Constitutional Law

A busy time for Heller commentary

First, Nelson Lund of Geo. Mason U. Law School has posted a paper, "The Second Amendment, Heller, and Originalist Jurisprudence." While he agrees with the majority's conclusion, he is disappointed in, for example, its dicta regarding how certain laws would still pass muster, which is given without any explanation derived from original understanding.

At the Volokh Conspiracy, Randy Barnett seconds most of the criticisms, while feeling it was a bit harsh on Scalia.

Over at Legal Theory Blog, Larry Solum of U. of Ill. has Barnett on Lund on Scalia: The Construction Zone and District of Columbia v. Heller. He suggests the answer is in the distinction between interpretation ("the Second Amendment means we have an individual right to keep and bear arms") and construction (outside of 100% clear cases, "that doctrine, as applied to this law, yields this result"). Randy Barnett seconds his view.

UPDATE: Nelson Lund is VERY strongly individual rights, and always has been. Or at least for the decades that I've known him.

Full post as published by Of Arms and the Law on January 12, 2009 (boomark / email).