shea in the West Virginia Law Review, "reads like a literal description of the practice of lawful concealed carry, as engaged in by millions of Americans in the forty-eight states that authorize the carrying of concealed handguns."

Of course, Second Amendment rights, like First Amendment rights, are not absolute. Scalia was careful to note that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Lawyers call such statements dicta — a statement not necessary to the holding and, therefore, not binding in other cases.

Nonetheless, dicta can be important. Gura, for that reason, took pains to fashion his new complaint to fit Scalia's framework. The Palmer lawsuit acknowledges that Washington "retains the ability to regulate the manner of carrying handguns, prohibit the carrying of handguns in specific, narrowly defined sensitive places, prohibit the carrying of arms that are not within the scope of Second Amendment protection, and disqualify specific, particularly dangerous individuals from carrying handguns." Restrictions on carrying are permissible, but an outright ban is not. As Gura put it, the District "may not completely ban the carrying of handguns for self-defense, deny individuals the right to carry handguns in non-sensitive places, [or] deprive individuals of the right to carry handguns in an arbitrary and capricious manner."

Proponents of a total ban have seized on another of Scalia's pronouncements in Heller. He pointed out that 19th-century courts considered prohibitions on carrying concealed weapons "lawful under the Second Amendment or state analogues." That statement, too, is dicta. Perhaps more significant, open-carry rather than concealed-carry was the preferred mode of arms-bearing in the 19th century. To be sure, some states prohibited concealed-carry, but only because they allowed open-carry — an alternative that the District probably would reject. An early Georgia case, for example, upheld a concealed-carry ban but struck down an open-carry ban. Ditto for other cases cited in Heller. Essentially, the Second Amendment demands that peaceable citizens be allowed to carry defensive weapons in some manner. The right to bear arms can be limited, but it cannot be destroyed.

Prediction: The courts will (and should) invalidate Washington's unconditional ban on carrying, as well as similar bans in Wisconsin and Illinois, the only two states to have such bans. Regulations consistent with the Heller opinion will be permitted. But the Supreme Court has affirmed that the Second Amendment secures an individual right, expressly enumerated in the Constitution. That means government has the burden of demonstrating that its proposed regulations are necessary.

First, some background: The Supreme Court ruled in 1833 (Barron v. Baltimore) that the Bill of Rights restrained only the federal government, not the states. The states, however, proved to be imperfect guardians of our liberties. Slavery was the obvious example, a partial remedy for which was three post-Civil-war constitutional amendments. One of those, the 14th, barred the states from abridging the "Privileges or Immunities" of citizens, or denying "Due Process" to any person.

Five years after the 14th Amendment was ratified, the Supreme Court in the Slaughter-House Cases effectively erased the Privileges or Immunities Clause from the Constitution. Thirteen years later, in Presser v. Illinois (1886), the Court confirmed that the right to keep and bear arms was not among the "privileges or immunities" of citizens of the United States that the states were barred from abridging.

Then the legal framework changed. In a series of cases beginning in 1897, the Court used the Due Process Clause of the 14th Amendment to "selectively incorporate" almost all of the Bill of Rights so they could be invoked against the states. Oddly, no case addressed whether the Second Amendment was incorporated. Thus Presser – a pre-incorporation case – seemed to control; and by its terms, the Second Amendment did not bind state governments. Until June of last year, that proposition was mostly ignored. But the Court then issued its blockbuster opinion in District of Columbia v. Heller, which declared that the right to keep and bear arms belonged to individuals, independent of militia service. Suddenly, the applicability of the Second Amendment to the states took on major significance. Heller provided no answer because it arose in Washington, D.C., which is a federal enclave, not a state.

Fast forward to February 2009. The U.S. Court of Appeals for the Second Circuit had to determine in Maloney v. Cuomo whether a New York state ban on a Japanese martial arts weapon known as a nunchaku in the home violated the Second Amendment. Judge Sotomayor was a member of a three-judge panel, which ruled that Presser foreclosed a Second Amendment challenge. The panel also cited Bach v. Pataki, a prior Second Circuit case, which had reached the same conclusion. Technically, the Maloney panel could not overrule a previous panel of the same court. In effect, Sotomayor's panel said, "Maybe Presser is still good law, or maybe Presser has been superseded by the Supreme Court's later incorporation cases. We three judges cannot make that decision – first, because another panel of this court has already followed Presser and, second, because the Supreme Court and not an appellate court must say when earlier Supreme Court cases are superseded."

This past June, the Seventh Circuit agreed with Sotomayor. In McDonald v. Chicago, a three-judge panel, including esteemed conservatives Frank Easterbrook and Richard Posner, held that Presser barred a Second Amendment challenge to Chicago's gun laws. Interestingly, in April, a Ninth Circuit panel disagreed. In Nordyke v. King, the panel concluded that Presser foreclosed the use only of the Privileges or Immunities Clause, but did not foreclose selective incorporation of the Second Amendment via the Due Process Clause. That holding will be reconsidered, however, by a larger contingent of 11 Ninth Circuit judges. Oral argument is set for September 21.

Which panel got it right? Most likely, it won't matter – because the Supreme Court will review one or more of the three Second Amendment cases; and precedent will not bind the high Court. We should have an answer shortly. Either way, the decision of the Second Circuit panel, including Judge Sotomayor, was well within the bounds of responsible judging. Perhaps the Second and Seventh Circuits were correct. Perhaps the Ninth Circuit panel had the better of the argument. It's a close call –not the kind of call on which confirmations ought to turn (or even focus).

Finally, some gun rights advocates criticize Sotomayor's Maloney opinion for stating that the right to nunchakus in the home is not a "fundamental right." But that statement had nothing to do with the Second Amendment. Instead, it concerned a different claim by the plaintiff under a doctrine known as substantive due process, which pertains to unenumerated constitutional rights, not those expressly listed in the Bill of Rights. Unless an unenumerated right is "fundamental," the courts will be highly deferential to legislative restrictions. Only if the right is "necessary to [our] regime of ordered liberty" or "deeply rooted in this Nation's history and tradition" will a right be deemed fundamental. The Sotomayor panel decided that the statute in question, regarding the unenumerated right to a nunchaku, not the enumerated right to keep and bear arms, did not meet those criteria.

Of course, those doctrinal pronouncements – differentiating between so-called fundamental and non-fundamental rights; diminishing the importance of unenumerated rights – are confused and confusing. Therein lay fertile ground for questioning Judge Sotomayor. What is her view of the Ninth Amendment – designed to protect unenumerated rights? Should the Supreme Court have bifurcated our rights – fundamental vs. non-fundamental – as it did in a single footnote in a 1938 case, United States v. Carolene Products? Those were among the issues she should have addressed at her confirmation hearings. Her answers would have revealed a great deal more about her theory of rights than did her Maloney opinion on an inscrutable question about judicial precedent.

President Barack Obama made a politically astute pick. Sonia Sotomayor is a competent jurist who symbolizes hard work, personal achievement, and ethnic diversity.

However, as Sen. Dick Durbin (D-Ill.) argued during the hearing on John Roberts, "the burden of proof for a Supreme Court justice is on the nominee." Judge Sotomayor has not met that burden.

While talking up her background, Sotomayor's advocates have emphasized her moderate record on the 2nd Circuit Court of Appeals. However, Circuit Court judges remain constrained by the possibility of Supreme Court review — and the hope of advancing to the high court. Judge Sotomayor's testimony was useless, as intended, in assessing her judicial philosophy. Writing in Slate, Dahlia Lithwick concluded: Sotomayor "dodges, hedges, and evades her way through softball and hardball questions alike." Sen. Jon Kyl (R-AZ) put it more harshly: the Judge was "evasive, lacking in substance and, in several instances, incredibly misleading."

In trying to assess how Justice Sotomayor would behave, we should consider the president's expectations. Then-Sen. Obama, who voted against both John Roberts and Samuel Alito, emphasized the "quality of empathy." While most cases can be decided on the basis of case law and precedent, said Sen. Obama, there remain five percent which "can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world words, and the depth and breadth of one's empathy." Alas, this latter category, however few in number, accounts for most of the important issues about which we most care and which most divide us.

Sonia Sotomayor's rhetoric and background suggests that she shares the president's general perspective. For instance, she has been involved in ethnic identity activism and politics throughout her college and professional life. She spent 12 years as a board member of the Puerto Rican Legal Defense and Education Fund, which promoted the usual ethnic agenda of coerced diversity and multiculturalism as well as the usual liberal agenda including support for abortion and opposition to capital punishment.

Moreover, her rhetoric reflects an extreme judicial vision. Perhaps Sotomayor's most famous comment, repeated in substance on at least seven occasions, came in the Berkeley La Raza Law Journal: "a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." Six years ago in a speech at Seton Hall she declared: "Whether born from experience or inherent physiological or cultural differences, … our gender and national origins may and will make a difference in our judging."

She returned to this theme many times: "My experiences will affect the facts that I choose to see as a judge." Moreover, "there is no objective stance, but only a series of perspectives — no neutrality, no escape from choice in judging." Indeed, "our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that."

There's more, however. She also believes that judges are to change the law. For instance, she complained: "The public expects the law to be static and unpredictable. The law, however, is uncertain and responds to changing circumstances." Of course, changing the law cannot be left to legislators: "Our society would be straightjacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law and adapting it to the realities of ever-changing social, industrial, and political conditions."

Indeed, "A given judge (or judges) may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction."

After all, she contends: "change — sometimes radical change — can and does occur in a legal system that serves a society whose social policy itself changes. It is our responsibility to explain to the public how an often unpredictable system of justice is one that serves a productive civilized but always evolving society." As she declared in a videotaped talk, the "Court of Appeals is where policy is made" and where "the law is percolating."

