November 18, 2007
MORE SECOND AMENDMENT STUFF: With a decision on certiorari in the D.C. gun-ban case coming up, perhaps this week if rumors are to be believed, I've gone ahead and posted a forthcoming article of mine before publication. Entitled Guns and Gay Sex: Some Notes on Firearms, the Second Amendment, and "Reasonable Regulation," it's a look at how courts might deal with an individual right to arms, particularly in light of the D.C. Circuit's overturning of the D.C. gun ban.
Prof. Adam Winkler has looked at some state right-to-arms cases and suggests that even if the Supreme Court finds an individual right to arms, nearly all gun control laws would wind up being upheld as "reasonable regulations." I look at some other cases that Winkler doesn't discuss -- and in particular the way the privacy and gun right cases intertwine in Tennessee -- and suggest that it doesn't have to turn out that way. The gist: If courts pay as much attention to assessing the reasonableness of regulations aimed at firearms -- where there's a textually secured right -- as they do to regulation of gay sex -- where there isn't -- firearms owners will receive considerable protection. And if courts fail to do so, the legitimacy of courts will suffer considerably.
It's a short piece, but you might find it worth your time if you're interested in the subject.
UPDATE: Here's a link to Winkler's piece, too.