Gun Control on Trial
In a post earlier this month I reviewed A Well Regulated Militia, and spoke of the historic debates over the original intent of the Second Amendment. Saul Cornell argued that we abandoned our civic conception of the amendment for the individualistic and collective alternatives that frame the contemporary debate. Doherty dodges this conundrum, coming out decisively in favor of an individual right to keep and bear arms, suggesting that it extends above and beyond state militia service.
My reading of history points to a hazy hue of original intent arguments. Indeed, in their majority and dissenting opinions in the Heller case, Justices Scalia and Stevens both use originalism to defend their respective individual and collective claims. Some conservative legal scholars have actually taken issue with the decision, arguing it is a case of judicial subjectivity on par with Roe v. Wade.
Doherty's contribution is his revelation of the intimate details that made an underdog collection of gun rights proponents historic trailblazers, from Cato President Robert Levy, who brought the case into fruition, to relatively unknown attorney Alan Gura who ushered the case all the way through oral arguments at the High Court, to Dick Heller, the D.C. security guard who could not legally possess a firearm in his own home.
The 5-4 decision affirmed that the Second Amendment constitutes an individual right. However, because the ruling applied only to the District of Colmbia, a federal terrority, the Second Amendment remains the sole province of national limitations. The Supreme Court has refused in the past to incorporate the Second Amendment, or applying it to state and local laws via the Due Process Clause of the Fourteenth Amendment.
Before the ink was dry on the opinion last summer, the invitations for the Court to incorporate gun rights made their way into lower federal courts. Three cases, two involving Chicago and the other a western suburb of the city, Oak Park, are situated in the U.S. Court of Appeals for the 7th Circuit. At issue is whether the 1886 Supreme Court decision, Presser v. Illinois, which denied a bid to incorporate the Second Amendment, stands in the aftermath of Heller and the passage of time.
While we keep one eye fixed on incorporation, the other is trained on the immediate impact of the Heller decision. According to Adam Liptak of the New York Times, the alleged landmark decision has fallen on deaf ears as gun control legislation has been upheld repeatedly in the lower courts with a single exception. Given Justice Scalia's laundry list of permissible regulations toward the end of his majority opinion in Heller, this should come as little surprise. The sea change may come via the incorporation case Heller invited.
The topic of gun rights in certainly a fascinating one, and we plan to present it as the first installment in a new public programs series at the Freedom Museum entitled "The Struggle Continues." The aforementioned Robert Levy of the Cato Institute will speak alongside Dennis Henigan of the Brady Campaign to Prevent Gun Violence at a free program (click here to register) this Thursday from 6-7:30pm at the Gleacher Center in Chicago.
On Friday, Levy and Henigan will join us for the first of two teacher seminars centered on our new Second Amendment curriculum, titled "To Keep and Bear Arms." The Heller decision is the centerpiece of the lesson, and our speakers (myself included) will further illuminate its central tenets and aftermath. We do it again in the western suburb of Wheaton on Saturday with guest speakers from the Joyce Foundation and the Naperville Police Department. CPDU's are available and registration (click here), with breakfast and lunch served, is free of charge.