Yesterday’s decision may have the eventual consequence of removing strict gun control laws from the list of options available to local elected officials. If so, and if the gun control advocates turn out to have the better of the empirical argument, then the Court’s decision in Heller “will almost certainly cause more Americans to be killed.”
Those are not my words. That is what Justice Scalia had to say in dissent earlier this month in Boumediene v. Bush. He then added that sacrificing American lives “would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic.” No doubt Justice Scalia believes that a personal right to armed self-defense is such a principle, but then, the majority in Boumediene thought that the availability of habeas corpus is also a time-honored legal principle.
Here I'll simply add a point I've been stewing over since reading Justice Scalia's Boumediene dissent: How does he know? Isn't it quite possible that the consequence of Boumediene will be to hasten the closing of the prison at Guantanamo, thus allowing the next President (whether Obama or McCain) to move more quickly towards restoring the image of the U.S. around the world? And couldn't that in turn lead to a diminution in the number of people who are eager to become anti-American terrorists, or to abet anti-American terrorists, or to turn a blind eye towards the activities of anti-American terrorists? "Almost certainly" is way too strong a statement given the plausibility of this alternative chain of events.
As for Heller, I'll let my column speak for itself.
Posted by Mike Dorf