March 18, 2008

HERE’S MORE ON HELLER from Randy Barnett in the Wall Street Journal:

The Second Amendment protects an individual right. In the 1960s, gun control advocates dismissed the Second Amendment as protecting the so-called “collective right” of states to preserve their militias — notwithstanding that, everywhere else in the Constitution, a “right” of “the people” refers to an individual right of persons, and the 10th Amendment expressly distinguishes between “the people” and “the states.” Now even the District asserts the new theory that, while this right is individual, it is “conditioned” on a citizen being an active participant in an organized militia. Therefore, whoever wins, Heller won’t be based on a “collective” right of the states.

Still, a ruling upholding an unconditioned individual right to arms and invalidating the ban is unlikely to have much effect on current gun laws. Here’s why:

Read the whole thing. And query: Would a win for the DC position create a constitutional obligation on the part of the states to maintain an active militia? Or, at least, allow states that chose to do so to immunize their member citizens from Federal gun laws on Second Amendment grounds? That topic is explored in more depth in this (relatively short) article from the William and Mary Law Review.

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