One need not have an idealized vision of the law to find these sentiments profoundly disturbing.

Empathy has its place — perhaps in a trial judge understanding a defendant's motivations, and passing sentence. However, empathy is a dubious guide to statutory and constitutional interpretation. Some of the most important cases either revolve around a party with whom empathy is impossible or involve multiple parties who all deserve empathy.

Diversity has value, but Sotomayor did not argue diversity would improve collective decision-making. She said that her ethnicity and gender would improve her decision-making.

Moreover, stereotypes can be seriously misleading. Nine white men delivered the death blow to racial segregation in Brown v. Board of Education. One of the New Haven firefighters who challenged the city's "pro-minority" employment policy in Ricci v. Destefano was Hispanic Ben Vargas.

No one would disagree that as society changes, so must laws and practices. That is why the Constitution allows amendments and legislatures exist. Our political system leaves most decisions on "change" up to the legislative and executive branches. Turning a group of nine jurists, irrespective of how diverse and empathetic, into a continuing constitutional convention puts all liberties at risk.

WHICH BRINGS US BACK to the question: what kind of justice would Sonia Sotomayor make?

Her overall judicial record may look moderate, but her opinions in several critical cases — President Obama's five percent — cause real concern.

There is Ricci v. Destefano, for instance, the much noted case in which New Haven tossed the results of a carefully created promotion test for firefighters because it did not like the racial composition of those who passed. The 2nd Circuit, in an opinion joined by Judge Sotomayor, perfunctorily affirmed the verdict for the city. Yet without question the city had acted in a racially discriminatory fashion. And the city appeared to base its decision on political considerations, not any reassessment of "business necessity."

Sotomayor's opinion was even worse on procedural grounds. Her one paragraph dismissal seemed intended to limit the likelihood of Supreme Court review. Yet Judge Jose Cabranes, a Clinton appointee, complained that the controversy involved "significant questions of unsettled law," and was a case of first impression with no relevant Supreme Court precedent. The high court took the case and the majority of five ruled for the firefighters. The minority of four also disagreed with Sotomayor's opinion, indicating that the case should have been remanded for trial to assess the city's conduct.

Another worrisome case is Didden v. Village of Port Chester (New York), in which Judge Sotomayor demonstrated her disdain for property rights. In 1999 the city created a "redevelopment" area and designated a developer to handle all land seized by Port Chester. In 2003 he asked the property owners who planned to build a pharmacy on their land for either $800,000 or a half interest as partner in the project. They refused, and the next day the city condemned the property, transferring it to the developer so he could build a Walgreens. Sotomayor dismissed the owners' claim in six paragraphs.

Judge Sotomayor said the statute of limitations for the redevelopment law expired in 2002 — a year before the disputed taking occurred. She went on to uphold the extortionate seizure of property as required by the Supreme Court decision in Kelo v. City of New London. Yet the majority in that case warned: "the mere pretext of a public purpose, where its actual purpose was to bestow a private benefit," was not a "public use" as required by the Constitution. And what could be a better example of the use of eminent domain for private benefit than a well-connected developer getting the city to back his attempt at private extortion?

Then there is Maloney v. Cuomo, which involved a challenge to state gun restrictions after the Supreme Court voided Washington, D.C.'s gun ban in District of Columbia v. Heller. Judge Sotomayor dispensed with the claim in an 11-word conclusion relying on an 1886 case (Presser v. Illinois) which applied the 2nd Amendment only to the federal government. However, Presser did not address the so-called "incorporation" doctrine, by which the Bill of Rights was applied to the states through the 14th Amendment (the "incorporation" process did not begin until decades later).

Moreover, in Heller the Supreme Court for the first time affirmed an individual right to own firearms. The Court distinguished Presser and indicated that an inquiry into incorporation would be necessary in the future. In fact, the liberal 9th Circuit confronted the challenge, ruling in April that the 14th Amendment did "incorporate" the right to own firearms. Judge Sotomayor apparently relied on ancient precedent to avoid having to make a pro-gun ruling.

In Hayden v. Pataki Judge Sotomayor ruled that the Voting Rights Act did not bar states from disenfranchising felons. Indeed, the 14th Amendment explicitly authorized states to do so. In three short paragraphs the judge asserted that the law was clear — after the majority spent 36 pages detailing evidence on why the VRA did not intend to overturn a nondiscriminatory process predating the sort of discrimination the VRA was passed to combat.

Perhaps most important is the case which received little attention but which underlies every Supreme Court nomination: Roe v. Wade. Judge Sotomayor has said nothing about the issue and her few rulings on the issue shed little light. However, the White House has assured its supporters on the issue. Moreover, the Puerto Rican Legal Defense and Education Fund in which she was active was a leading proponent of abortion.

The issue is not whether one believes abortion should be legal. But Roe does not deserve to be called constitutional law. Rather, it is an act of judicial usurpation, unsupported by constitutional purpose, original intent, and legal precedent. For a nominee for the high court to embrace Roe suggests that they will not carry out their duty to faithfully interpret and apply the Constitution.

ONE FINAL ISSUE OF NOTE is the use of international law to interpret the U.S. Constitution and law. No doubt, thoughtful legislators will consider foreign experiences in assessing social problems and deciding how to resolve them.

But as Steven Groves of the Heritage Foundation detailed, Judge Sotomayor appears to believe that foreign cases should be used by judges — and justices — to shape U.S. law through judicial interpretation, never mind what the American legislators who passed the law believed.

Earlier this year Judge Sotomayor opined: "international law and foreign law will be very important in the discussion of how to think about the unsettled issues in our legal system." She also declared: "unless American courts are more open to discussing the ideas raised by foreign cases, by international cases, that we are going to lose influence in the world." That's a dubious claim, but even if true, why should the judiciary worry about America's international influence?

Judge Sotomayor tried to walk back her earlier remarks when she testified. Nevertheless, her basic beliefs seem clear. In her foreword to The International Lawyer, published in 2007, she said: "the question of how much we have to learn from foreign law and the international community when interpreting the Constitution is … worth posing." [Emphasis added.] It is not xenophobic to ask: why should international cases have any role in interpreting the Constitution?

The interpretation of the U.S. Constitution and law should be based on the intentions of the Americans who drafted and approved the measure at issue.

Sonia Sotomayor appears to be a decent person and a capable jurist. But her oft-expressed radical ideas and dismissive treatment of fundamental liberties suggest that she is likely to be a less measured justice than judge. The rule of law, and thus the original constitutional system based on individual liberty and limited government, would suffer. Average Americans of all backgrounds would be the ultimate victims.

Judge Sotomayor has not met Sen. Durbin's burden of proof. The Senate should vote no on her appointment.

Mr. Bandow is a graduate of Stanford Law School and a member of the California and D.C. bars. This article is adapted from a talk for the Federalist Society.

]]> Thu, 30 Jul 2009 00:00:00 EDT http://www.cato.org/pub_display.php?pub_id=10404 http://www.cato.org/pub_display.php?pub_id=10336 District of Columbia v. Heller, the Supreme Court confirmed what the Framers, most scholars, and a substantial majority of Americans believe: that the Second Amendment protects an individual right to keep and bear arms. Heller led to lawsuits raising the question of whether the Fourteenth Amendment protects that right against infringement by state and local governments. In a consolidated case involving a challenge to Chicago's handgun ban, the Seventh Circuit answered that question in the negative, finding itself foreclosed by 19th-century Supreme Court decisions. Cato, joining with the Institute for Justice, filed an amicus brief supporting requests for the Supreme Court to review that line of precedent. We argue that the Court's initial encounters with the Fourteenth Amendment yielded a profound misreading of its Privileges or Immunities Clause that has haunted the Court's rights jurisprudence ever since. The Chicago petitions present the Court with an unprecedented opportunity to reach back to the very source of that misreading, the 1873 Slaughter-House Cases, and there are three compelling reasons why the Court should do so: 1) the only disagreement among circuit courts in the wake of Heller is whether they are bound by the Court's decisions refusing to apply the right to keep and bear arms against the states; 2) case law and scholarly commentary together form a kind of constitutional conversation, which has arrived at a clear consensus about Slaughter-House that merits the Court's consideration; and 3) the Constitution is not merely a blueprint for government, but a charter of liberty. Accurately placing the Fourteenth Amendment within that tradition would be a virtue in itself and would sharpen the national dialogue regarding the source, nature, and limits of our rights.]]> Mon, 06 Jul 2009 00:00:00 EDT http://www.cato.org/pub_display.php?pub_id=10336 http://www.cato.org/dailypodcast/podcast-archive.php?podcast_id=920 Mon, 15 Jun 2009 00:00:00 EDT http://www.cato.org/dailypodcast/podcast-archive.php?podcast_id=920 http://www.cato.org/weekly/index.php?vid_id=104 Robert A. Levy discusses gun laws with Judy Woodruff on PBS's NewsHour on the anniversary of the Columbine murders.]]> Wed, 22 Apr 2009 00:00:00 EDT http://www.cato.org/weekly/index.php?vid_id=104 http://www.cato.org/mediahighlights/index.php?highlight_id=457 Thu, 16 Apr 2009 00:00:00 EDT http://www.cato.org/mediahighlights/index.php?highlight_id=457 http://www.cato.org/mediahighlights/index.php?highlight_id=458 Wed, 15 Apr 2009 00:00:00 EDT http://www.cato.org/mediahighlights/index.php?highlight_id=458 http://www.cato.org/pub_display.php?pub_id=10073 Has the Supreme Court decision in District of Columbia v. Heller — which affirmed the Second Amendment and declared the D.C. handgun ban unconstitutional — been of almost no significance? So claimed the New York Times in a recent article by Supreme Court reporter Adam Liptak. Unfortunately, Liptak's article followed in a long New York Times tradition of credulously reporting the claims of one anti-gun professor, without conducting sufficient research to see if the claims hold up.

