The Supreme Court’s 5-4 decision striking down the D.C. gun ban is noteworthy both for what it did and did not do. It did establish an individual right to bear arms. But it did not definitively answer whether the Second Amendment’s restrictions apply to the states. Most importantly, it does not set a level of scrutiny — strict, intermediate, or rational-basis — which will provide guidance in the future. That silence may have been the price for garnering Justice Kennedy’s deciding vote.

On the political front the McCain team is touting the decision and reminding everyone that Barack Obama did not sign on to the Congressional amicus brief asking the Court to strike down the gun ban. They are also putting out reminders that Obama claimed that his own handwriting did not appear on a questionnaire completed when he was a state senator which indicated he favored a handgun ban. (His signature did appear on other pages of the same questionnaire and those who interviewed Obama confirm the responses represent his views.)

There are a couple of major takeaways. Once again, Obama’s favorite justices voted for an outcome (they would have upheld the individual handgun ban) from which Obama will likely distance himself. Second, if Obama’s brand of authenticity is taking a bashing, his equivocation and hedging on this issue won’t help much.

UPDATE: Correction, Justice Scalia did eliminate the rationale basis test but left open whether the applicable standard would be a strict or intermediate standard. 

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This entry was posted on Thursday, June 26th, 2008 at 1:24 PM and is filed under Contentions. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.