Second Amendment

an encouraging day

By J. L. Bastiat ⋅ June 27, 2008 ⋅  Email This Post ⋅  Print This Post ⋅ Post a comment

Justice Kennedy is still not exempt from a flogging (saith The Jonah, “Today, that despot has a name. It’s Justice Anthony Kennedy. Kennedy rules — thanks to his status as the court’s swing vote — as the true King of America.”), but all in all, it was a good day for those of us who’d rather be prepared to defend ourselves against criminals without having to take on our government, too.

Quoth Dale Carpenter regarding the Heller decision:

1. We’re all originalists now. One of the most extraordinary things about this case is that it presented, for the first time in modern memory, a chance for the Supreme Court to decide the meaning of a constitutional right without a heavy overlay of “constitutional law” – a body of relevant decisions from the Supreme Court itself. For “faint-hearted” originalists, like Scalia and others, the existence of non-originalist precedents can be a barrier to reaching originalist results. But here the issue was one of truly first impression, presenting a “clean” controversy. It therefore allowed the Court to address the issues on first principles of constitutional interpretation.

So what principles did the justices reach for? It’s not surprising that Justice Scalia turned to the text and to originalist sources to determine the meaning of the words of the Second Amendment. And while the Stevens dissent makes noises about United States v. Miller as if it controls the outcome in favor of the constitutionality of heavy regulation of firearms, most of his dissent grapples with originalist questions. Stevens might not be a very accomplished originalist, or you might think he was wrong in this instance, but the mere fact that he and the three who joined him paid such obeisance to originalism on a matter of constitutional first impression confirms again its ascendance as a methodolgy.

In other words, there has definitely been some progress–despite the ongoing degradation of our constitution–in the Supreme Court’s willingness to read the document, rather than dictate it.

Meanwhile, our esteemed (or S-themed) candidates for bossa dis here post-colonial former republic weighed in, and Jonathan Adler was there in cyberspace to tell us about it. Long story short, Barack Obama has always believed the the 2nd Amendment guaranteed an individual right he doesn’t care about when he’s doing legislating/politicking things; and John McCain thinks Obama’s fellow Chicagoans need weapons to defend themselves. I’m with McCain on this one.

Ilya Somin wants you to notice that a “right” only matters if the people who control the power to exercise it–well, if they are us. That is, property is essential to liberty. That is–he’s right, but this is making my head hurt. Basically, don’t get too excited about Heller while Kelo is still on the books.

And estimable and persistent 2nd Amendment defender David Kopel weathers the server’s wrath to bring us some short, happy remarks on the case.