A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

In a 5-4 decision authored by Justice Scalia (PDF, link fixed), the Supreme Court today determined that the Second Amendment protects an individual's right to bear arms, even though no one's entirely sure what the text of the Second Amendment is:

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not. Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.  For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken 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.  We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

And, as such, there goes DC's ban on owning handguns:

It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upperbody strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.

So, too, did the Court strike down DC's trigger lock requirements, though the majority declined to specify what sort of test could apply to restrictions to gun ownership in future cases.  Basically, Justice Scalia writes, this is our first Second Amendment case we've really done.  Give us time.  He concludes:

We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

Justice Stevens, dissenting, argues for judicial restraint, and believes that the Founders intended to leave gun control options on the table for legislatures:

Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia. The Court’s announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding, but leaves for future cases the formidable task of defining the scope of permissible regulations. Today judicial craftsmen have confidently asserted that a policy choice that denies a "law-abiding, responsible citize[n]" the right to keep and use weapons in the home for self-defense is "off the table."  Given the presumption that most citizens are law abiding, and the reality that the need to defend oneself may suddenly arise in a host of locations outside the home, I fear that the District’s policy choice may well be just the first of an unknown number of dominoes to be knocked off the table.

... The Court properly disclaims any interest in evaluating the wisdom of the specific policy choice challenged in this case, but it fails to pay heed to a far more important policy choice -- the choice made by the Framers themselves. The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Court’s opinion, I could not possibly conclude that the Framers made such a choice.

Justice Breyer, dissenting, makes something of a federalist argument, focusing on DC's evaluation of its own local problem:

I here assume that one objective (but, as the majority concedes, not the primary objective) of those who wrote the Second Amendment was to help assure citizens that they would have arms available for purposes of self-defense. Even so, a legislature could reasonably conclude that the law will advance goals of great public importance, namely, saving lives, preventing injury, and reducing crime. The law is tailored to the urban crime problem in that it is local in scope and thus affects only a geographic area both limited in size and entirely urban; the law concerns handguns, which are specially linked to urban gun deaths and injuries, and which are the overwhelmingly favorite weapon of armed criminals; and at the same time, the law imposes a burden upon gun owners that seems proportionately no greater than restrictions in existence at the time the Second Amendment was adopted.

[T]he majority’s decision threatens severely to limit the ability of more knowledgeable, democratically elected officials to deal with gun-related problems. The majority says that it leaves the District "a variety of tools for combating" such problems. It fails to list even one seemingly adequate replacement for the law it strikes down. I can understand how reasonable individuals can disagree about the merits of strict gun control as a crime-control measure, even in a totally urbanized area. But I cannot understand how one can take from the elected branches of government the right to decide whether to insist upon a handgun-free urban populace in a city now facing a serious crime problem and which, in the future, could well face environmental or other emergencies that threaten the breakdown of law and order.

Both sides of the case read much more like a history lesson than an analysis of prior case law, and I'll get to the dissents in more detail as soon as I have time.  

I encourage you to read this fully before rendering your opinions, because, well, it's a Constitution we're expounding here, and this comes up in other contexts as well.  Sometimes in life (and in law), there are things that we might desire from a policy standpoint -- like certain forms of gun control, or restrictions on some election-related speech -- which are nevertheless forbidden by the Constitution.  And as liberals -- unlike the other guys -- we ought not try to pretend that the Constitution doesn't exist when it gets in the way of our policy preferences.

Oral argument transcript here.

edited to add: Via Slate's Dahlia Lithwick, this may leave a mark:

I must first pass along this rather brilliant observation from professor Stephen Wermiel from American University, who wonders why none of the dissenters cautioned the majority that today's decision "will almost certainly cause more Americans to be killed." (Boumediene, Scalia, J. dissenting.)

In a case reflecting a solution truly in search of a problem, and opening the door to all sorts of harassment for minority, elderly and other traditionally Democratic voters, the Supreme Court ruled 6-3 today that Indiana could legally require all voters to present photo identification cards in order to vote.

