| HN Mirror

The Bill of Rights only restricted the Federal government, until 1897 when SCOTUS began the process of so-called incorporation. It's non-sensical to try to use it as a template for individual rights because that wasn't its primary design. It obviously reflected such notions, but only indirectly and distantly. The Bill of Rights very clearly changed because it's now applied in ways that were not only unforeseen, but presumed to have been impossible given how the Founders understood and designed separation of powers.

That's why debate about the meaning of the text of the Bill of Rights often borders on the absurd. The 2nd Amendment was never about the individual right to own personal firearms because the Federal government never had the power to regulate personal gun ownership until the re-interpretation of its Commerce Clause powers in the 1930s. (Well, in the case of guns sooner with the passage of Prohibition.) But the Federal government did have the very controversial power to control state militias as part of its enhanced (relative to Articles of Confederation) national defense powers, which is why the 2nd Amendment talks about militias and "arms" (i.e. military weapons--see Samuel Johnson's dictionary from the 18th century).

The whole original meaning debate about the 2nd Amendment is ridiculous; for this and a million other reasons--like the fact that conservatives like Scalia and Thomas relied on incorporation doctrines that they previously had despised. That said, the courts have spoken and as a matter of law it creates a personal right. Which is fine by me because the one thing this whole debate should make abundantly clear to people is that we have courts and judges for a reason--people will always disagree about the meaning of a written law; at the end of the day you need a court to, effectively, lay down the law and decide exactly what it means in real situations, and that's the only law that counts. Whether they read the text wrong or right is in a very real sense irrelevant, as long they adhere to consistent principles of justice that are substantially divorced from the politics du jour. It'd be a stretch to say that the recent 2nd Amendment decisions were apolitical or entirely consistent with the conservative justices' legal jurisprudence, but it's not beyond the pale. For someone like me who defends liberal notions like substantive due process, it's hard to complain about the judicial overreach regarding the 2nd Amendment. (What irks me isn't the outcome, but the intellectually hypocritical--nay, dishonest--way the conservative justices got there.)