Let's start with the most obvious facts which the Times overlooked. On the day that Heller was decided, the citizens of five Chicago suburbs, and of Chicago itself, were prohibited from owning guns. Residents of apartments provided by the San Francisco Housing Authority were prohibited from owning any gun. Within 24 hours of the Heller decision, gun rights organizations — including the National Rifle Association (NRA) and the Second Amendment Foundation (SAF) — filed lawsuits against the gun bans.

Today, the residents of San Francisco public housing can own guns in their homes. In four of the five Chicago suburbs (Morton Grove, Evanston, Wilmette, and Winnetka), the handgun bans have been repealed. Yet according to the Times, "So far, Heller is firing blanks."

The Times came that erroneous conclusion, it appears, by credulously relying on UCLA law professor Adam Winkler. The Times quotes Winkler: "To date, the federal courts have not invalidated a single gun control law on the basis of the Second Amendment since Heller." The Times does mention one exception to Winkler's claim, a recent case holding that the federal ban on gun possession by anyone who has been charged (but not convicted) of possessing child pornography is unconstitutional.

But there are many more exceptions that the Times missed. Gun owners have already won in San Francisco, and they won in the four Chicago suburbs.

The Times quoted Winkler: "the only real change from Heller is that gun owners have to pay higher legal fees to find out that they lose." Yet attorney David Hardy reported in January on his Arms and the Law weblog the San Francisco Housing Authority will be paying the attorneys fees for the plaintiff gun owners there (although the settlement terms of the San Francisco surrender are confidential).

But Winkler (and, derivatively, the Times) does not count or even acknowledge the existence of these victories. Winkler's database of cases includes only opinions written by federal courts. So if a gun rights group brings a suit in federal district court, or threatens to bring such a suit, and the gun-banning defendant realizes that defeat is likely, and then the defendant changes its anti-gun policies, Winkler and the Times ignore the result.

Likewise ignored is a win which does not generate a written opinion published in the Westlaw or Lexis databases. For example, in November, the NRA and SAF filed a lawsuit in federal district court in the Western District of Washington. Washington is the only state in the nation which requires legal resident aliens to obtain a special license in order to possess firearms, and the state licensing division was refusing to issue any alien licenses.

On January 27, the federal court entered a preliminary injunction, ordering the Washington Department of Licensing to resume issuing alien firearms licenses.

Nobody challenged the constitutionality of the state alien licensing law — just the Department's denial of constitutional rights by failing to carry out the law. So this Second Amendment victory does not count, by Winkler's hyper-narrow standard.

It likewise doesn't count for Winkler (and for the Times) when a defendant successfully invokes the Second Amendment to resist a criminal prosecution. That's what happened in United States v. Kitsch, decided last August in the federal district court for the Eastern District of Pennsylvania.

In that case, Kitsch had once been an undercover informant for law enforcement officials in New Jersey. The court explained his unusual circumstances:

As a means of helping the narcotics officer with whom he was working... Kitsch set a small, smoky fire on the windowsill of the barn and then promptly called the fire department . . . . As a result of the fire, Kitsch was charged with third-degree arson, a felony under both New Jersey and federal law. He pled guilty to the state offense after meeting with law enforcement officials who told him they would set aside the conviction and Kitsch could live as though the event had never happened. Although he served a thirty-day custodial sentence on Sundays, Kitsch avers that he truly and reasonably believed that his conviction had either been set aside or expunged.

Later, federal prosecutors in Pennsylvania brought charges against Kitsch, because it is illegal for someone with a felony conviction to possess a gun. The prosecutors argued that Kitsch's sincere belief that he was not a convicted felon was irrelevant. The judge disagreed, and ruled that "in order to convict Kitsch, the Government must prove beyond a reasonable doubt that he knew or was willfully blind to the fact that he had a prior felony conviction that had not been set aside or expunged." The court explained that, post-Heller, the government's strict liability interpretation of the statute might turn the statute into a violation of the Second Amendment.

Not a Second Amendment victory, according to Winkler and the Times. But hardly consistent with Winkler's claim that "the only real change from Heller is that gun owners have to pay higher legal fees to find out that they lose."

Winkler's extremely narrow field of vision also ignores state courts. So there's no mention of cases like Colvaiacolo v. Dormer, the October decision from a trial court in Suffolk County, New York, holding that New York State cannot require handgun licensees to keep their handguns locked in safe when not in use, because Heller ruled a similar requirement in D.C. unconstitutional.

It's true that, as Winkler points out, federal courts have rejected lots of Second Amendment claims brought by convicted felons, and by persons convicted of domestic violence, or by persons wishing to possess machine guns. This is no surprise, nor is it contrary to what was sought by the lawyers on the winning side of Heller. I was one of three lawyers who joined Alan Gura at the Supreme Court counsel table, as assistants in his presentation of the oral argument. I also wrote an amicus brief for a broad coalition of law enforcement organizations, and for half the District Attorneys in California; that brief argued that gun bans for people such as domestic abusers were consistent with the Second Amendment. Another group of District Attorneys, led by Maricopa County, Arizona, submitted an amicus brief explaining why gun bans for law-abiding citizens were unconstitutional, while gun bans for criminals were not. Likewise, thirty-one state Attorneys General filed an amicus brief on behalf of Mr. Heller, and they too foresaw no possibility that gun bans for convicted criminals or machine gun bans would be endangered by a Second Amendment victory.

Of course criminal defense lawyers often have to grasp at straws to defend their clients, so it's not surprising that there have been plenty of post-Heller cases in which defense lawyers have raised near-hopeless Second Amendment claims. It's hardly news that these cases have been losers.

Although the Times does not discuss Professor Winkler's role in Heller, he is not a disinterested academic. He filed an amicus brief on D.C.'s side, in which he argued that gun controls should be upheld if they are "reasonable," and that anything short of banning all guns is reasonable.

Justice Breyer and the three other Heller dissenters argued in favor of the reasonableness standard, while Justice Scalia's majority opinion explicitly rejected it.

Now, Winkler appears to be spinning the news by making it appear that post-Heller courts are, in effect, following his (rejected) standard. That's Winkler's prerogative, but the New York Times is not supposed to be so gullible.

Times writer Adam Liptak did talk with Sanford Levinson, an eminent professor of constitutional law at the University of Texas, who wrote a very influential article in the Yale Law Journal in 1989, recognizing the Second Amendment as an individual right. But while Levinson is a superstar of constitutional theory, he does not track the Second Amendment on a case by case basis.

As a journalist, Liptak should have tested Winkler's claims by speaking with a "pro-gun" attorney or a scholar with extensive knowledge of post-Heller litigation. David Hardy would have been a good choice, as would Alan Gura or Stephen Halbrook — both of whom have won some of the Second Amendment victories detailed above.

Then, Liptak might still have written an article explaining that Heller has not led to a raft of federal gun control laws being declared unconstitutional. But Liptak would not have inaccurately written that "So far, Heller is firing blanks." The attorneys for the State of Washington, the San Francisco Housing Authority, Wilmette, Evanston, Morton Grove, Winnetka, and Suffolk County are among those who know better.

He had better hope that they don't "melt down" more, or it may not be safe to venture anywhere in Mexico. Just a few weeks before the attorney's general's optimistic assessment, the Marine commander at Camp Pendleton barred his troops from spending their leave time in Tijuana because the city had become too dangerous. The U.S. State Department has issued new travel alerts warning American businesspeople and tourists about the growing risks of travel in Mexico. Several American colleges and universities have likewise urged their students to avoid going to Mexico for spring break.

Washington Times correspondent Sara Carter reports that a high-level source in the Pentagon concludes that the two leading drug-trafficking organizations, the Sinaloa and Gulf cartels, now field more than one hundred thousand armed foot soldiers. That figure does not take into account the enforcers at the disposal of the smaller cartels. Adding their personnel to the mix would likely bring the total to one hundred forty to one hundred fifty thousand. In short, the forces the drug gangs can deploy are now nearly as numerous as Mexico's one hundred eighty-eight thousand man army.

And the gangs are well-armed, which leads to the second manifestation of delusional thinking on the part of Mexican authorities. President Felipe Calderón and other leaders insist that "lax gun laws" in the United States are largely responsible for the violence the drug cartels are inflicting. Medina-Mora typified that view, saying: "I think American [gun] laws are absurd" because "they make it very easy for citizens to acquire guns."

Gun-control advocates in the United States have encouraged the Mexican government's search for scapegoats. A New York Times editorial encapsulated the logic of strengthening the restrictions on firearms as a way to more effectively wage the war on drugs south of the border. "Mexico has no hope of defeating the traffickers unless this country is also willing to do more to fight the drug war at home—starting with a clear commitment to stop the weapons smugglers."

Even some U.S. political leaders have accepted the Mexican government's explanation for the surging violence. Last summer, the Bush and Calderon administrations announced a new program, the Armas Cruzadas (Crossed Arms), to stem the flow of guns from the United States to Mexico. Senator Charles Grassley defended the initiative, saying: "As drugs come into our country, money and illegal firearms go out. We owe it to our neighbors to help cut down on outbound smuggling."