The Complaint had argued that voter ID laws would substantially burden the right to vote in violation of the Fourteenth Amendment; that they are neither necessary nor appropriate to avoid election fraud; and that such laws would arbitrarily disfranchise qualified voters who do not possess the required identification and would place an unjustified burden on those who cannot readily obtain such identification.

The Court's opinion essentially has two pluralities joining to form a majority -- Justice Stevens (sigh), Justice Kennedy and the Chief Justice joined to promote the standard that states can enforce "evenhanded restrictions that protect the integrity and reliability of the electoral process itself."  They argue that Indiana has a valid interest in deterring and detecting voter fraud, including with regards to "a large number of names of persons who are either deceased or no longer live in Indiana," but, um, what about the fact that such fraud has never been found in Indiana?  No matter, Justice Stevens writes:

The record contains no evidence of any such fraud actually occurring in Indiana at any time in its history. Moreover, petitioners argue that provisions of the Indiana Criminal Code punishing such conduct as a felony provide adequate protection against the risk that such conduct will occur in the future. It remains true, however, that flagrant examples of such fraud in other parts of the country have been documented throughout this Nation’s history by respected historians and journalists, that occasional examples have surfaced in recent years, and that Indiana’s own experience with fraudulent voting in the 2003 Democratic primary for East Chicago Mayor -- though perpetrated using absentee ballots and not in-person fraud -- demonstrate that not only is the risk of voter fraud real but that it could affect the outcome of a close election.

Yes, that's right -- no one's ever tried to commit voter fraud like this, but they've done it some other way, and, um, what's that historical answer?

One infamous example is the New York City elections of 1868. William (Boss) Tweed set about solidifying and consolidating his control of the city. One local tough who worked for Boss Tweed, "Big Tim" Sullivan, insisted that his "repeaters" (individuals paid to vote multiple times) have whiskers:

"‘When you’ve voted ’em with their whiskers on, you take ’em to a barber and scrape off the chin fringe. Then you vote ’em again with the side lilacs and a mustache. Then to a barber again, off comes the sides and you vote ’em a third time with the mustache. If that ain’t enough and the box can stand a few more ballots, clean off the mustache and vote ’em plain face. That makes every one of ’em good for four votes.’ " A. Callow, The Tweed Ring 210 (1966) (quoting M. Werner, Tammany Hall 439 (1928)).

Yes, America, they're using Gangs of New York to justify this.  Oh, and one -- yes, one fraudulent voter in Washington State's 2004 gubernatorial election.  So, what of the burdens?  Essentially, they claim, it might be a burden in individual cases, but not so bad as to strike down the whole statute:

A photo identification requirement imposes some burdens on voters that other methods of identification do not share. For example, a voter may lose his photo identification, may have his wallet stolen on the way to the polls, or may not resemble the photo in the identification because he recently grew a beard. Burdens of that sort arising from life’s vagaries, however, are neither so serious nor so frequent as to raise any question about the constitutionality of SEA 483; the availability of the right to cast a provisional ballot provides an adequate remedy for problems of that character.

[J]ust as other States provide free voter registration cards, the photo identification cards issued by Indiana’s BMV are also free. For most voters who need them, the inconvenience of making a trip to the BMV, gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting. Both evidence in the record and facts of which we may take judicial notice, however, indicate that a somewhat heavier burden may be placed on a limited number of persons. They include elderly persons born out-of-state, who may have difficulty obtaining a birth certificate; persons who because of economic or other personal limitations may find it difficult either to secure a copy of their birth certificate or to assemble the other required documentation to obtain a state-issued identification; homeless persons; and persons with a religious objection to being photographed. If we assume, as the evidence suggests, that some members of these classes were registered voters when SEA 483 was enacted, the new identification requirement may have imposed a special burden on their right to vote.

