[And Also: Some analysis of the flawed use of history; I like it in particular since it is a bit more restrained than some but makes a good case. Again, the opinion can be defended as to result -- Thomas' concurrence also has some good stuff -- but it is just too simplistic. Leahy and Feingold both today supported an individual right's view, at least per Heller, underlining judicial conservatives aren't the only parties that can play here.]
The gun case can be found here along with the others from today's sitting. The well awaited patent case was decided somewhat narrowly, the expected author (Stevens) writing a stronger concurrence. An appointments case was split 5-4, but its ultimate effect is unclear or rather of little real note. Breyer did the surely rarely done double dissent from the bench thing today. Ginsburg is pretty sharp in CLS, repeatedly nasty footnotes against Alito. Why isn't similar "pay our way or be called discriminatory" (see dissent) applied to abortion funding et. al.?
All the opinions come out to over 200 pages, so I only skimmed them, but they are somewhat depressing. It is 5-4 with Thomas joining but supporting the Privileges or Immunities approach (Scalia probably would too, but he rests on precedent). The majority by Alito is a relatively short opinion (shorter than Heller) that largely rests on history and the usual norm (except in jury cases) that federal and states have to follow the same rules respecting the Bill of Rights.
I don't quite understand why -- especially since Roberts and Alito are not as doctrinaire on analysis as Scalia and Thomas -- why the majority could not include a section -- precedent appears to make this relevant -- discussing how modern understanding recognizes gun ownership at home is a fundamental right. The opinion referenced the fact but only in passing. Instead, it basically stops at 1868, so the dissents can (rightly) say "hey, that's not how we really do things." Also, the Court doesn't seem to explain why states can have non-unanimous juries, or even no juries in civil cases, but the rules have to be the same here.
Precedent? Precedent until now didn't incorporate the Second Amendment. It begs the question to rest on that alone, doesn't it? The opinion notes that the Supreme Court in effect split in half on the jury question -- half thought unanimous juries weren't required for both, half thought it was required, with the tiebreaker (4-4-1) going to Powell who thought it only so for the federal government. However we reached the point, however, that's the law. Juries were deemed by the framing generation as an essential, unanimous juries also an important way to protect minority voices. If we accept a state/fed split there, why not here? OTOH, Heller dealt with a local ordinance. A law with national scope would be different too. But, no one wanted to split the baby.
The Second Amendment in part was concerned with the national government using its power to invade the discretion of the states, so -- again in part -- there is something to treating a local D.C. ordinance differently than some national law that restrains the discretion of all the states. The original dissent in the lower court in Heller did just that, Dellinger brought it up in oral argument, but neither side one the Supreme Court seemed to really take it seriously. When the First Amendment was first applied to the states, there was a more 'go it slow' approach. Cf. the criticism given to the more 'let's decide things broadly' approach of Roe v. Wade.
Thomas rests on Privileges and Immunities (which works in theory, but courts don't usually "start from scratch") but also appeals to history. But, historical study has determined there was no clear public understanding at the time regarding applies the Bill of Rights to the states via the Fourteenth Amendment. Yes, some thought that, but it actually rarely came up, though there is a stronger case that it was deemed important for free blacks to have a means to protect themselves. Also, he -- of course -- rejects "substantive due process" as inane, but reams of scholarship has shown -- even regarding thought before 1868 -- that this is untrue.
I myself accept the result here but the reasoning leaves something to be desired.* But, even if I did not, I don't think the dissents are all that good either. As far as they reject the simplistic analysis, they have a point. All the same, and overreliance of the Second Amendment as compared to a general "liberty" to own firearms at home (the ultimate issue here) doesn't help, it seems to me that the better path would be to accept some right to self-defense via weapons, but argue that the law in question provided an acceptable middle path. After all, Heller itself left open lots of regulations. On that front, this case does little to clarify what exactly is allowed; after all, it basically applies Heller to the states and Heller did not firmly even state if strict scrutiny is required. And, even Stevens admits there is some right to self-defense.
I also think precedent alone made this a simple case. Why would the law in D.C. be unacceptable and not this similar one? But, precedent is strengthened over time,** and Heller was just decided. It will be interesting to see how the justices vote in a later case. In a sense, this ruling is limited, applying a Heller-like provision to another type of locality. See also, the carefully narrow ruling in the CLS case also decided today.
Kagan allegedly is supposed to be a consensus builder. This case cried out for some middle ground and some was possibility -- many liberals accept an individual right to own a firearm at home. But, the justices (including one more Scalia v. Stevens sparring match) took another approach. I question how much Kagan will really serve that role, but this is a case where it would have been much appreciated.
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* On one level, Heller settled the immediate question of protecting handgun ownership at home. But, a careful dissent could ala Breyer in Heller explain how all firearm regulations are not the same. In fact, Heller did just that.
I think the sentiments here basically match my views, including regarding Scalia and Thomas. OTOH, as noted before, Thomas is the inconsistent one in Doe v. Reed.
** The conservatives disposed of precedents quickly at times too -- see, e.g., Payne v. Tennessee.