Heller is reason enough for the Republican senate to take its time replacing Scalia

Conservative writer Charles Cooke argued in his editorial on the National Review that the landmark gun case D.C. vs Heller, one of the few favoring opinions written by the late Justice Antonin Scalia, is reason enough to prolong the historically short confirmation process of naming a new Justice.

The Heller case won in a narrow 5-4 vote as did another landmark decision, Chicago vs McDonald, just a few years later. Pro-gun advocates worry a liberal judge could overturn those decisions.

There are many constitutional questions that yield legitimate and necessary debate. But “What does the Second Amendment mean?” most emphatically does not. In fact, the answer to that question is so historically straightforward that I have come reluctantly to the conclusion that the people who argue otherwise — yes, including the four dissenters in Heller — are doing little more than playing cynical games in pursuit of a political end. There is a good reason that every prominent legal figure in the republic’s first century characterized the Second Amendment as protecting a right of the people that was not contingent upon service in the militia (among them St. George Tucker, William Rawle, and Joseph Story), and there is a good reason that James Madison either personally thanked those figures for their explanations (as with Tench Coxe) or appointed them to the judiciary (as with Story and Tucker). Those reasons? That this isn’t even close. Bluntly put, there is no credible evidence from the Founding era to suggest that the Second Amendment protects anything other than an individual right. The language of the amendment is wholly consistent with its being applied to the individual (as elsewhere in the Constitution, the right is deemed to be “of the people”); the English law that preceded it supports the very same conclusion; and the “explanatory strictures” proffered during the ratification debate do nothing less than to clinch the deal. Writing in the late nineteenth century, Thomas Cooley predicted presciently that the amendment’s prefatory clause (unusual now, but less so then) might cause subsequent generations to misunderstand what was at that time universally understood. Regrettably, in some quarters at least, his fears have been realized.

We can, of course, have a legitimate debate as to what limits may be imposed upon the amendment’s scope. Indeed, writing for the majority in Heller, Antonin Scalia did just that, conceding readily that the protection was not infinite. (This concession should not be taken to mean that the right is not robust, merely that Hugo Black-esque, strict-constructionist absolutism is misguided). What we cannot do, however, is pretend that the amendment means what it plainly does not. In order to make the case that the Heller dissenters made, one not only has to ignore the relevant history, commentary, and linguistic norms, but to contend in true “Mad Hatter” fashion that the Founders’ intent in drafting the Second Amendment was to protect the right of individuals to join an organization over which the federal government enjoys plenary power. That is preposterous.

Read the full piece at the National Review

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