The severity of that burden is, of course, mitigated by the fact that, if eligible, voters without photo identification may cast provisional ballots that will ultimately be counted. To do so, however, they must travel to the circuit court clerk’s office within 10 days to execute the required affidavit. It is unlikely that such a requirement would
pose a constitutional problem unless it is wholly unjustified. And even assuming that the burden may not be justified as to a few voters, that conclusion is by no means sufficient to establish petitioners’ right to the relief they seek in this litigation.

[In other words: particular individual voters may have legitimate grievances that this is unconstitutional as applied to them, but it's not enough to invalidate the law as a whole.]  

Justices Scalia, Thomas and Alito concur separately "on the grounds that petitioners’ premise is irrelevant and that the burden at issue is minimal and justified":

The universally applicable requirements of Indiana’s voter-identification law are eminently reasonable. The burden of acquiring, possessing, and showing a free photo identification is simply not severe, because it does not "even represent a significant increase over the usual burdens of voting." [] And the State’s interests [] are sufficient to sustain that minimal burden. That should end the matter. That the State accommodates some voters by permitting (not requiring) the casting of absentee or provisional ballots, is an indulgence -- not a constitutional imperative that falls short of what is required.

Two dissents.  First, Justices Souter and Ginsburg:

Indiana’s "Voter ID Law" threatens to impose nontrivial burdens on the voting right of tens of thousands of the State’s citizens, [] and a significant percentage of those individuals are likely to be deterred from voting. The statute is unconstitutional under the balancing standard of Burdick v. Takushi, 504 U. S. 428 (1992): a State may not burden the right to vote merely by invoking abstract interests, be they legitimate, [] or even compelling, but must make a particular, factual showing that threats to its interests outweigh the particular impediments it has imposed. The State has made no such justification here, and as to some aspects of its law, it has hardly even tried.

The burden of traveling to a more distant BMV office rather than a conveniently located polling place is probably serious for many of the individuals who lack photo
identification. They almost certainly will not own cars, and public transportation in Indiana is fairly limited. According to a report published by Indiana’s Department of Transportation in August 2007, 21 of Indiana’s 92 counties have no public transportation system at all, and as of 2000, nearly 1 in every 10 voters lived within 1 of these 21 counties. Among the  counties with some public system, 21 provide service only within certain cities, and 32 others restrict public transportation to regional county service, leaving only 18 that offer countywide public transportation....

For those voters who can afford the roundtrip, a second financial hurdle appears: in order to get photo identification for the first time, they need to present " ‘a birth certificate, a certificate of naturalization, U. S. veterans photo identification, U. S. military photo identification, or a U. S. passport.’" As the lead opinion says, the two most common of these documents come at a price: Indiana counties charge anywhere from $3 to $12 for a birth certificate (and in some other States the fee is significantly higher), that same price must usually be paid for a first-time passport, since a birth certificate is required to prove U. S. citizenship by birth. The total fees for a passport, moreover, are up to about $100. So most voters must pay at least one fee to get the ID necessary to cast a regular ballot. As with the travel costs, these fees are far from shocking on their face, but in the Burdick analysis it matters that both the travel costs and the fees are disproportionately heavy for, and thus disproportionately likely to deter, the poor, the old, and the immobile.

The upshot is this. Tens of thousands of voting-age residents lack the necessary photo identification. A large proportion of them are likely to be in bad shape economically.  The Voter ID Law places hurdles in the way of either getting an ID or of voting provisionally, and they translate into nontrivial economic costs. There is accordingly no reason to doubt that a significant number of state residents will be discouraged or disabled from voting.

And, finally, Justice Breyer dissents, focusing on how other states have minimized the burdens on those without IDs, unlike Indiana.

