Bearing Arms
The following editorial appeared in the Chicago Tribune on Tuesday, March 25:
Constitutional law, despite the name, is not solely - or sometimes even primarily - about what the U.S. Constitution says. After 219 years, nearly every passage in the document has been the subject of hundreds of court cases. Over the decades that body of law has given complicated and specific meanings to constitutional phrases that often can be vague.
So: If you want to know how the Supreme Court is likely to apply a provision from the Constitution in a new case, the best guide is not what the framers wrote down more than two centuries ago, but what the justices themselves had to say the last time they considered that provision.
But not always. Last week, the court heard arguments in a lawsuit that addresses the meaning of the Second Amendment, which deals with the right to keep and bear arms. Given the often controversial place of guns in American society, and the many laws regulating them, you would expect there would be piles of Supreme Court precedents for the contending lawyers to draw on.
In fact, there are very few.
Not for nothing has it been dubbed "the forgotten Second Amendment." The last time the court issued a major decision concerning the Second Amendment was 1939 - a date so far removed from today that, if you can believe it, nobody named Bush or Clinton ever had served in the White House.
So this case presents something rare: an occasion for the justices to give almost exclusive consideration to what the Constitution says and what its authors intended. "For the first time in recent memory," writes Georgetown law professor Randy Barnett in The Wall Street Journal, "the Supreme Court will consider the original meaning of a significant passage of the Constitution unencumbered by its own prior decisions"