The notion that the violence in Mexico would subside if the United States had more restrictive laws on firearms is devoid of logic and evidence. Mexican drug gangs would have little trouble obtaining all the guns they desire from black market sources in Mexico and elsewhere. After all, the traffickers make their fortunes operating in a black market involving another product and they have vast financial resources to purchase whatever they need to conduct their business. Even assuming that the Mexican government's estimate that 97 percent of the weapons used by the cartels come from stores and gun shows in the United States—and Mexican officials are not exactly objective sources for such statistics—the traffickers rely on those outlets simply because they are easier and more convenient, not because there are no other options.

One could close every sporting goods store in the southwestern states, and the measure would not disarm the drug gangs. Indeed, many of the most lethal weapons the cartels employ, such as machine guns and grenade launchers, are already illegal. If Washington and the various state governments adopted the firearms "reforms" that Mexico City is demanding, the principal result would be to inconvenience law-abiding American gun owners and merchants.

Attempts to lay the blame for Mexico's chaos at the door of U.S. gun laws are either naive or a cynical exercise in excuse making. Tightening firearms laws in the United States (even if that were politically feasible) is not a solution to the violence in Mexico.

Mexican leaders need to face some troubling realities. The cartels are not melting down. They are growing stronger and pose an increasing threat to the stability of the Mexican state. Growing levels of violence are not indicators of desperation, but of power and arrogance. Seizures of large drug shipments (another "positive" sign Mexican authorities have recently touted) merely show that large quantities of drugs are in the supply pipeline, not that the cartels are on the ropes. And using U.S. gun laws as a scapegoat for Mexico's problems is not a constructive policy.

The Calderón government can, of course, continue to indulge in such fantasies. But if it does, the threat posed by the cartels will become even worse. Despite some hysteria in the United States, Mexico is not yet on the brink of becoming a "failed state." If Mexican leaders persist in attitudes that amount to little more than wishful thinking, however, such a terrible outcome is not out of the question.

To be sure, Mr. Burress got caught because of what appears to have been stupid and irresponsible behavior connected with the handgun. But he does not face prison for shooting himself. His impending mandatory sentence highlights the unfairness and unconstitutionality of New York City's draconian gun laws.

Mr. Burress had previously had a handgun carry permit issued by Florida, for which he was required to pass a fingerprint-based background check. As a player for the Giants, he moved to Totowa, N.J., where he kept a Glock pistol. And last Friday night, he reportedly went to the Latin Quarter nightclub in midtown Manhattan carrying the loaded gun in his sweatpants. Because New York state permits to possess or carry handguns are not issued to nonresidents, Mr. Burress could not apply for a New York City permit.

At the nightclub, the handgun accidentally discharged, shooting Mr. Burress in the right thigh. He was not seriously injured, but he has been charged with criminal possession of a weapon in the second degree.

It appears that he put the unholstered gun in the waistband of his sweatpants, and when it slipped, he grabbed for it, accidentally hitting the trigger. To make matters worse, according to press accounts, he was seen drinking and may have been consuming alcohol -- which all firearms safety training (including the class he would have been required to take for his Florida permit) absolutely forbids for people handling guns. And of course Mr. Burress's handgun should have been holstered to prevent unintentional movement of the trigger. Fortunately, his negligent discharge did not harm anyone else.

Mr. Burress's behavior was bad. However, Mr. Burress is not facing prosecution for carelessness, but simply for carrying a weapon. This is unjust and perhaps unconstitutional. The legal issues are a bit tangled, but here is the background:

This summer, the Supreme Court ruled in District of Columbia v. Heller that the District's handgun ban, and its ban on use of any firearm for self-defense in the home, violated the Second Amendment, which guarantees the individual right to bear arms. D.C. is a federal enclave, and the Court did not rule whether the Second Amendment applies to state and local governments. But as other cases reach it in the wake of Heller, it will.

The Heller decision did not say that requiring a license to carry a gun was unconstitutional. But in New York State, nonresidents cannot even apply for the licenses to possess or carry a handgun. Unlike most other states, New York refuses to honor carry permits issued by sister states. Most observers believe that the Supreme Court will eventually make state and local governments obey the Second Amendment. If it does, New York's discrimination against nonresidents will probably be ruled unconstitutional.

And then there is the issue of the permitting process for residents. In 40 states, including Connecticut, law-abiding adults are issued permits once they pass a fingerprint-based background check and a safety class. In New Jersey, carry permits are virtually never issued. In New York City, carry permits are issued, but to applicants with some form of political clout rather than on the basis of his or her need for protection.

The Second Amendment might not require New Jersey or New York City to issue as liberally as Connecticut does. But with a population of several million and only a few thousand (consisting mainly of politicians, retired police and celebrities) able to get permits, New York City's licensing process is almost certainly unconstitutional on a number of grounds, including sheer arbitrariness.

Some commentators contend that Plaxico Burress should have hired bodyguards, instead of carrying a gun himself. Mr. Burress might now agree. But people who aren't as wealthy as he is also deserve to be safe, and they don't have the money for bodyguards. New York City needs to regularize its carry permit system so that law-abiding people can protect themselves, especially if their circumstances (such as being a witness to a gang crime) place them at heightened risk.

The Burress case also shows why mandatory sentences are a bad idea. He was careless but had no malign intent. Legislators and mayors like to appear tough by pushing through such draconian laws. Yet the victims are people like Mr. Burress whose conduct may have been improper, but who do not deserve the same sentences meted out to robbers and burglars.

That's quite an astonishing statement coming from Justice Stevens--the same Justice who had no such reservations just one day earlier when he voted to invalidate Louisiana's death penalty for child rape and substitute an outright ban on capital punishment for any crime that isn't fatal to its victim. Even more disturbing, however, are protestations from some conservative jurists, such as Wilkinson and Posner, whose call for "judicial modesty" can have the effect of erasing rights expressly enumerated in the Constitution. Deference to the legislature becomes an end in itself, notwithstanding the overriding objective of judges to interpret the Constitution according to its meaning and vindicate the promise of liberty that the Constitution embodies.

Reacting to the perceived excesses of the Warren Court and the ability of liberal interest groups to advance their agendas through the courts, many conservatives insist that courts must indiscriminately defer to the decisions of the executive and legislative branch. Yet blanket judicial deference effectively removes the courts from the meticulously crafted system of checks and balances that was designed by the Framers to prevent abuse of power. Over the years, the result of such judicial abdication has been to expand government, at all levels, at the expense of individual rights.

When the legislative or executive branch exceeds its legitimate enumerated powers, the courts have the authority, indeed the duty, to declare that exercise of power unconstitutional. Deference in the face of excesses by the political branches, coupled with an allegiance to precedent, through a cramped interpretation of the Constitution, means that conservatives are rarely willing to overrule prior cases, leaving entrenched the very foundations of the regulatory and redistributive states they rail against. In practice, judicial restraint has mutated into judicial passivism, with a predictable result: more government power and fewer constitutionally protected individual rights.

Both liberals and conservatives take comfort in their often unfounded belief that legislatures will respond to the will of the public and make informed policy decisions that can be changed as public sentiment dictates. Though appealing in principle, that trust in the democratic process ignores the realities of today's governmental institutions. Through gerrymandering and other means, elected representatives are increasingly insulated from their constituents. Meanwhile, many policies are set and enforced by unelected, unaccountable agencies and commissions. What's more, politically powerful special interests concentrate their resources to glean benefits from government--transferring the burden to other taxpayers, who do not perceive the cumulative cost of multiple schemes, each of which has a seemingly inconsequential price tag.

The proper role for the court is one of principled engagement--applying the law and the Constitution to scrutinize the acts of the executive and legislative branches. Courts would be derelict if they endorsed unconstitutional acts merely because our elected representatives passed them. In that respect, overturning the D.C. gun ban was a clear example of principled judicial engagement.

In contrast, activism that renders legal judgments based on the judge's public policy preferences should be roundly condemned. Results-oriented jurisprudence, based on subjective value judgments, may be proper for a legislator, but not for a judge. A judge's role is to apply the law, not impose policy preferences.

The trick, of course, is to distinguish proper from improper judicial intervention. That task is complicated by laws that are often unclear--either because the legislature has not done its job, or has intentionally left gaps for the courts to fill; or because the meaning of the law depends on the meaning of the Constitution, which can also be unclear. Members of the Court must, therefore, have a theory of the Constitution--in particular, a respect for limited government and individual rights. Those were the principles that the Framers applied in crafting the Constitution. The Heller opinion, true to that framework, upheld a right based solidly on the text, purpose, structure, and history of our founding documents.

The Washington Post has characterized that request as "adding insult to injury" and a "windfall" to which we are not entitled. The Post's editorial is long on rhetoric but short on analysis. In fact, the $3.5 million request is perfectly reasonable under existing court precedent.

The purpose of the fee-shifting provision is to ensure "vigorous enforcement" of civil rights laws, especially when monetary damages are not available and the claimants may not be able to afford competent legal counsel. To attain that goal, prevailing lawyers should receive a market rate for their efforts.

The baseline is the total number of hours reasonably expended on the case times the hourly rate normally charged by lawyers of like ability and experience. The award should also include a "contingency enhancement" to offset the very real risk of losing even meritorious suits, in which case no fees are recoverable.

While the Supreme Court has (incorrectly, in our view) rejected that approach, it has approved fee enhancements for lawyers who achieve "exceptional results."

With respect to our recorded hours, the total was under 3,100 for three lawyers over six years. No reasonable person could consider those hours excessive, particularly considering that we were up against more than a dozen lawyers - some of them eminent Supreme Court practitioners - from the D.C. Attorney General's office and three of the nation's largest and most elite law firms.