Bottom line, friends?  The Great Disenfranchisement of 2008 has begun. These laws are not neutral, are not innocent, but are an attempt by Republican legislators to prevent traditionally Democratic voters from casting their ballots.  We need to do whatever it takes to help all qualified voters obtain whatever records they need so that they can vote this November; we cannot let them win.

updated, 12:45 pm:  For more on why "voter fraud" is a myth, see this amicus brief filed with the Court by the Brennan Center for Justice, the People for the American Way Foundation and others.  ("The record contains no evidence of polling place impersonation fraud in Indiana: the State conceded that it was unaware of any incidents of attempted or successful impersonation fraud in Indiana; that no one in Indiana history has been indicted for impersonation fraud; and that no evidence of impersonation fraud was presented to the Indiana legislature during the debate over the photo ID law.")

Steve Bergstein is Planet Waves' resident civil rights attorney.

What's the best way to kill a man? In the caveman days, they clubbed you on the head. Later on, they got you by firing squad, but no one wanted to clean up the blood, so someone invented the electric chair. That wasn't good enough, either. The body shakes and goes into convulsions and even the executioner feels sorry for the deadly killer. So lethal injection was devised as a "humane" alternative. That was good enough for the state-sponsored executioners, and today it's good enough for the Supreme Court, which upheld lethal injections as consistent with the Eighth Amendment's prohibition against cruel and inhumane punishment.

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In a widely splintered opinion that ultimately reduces to a 7-2 decision, the Supreme Court held this morning that states may lawfully use lethal injection as a means of effecting capital punishment.  The Court rejected claims by two Kentucky death row inmates that the method violated the Eighth Amendment ban on cruel and unusual punishment by inflicting needless pain and suffering, mostly in the risk that the designated procedures would not be properly followed in all cases.

As to why it's constitutional, that's a bit complicated.  According Chief Justice Roberts, joined by Justices Kennedy and Alito:

Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of "objectively intolerable risk of harm" that qualifies as cruel and unusual. ...

Given what our cases have said about the nature of the risk of harm that is actionable under the Eighth Amendment, a condemned prisoner cannot successfully challenge a State’s method of execution merely by showing a slightly or marginally safer alternative.

Permitting an Eighth Amendment violation to be established on such a showing would threaten to transform courts into boards of inquiry charged with determining "best practices" for executions, with each ruling supplanted by another round of litigation touting a new and improved methodology. Such an approach finds no support in our cases, would embroil the courts in ongoing scientific controversies beyond their expertise, and would substantially intrude on the role of state legislatures in implementing their execution procedures -- a role that by all accounts the States have fulfilled with an earnest desire to provide for a progressively more humane manner of death

So, can a state be forced to employ a more humane method?  Maybe, they write:

[T]he proffered alternatives must effectively address a "substantial risk of serious harm." To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. If a State refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a State’s refusal to change its method can be viewed as "cruel and unusual" under the Eighth Amendment.

Justice Stevens writes a concurrence that's unusual, to say the least.  After focusing on the use of pancuronium bromide as part of the three-drug cocktail as being particularly cruel, he essentially says that the death penalty should be deemed unconstitutional because no expressed rationale really justifies it, but that under current precedent it clearly is, and he feels obliged to obey it:

The thoughtful opinions written by THE CHIEF JUSTICE and by JUSTICE GINSBURG have persuaded me that current decisions by state legislatures, by the Congress of the United States, and by this Court to retain the death penalty as a part of our law are the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits, and rest in part on a faulty assumption about the retributive force of the death penalty.

... I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents "the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment."

The conclusion that I have reached with regard to the constitutionality of the death penalty itself makes my decision in this case particularly difficult. It does not, however, justify a refusal to respect precedents that remain a part of our law. This Court has held that the death penalty is constitutional, and has established a framework for evaluating the constitutionality of particular methods of execution. Under those precedents, whether as interpreted by THE CHIEF JUSTICE or JUSTICE GINSBURG, I am persuaded that the evidence adduced by petitioners fails to prove that Kentucky’s lethal injection protocol violates the Eighth Amendment.

To which Justice Scalia pitches something of a fit, because how dare Justice Stevens be a judge and employ his own judgment!

