Don't count your Heller chickens before they hatch

As just about anyone following the citizen disarmament/gun rights debate knows, the Supreme Court District of Columbia v. Heller decision will almost certainly be announced today. I can't help but notice that many of my fellow gun rights advocates are treating the actual announcement of the decision almost as a formality, as the cue to start the official celebration. I worry that these people are setting themselves up for disappointment.

Anyone who expects the epidemic of gun laws to be halted today is deluded. The battleground will most likely shift, hopefully in our favor, but there will be plenty of fighting left to do. Incorporation of the Second Amendment, for example, is almost certainly not going to be dealt with directly, although it might be hinted at, and if the individual rights interpretation wins the day (as it should, being the only interpretation that makes a lick of sense), the prospects for eventual incorporation are probably pretty good.

The level of scrutiny is another matter. Constitutionally speaking, I have trouble imagining how shall not be infringed can be squared with anything less than strict scrutiny (actually, I'm not sure that's enough--but there isn't a "double secret strict" scrutiny, is there?), but since the National Firearms Act of '34, the Gun Control Act of '68, and the Hughes Amendment to the Firearm Owners Protection Act of '86 would all be very hard to reconcile with strict scrutiny, and since very few (if any) of the justices seem inclined to overturn those abominations, I have serious doubts that we'll get strict scrutiny, even if Scalia writes the opinion.

If the Justices decide that the only standard a gun law must face is one of "reasonableness," then we are, in many ways, back where we started, reduced to arguing about which infringements on that which shall not be infringed are "reasonable" infringements. The Brady Campaign and various other dimwits are now actually claiming they'll welcome an individual rights interpretation, if they can move the scrutiny battle into the realm of what's "reasonable." It kind of makes one wonder why they have fought so desperately for their mythical "collective rights" interpretation in the past, but I digress.

In the end, I believe that killing the "collective rights" interpretation once and for all would be a very significant victory for rights, and would strip the other side of one of its favorite weapons of the last few decades. Still, if we allow ourselves to become complacent, convinced that our guns are now secure, we might wake up to find that it has been deemed "reasonable" to ban so-called "assault weapons," to require so-called "smart guns" and micro-stamped ammo--to, in other words, regulate to death the Constitutionally guaranteed, fundamental, absolute human right of the individual to keep and bear arms.

The other side may be forced to change tactics, but change them they will, and only hard, activist work on our part will stand between us and "reasonable tyranny."

By the way, a good analysis of the implications of Scalia writing the Heller decision can be found here. In the comments, the following excellent point is made about protecting the right to own a firearm on the basis of said firearm being in "common use": machine guns are not in very common (civilian) use, because laws have ensured their uncommonness for almost seventy five years. A pretty slick way for the other side to simply duck the debate about full-auto. Hmm--I wonder if enough people have .50 caliber rifles for those to be considered to be in "common use."