Gun rights and Originalism

Randy Barnett, who has submitted an amicus brief in today's gun rights case before the Supreme Court has a primer on the case. He makes the point that, whichever side wins, the result will be an originalist decision.

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.

It should be a fascinating hearings and I'll be wanting to listen to the audio that the Court plans to release later.

If I were to make my totally layman's prediction, it would be that the Court would hold that the right to bear arms is an individual right; however, it is not an unlimited right and some restrictions are constitutional, although the District of Columbia's restrictions were too extreme and won't withstand the Court's scrutiny. But I suppose it will all come down to what Anthony Kennedy thinks since we're living in his world as far as how the Court will interpret the Constitution.