It is simply not our place to choose one set of responsible empirical studies over another in interpreting the Constitution. Nor is it our place to demand that state legislatures support their criminal sanctions with foolproof empirical studies, rather than commonsense predictions about human behavior. "The value of capital punishment as a deterrent of crime is a complex factual issue the resolution of which properly rests with the legislatures, which can evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts." Gregg, supra, at 186 (joint opinion of Stewart, Powell, and STEVENS, JJ.). Were JUSTICE STEVENS’ current view the constitutional test, even his own preferred criminal sanction -- life imprisonment without the possibility of parole -- may fail constitutional scrutiny, because it is entirely unclear that enough empirical evidence supports that sanction as compared to alternatives such as life with the possibility of parole.

Justice Thomas, along with Scalia, would give legislatures even more latitude to allow for a painful execution:

As I understand it, that [plurality] opinion would hold that a method of execution violates the Eighth Amendment if it poses a substantial risk of severe pain that could be significantly reduced by adopting readily available alternative procedures. ... in my view, a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain

It is not a little ironic -— and telling -- that lethal injection, hailed just a few years ago as the humane alternative in light of which every other method of execution was deemed an unconstitutional relic of the past, is the subject of today’s challenge. It appears the Constitution is "evolving" even faster than I suspected.

So, in his view, gibbeting is out, as are "embowelling alive, beheading, and quartering," but not lethal injection.

Justices Ginsburg and Souter dissent:

It is undisputed that the second and third drugs used in Kentucky’s three-drug lethal injection protocol, pancuronium bromide and potassium chloride, would cause a conscious inmate to suffer excruciating pain. Pancuronium bromide paralyzes the lung muscles and results in slow asphyxiation. [] Potassium chloride causes burning and intense pain as it circulates throughout the body. [] Use of pancuronium bromide and potassium chloride on a conscious inmate, the plurality recognizes, would be "constitutionally unacceptable."  The constitutionality of Kentucky’s protocol therefore turns on whether inmates are adequately anesthetized by the first drug in the protocol, sodium thiopental. Kentucky’s system is constitutional, the plurality states, because "petitioners have not shown that the risk of an inadequate dose of the first drug is substantial."  I would not dispose of the case so swiftly given the character of the risk at stake. Kentucky’s protocol lacks basic safeguards used by other States to confirm that an inmate is unconscious before injection of the second and third drugs. I would vacate and remand with instructions to consider whether Kentucky’s omission of those safeguards poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain.

...if readily available measures can materially increase the likelihood that the protocol will cause no pain, a State fails to adhere to contemporary standards of decency if it declines to employ those measures.

The remainder of the dissent focuses on simple procedures employed in other states to ensure that the first drug was properly administered, steps which the Commonwealth of Kentucky declined to require.

[As for Justice Breyer, he agrees with the test that Ginsburg sets up, but believes the evidence presented was not sufficient to prove some other method would be significantly more humane.]

So the Court's not getting rid of the death penalty, or of this particular method.  Instead, as that three-Justice plurality writes, it's up to us if we want to eliminate the death penalty, or make its infliction less barbaric:

Reasonable people of good faith disagree on the morality and efficacy of capital punishment, and for many who oppose it, no method of execution would ever be acceptable.... This Court has ruled that capital punishment is not prohibited under our Constitution, and that the States may enact laws specifying that sanction. ...

Throughout our history, whenever a method of execution has been challenged in this Court as cruel and unusual, the Court has rejected the challenge. Our society has nonetheless steadily moved to more humane methods of carrying out capital punishment. The firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to more humane methods, culminating in today’s consensus on lethal injection. [] The broad framework of the Eighth Amendment has accommodated this progress toward more humane methods of execution, and our approval of a particular method in the past has not precluded legislatures from taking the steps they deem appropriate, in light of new developments, to ensure humane capital punishment. There is no reason to suppose that today’s decision will be any different.