Naturally, the most interesting observations are likely to come after people have had some time to digest the debate between the opinions. But for now, a few observations:
1. There’s no substitute for winning elections. The 5-4 conservative-liberal lineup (admittedly, with one of the four being a Bush, Sr. appointee) shows this. These issues aren’t just about winning elections, as I’ll note below. But winning is part of it. My guess is that, if the McCain campaign is smart about this, it can make this an important linchpin of its fundraising (“imagine what would happen to your rights if Justices Scalia and Kennedy retire soon and are replaced by Barack Obama”), of its attempts to energize the base, and of its attempts to bring over swing voters in swing states where the middle of the electorate tends to be pro-gun.
Naturally, the Obama campaign can try the same, as I’m sure it will be doing as to abortion rights. My guess is that such Obama strategies will be less effective than a McCain strategy of hitting the gun-rights point (of course, in ads targeted to particular subsets of the voters): My sense is that pro-gun-ban voters are less dedicated to this view than are pro-gun-rights voters, and that the pro-abortion-rights voters are less likely to be swing voters in swing states. But in any case, both approaches might make sense — McCain may hit the gun rights issue hard in some places, and Obama the abortion rights issue hard mostly in other places (and especially to energize his base, including Hillary Clinton partisans who might otherwise have been lukewarm towards Obama).
2. In some situations, academic writings make a big difference. My sense is that thirty or even twenty years ago, even most conservative Justices wouldn’t have accepted the individual rights view. After all, support for anti-crime laws has long been a traditional conservative principle. Chief Justice Burger was famously a supporter of the states’ rights view of the Second Amendment. And judges, including conservative judges, tend to be influenced by solid bodies of law created by other judges (even lower-court judges), and back then the unanimous view of federal circuit courts was to dismiss the individual rights view as something of a crank perspective.
I think that the scholarly work on the Second Amendment, starting with Don Kates’ seminal Handgun Prohibition and the Original Meaning of the Second Amendment (Michigan Law Review, 1983) and continuing with the work of Nelson Lund, Sandy Levinson, Joyce Malcolm, Stephen Halbrook, Glenn Harlan Reynolds, Akhil Reed Amar (though his position was a bit more ambiguous), and others, dramatically changed the landscape. At least, the scholarship led conservative judges — starting with prominent circuit judges and moving on to Supreme Court Justices — to look seriously at issue, and pointed them to historical evidence that they might have otherwise missed. (Note, by the way, that Kates, Halbrook, and Clayton Cramer, another important historical writer in this field, a cowritten article of whose was cited in the opinion, are not professors, though their articles are academic works. Note also that not all these authors were cited by the Court, but they were certainly cited in the briefs, and their work was relied on by later writers.)
Naturally, the scholarship wouldn’t have succeeded without the underlying evidence, and the 5-4 division on the Court shows that it wouldn’t have succeeded without Justices who were sympathetic to the argument. But I doubt that the Justices would have been as sympathetic, or would have looked closely at all the right evidence, without the work of scholars.
More comments, I hope, to come.