A short piece in Sunday's NY Times mentioned my debate late last year with Robert Levy of the Cato Institute, who is one of the lawyers representing the plaintiff in Heller v. D.C. , the Second Amendment case pending before the Supreme Court. The article mentions my rejoinder to the argument by Mr. Levy that the operative clause of a constitutional provision should be given its full natural meaning, even if the conditions in the prefatory clause do not hold. As I noted on this blog at the time (here), Levy provided an example in which "the right to keep and read books" is justified by a prefatory clause that states that declares "A well-educated electorate, being necessary to the self-governance of a free state . . . ." Levy thought it self-evident that the "keep and read books" clause would apply to all books, not merely those connected to educating the electorate, but I said this was hardly obvious; pornographic books, for example, might not be covered. Certainly, if one were to take an originalist persepctive, one would want to know how far the framers and ratifiers (or, on a slightly different view of originalism, a competent speaker of the English language familiar with the relevant terms of art), would have thought the "keep and read books" provision went.
Having just finished doing some work on an amicus brief in support of the District in the case, I must say how convinced I now am that---judged by traditional criteria---the best reading of the original understanding of the Secondd Amendment is that it protects a right of the States. Our brief (on which I came in near the end, joining a pro bono team including lawyers from Dewey & LeBoeuf, where I moonlight), emphasizes a number of points, but here I'll just highlight one: The ratification debates over the original Constitution---out of which came proposals for what became the Second Amendment and the Bill of Rights more broadly---focused just about exclusively on the question of whether the federal power to arm the state militias included a power to disarm the militias. The Second Amendment was overwhelmingly seen as a mechanism for ensuring state authority over arming, and regulating, the state militias, without undue federal interference.
To be sure, constitutional interpretation is not only about original understanding, but this is the ground on which proponents of the individual right view have chosen to make their case, and it now strikes me as a weak one. The Founding generation may have believed in a right to armed self-defense, but as a natural right that was not the focus of what became the Second Amendment. The best argument for an individual right of armed self-defense would thus be rooted in the Ninth Amendment (although I still think it should probably fail), but for reasons probably having more to do with ideology than tactics, most of the supporters of the individual right view appear to be allergic to that kind of argument. (Randy Barnett is an exception, as are many of the folks at Cato.)
Posted by Mike Dorf