Moreover, we worked many hundreds of additional hours on tasks - such as media relations, speaking at public forums, writing articles for legal journals - that are not compensable under the statute even though they are essential ingredients of any public interest lawsuit.

Nor is it reasonable to quibble with our proposed rate of $557 per hour, which is consistent with rates charged by lawyers at major D.C. law firms - a fact we thoroughly documented with published survey data and testimony from a respected economist whose estimates have been accepted many times by federal courts.

The Post's response is to suggest that $557 per hour is the going rate only for those lawyers working at "megafirms" with Fortune 500 clients. Mere public interest lawyers like us should receive less (how much less the Post does not say).

That position is both elitist and illogical, and it has been thoroughly rejected by the courts, which have recognized that the quality of a lawyer's work is not dependent on the size or reputation of his or her firm. If proof of that proposition were needed, consider our victory over a legal team that included at least nine "megafirm" lawyers.

Finally, there is our request for an enhancement of the baseline fee - not unlike past court awards in abortion, gay rights, and police brutality cases. We asked the court to double our fee in light of the truly "exceptional" results we achieved. How exceptional? Before Heller, no federal appellate court had ever overturned a gun regulation on Second Amendment grounds.

Before Heller, federal courts covering 47 of 50 states had ruled that persons have no Second Amendment redress if a state or locality banned the possession of suitable firearms in the home for self-defense.

Before Heller, D.C.'s local court of appeal had interpreted the Second Amendment as not protecting an individual right to own guns. To prevail in Heller, we had to persuade the Supreme Court to overturn all of those precedents, something it is rarely inclined to do and that happens perhaps once every generation or two.

Heller is a landmark, unprecedented, unequivocal victory for individual rights. If that's not exceptional, it's impossible to imagine a result that would be.

Congress wisely enacted a fee-shifting statute so capable attorneys would pursue risky and difficult civil rights cases. As prevailing counsel for Mr. Heller, we have earned the right to market rates for reasonable hours, with an appropriate enhancement for high quality work under daunting circumstances in an exceptional case.

Civil rights practice should not require independent wealth or vows of poverty in addition to generosity of spirit.

It's time for Congress to use the power granted to it in the Constitution to "exercise exclusive legislation" in the District and uphold its residents' constitutional rights. It can do so by passing the District of Columbia Personal Protection Act now pending in Congress, with a few adjustments. This bill, introduced on July 31 with 57 cosponsors, would prevent D.C. from passing regulations that discourage the private lawful use of firearms or otherwise suppress residents' Second Amendment rights. It is the result of a compromise between the National Rifle Association and House leaders.

To ensure broad-based, bipartisan support, we propose four modest congressional actions that would preserve some home-rule authority while erecting a commonsense framework for restoring the right to self-defense in our nation's capital.

First, Congress should change how D.C. processes gun registrations. Currently, residents must complete an application form, submit photographs, prove residency and good vision, pass a written test, pay a fee, be fingerprinted, and have the gun ballistics tested. The entire process can take months.

Congress should mandate a more streamlined process for D.C. based on the National Instant Criminal Background Check System, which is already required by federal law for all retail firearm sales. Background checks are usually completed within a few hours.

Second, D.C. still bans all "machine guns," improperly defined as any gun capable of firing 12 or more rounds without reloading -- even if the gun owner has a magazine with fewer rounds. As a result, only revolvers or single-shot handguns can be registered. But semiautomatic handguns constitute about three-quarters of handguns sold in the U.S. Banning them violates the Supreme Court's rule in District of Columbia v. Heller against "prohibition of an entire class of 'arms' that is overwhelmingly chosen by American society" for lawful self-defense.

The new guidepost should be that a firearm may not be banned unless it is prohibited by federal law or subject to the National Firearms Act, which covers weapons such as real machine guns and sawed-off shotguns.

Third, D.C. still requires that weapons in the home be unloaded and either disassembled, trigger-locked or kept in a gun safe. An exception is made for a firearm while being used against a threat of immediate harm within the home. That exception is unconstitutionally vague. According to acting D.C. Attorney General Peter Nickles, a homeowner cannot have an unlocked and loaded gun even when investigating the sound of intruders in her backyard.

Any rule requiring a crime victim to wait until her attacker has actually entered the home is unreasonable. Congress should bar D.C. from prohibiting or infringing a home use of firearms for self-protection. Within that constraint, D.C. can fashion sensible safe-storage regulations.

Fourth, under federal law, buyers may acquire a handgun only within their state of residence: Out-of-state sellers must first ship the gun to someone in-state who has a Federal Firearms License.

However, because of the District's 1976 gun ban, there are no stores selling guns within the city, and only one or two federal firearms licensees willing to take delivery from outside on a limited basis. It will be months before gun dealers are licensed. Thus, D.C. residents who do not own a handgun cannot obtain one, and cannot exercise their constitutional right, affirmed by the Supreme Court, to defend themselves where they live. Congress should revamp the federal restrictions on interstate handgun sales to allow, at a minimum, District residents to purchase handguns in Maryland or Virginia. Like rifles and shotguns, handguns should be obtainable from an out-of-state licensee if the sale complies with laws applicable where the buyer resides and where the sale occurs.

Over the years, our elected representatives have adopted a court-centric view of the Constitution -- a view that decisions about constitutionality are properly left to the judiciary. But members of Congress also swear to uphold the Constitution. Congress can make good on that oath by restoring the right of Washington, D.C., residents to possess functional firearms in their homes.

Much of the majority opinion and the dissent by Justice John Paul Stevens focused on contrasting interpretations of constitutional text, structure, and history. Without revisiting those arguments, about which volumes have been written, I’d like to comment briefly on four issues that received less attention in the opinions, but which have significant implications for the future. (1) What gun regulations will now be permissible? (2) Will the Second Amendment be “incorporated” so that it can be invoked against state and local governments? (3) Did a purportedly conservative Supreme Court engage in judicial activism? And (4) what happens next on the political front?

What Gun Regulations Will Now Be Permissible?

Justice Scalia accepted that the Second Amendment, like the First, is not absolute. He noted, for example, that concealed carry prohibitions had been upheld, although he stopped short of stating that all such prohibitions would be sustained under Heller’s reinvigorated Second Amendment. Ditto for the constitutionality of licensing requirements, which Mr. Heller had not challenged. Scalia went even further in stating that the Court did not “cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” He added that he could also find “support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.”

It’s likely, therefore, that Heller was well advised not to antagonize the centrist(s) on the Court by demanding de-regulation of weapons like machine guns. Heller’s success was due in part to the moderate, incremental relief that he sought. Subsequent cases will have to resolve what weapons and persons can be regulated and what restrictions are permissible. Those questions will depend, in large measure, on the standard of review that the Court chooses to apply — an issue not resolved in Heller, despite considerable attention to that subject in various amicus briefs, including one from Solicitor General Paul Clement for the Justice Department.

Clement suggested that the Court apply a form of “heightened” scrutiny in reviewing gun regulations. Specifically, he advised the Court to consider “the practical impact of the challenged restriction on the plaintiff’s ability to possess firearms for lawful purposes (which depends in turn on the nature and functional adequacy of available alternatives).” Although Clement acknowledged that the D.C. gun ban “may well fail such scrutiny,” he professed concern that the appellate court had mistakenly applied a different “per se” test, which would preclude “any ban on a category of ‘Arms’ that can be traced back to the Founding era.”

Heller responded that the D.C. gun ban is unconstitutional no matter what standard of review the Supreme Court were to apply. Accordingly, the Court did not have to address the standard-of-review question. On the other hand, if the Court decided to tackle that issue, then Heller urged that “strict,” not heightened, scrutiny be the standard. To justify a gun control regulation under strict scrutiny, government would have to demonstrate a compelling need for the law, and then show that any restrictions were narrowly tailored — no more invasive than necessary to achieve the government’s objectives. Traditionally, the Court has strictly scrutinized all government regulations that infringe on a “fundamental” right — one that is “implicit in the concept of ordered liberty” or “deeply rooted in the Nation’s history and traditions.” Virtually all of the Bill of Rights qualify, and the right to keep and bear arms — indisputably fundamental — is no exception.

Ultimately, the Court agreed with Heller that D.C.’s ban on all functional firearms in the home is unconstitutional “under any of the standards of scrutiny the Court has applied to enumerated constitutional rights.” But the Court did not choose a specific standard, and may hereafter apply something less than the strict scrutiny standard Heller had suggested. On the other hand, the Court categorically rejected “rational basis” scrutiny, which has been a rubber-stamp for virtually all legislative enactments. And the Court also rejected Justice Stephen Breyer’s “interest-balancing” test, which is no more than a repeat of the process that legislatures undertake in crafting regulations. Something higher is demanded, said Scalia, when an express constitutional right is at issue. At a minimum, it appears that the Court will adopt some version of intermediate or heightened scrutiny, as urged by the Justice Department.

Will the Second Amendment Be “Incorporated”?

Imminently, the Court will have to decide whether Second Amendment rights can be enforced against state governments. Washington, D.C. is not a state; it is a federal enclave within which Congress exercises plenary legislative power. Until 1868, when the Fourteenth Amendment was ratified, the Bill of Rights applied only to the federal government, not to states or to municipalities legislating under delegated state authority. But in a series of post-Civil-War cases, the Supreme Court held that the Fourteenth Amendment was intended to “incorporate” most of the Bill of Rights in order to hold state governments accountable for violations. Interestingly, the Court has never ruled that the Second Amendment has been incorporated. If gun control regulations are to be challenged in places such as Chicago and San Francisco, that question must be answered.

