Friday, December 12, 2008

Another Heller commentary

Another law review article, this one by Yale law professor Akhil Amar, on D.C. v. Heller, who offers his critique of the Heller opinion:
“A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.”

Them’s fightin’ words in Heller. Justice Scalia insisted that these words, like their older cousins in English common law and their companions in early state constitutions, clearly encompass an individual’s right to have a ready gun at home for self-protection. Justice Stevens said no: he read these words as miles removed from the common law right of self-defense. As we have seen, Justice Stevens wasted considerable energy trying to deploy Miller and other precedents, including Vasquez and pre-2001 lower court rulings, none of which had enough firepower and accuracy to do much damage to Scalia’s claims. But when Justice Stevens moved beyond precedent and took direct aim at Justice Scalia on the grounds of text, history, and structure, the resulting shootout was a closely balanced duel, with each side giving
nearly as good as it got. Were the Second Amendment the only constitutional text on point, the closeness of the vote in Heller would have been warranted.
The Reconstruction-era Congress emphasized that Southern blacks might need guns in their homes to protect themselves from private violence in places where they could not rely on local constables to keep their neighborhoods safe. When guns were outlawed, only outlaw Klansmen would have guns. This critical chapter in the history of American liberty furnishes compelling evidence of an individual right to have a gun in one’s home, regardless of the original meaning of the Second Amendment. [footnotes omitted]

Read the commentary here. In the typical scholarly style of law reviews, the article isn't exactly light, breezy reading.

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