Legal News

Originalism Likely to Rule the Day in High Court Gun Arguments

By Dan Slater

Within the hour, oral arguments will kick off at the Supreme Court in Heller v. District of Columbia, otherwise known as the gun case. The suit — brought by several D.C. citizens contending that the ban on firearms inside one’s home violates the Constitution — will mark the first time in 70 years that the Court has weighed in on the meaning of the Second Amendment.

After the 90-minute argument concludes, we’re going to come back at you with some commentary from a well-placed observer. In the meantime, let’s take a look at a WSJ op-ed today by Randy Barnett, a con law prof at Georgetown. Barnett calls his piece a “layman’s guide to the significance of the case.”

Case will be decided by the “dead hand of the past:” Originalism will rule the day, writes Barnett. Notably, both sides in Heller are making only originalist arguments. The challengers argue that the original meaning of the Second Amendment protects an individual “right to keep and bear arms” that “shall not be infringed.” The District contends that, because the original intention of the Framers was to protect the continued existence of “a well regulated militia,” the right it protects was limited to the militia context. Whatever happens, this is Justice Scalia’s Stanley Cup.

Both sides agree - the right is “individual:” In the 1960s, writes Barnett, gun control advocates dismissed the Second Amendment as protecting only a “collective right” of states to preserve their militias. But now, even D.C. asserts the new theory that, while this right is individual, it is “conditioned” on a citizen being an active participant in an organized militia. Therefore, whoever wins, Heller won’t be based on a “collective” right of the states.

Will invalidating the D.C. ban affect other states’ gun laws? Probably not: Because D.C. is a federal entity, Heller provides a clean application of the Second Amendment which, like the rest of the Bill of Rights, originally applied only to the federal government. Before a state or municipal gun law can be challenged, the Supreme Court will have to decide that the right to keep and bear arms is also protected by the 14th Amendment, which limits state powers. Also, the ban being considered in Heller is a complete ban on operable firearms in the home. No state has a comparable law. Barnett writes that, like the First Amendment, any individual right to own a firearm would be subject to reasonable time, place, and manner regulations.

Full post as published by Law Blog - WSJ.com on March 18, 2008 (boomark / email).