In contemplating incorporation of the Second Amendment, the Court might also reexamine the means by which incorporation of other rights has been effected. One choice, rebuffed by the Court, would have been to use the Privileges or Immunities Clause of the Fourteenth Amendment (”No State shall make or enforce any law which shall abridge the privileges or immunities of citizens”). That Clause, some argue, was intended by the Framers to secure natural rights of property and liberty against state transgressions. But it was stripped of any meaningful substance in the infamous Slaughter-House Cases (1873), in which the Court concluded that privileges or immunities were those of national citizenship — rights that would not have existed but for the existence of the federal government — such as access to seaports, navigable waters, the seat of government, and the federal courts.

After Slaughter-House, the Court enforced substantive rights against the states through two other clauses of the Fourteenth Amendment: Equal Protection and Due Process. Both clauses apply to “any person,” whereas the Privileges or Immunities Clause applies to “citizens.” Further, the Equal Protection Clause does not, by its terms, mandate specific rights. Instead, it requires only that the laws be equally applied to all persons. And the Due Process Clause, as its name implies, is better adapted to enforcing procedural rather than substantive rights. Yet it has been misused to establish an array of substantive rights nowhere grounded in the Bill of Rights, our common law heritage, or natural law tradition. At the same time, economic liberties — such as those related to contract, property, and the right to pursue an honest living without unreasonable government interference — have been given short shrift under the evolving doctrine of substantive due process.

Justice Scalia and his conservative allies might be open to revisiting substantive due process and the Privileges or Immunities Clause. Indeed, he devoted 8 pages of his 64-page opinion to analyzing post-Civil War legislation and commentators, even as he conceded that discussions taking place 75 years after ratification of the Second Amendment “do not provide as much insight into its original meaning as earlier sources.” Nonetheless, by affirming a post-Civil War understanding that the Second Amendment and related civil rights statutes gave freed blacks the right to keep and bear arms for self-defense, Scalia intimates that the amendment has been incorporated. Officially, however, he states that incorporation is “a question not presented by this case.” That said, the Court will definitely have an opportunity to rule on incorporation as Second Amendment challenges in Chicago, San Francisco, and elsewhere percolate through the federal system.

In United States v. Cruikshank (1875) and Presser v. Illinois (1886), the Court stated squarely that the Second Amendment is a limitation on the power of Congress, not state and local legislative bodies. Yet both of those cases arose prior to the Court’s incorporation doctrine, which took form beginning in 1897. As Scalia put it, Cruikshank “did not engage in the sort of Fourteenth Amendment inquiry required by our later cases.” In fact, Cruikshank also held that the First Amendment did not apply against the states — a notion that is obviously antiquated. It may be, as Ninth Circuit appellate judge Stephen Reinhardt has written, that Cruikshank and Presser “are now thoroughly discredited.” Even so, stated the Second Circuit in Bach v. Pataki (2005), Presser still controls; if it is no longer good law, the Supreme Court, not the lower courts, must reverse.

Until then, federal courts in Illinois and California will be constrained by Presser. That means Second Amendment challenges will almost certainly be rejected until the Supremes consider incorporation. In the end, the Second Amendment — a fundamental right, expressly enumerated, “implicit in the concept of ordered liberty,” and “deeply rooted in the Nation’s history and traditions” — will no doubt be incorporated. Perhaps the more interesting question is whether the vehicle for incorporation will continue to be the Due Process Clause, or will the Court side with Harvard Professor Laurence Tribe, who wrote in his treatise on American Constitutional Law that Second Amendment rights “may well … be among the privileges or immunities of United States citizens protected by § 1 of the Fourteenth Amendment against state or local government action.”

Did a Purportedly Conservative Supreme Court Engage in Judicial Activism?

I turn next to two issues that arise in context of the Heller opinion, but transcend the Second Amendment: first, judicial activism versus restraint; second, implications for the political branches.

In dissent, Justice John Paul Stevens quarreled primarily with Justice Scalia’s interpretation of historical events; but Stevens also implied that Scalia had abandoned true judicial conservatism by dragging the Court into the “political thicket” of gun control. “Judicial restraint would be far wiser,” wrote Stevens, than mediating a political process that is “working exactly as it should.” That’s quite an astonishing statement coming from Justice Stevens — the same Justice who had no such reservations just one day earlier when he voted to invalidate Louisiana’s death penalty for child rape and substitute an outright ban on capital punishment for any crime that isn’t fatal to its victim.

Demands for judicial restraint by the Court come more often from the political right. As I have written elsewhere (in a recent book co-authored with William Mellor): Some conservatives, reacting to the perceived excesses of the Warren Court and the ability of liberal interest groups to advance their agendas through the courts, insist that courts indiscriminately defer to the decisions of Congress and state legislatures. Yet blanket judicial deference effectively removes the courts from the meticulously crafted system of checks and balances that was designed by the Framers to prevent abuse of power. Over the years, the result of judicial abdication has been to expand government, at all levels, at the expense of individual rights.

When the legislative or executive branch exceeds its legitimate enumerated powers, the courts have the authority, indeed the duty, to declare that exercise of power unconstitutional. Deference in the face of excesses by the political branches, coupled with an allegiance to precedent, means that conservatives are rarely willing to overrule prior cases, leaving entrenched the very foundations of the regulatory and redistributive states they rail against. In practice, judicial restraint has mutated into judicial passivism, with a predictable result: more government power and fewer constitutionally protected individual rights.

Both liberals and conservatives take comfort in their often unfounded belief that legislatures will respond to the will of the public and make informed policy decisions that can be changed as public sentiment dictates. Though appealing in principle, that trust in the democratic process ignores the realities of governmental institutions. Through gerrymandering and other means, elected representatives are increasingly insulated from their constituents. Meanwhile, many policies are set and enforced by unelected, unaccountable agencies and commissions. What’s more, politically powerful special interests concentrate their resources to glean benefits from government — transferring the burden to other taxpayers, who do not perceive the cumulative cost of multiple schemes, each of which has a seemingly inconsequential price tag.

Are we to conclude, therefore, that judicial activism — that is, the type of judicial intervention routinely condemned by liberals and conservatives alike — is actually a good thing?

Yes, if activism means engagement — applying the law and the Constitution to scrutinize the acts of the executive and legislative branches. Judges have a responsibility to invalidate all laws that do not conform to the Constitution. Courts would be derelict if they endorsed unconstitutional acts merely because our elected representatives passed them. In that respect, overturning the D.C. gun ban was a clear example of principled judicial engagement.

But if activism means rendering legal judgments based on the judge’s public policy preferences, it should be roundly condemned. Results-oriented jurisprudence, based on subjective value judgments, may be proper for a legislator, but not for a judge. His role is to apply the law, not impose his policy preferences.

The trick, of course, is to distinguish proper from improper judicial intervention. That task is complicated by laws that are often unclear — either because the legislature has not done its job, or has intentionally left gaps for the courts to fill; or because the meaning of the law depends on the meaning of the Constitution, which can also be unclear. Members of the Court must, therefore, have a theory of the Constitution — in particular, a respect for limited government and individual rights. Those were the principles that the Framers applied in crafting the Constitution. The Heller opinion, true to that framework, upheld a right based solidly on the text, purpose, structure, and history of our founding documents.

What Happens Next on the Political Front?

Even as more litigation unfolds, courts are not the only venue for action in the wake of Heller. Congress also has a role to play in enabling D.C. residents to obtain a handgun for home possession. Because of the 1976 ban, there are no stores within the city where a handgun can be obtained. And federal law effectively forecloses handgun purchases by out-of-state residents. Therefore, someone who lives in D.C. cannot acquire a handgun either inside or outside the city. That’s a problem that Congress can address: Allow interstate handgun purchases as long as they follow the law in both the buyer’s state and the seller’s state.

Further, Congress should enact legislation to alter how D.C. processes gun registrations. Currently, the city does not follow the national instant criminal check system, or NICS. Would-be registrants have to jump through extra hoops: multiple pictures, fingerprints, and on and on. The process can take months. Congress should require D.C. officials to accept the NICS system followed by 49 of 50 states.

Near-term, the D.C. city council will have to alter the city’s gun control regime to comply with the Court’s directions. Until now, the D.C. government has taken the position, as expressed in the city’s court filings, that “Practical considerations, not arcane legal theories and historical excursions, should determine the … constitutionality of statutes like those at issue here.” Thankfully, the Supreme Court has reminded city officials that the Constitution is more than a guidebook to be cast aside whenever it is inconvenient. If the city attempts to circumvent the Court’s opinion, then Congress, under Article I, section 8, of the Constitution can and should exercise its plenary power over all legislative matters in the nation’s capital. Home rule, arising out of authority delegated by Congress to the D.C. government, is not a license to violate the Constitution.

There are, of course, national political implications as well. One of the two presidential candidates seems to appreciate the importance of gun owners’ rights. The other candidate appears less supportive. In his May 16 speech to the National Rifle Association, Sen. John McCain (R-AZ) claimed solid Second Amendment credentials, despite occasional disagreements with the NRA. Although he reaffirmed support for background checks and closing the “gun show loophole” — both of which are anathema to more fervent advocates of gun owners’ rights — McCain proudly noted, “For more than two decades, I’ve opposed efforts to ban guns, ban ammunition, [and] ban magazines.” Moreover, McCain signed a friend-of-the-court brief submitted on Heller’s behalf by a majority of both houses of Congress.

Sen. Barack Obama (D-IL) did not sign the brief. In fact, he reportedly stated, prior to issuance of the Heller opinion, that he backs the D.C. gun ban and opposes all laws allowing concealed carry. According to a 1996 statement, not subsequently repudiated, Obama would also ban the manufacture, sale, and possession of handguns. And more recently, he has accused Americans of clinging to their guns because they are bitter about the economy. Only recently, post-Heller, has Obama expressed somewhat tentative support for the Supreme Court’s interpretation of the Second Amendment.

