I know, everyone is tired of hearing about DC v. Heller (you remember, the 2d Amendment RKBA case?).  But I still find it interesting, and since this is my blawg, I get to write about it.  Nobody makes you read this stuff, you know.

From David Kopel at Volokh, who has done yeoman’s work parsing the 732 amici briefs submitted for both sides and has earned my personal gratitude, comes  this examination of the positions taken by various states and cities as to the efficacy of the reinterpretation of the second amendment to guarantee an individual, fundamental right.

Here’s the breakdown:

• 31 States have backed Heller




• 5 States have backed the District of Columbia




• 18 District Attorneys have backed DC




• 14 States are still looking for someone who can read the Circuit decision

Michael O’Shea at  Co-Op has created maps to show which states are for, against, and silent.  Take a wild guess before looking.

What’s fascinating about this breakdown is how the various states deal with the impact of this decision on gun control and regulation, and the significance of the lack thereof on the safety of Americans.  Those states backing Heller argue that making the RKBA a fundamental right, subject to strict scrutiny, will have no impact on the ability to regulate gun possession, and simultaneously argue that more guns carried by law-abiding citizens means better protection against crime.

The others, and particularly the big city district attorneys, argue that this will have a devastating affect on safety, with gun-toting mamas shooting up the place since they would no longer be able to prevent people from exercising their fundamental RKBA.

But all of this begs one question.  If the 2d Amendment is a fundamental individual right, then what difference does the potentially perilous outcome make?  Like it or not, a right is a right.  If you don’t like the right, then amend the Constitution.  It’s akin to arguing that you don’t like the 4th because it lets criminals go free.  Another tough noogies argument. 

Clearly, the purpose of arguing the impact of the change is to give the Justices pause to step back from the textual and historical analysis and consider the practical perspective.  We do this all the time, arguing that the evidence was legally insufficient because we want the court to keep the idea in the back of its head that an innocent person may have been convicted while its considering our other arguments.  In short, it’s a blatant attempt to prejudice the Supreme Court while it’s considering the primary issue before it.

It’s exciting to see such divergent and strong positions taken by so many big-time players.  This is federalism in action, and I can imagine Jefferson watching this play out and smiling, content in the knowledge that states still have enough life in them to disagree with each other.