happiness is a warm...

Interesting article about Second Amendment jurisprudence. The last Supreme Court case to deal squarely with the Second Amendment was the 1939 case of United States v. Miller. In that case, the Court's analysis suggested that the Second Amendment addressed the needs of organized militias, not individuals. Considering that half of America believes that the Second Amendment does, and more importantly, should protect an individual's right to bear arms, it seems that if the Court takes the case of Silveira v. Lockyer (a challenge to California's assault-weapons ban), its ruling would have serious political consequences either way.

Personally, I cannot see the Court ruling against the "individual right" interpretation. Our cultural environment has already embraced this presumption of the right to arm oneself; to take that away would be a radical departure from American social psychology. It is practically irrelevant that half of Americans believe that the Second Amendment is an antiquated law addressing the needs of militias. What matters is that the other half perceives the Second Amendment as an affirmative right. To that extent, taking away that perceived affirmative right would be a very sobering event in American culture. Things would actually have to change! Not so with a decision affirming the "individual right" rationale, as it would merely be an affirmation of the cultural status quo: those who don't want guns will not buy them; those who do want guns already own them (for the most part).

Granted, my justification isn't grounded in the law. But because there is such a dearth of case law on this issue, I think cultural mores can, should, and would play an important role in the Court's decision (should it decide to take the case).