March 18, 2008
SCOTUS and the Second Amendment
People slept outside the Supreme Court last night, trying to guarantee a seat at today's arguments in Heller v. District of Columbia, the first Second Amendment case to make it to the High Court since Miller, back in the 1930s.
Over at the Wall Street Journal, Randy Barnett explains why Heller is so significant.
For the first time in recent memory, the Supreme Court will consider the original meaning of a significant passage of the Constitution unencumbered by its own prior decisions. The majority and dissenting opinions in this case will be taught in law schools for years to come. Here's a layman's guide to the significance of the case:
- Heller will be decided on originalist grounds. Among law professors, enforcing the original meaning of the Constitution is highly controversial. Critics of originalism deny that we should be ruled by the "dead hand of the past." They prefer following Supreme Court precedents that may or may not be consistent with original meaning. Any justice who today professes a commitment to originalism is branded a radical; and all Supreme Court nominees are now grilled on their commitment to the doctrine of stare decisis. But what are old precedents if not the "dead hand" of dead justices?
Significantly, then, both sides in Heller are making only originalist arguments. The challengers of the law contend that the original meaning of the Second Amendment protects an individual "right to keep and bear arms" that "shall not be infringed." In response, the District does not contend that this right is outmoded and that the Second Amendment should now be reinterpreted in light of changing social conditions. Not at all. It contends instead that, because the original intention of the Framers of the Second Amendment was to protect the continued existence of "a well regulated militia," the right it protects was limited to the militia context.
So one thing is certain. Whoever prevails, Heller will be an originalist decision. This shows that originalism remains the proper method of identifying the meaning of the Constitution.
When I entered law school in the fall of '92, the idea that the Second Amendment was an individual right, an important right, was risible in academic circles, and ConLaw classes skipped right from the First to the Fourth Amendments.
To say that there's been a sea change in constitutional analyses is an understatement.
SCOTUSblog will be providing live updates during C-Span's rebroadcast of oral arguments. This should be good.
Posted by Mike Lief at March 18, 2008 06:40 AM
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