Heller: Originalism Triumphant

Make no mistake about it, the Supreme Court's affirmation that the Second Amendment does, indeed, protect individual gun rights was a momentous development in the law. Besides aligning constitutional jurisprudence with the public understanding of America's founding document, the decision also demonstrated the powerful influence of originalism on legal culture in the past 20 years.

As Prof. Dale Carpenter of the University of Minnesota noted recently, it is remarkable that not only the Heller majority, but also the dissenting Justices, relied on historical and textual arguments to support their preferred interpretation of the Second Amendment. Had the Heller case decided in the 70s, both the majority and dissenting opinions would have far more closely resembled Justice Breyer's policy-driven approach.

One man, of course, deserves most of the credit for this revolution in Constitutional Law: Justice Antonin Scalia. Without his perserverence, the Court's sweeping affirmation of the right to keep and bear arms would have been unthinkable. As corny as it sounds, the country owes him its thanks.

Heller: Criminals Lose, Citizens Win

I'm still processing the Supreme Court's landmark Heller decision and will write considerably more about it tomorrow. For now, let me just respond to Washington Post columnist Colbert King's criticism of the opinion as a victory for "D.C. thugs."

Ummm... no Mr. King. In spite of the District's handgun ban, the thugs are already armed. How else, pray tell, have they continued perpetrating their thuggery? Now, though, law-abiding citizens like Mr. Heller will have the ability to defend themselves. Sounds just to me.

HT: National Review

Habeas and Handguns: The Supreme Court and the Election

According to a new Washington Post poll, 61% of Americans disagree with the Supreme Court's recent Boumediene decision, in which the Justices extended habeas corpus rights to the detainees at Guantanamo Bay. In the short run, the decision seems to have helped McCain, as Obama's embrace of the Court's meddling made him look soft on national security.

Even more than Boumediene, however, the Court's upcoming decision in Heller, the DC guns case, will have a tremendous impact on the 2008 race. If, as I believe is likely, the Supreme Court affirms that the Second Amendment does, in fact, protect the rights of citizens to own weapons, Obama will be forced to take a concrete stand on this delicate issue. Given that Obama has, as an Illinois legislator, supported banning all handguns, this should be fun to watch.

I predict that Obama will waffle again. More syrup, please.

Pregaming Heller

Speaking of guns: while many on the Right have been justifiably miffed over the Supreme Court's recent ruling in Boumediene (the Guantanamo habeas case), conservatives will probably be cheered by the Court's upcoming decision in Heller, the D.C. guns case. As this analysis from Concurring Opinions reveals, there are at least 5, and maybe as many as 7, votes on the Court to recognize an individual right to keep and bear arms under the Second Amendment. Moreover, current conservative bete noire Anthony Kennedy seemed at oral argument to be among the Court's most ardent champions of gun rights. It will be interesting to see how long the Left's current adulation of the Supreme Court will last.