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Gun-rights shootout: Blogging the Heller case

By Michelle Malkin  •  March 18, 2008 08:49 AM

It’s a red-letter day for the individual right to bear arms–and the blogosphere is all over the story. The Supreme Court is set to hear oral argument in the landmark DC gun ban case at 10 am Eastern today. SCOTUSblog will liveblog the C-SPAN audio broadcast, which will begin immediately after the oral arguments conclude.

Getting into the hearing today is the hot ticket in town–the lines look like Hannah Montana concert lines.

Clayton Cramer snapped photos of the crowd camped out last night and reports:

I went down last night to take some pictures of the public line for getting into the Heller oral arguments. It was dark, but it felt much like people waiting to get tickets for a rock concert. Sleeping bags. Camping lights. Pizza boxes! What makes this so unfortunate is that there are rumors that members of Congress may decide to attend–and they get priority over the masses on the public audience space…

WaPo has profiles of the lead attorneys: Walter Dellinger for the gun banners, Alan Gura for the gun-rights advocates.

Howard Bashman has a big legal round-up. Jacob Sullum’s preview is here and his post examining the split within the Bush administration–reported by Bob Novak last week–is here.

Randy Barnett provides “a layman’s guide to the significance of the case.”
While “the implications of striking down the D.C. gun ban are limited, a decision upholding an unqualified individual right in Heller would still be a significant victory for individual rights and constitutionalism,” he concludes. It’s a win for originalism, he writes, however the case is decided:

Heller will be decided on originalist grounds. Among law professors, enforcing the original meaning of the Constitution is highly controversial. Critics of originalism deny that we should be ruled by the “dead hand of the past.” They prefer following Supreme Court precedents that may or may not be consistent with original meaning. Any justice who today professes a commitment to originalism is branded a radical; and all Supreme Court nominees are now grilled on their commitment to the doctrine of stare decisis. But what are old precedents if not the “dead hand” of dead justices?

Significantly, then, both 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.

Posted in: Guns

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