Constitutional Law

Prof. Sanford Levinson on Heller: why use originalism?

Article here. As always, interesting and provocative.

He asks "why use originalism" in the sense that Parker/Heller can win on a broader view; that the right has evolved in Americans' minds to become ever more strongly individual, and that should be taken into account.

He does suggest the Solicitor General's position on standard of review should be accepted. (I suspect he's more optimistic than I about how lower courts would use it. I'd guess that if the Supremes hold for strict scrutiny, lower courts will in practice use about what we call the intermediate level, and if the Supremes hold for intermediate, lower court will in practice use rational basis -- any purpose for a law that can be speculated, and does not require psychotic thought patterns, is enough).

Full post as published by Of Arms and the Law on February 26, 2008 (boomark / email).