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January 11, 2009

Assailing the unjustified Second Amendment limits in Heller

As Randy Barnett notes here, "Nelson Lund has just uploaded to SSRN a new and important criticism of Justice Scalia's opinion in DC v. Heller ... [which] considers the exceptions to this right identified by Justice Scalia in dicta."  The new piece, titled "The Second Amendment, Heller, and Originalist Jurisprudence," is available at his link.  Here is part of the abstract:

[Heller] was a near perfect opportunity for the Court to demonstrate that original meaning jurisprudence is not just "living constitutionalism for conservatives," and it would been perfectly feasible to provide that demonstration.  Instead, Justice Scalia's majority opinion makes a great show of being committed to the Constitution's original meaning, but fails to carry through on that commitment.

In a narrow sense, the Constitution was vindicated in Heller because the Court reached an easily defensible originalist result.  But the Court's reasoning is at critical points so defective — and so transparently defective in some respects — that Heller should be seen as an embarrassment for those who joined the majority opinion.  I fear that it may also be widely (though unfairly) seen as an embarrassment for the interpretive approach that the Court purported to employ.  Originalism deserved better from its judicial defenders.

One section of Professor Lund's paper focuses on the the unjustified dicta assertion in Heller that Second Amendment rights could be completely eliminated for any and all felons.  As regular readers know, I have been troubled by that aspect of the Heller ruling from the very outset.

Some related Second Amendment posts:

January 11, 2009 at 12:46 AM | Permalink


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I always figured that particular dicta was what was required in order to carry one of the other members of the majority. What bothered me even more was how both Scalia and Stevens made factual mistakes about Miller, claiming the man had been convicted when he had not.

I also have to wonder about how Miller was treated originally, was that truely the norm in 1939 that a party could get dragged before SCOTUS unrepresented? I thought the federal representation case had already been decided by then.

Posted by: Soronel Haetir | Jan 11, 2009 6:29:39 AM

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