Cultural Revolutions

Guns Incorporated?

The U.S. Supreme Court has agreed to review McDonald v. City of Chicago, a case that presents the watershed issue of whether the individual right to bear arms under the Second Amendment, established in 2008 in District of Columbia v. Heller, applies to states.  Most Court observers agree that it appears very likely that the Heller majority—Chief Justice Roberts and Justices Scalia (who wrote the opinion), Thomas, Alito, and Kennedy—will stay together to incorporate this new reading against state and local gun regulations.  (McDonald, like Heller, involves a handgun ban.)  Such a result will visit irreparable damage on the doctrine of original understanding, which ascertains constitutional meaning through text and history, and the judicial modesty necessary to adhere to it.  Result-driven judicial imperialism will now, alas, have both a conservative and a liberal version.

Heller itself is the root of the problem.  In that case, Justice Scalia brought together a large quantity of historical information to support the argument that the Second Amendment embodies an individual right not connected to military service to keep and bear arms.  However, in a cogent dissent that also relied extensively on history, Justice Stevens concluded that the amendment did not create any such individual right.  Despite the fact that the historical record does not point...

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