Those contrasting positions are revealing. Voters now have an opportunity to assess both candidates’ positions and determine whether, as president, they would put the weight of the federal government behind measures that build on the Supreme Court’s decision in Heller — securing the right to keep and bear arms for self defense.

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Robert A. Levy is senior fellow in constitutional studies at the Cato Institute, co-counsel to Mr. Heller, and co-author of The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom (Penguin/Sentinel, May 2008).

Indeed it is. For starters, no handgun could be registered in D.C. Even pistols registered prior to the 1976 ban could not be carried from room to room in the home without a license, which was unobtainable. Moreover, all firearms in the home, including rifles and shotguns, had to be unloaded and either disassembled or bound by a trigger lock. In effect, no one in the District could possess a functional firearm in his or her own residence. And the law applied not just to "unfit" persons like felons, minors or the mentally incompetent, but across-the-board to ordinary, honest, responsible citizens.

D.C. Mayor Adrian M. Fenty raised two principal arguments in support of the city's ban. First, the Second Amendment ensures only that members of state militias are properly armed, not that private citizens can have guns for self-defense and other personal uses. Second, even if the Second Amendment protects private ownership of firearms for non-militia purposes, D.C.'s legislature can constitutionally ban all handguns if it determines, for example, that rifles and shotguns in the home are a reasonable alternative means of self defense. The court rejected both arguments.

Essentially, wrote Justice Antonin Scalia for a 5-4 majority, the militia clause announces one purpose of the Second Amendment, but does not limit or expand the right to keep and bear arms expressly stated in the operative clause. Nor does the court's prior precedent - United States v. Miller (1939) - say otherwise. It establishes simply that some weapons - e.g., a sawed-off shotgun - are not protected unless they can be shown to have military utility and be in common use. Moreover, declared Scalia, the District may not categorically ban "an entire class of 'arms' that Americans overwhelmingly choose for the lawful purpose of self-defense." Alternative weapons, such as long guns, have numerous disadvantages and must, under a provision of D.C. law, be kept unloaded and either disassembled or trigger-locked. That provision does not contain an exception for self-defense.

In his dissenting opinion, Justice John Paul Stevens not only quarreled with Justice Scalia's interpretation of historical events but he also implied that Scalia had abandoned true judicial conservatism by dragging the court into the "political thicket" of gun control. "Judicial restraint would be far wiser," wrote Stevens, than mediating a political process that is "working exactly as it should." That's quite an astonishing statement coming from Justice Stevens - the same justice who had no such reservations just one day earlier when he voted to invalidate Louisiana's death penalty for child rape and substitute an outright ban on capital punishment for any crime that isn't fatal to its victim.

Justice Stephen Breyer, also dissenting in Heller, proffered this extraordinary statement: "The decision threatens to throw into doubt the constitutionality of gun laws throughout the United States." Nonsense. Forty-four states have constitutional provisions protecting an individual right to keep and bear arms. Legislatures in all 50 states have rejected bans on private handgun ownership. Concealed carry is permitted, with varying degrees of administrative discretion, in all states except Wisconsin and Illinois. Those laws would have remained on the books no matter what the Supreme Court had decided in Heller. The major impact of the court's opinion will be felt, not "throughout the United States," but in the cities and other political subdivisions that have enacted draconian gun laws under delegated power from state governments.

Heller is merely the opening salvo in a series of litigations that will ultimately resolve what weapons and persons can be regulated and what restrictions are permissible. Near term, the Court will also have to decide whether Second Amendment rights can be enforced against state and local governments. Despite those remaining hurdles, it's fair to say that the court's blockbuster decision makes the prospects for reviving the original meaning of the Second Amendment substantially brighter. And given the unfolding presidential contest, it's also fair to say that the court's razor-thin majority conveys a crucial message: Judicial nominations matter.

The Supreme Court put an end to that reticence last week when it came down squarely on the side of the individual-rights interpretation. In so doing, the court struck down the D.C. gun ban as a clear violation of that right.

Yet the court also recognized that this right is not absolute. "Like most rights," Justice Antonin Scalia wrote for the majority, "the right secured by the Second Amendment is not unlimited." The court offered no opinion, however, on exactly where that right ends, and reasonable regulation begins.

For example, the court did not disturb D.C.'s requirement that all gun owners be licensed. Federal, state, and local officials, as well as the American public, must now grapple with that question, which may ultimately end up back before the high court.

Our inquiry should start with the recognition that the right to keep and bear arms is a natural outgrowth of the right to self-defense. We possess an inherent right to keep and bear arms so that we may have the means necessary to defend ourselves against acts of violence.

Your neighbor has a right to keep a gun in his home to defend himself, because the threat of home invasion is real. But your neighbor does not have a right to keep a nuclear weapon in his home, because it is not reasonable to think that he would need such a weapon to defend himself.

The right to self-defense thus creates a bulwark that government regulation of arms may not breach. If a weapon would permit a proportionate defense against a reasonably foreseeable threat, the government cannot prohibit you from owning or carrying it.

That rule reconciles the right to self-defense with the right not to be tailgated by an armored tank in the passing lane. That wacko in your rear-view mirror does not have a right to own armored tanks or shoulder-mounted rocket launchers, because he does not need them to defend himself.

Many gun control laws would fall under this rule. If it is reasonable to expect that a person could be assaulted while walking down the street, then a ban on carrying handguns would violate an individual's right to defend herself. If it is reasonable to expect that assailants pick victims who appear unarmed, then a ban on carrying concealed handguns would fall.

At the same, other gun control laws could survive. The current restrictions on fully automatic weapons could be upheld if no citizens face a reasonable threat against which they would need an Uzi to protect themselves. Requirements that guns be licensed or that sellers conduct background checks could also survive. Yet that should not be the only hurdle that such laws must clear.

Legislatures and courts should weigh the costs and benefits of regulations, including a restriction's impact on gun-related violence or whether it poses a threat to the underlying rights at stake. If banning fully automatic weapons or 50-caliber rifles doesn't reduce gun violence, then what's the point?

Moreover, though it allows reasonable regulation of firearms (i.e., a "ceiling"), the right to self-defense does not by itself constitute the "floor" beneath the right to keep and bear arms. The court in Heller acknowledged Second Amendment protects other activities as well, including hunting and recreation, so long as they pose no particular threat to others. To be reasonable, regulation must respect those purposes of the right to keep and bear arms as well.

The Heller case closes one chapter in our national debate over our Second Amendment rights. The next chapter begins now.

New York's state Constitution has no right to arms, but the Civil Rights Law does. The Civil Rights Law begins with a Bill of Rights. Article 4 declares: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms cannot be infringed." It is identical to the Second Amendment of the United States Constitution, except that New York follows modern standards for capitalization and punctuation, and says "cannot" instead of "shall not."

As a Monroe County court accurately observed in the 1994 case Citizens for a Safer Community v. City of Rochester, "The Courts of this State have concluded that the language of federal law interpreting the Second Amendment (which is identical in its language to Article 2, section 4 of the Civil Rights Law) should be used in interpreting the provisions of this state law."

Some New York courts have interpreted the New York right to arms restrictively, but these decisions were explicitly based on misunderstanding of the same language in the Second Amendment. The cases treating the Civil Rights Law as almost meaningless are of dubious validity now that Heller has made is clear that "the right of the people to keep and bear arms" is a broad and important individual right.

The New York City law which most obviously violates the right to arms is the complete ban on air guns. The venerable Daisy Red Ryder BB gun is contraband. Heller and the Supreme Court's previous major Second Amendment precedent, United States v. Miller (1939) forbid the prohibition of arms "typically possessed by law-abiding citizens for lawful purposes."

Air guns are ubiquitous almost everywhere except New York City, and are used almost exclusively for law-abiding purposes. Pursuant to Heller, regulation of air guns might be fine, but prohibition of all air guns is not.

Unlike firearms, air guns (which shoot small BBs or pellets) can be safely used inside an apartment or house. An old sofa cushion is a safe backstop. In a city where target ranges are few and expensive, air guns offer a practical way for people to practice safely with a gun. The right to arms necessarily includes the right to practice arms safety.

New York City bans magazines (ammunition clips) which hold more than 17 rounds. Whether the ban is consistent with Heller is debatable. Clearly inconsistent is the ban on any magazine which protrudes below the grip of the gun. The most common handgun in the United States is the Colt 1911 pistol, and the variants made by many other companies. The pistol's magazine holds 7 rounds. Some after-market magazine companies make slightly larger ones, which hold 8 or 9 rounds. These magazines extend a half-inch or less below the grip.

There's no public safety benefit to allowing guns with 17 rounds stored within the grip, but banning guns with 8 rounds because of a quarter-inch protrusion below the grip.

Regarding gun carrying, Heller might, arguably, mean that New York City would have to follow a similar policy to Connecticut (and 39 other states): issue permits to carry a concealed handgun for lawful defense if the applicant is over 21, and passes a fingerprint-based background check and a safety class.

At the least, Heller indicates that gun carry licensing may not be "enforced in an arbitrary and capricious manner." This is a problem for New York State's carry licensing law, as Suzanne Novak detailed in a 1998 article in the Fordham Urban Law Journal. New York state law sets essentially no standards to guide local officials in deciding whether to issue carry permits.

The problem is acute in New York City. Celebrities, the ultra-wealthy, and the politically influential get carry permits. But many of the people who need them the most — such as stalking victims, or crime witnesses who have been threatened by the criminal's friends — often do not. Even if New York City is not required to go as far as Connecticut, the City does need much less favoritism and much more objectivity in its administration of carry permits.

