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March 18, 2008

Gun Rights On The Docket Today At The Supreme Court

by Doug Mataconis

Beginning at 10am today and lasting for 75 minutes, the United States Supreme Court will hear argument in the most significant Second Amendment cases ever to come before it.

Today, in the Boston Herald, Robert Levy, one of the lead attorneys for the citizens in the case, gives a preview of the argument he’ll be making in less than an hour.

Meanwhile, in the Wall Street Journal law professor Randy Barnett gives a layman’s guide to the issues before the court today.

First, Barnett notes that, because of the lack of significant Second Amendment case law, the case will revolve around an originalist interpretation of the Constitution:

[B]oth 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. This shows that originalism remains the proper method of identifying the meaning of the Constitution.

Barnett also argues that the only consistent originalist interpretation of the Second Amendment requiresa finding that the amendment protects an individual right:

In the 1960s, gun control advocates dismissed the Second Amendment as protecting the so-called “collective right” of states to preserve their militias — notwithstanding that, everywhere else in the Constitution, a “right” of “the people” refers to an individual right of persons, and the 10th Amendment expressly distinguishes between “the people” and “the states.” Now even the District 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.

Finally, Barnett points out that Heller’s impact will be muted by the fact that it will only apply to Federal and D.C. law. The question of whether the Second Amendment applies to the states will have to wait for another day and another case.

I previewed the arguments in this post yesterday.

As for the mechanics, SCOTUS Blog has all the information:

At 10 a.m., the Court is scheduled to hear argument in District of Columbia v. Heller (07-290), involving a Second Amendment challenge to the District’s firearms regulations. Walter Dellinger of Washington, D.C., will argue for the petitioner, Alan Gura of Alexandria, Va., will argue for the respondent, and Solicitor General Paul D. Clement will argue for the United States as amicus curiae.

The argument is scheduled to last 75 minutes, and will be rebroadcast on CSPAN shortly after its conclusion. We will provide a link to the audio feed as soon as it is available.

A momentous day awaits us.

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