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05/23/2021

Eric Segall on Originalism and the Second Amendment
Michael Ramsey

At Dorf on Law, Eric Segall: Gun Control, the Second Amendment, and Originalism's Folly.  From the introduction:

Although the Supreme Court will decide a few nationally important cases this term, such as one relating to the claims of a religious organization that it get preferential treatment under the free exercise clause, and yet another case challenging the validity of the Affordable Care Act, there are relatively few blockbuster cases coming down this term. Next year, however, expect a big abortion case, and the Court has already decided to hear a challenge to New York's law regulating who can carry guns secretly in public. Second Amendment advocates allege that the law is unconstitutional because people have to present a special reason to carry guns, above and beyond a generalized need for self-defense. New York argues that the law is necessary for public safety.

The Justices will, of course, pay lip service to originalism when they decide this case, but the nature of "arms" themselves and American society today are so different from colonial America that making decisions based on the values and practices of those earlier times is facially absurd. Moreover, if the Justices take seriously the history of gun laws in this country, absent obviously unreasonable or irrational laws,  they should (but won't) modify their decisions in District of Columbia v. Heller, and McDonald v. Chicago, to allow for reasonable regulation of today's deadly weapons.

This blog post outlines the major and most obvious arguments demonstrating that strong judicial oversight of state and federal gun laws cannot be justified by an originalist interpretation of the Second Amendment. The only way to arrive at strong constitutional protection for gun rights is through living constitutionalism--something this Supreme Court and most conservative scholars pretend to reject. Although we likely will not get a resolution of this case for another year, it is never too early to discuss the absurdity of originalist arguments against New York's reasonable law trying to keep its people safe.

I have some thoughts in response but they'll have to wait until I've graded my exams...