Well, the big day is finally here. In about 3 hours, we’ll all learn whether there’s a Second Amendment lodged in there somewhere between the First and the Third, or whether a consensus among international law should trump. I’m cautiously optimistic that a majority of Justices will rule that Dick Heller and his co-plaintiffs are “people,” handguns are “arms,” and that DC’s flat-out ban infringes their right to keep and bear them. I’m cautiously pessimistic that that’s about all we will find out. Stay tuned.
UPDATE: Affirmed 5-4. Will have more commentary after I’ve read the opinion. For now, let’s just say we dodged two .50 BMG bullets in 1987, when they borked Bork, and in ’04, when cooler heads prevailed over the Real Conservatives who would have allowed Kerry to win in hopes of purifying the Republican Party later. [It’s possible, but unlikely, that we dodged a third bullet in ’05 when Bush’s second appointment got “Miered” in controversy. Had that nomination gone through, the most likely outcome is that Antonin Scalia would have written exactly the same opinion he did, and gotten exactly the same number of Justices to sign on.]
UPDATE x2: No, I am not the J. Bishop cited on p. 4 of the majority opinion, alas.
UPDATE x3: Nice linguistic tidbit on the theory that “bear arms” is meant in its idiomatic sense, to wage war (p. 13):
In any event, the meaning of “bear arms” that petitioners and JUSTICE STEVENS propose isnot even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that defintion, and we have been apprised of no source that idndicates that it carried that meaning at the time of the founding. But it is easy to see why petitionsers and the dissent are driven to the hybrid defintion. Giving “Bear Arms” its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war – an absurdity that no commentator has ever endorsed. See L. Levy, Origins of the Bill of Rights 135 (1999). Worse still, the word “Arms” would have two different meanings at once: “weapons” (as the object of “keep” and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.
UPDATE x4: Another gem, from p. 15-16:
JUSTICE STEVENS points to a study by amici supposedly showing that the phrase “bear arms” was most frequently used in the military context. See post, at 12-13, n. 9; Linguists’ Brief 24. Of course, as we have ssaid, the fact that the phrase was commonly used in a particular context does not show that it is limited to that context, and, in any event, we have given many sources where the phrase was used in nonmilitary contexts. Moreover, the study’s collection appears to include (who knows how many times) the idiomatic phrase “bear arms against,” which is irrelevant. The amici also dismiss examples such as “‘bear arms … for the purpose of killing game'” because those uses are “expressly qualified.” Linguists’ Brief 24. (JUSTICE STEVENS uses the same excuse for dismissing the state constituitonal provisions analogous to the Second Amendment that identify private-use purposes for which the individual right can be asserted. See post, at 12.) That analysis is faulty. A purposive qualifiying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics). If “bear arms” means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage (“for the purpose fo self-defense” or “to make war against the King”). But if “bear arms” means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add “for the purpose of killing game.” The right “to carry arms in the militia for the purpose of killing game” is worthy of the mad hatter. Thus, these purposive qualifying phrases positively establish that “to bear arms” is not limited to military use.