07/04/2008 05:12 am ET Updated May 25, 2011

Bush v. Gore Meets the Second Amendment

There are some striking similarities between the Heller decision and Bush v. Gore. In both cases, the Court articulates a "new" right to be recognized by the Courts: a right to bear arms in Heller and a right to have votes tabulated equally in Bush v. Gore. Yet in both decisions, the Court makes clear that this right is not likely to be something that results in the invalidation of many laws -- or perhaps even any laws other than the ones directly at issue in the case.

In Bush v. Gore, the Court warned that nothing in the opinion was meant to call into question the many difficult, technical issues of vote tabulation and the many different laws on the books for how to count votes. As a result, the opinion was severely criticized by many for being like a railroad ticket good for this train only. Indeed, in the wake of Bush v. Gore, the equal vote tabulation principle has all but died. As law professor Rick Hasen has shown in an excellent article forthcoming in the Stanford Law Journal, the Court has not cited Bush v. Gore since the decision came down and the lower courts have refused to closely scrutinize vote tabulation laws, even when those laws effectively give excess voting power to some individuals.

In Heller, the majority says that the decision is not meant "to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Sounds like the Court is once again trying to avoid the obvious implications of its broad statement of the right to bear arms. Indeed, the Court does not provide any more indication of what laws might be undermined by the newly recognized right other than to say that a handgun ban and a dissembled long gun requirement are invalid. Don't be surprised if the lower courts refuse to invalidate many other gun laws, citing the quoted statement above. If so, Heller would be the high-water mark for the individual right to bear arms -- and we'll be writing articles years from now about the birth and sudden death of a strong Second Amendment right to bear arms.