The Election Implications of the Second Amendment Case:

Michael Dorf -- who takes a collective rights view of the Second Amendment -- writes this (accurate) account of something that came up during the American Association of Law Schools panel on the Second Amendment. (The panel consisted of him, Katherine Darmer, John Eastman, and me, and was moderated by Mark Tushnet.)

On my Second Amendment panel today, there was some discussion about how a decision upholding or rejecting the individual right view would play politically.

We all pretty much agreed that a victory for the District of Columbia could be costly to the Democratic Presidential nominee, because it would activate the strongly Republican leaning gun rights groups. I said that I also thought a victory for Heller (the plaintiff) would help the Republicans, especially if it were 5-4, simply by making the issue salient and by emphasizing how closely divided the Court is, because the gun rights folks care more about this issue than do the gun control folks.

Harvard Law Prof Mark Tushnet (the moderator) and GW Law Prof Bob Cottrol (from the audience) thought that a victory for Heller would be good for Democratic politicians and gun control advocates, who could then claim credibly that the gun control measures they favor are not in fact the first step on a slippery slope to abolition. That's an intriguing idea but I'm not sure. It strikes me that the win-by-losing strategy is always risky and unpredictable. [Paragraph breaks added.]

I would add that a victory for D.C. would also be costly to the Democratic Presidential nominee because it would make the issue more salient for voters generally; polls suggest that the public supports the individual rights view by at least 2 to 1, and my sense is that many swing voters in swing states care about the issue a good deal.