Another fascinating case was argued before the US Supreme Court yesterday: in this case, the question before the court is whether the second amendment to the US Constitution, which guarantees citizen’s right to bear arms, precludes state laws outlawing handgun ownership.
A transcript of yesterday’s oral argument is here; and here are merits briefs for the District of Columbia, for the respondent, and the Attorney General’s brief for the federal government – which supports DC.
Blogging about this case reminds me of the excellent interview with the most famous Supreme Court Justice, Antonin Scalia, on the BBC’s Law in Action a few weeks ago: I recommend downloading the podcast. In it he denied being a “strict constructionist” (he’s an originalist – I’d be a fan of the living constitution approach if I were appointed, which is unfortunately unlikely), while expressing some provocative thoughts (about torture and the “ticking bomb scenario” famously discussed by Alan Dershowitz) also reminded us that Supreme Court decisions can’t simply be analysed or predicted in terms of a liberal-conservative split; many other factors enter into the court’s discussion, such as the rights of the states as against the Union, for example. That consideration will obviously be crucial in this case.
What’s astonishing is the extent to which the Court considers the eighteenth century English common law as background to the Constitution – Blackstone’s Commentaries are cited in the briefs and in oral argument. I love the old-fashioned fonts they use in briefs, too.
Found your blog via Iain Dale, and I’ve found it very interesting. A couple of questions for you:
As a lawyer, what is your opinion on the claim that is sometimes made, that the Right to Bear arms is guaranteed in English law (by the Bill of Rights)just as much as it is in the US? Do you know if anyone has ever challenged the effective ban in the UK using the BoR?
Why do you favour the “living constitution” approach? I liked the originalist argument that original meaning was what was ratified by the states and therefore it’s only original meaning which can carry any legitimacy. What’s the argument for “making it up as you go along”?