Oral arguments regarding the 2nd Amendment have been completed in the United States Supreme Court. Many will try to glean, by the questions and statements made at oral arguments, which Justices are leaning in which direction.

Such “tea-leaf� reading is not merely idle speculation. By the time of oral arguments, a controversy has been well-vetted. Most, but not all, of the Court’s power to shape law, comes from its power of review. Justices usually wait for the lower courts to work some of the kinks out of arguments and for a case to be ripe for a particular result. Particularly contentious legal issues are also the subject of much scholarly academic debate, outside of the legal system. I guess you could say a lot of the “heavy work� is done by others, before the Court finally steps in.

The Court has to be convinced to take a case through a petition process. Typically, an issue is rejected many times, before a “lucky� litigant finally convinces the Court to tackle the case; there is no requirement the Court to take on a particular case, other than the whims of the Justices. By tradition, at least four (4) Justices (one less than to decide a case) have to vote to accept a petition, and even after taking a case, it may be declined at any time before a final decision is made.
The concept of the 2nd Amendment’s meaning has been batting its way around courts, legislatures, and law schools for centuries. Today, it is one of those rare constitutional provisions which has never really been threshed out. In effect, over 200 hundred years after its adoption, a 21st Century Supreme Court will be deciding the original meaning of constitutional text. Fascinating!

To decide this case, the Court will reflect on ancient English Law, colonial laws, recorded sessions from the Constitutional Congress (including rejected proposals), and writings of the Founding Founders from the Federalist papers. Some justices will take these authorities as original imperatives; others will attempt to apply the theories of the past through a modern context.
Given the political make-up of the current Court, it is likely that some type of individual right will be found in the 2nd Amendment. As a probable minority voice at oral arguments, Justice Breyer expressed some concerns about the legal quagmire this could create.

Is it a right to “own� a gun or is it merely the right to “keep� and “bear� (which are the words of the actual text)? Word choice is very important in how judges interpret laws.

If there is an individual right, how “fundamental� a right? A fundamental right, such as free speech or religion, can only be abridged by governments by passing a very high test of “strict scrutiny� (which almost never happens), as opposed to a lesser “rational basis� test, which would itself result in almost a case-by-case process of decision. If the former test is used, most of our gun laws, even those universally accepted, would fail; if the latter is used, only especially egregious ones would fail, but the court system would be flooded with cases.

Does the 2nd Amendment apply to States or only the Federal Government? During the mid-1900s, there was an intense debate on the Court about which constitutional rights also applied to States. Because of the text of the 2nd Amendment, this debate could be revived.

These are all some of the prickly details to be considered. Later this summer, we can see how the Court addresses them. Watch for it!