A federal ban on an entire class of guns in ordinary use for self-defense — such as the handgun ban adopted by the District of Columbia — is now off the table. Every gun controller's fondest desire has become a constitutional pipe dream.

Two important practical issues remain. First, will this ruling also apply to states and municipalities? That will depend on whether the Supreme Court decides to "incorporate" the right to keep and bear arms into the 14th Amendment. But in the middle of his opinion Justice Scalia acknowledges that the 39th Congress that enacted the 14th Amendment did so, in part, to protect the individual right to arms of freedmen and Southern Republicans so they might defend themselves from violence.

My prediction: This ruling will eventually be extended to the states.

Second, how will the court deal with firearms regulations that fall short of a ban? The majority opinion strongly suggests that such regulations must now be subjected to meaningful judicial scrutiny. The exact nature of this scrutiny is not clear, but Justice Scalia explicitly rejects the extremely deferential "rationality" review advocated by Justice Stephen Breyer.

Most likely, gun laws will receive the same sort of judicial scrutiny that is now used to evaluate "time, place and manner" regulations of speech and assembly. Such regulations of First Amendment freedoms are today upheld if they are narrowly tailored to achieve a truly important government purpose, but not if they are really a pretext for undermining protected liberties.

My prediction? Because gun-rights groups like the NRA have so successfully prevented enactment of unreasonable gun laws, most existing gun regulations falling short of a ban will eventually be upheld. But more extreme or merely symbolic laws that are sometimes proposed — whose aim is to impose an "undue burden" by raising the cost of gun production, ownership and sale — would likely be found unconstitutional. All gun regulations — for example, safe storage laws and licensing — will have to be shown to be consistent with an effective right of self-defense by law-abiding citizens.

Justice Scalia's opinion is exemplary for the way it was reasoned. It will be studied by law professors and students for years to come. It is the clearest, most careful interpretation of the meaning of the Constitution ever to be adopted by a majority of the Supreme Court. Justice Scalia begins with the text, and carefully parses the grammatical relationship of the "operative clause" identifying "the right to keep and bear arms" to the "prefatory clause" about the importance of a "well-regulated militia." Only then does he consider the extensive evidence of original meaning that has been uncovered by scholars over the past 20 years — evidence that was presented to the Court in numerous "friends of the court" briefs.

Justice Scalia's opinion is the finest example of what is now called "original public meaning" jurisprudence ever adopted by the Supreme Court. This approach stands in sharp contrast to Justice John Paul Stevens's dissenting opinion that largely focused on "original intent" — the method that many historians employ to explain away the text of the Second Amendment by placing its words in what they call a "larger context." Although original-intent jurisprudence was discredited years ago among constitutional law professors, that has not stopped nonoriginalists from using "original intent" — or the original principles "underlying" the text — to negate its original public meaning.

Of course, the originalism of both Justices Scalia's and Stevens's opinions are in stark contrast with Justice Breyer's dissenting opinion, in which he advocates balancing an enumerated constitutional right against what some consider a pressing need to prohibit its exercise. Guess which wins out in the balancing? As Justice Scalia notes, this is not how we normally protect individual rights, and was certainly not how Justice Breyer protected the individual right of habeas corpus in the military tribunals case decided just two weeks ago.

So what larger lessons does Heller teach? First, the differing methods of interpretation employed by the majority and the dissent demonstrate why appointments to the Supreme Court are so important. In the future, we should be vetting Supreme Court nominees to see if they understand how Justice Scalia reasoned in Heller and if they are committed to doing the same.

We should also seek to get a majority of the Supreme Court to reconsider its previous decisions or "precedents" that are inconsistent with the original public meaning of the text. This shows why elections matter — especially presidential elections — and why we should vet our politicians to see if they appreciate how the Constitution ought to be interpreted.

Good legal scholarship was absolutely crucial to this outcome. No justice is capable of producing the historical research and analysis upon which Justice Scalia relied. Brilliant as it was in its execution, his opinion rested on the work of many scholars of the Second Amendment, as I am sure he would be the first to acknowledge. (Disclosure: I joined a brief by Academics for the Second Amendment supporting the individual rights interpretation; one of my articles was cited by Justice Scalia and another by Justice Breyer in his dissent.)

Due to the political orthodoxy among most constitutional law professors, some of the most important and earliest of this scholarship was produced by nonacademics like Don Kates, Stephen Halbrook, David Kopel, Clayton Cramer and others. Believe it or not, Heller was a case of nearly first impression, uninhibited by any prior decisions misinterpreting the Second Amendment.

Last but not least, tribute must be paid to the plaintiffs — Shelly Parker, Dick Anthony Heller, Tom Palmer, Gillian St. Lawrence, Tracey Ambeau, and George Lyon — who went where the National Rifle Association feared to tread, and to their lawyers Robert Levy, Clark Neily, and lead counsel Alan Gura. I was privileged to witness Mr. Gura argue the case — his first Supreme Court argument ever — and he was outstanding. Heller provides yet another reminder of the crucial role that private lawyers play in the preservation of our liberties.

Or perhaps it's not as remarkable as we've been led to think. Consider the Court's First Amendment decisions. Contrary to popular belief, conservative justices are about as likely to vote in favor of individuals bringing First Amendment challenges to government regulations as are the liberals. Indeed, the justice most likely to vote to uphold a First Amendment claim is the "conservative" Justice Anthony Kennedy. The least likely is the "liberal" Justice Stephen Breyer. Consistent with general conservative/liberal patterns in commercial speech cases, Justices Clarence Thomas and Antonin Scalia have voted to invalidate restrictions on advertising more than 75 percent of the time. Justices Breyer and Ruth Bader Ginsburg, meanwhile, have voted to uphold such restrictions in most cases.

Conservative justices also typically vote to limit the government's ability to regulate election-related speech, while liberal justices are willing to uphold virtually any regulation in the name of "campaign finance reform." In Davis v. Federal Election Commission, decided the same day as Heller, Justice Samuel Alito, writing for the Court's conservatives, reaffirmed the "fundamental nature of the right to spend personal funds for campaign speech." The dissenters argued that "in the context of elections . . . limiting the quantity of speech" is perfectly acceptable.

Liberals have also been more willing than conservatives to limit the First Amendment's protection of "expressive association." The Court's conservatives held that forcing the Boy Scouts of America to employ a gay scoutmaster violated the Scouts' right to promote its belief in traditional sexual morality. The liberal dissenters thought the government should be allowed to force the Scouts to present a message inconsistent with the Scouts' values.

The Fifth Amendment's protection of property rights presents, if anything, an even starker example of greater commitment to individual rights by the conservative majority. In the infamous Kelo v. New London, the Court's liberal justices, joined by Justice Kennedy, held that the government may take an individual's property and turn it over to a private party for commercial use. The four conservative dissenters argued that such actions violate the Fifth Amendment's requirement that government takings be for "public use."

A few years earlier, the Court's conservative majority held that a government regulation that deprives a land owner of any use of his property amounts to a "taking" that requires compensation. The liberal dissenters would have permitted the government to totally wipe out an individual's investment without any redress.

And consider the issue of government use of racial classifications. Liberal justices have been willing to uphold virtually any use of race by the government--including quotas in higher education, set-asides for government contracts, and raced-based assignments of students to public schools--so long as the government claims benign motives. The conservatives, by contrast, argue that the government must treat people as individuals, not as members of a racial caste.

Other examples could be raised. The conservatives, for example, have been more sympathetic to free exercise of religion claims than the liberals, and more inclined to forbid government regulation of "hate speech."

The point should be clear. There are many ideological differences between the conservative and liberal justices on the Supreme Court. But a consistent, stronger liberal devotion to supporting individual rights and civil liberties against assertions of government power isn't one of them.

Self-defense is upheld, but control advocates aren't done by a long shot.

The Supreme Court's decision in the District of Columbia vs. Heller case settles a long, heated debate, finding the 2nd Amendment protects an individual right to own weapons for self-defense — not merely a right related to membership in a "well-regulated militia."

But the ruling doesn't end the struggle over gun control, nor does it mean gun regulations have been eliminated. The court lists a number of laws the decision does not affect, including concealed-weapon prohibitions and "long-standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

Still, even though the decision didn't ban gun control outright, it did make a strong statement about our right to self-defense and safety.

The city of Washington claimed its gun ban helped protect citizens. But the facts show how foolish it is to rely on gun control for safety.

Washington's per-capita murder rate has exceeded the rate in 1976 (when the ban passed) every year but one since then. For 10 of the last 30 years, its murder rate was more than twice as high as in '76. The ugliest aspect of D.C.'s law was its implication that your life is not worth protecting — given that police cannot, and don't promise to, protect you in every life-threatening situation.

Like other epochal Supreme Court decisions, Heller will give rise to a protracted legal and public-policy debate.

Leading gun-control advocates, such as the Brady Center, are already spinning Heller as a victory: They claim the gun-rights lobby's strength is based on stoking the public's slippery-slope fears that any gun regulation is a forerunner to a total ban. With that ban now impossible, gun-control advocates believe they'll have more ability to restrict sales, possession and carrying in ways short of prohibition.

Gun-rights advocates, for their part, are expected to use this decision to challenge Chicago's handgun ban next, attacking another important question: Does the 2nd Amendment apply to state and local or only federal laws?

The right at issue — an ancient right, preserved but not created by the 2nd Amendment — is that of self-defense. The gun-control debate will continue, but it is a blessing that the court has refused to deny us the means of protecting our homes and families.