Now that biggest case in a lifetime (at least for the moment) has been argued, the lawprofs are all over the Heller oral argument like flies on…stuff that flies like to be on.  They’re  predicting a 5-1-3 split.  They’re  predicting a Roberts or Kennedy  majority opinion.  They’re  predicting an individual right, somehow limited to protecting one’s safety inside one’s home with certain arms but not any arms.  They’re  predicting that the Justices had their minds made up before oral argument, and that it didn’t matter one iota.

So why am I feeling so unfulfilled right now?  Because no one wants to talk about the existence or absence of a sound intellectual basis for all these predictions.  I’m not saying they’re wrong about how this will turn out.  For all I know, they’ve nailed the outcome cold. 

But how do you get there from here?  I don’t see anything in the 2d Amendment about an individual right to keep and bear arms, but only in one’s home.  It doesn’t say that it’s only for self-defense.  What words give rise to that belief?  Has the militia reference gone from being the dominant clause to being wholly irrelevant, so that the only example refers to some home-based militia need for arms?

And if it’s a fundamental right (aw heck, a right at all), how do you explain stopping felons from exercising it.  Do we allow unreasonable warrantless searches as long as it’s of a felon?  Are felons not allowed the right to counsel, to confront witnesses, to a jury?  Felons can remain silent, engage in free speech, even practice their religion.  Why should they suddenly be excluded from an individual right under the 2d?  When home invaders shoot a felons, do the bullets harmlessly pass through their bodies?

Hey lawprofs, now that you’ve arrived at your predictions of what the Supreme will do, how do you get there?  What rational basis explains the limitations, conditions, restrictions that you predict?  Where’s that scholarly approach that you guys love so much?

One of the predictions suggests that the Roberts Court will be “modest” in its approach, meaning that it will decide no more than what it absolutely must to resolve the issue of the total gun ban of the District of Columbia.  If so, does this do anything to illuminate how a right for the rest of the nation?  Can we understand a right, its breadth and limitations, without the Court bothering to announce it, or will this just breed total chaos across the nation, awaiting another decision from the Supremes as the circuits conflict and the state supreme courts cross each other?  And what standard are all the other courts to use?  Do they just make it up court by court?

I know, you all want to show that you can guess the outcome of one of the most significant Supreme Court decisions in decades, and I understand that the lawprof who gets it right will probably get tenure, or a pass on teaching crim pro to 1Ls, or a $4 million condo in Manhattan.  But if you can stop playing Jimmy the Greek for a moment, please explain how they get there. 

Having spent a decent amount of time thinking about, writing about, discussing D.C. v. Heller, I’ve tried hard to devise a logical explanation that would allow the Supreme Court to reach the conclusion that so many seem to desire; that there is an individual right, but a right that extends to all the good guys but keeps weapons out of the hands of all the bad guys. 

The right is tested by strict scrutiny when it comes to good guys, and no scrutiny when it comes to the bad guys.  The right will permit NRA members to carry any weapon they want, concealed or open, anywhere they want, but will permit government to regulate that right for everyone the government doesn’t like.  The problem is that there is no way to justify this beast of a right.  Except by just coming out with a brand new rule of constitutional construction:  Because we say so.  That’s why I’m feeling so unfulfilled.

Doesn’t this bother any of you lawprofs as well?  After all, how are you going to write law reviews about this new doctrine if there isn’t any doctrine?

Why does it matter?  It’s that old rubric/rationale thing again.  It’s not enough to have a rule, but the rule has to be based upon some cognizable legal rationale.  How do we argue the next case when there’s no rationale behind it?  Without it, we just have a bunch of old folks in Washington making up the rules, and the Supreme aren’t supposed to do that.  That job already belongs to Congress. 

Update:  Carolyn Elefant at  Legal Blog Watch posts “Berman’s post also indirectly responds to Scott Greenfield’s question about how we can justify felon gun possession laws if handgun ownership is a fundamental right.”  In fact, posts like Doug’s were the genesis of this post.  This is not the superficial outcome-oriented question (in fact, it is expressly not about outcome) but about how one can rationally and logically adopt the position that the RKBA is a fundamental individual right without simultaneously adopting the strict scrutiny standard that applies to fundamental rights.

While I realize that the question is more involved than most people want to go, it will prove to be a huge problem going forward when we try to litigate the problems court by court, state by state.  Do we have a rule without a rationale, or do we have a cognizable legal doctrine to guide us as this litigation develops?  This is a much harder question, and one that has yet to be broached, no less answered.