3/18/2008

New Op-ed up at National Review Online: Going Up for Second: Gun rights@SCOTUS

Today is the big day: Going Up for Second: Gun rights@SCOTUS (National Review Online)

If courts made their decisions based on public opinion, the case that the U.S. Supreme Court will hear today on the District of Columbia’s handgun ban would seem to be easy to decide. The polls and the sheer number of those filing amicus briefs support an individual right to owning guns. Yet, the Justice Department’s brief, while technically also supporting an individual right, has made this debate much more complicated and, for the first time in American history, even compelled a vice president to file his own brief.

A Gallup poll in February found that 73 percent of Americans believe that Second Amendment protects an individual right. On top of that, 305 members of Congress, 31 states, and the Department of Justice all make the same claim. Support is bipartisan. On the other side, only a minority of Democrats — 18 members of congress and attorney generals from five states — signed briefs arguing that it isn’t an individual right.

Even among presidential candidates, Hillary Clinton, John McCain, and Barack Obama all reach the conclusion that there is an individual right to owning guns. Prominent liberal Democratic legal academics such as Akhil Amar, Sanford Levinson, and Laurence Tribe have reached similar conclusions.

Perhaps all this is not surprising given that the Second Amendment is part of the Bill of Rights, and everyplace else in the Constitution that discusses “the right of the individual” the Supreme Court has consistently interpreted this phrase to mean precisely what it seems to mean, that an individual right, not the right of the government, is protected. Even if there were any remaining doubt, the debate over the 14th Amendment, which applies the Bill of Rights to the states, made it clear that Congress wanted to protect blacks against Southern states that were trying to disarm them after the Civil War.

Yet, all that agreement hides a very significant difference. The debate today will likely be over what protection is given this individual right. . . .

The rest of the piece is here.

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