Here we are, Heller +1, with a chance to breath a little more deeply and consider whether initial reactions, coming mere seconds after the opinion was issued and read, taste any different after a suitable digestion period.

Part of the process is considering what others have to say, whether they see something we missed, or whether they offer a clarity of thought when our own was compromised and cloudy.  Not surprisingly, newspaper editorials abound.  From my neck of the woods (since this is a New York blog, after all), the New York Times :

In a radical break from 70 years of Supreme Court precedent, Justice Antonin Scalia, writing for the majority, declared that the Second Amendment guarantees individuals the right to bear arms for nonmilitary uses, even though the amendment clearly links the right to service in a “militia.” The ruling will give gun-rights advocates a powerful new legal tool to try to strike down gun-control laws across the nation.

This is a decision that will cost innocent lives, cause immeasurable pain and suffering and turn America into a more dangerous country. It will also diminish our standing in the world, sending yet another message that the United States values gun rights over human life.

Whew.  That was close.  I was afraid the Times might be a bit hyperbolic.  It’s understandable that an editorial board dedicated to causes would jump to the end of the decision to check out the bottom line, then extrapolate from its own result-oriented viewpoint what the end of the world is upon us.  This, after all, the New York Times. 

On the other hand, Adam Liptak’s analysis is far more sober.

Most state and city gun restrictions appear to be allowed under the ruling, including licensing laws, limits on the commercial sale of guns, restrictions on guns in places like schools and government buildings and prohibitions on the possession of firearms by felons and the mentally ill. “Dangerous and unusual” weapons can also be banned, although that phrase was not fully defined.

Adam apparently read the whole decision, and arrived at the conclusion that “[t]he legal battlegrounds will be cities with ordinances similar to Washington’s essentially complete ban, most notably Chicago.” 

Newsday’s editorial view, in contrast, was that this was as big a win for gun control advocates as they could have reasonably hoped for.

But the 5 to 4 decision, written by Justice Antonin Scalia, expressly rejected the notion that the right to keep and bear arms is unlimited. It spelled out examples of acceptable existing restrictions, such as prohibitions on gun possession by felons and the mentally ill, restrictions on the commercial sale of firearms, and laws barring guns in places such as schools and government buildings.

That’s some good news for control advocates. 

Now that the court has spoken, the power of gun proponents’ slippery-slope argument has been drained away.

If I had to give a grade, Newsday would get a “C+” for reading comprehension.  They got the obvious, but missed the more subtle language that wound its way through the many pages of dubiously decipherable rhetoric.  Like the Times, they focused on end-result, but came up with a different spin. 

In the Viewsday post on the decision by Michelle Chen, reference was made to a number of commentators, both partisan and neutral, discussing aspects of the decision that left gaping holes.  While this was the closest either paper came to appreciating the wealth of unanswered questions in the decision, it fell short of showing any organic understanding of the issues/questions/problems.  It’s always troubling how sound-bites from commentators are designed for the unaware, and how often the unaware fall into the trap of repeating meaningless drivel because it fits neatly into a slot.

The most fascinating part of the Viewsday post were the comments left by the few, the proud, the fundamentally ignorant.  While each of the comments raised Darwinism issues, this one caught my eye:

I find it difficult to believe that a fourth grade student can explain what the Second Amendment means and four out of nine Supreme Court Justices failed to get it correct. Just how morally corrupt are they and what are they trying to do to my beloved nation?

I’m personally amazed that he can find the floor when he gets out of bed in the morning.  To a person, there is no doubt whatsoever that they have no clue what the decision says, but that wasn’t going to stop them from having their say, likely under the First Amendment’s promise of free speech.

And at Simple Justice, we are fortunate to have one of the most astute and well-informed commenters around, Joel Rosenberg, proprietor of Twin-Cities Carry.  Joel has offered numerous thoughts on the decision, but can be summed up by noting his appreciation of the Scalia’s finally opening the door and letting gun advocates stick more than a toe into the crack. 

I’m still thrilled. I think there’s a lot of issues to still be decided, but, as I wrote (and said) at length before today, even the best possible decision (which this isn’t; although it is, IMHO, pretty close) will still result in years and years of litigation to give it teeth.

Joel is clearly an optimist, but at least he can see clearly through his rose-colored glasses, recognizing that while Heller may have given very little away, “judicial conservatism impels the Court to at least try (although, in this case, I think that they’re trying a little too hard) stay away from deciding issues that aren’t before it, and haven’t been argued.”  He also has a penchant for understatement.

Similarly, commenter Mike Hansbury, from whom the title of this post is stolen, sees a half-full glass as overflowing.

What was the question before the court?

Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

The answer is YES.

All true, but so what?  They invalidated a federal ban on handguns in the home for self-defense by certain people, leaving the likelihood that states can regulate the crap out of arms otherwise, exactly as they do now. 

What has been extremely disappointing is the lack of thoughtful commentary, or indeed recognition, by the mainstream media (including our New York Times analyst, Liptak), of the total absence of any explanation of how the Supreme Court majority could recognize a fundamental individual right under the Second Amendment, and then leave untouched all regulation of this purported fundamental right that contravenes their holding.

The gun advocates take comfort by shrugging and saying that this will be dealt with in the next case, or the one after that.  The gun control advocates will smile shyly, happy that they get to keep almost every restriction they’ve ever wanted, and the gun advocates don’t seem to notice or care.

As a lawyer, I remain deeply troubled by a decision of constitutional magnitude that is all rubric and no rationale.  It’s one thing for the trial judge to say “motion denied” without explanation.  It’s another for the Supreme Court to state dicta of shocking breadth without making any attempt to provide a reason. 

Is this the new constitutional jurisprudence?  Will the Supreme no longer bother to answer the “why” question when the making sweeping pronouncements? 

Randy Barnett at Volokh tries to sneak in his kid’s law review article as if he gets ESP signals from Scalia to provide a rational framework for further scrutiny of the myriad of laws restricting guns.  If my son wrote on the subject, I would do the same thing.  After all, it makes just as much sense to grab a little promotion for his kid on Scalia’s coattails as anything else.  He may be shameless, but what father wouldn’t seize the chance to help his child when there isn’t any better explanation in town?

Then there’s the “judicial modesty” question, that a Court’s holding go no farther than is needed to decide the specific question before the court in one particular case.  While this notion doesn’t satisfactorily explain the Heller decision, since Scalia chose not to state the level of scrutiny to be applied, while noting that it was something higher than rational basis, it remains a responsibility of the Court, both historic and pragmatic, to fill the gap that it has just created rather than to leave us and the other courts of this nation to fall into a deep, dark hole with no observable bottom. 

Judicial modesty may work fine when the Supreme Court is deciding small cases.  But big issues, where societal upheaval is at stake, require more.  Much more.  Hiding behind such conservatism is a cop out.  Heller opened a door just a crack, but Joel Rosenberg is entitled to know whether he’s about to be invited in or his leg is going to get cut off at the knee if he doesn’t pull it out quickly.

If a client came to a lawyer to ask the question of what rights he had under the Second Amendment, and the lawyer told the client the holding of Heller, the client would walk out muttering the lawyer was an incompetent idiot.  How could he not even know what the Second Amendment means?  Today, we are all Second Amendment idiots.  Some just don’t realize it yet.