David R. Henderson  

Gun Control: Things I Didn't Know

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The Ku Klux Klan, Ronald Reagan, and, for most of its history, the NRA all worked to control guns. The Founding Fathers? They required gun ownership--and regulated it. And no group has more fiercely advocated the right to bear loaded weapons in public than the Black Panthers--the true pioneers of the modern pro-gun movement. In the battle over gun rights in America, both sides have distorted history and the law, and there's no resolution in sight.
This is from Adam Winkler, "The Secret History of Guns," The Atlantic Magazine, September 2011.

The word "Secret" in the title is a little ironic: everything in the article is something that was in relatively plain view for someone not wearing ideological blinders. It's just that I would bet most of us don't know about most of it because the various players have distorted so much. I knew about the Klan, knew about but had forgotten about the Black Panthers, and didn't know how much of a pro-gun-control guy Ronald Reagan was. Also, I hadn't known how pro-gun-control the National Rifle Association was in its first few decades.

The article also puts Justice Scalia in his place:

The lower courts consistently point to one paragraph in particular from the Heller decision. Nothing in the opinion, Scalia wrote, should

be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

This paragraph from the pen of Justice Scalia, the foremost proponent of constitutional originalism, was astounding. True, the Founders imposed gun control, but they had no laws resembling Scalia's list of Second Amendment exceptions. They had no laws banning guns in sensitive places, or laws prohibiting the mentally ill from possessing guns, or laws requiring commercial gun dealers to be licensed. Such restrictions are products of the 20th century. Justice Scalia, in other words, embraced a living Constitution. In this, Heller is a fine reflection of the ironies and contradictions--and the selective use of the past--that run throughout America's long history with guns.

HT to Jeff Hummel.

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COMMENTS (5 to date)
Dan writes:

The article presents a naive understanding of originalism. Originialism does not necessitate overturning every judicial precedent since the enactment of the Constitution. Scalia was obviously trying to narrow the scope of Heller.

It's a silly attempt to "put Scalia in his place." I've never been to law school and it still didn't pass the sniff test.

David writes:
Originialism does not necessitate overturning every judicial precedent since the enactment of the Constitution.
You haven't read many Clarence Thomas opinions, have you? Try his concurrences in McDonald v City of Chicago (14th amendment Privileges or Immunities clause) as well as United States v Lopez (commerce clause).
Noah Yetter writes:

"Originialism does not necessitate overturning every judicial precedent since the enactment of the Constitution."

In what twisted interpretation of the English language does it not mean precisely that?

ziel writes:

Originalism still requires an interpretation of the text - the text is interpreted in light of the original, commonly understood meaning of the words. It is no more required that Originalists disrespect the interpretations of past courts than it is for "Living Constitutionalists" to do so.

Caleb writes:

The source of the misunderstanding here is that Justice Scalia is not "the foremost proponent of constitutional originalism." He is what Constitutional scholars call a "textualist," meaning he tries to give effect to the plain meaning of the words of whatever clause is in question. That meaning for him, however, is informed by caselaw precedent and structural concerns, as well as the original intent of the drafters.

As David correctly points out, Justice Thomas is the only true originalist on the Court, as evidenced by his many dissenting and concurring (and few majority) opinions. (Btw, good choice citing Lopez and McDonald. Both offer excellent insights in Thomas' thinking.)

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