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The U.S. supreme Court will shortly consider, for the first time in almost 70 years, the meaning of the Second Amendment. Given the dramatic “rights revolution” that took place after World War II, it is long past time for the court to offer its reflection on the meaning of an amendment that mobilizes the energies of literally millions of Americans and, unlike most of the Bill of Rights, has real salience in presidential campaigns. The Supreme Court will be reviewing a controversial decision of the U.S. Circuit Court of Appeals for the District of Columbia striking down a district ordinance outlawing the private ownership of handguns. The majority opinion � there was a dissent by Judge Karen LeCraft Henderson � employed the methodology of what has come to be called “originalism” to declare that the Second Amendment in 1791 was intended to protect an individual right to own firearms quite independent from service in a militia. The district, like most proponents of gun control, emphasized the significance of the “preamble” to the amendment, with its emphasis on the importance of a “Militia” to the “security of a free State.” The majority opinion also included language suggesting that the district � and presumptively, any government found to come under the constraints of the amendment � would have to meet a very high burden of proof before any regulation on gun ownership would be permitted. Academics and ordinary citizens alike are involved in an unusually vigorous debate as to the view of guns at the time of the addition of the Second Amendment in 1791. Evidence is mixed; proponents of what has come to be called the “militia-linked” interpretation may have, by a nose, the better of the argument as to the thrust of most 18th century argument, but there is certainly a great deal of evidence to the contrary. It is, quite literally, a true “judgment call,” with reasonable and honorable people on both sides. What is striking is that proponents of gun control seem more than willing to emulate justices Antonin Scalia and Clarence Thomas in their purported devotion to “original intent” as of 1791. There is no reason whatsoever to believe that most of them, who tend to be political liberals, are committed “originalists.” Most would profess admiration for the late Justice William Brennan and his notion of a “living” � or what some legal scholars call “dynamic” � Constitution whose meanings are not confined to the often dubious views of the long-dead politicos who drafted its language. That most proponents of the 14th Amendment did not believe it threatened public school segregation is not a good reason to oppose Brown v. Board of Education. Only for the Second Amendment do gun control proponents stop history in 1791 (and hope that courts will accept their reading of that history). If one does have a more “dynamic” approach to the Second Amendment, then one should recognize that by the mid-19th century, most Americans had developed what has come to be viewed as the “individual rights” view of it. Consider Massachusetts Senator Charles Sumner, who applauded the fact that anti-slavery settlers in Kansas had rifles to protect themselves against agents of the “slavocracy”; a decade later, many individuals pointed to the need of newly freed former slaves to have arms to protect themselves against the “insurgency” led by the Ku Klux Klan. Almost no one suggested that one had to be a member of an organized state militia in order to have a right to bear arms. It would be intellectually questionable for the high court to uphold the D.C. Circuit on its own grounds, that is, the purportedly clear history of the right to bear arms circa 1791. It would be an occasion for celebration, though, if a unanimous opinion were written by, say, Justice John Paul Stevens, that both celebrated the more “dynamic” history of the amendment and adopted the extremely sensible view of the brief filed in behalf of the United States by the solicitor general. That brief convincingly argues that one can both recognize the “individual right” protected by the amendment and accept the legitimacy of reasonable regulation. The sky will most certainly not fall � nor will the liberties of gun-owning Americans be seriously threatened � if the court accepts the wise approach contained in the solicitor general’s brief. Such a decision might go a long way to calming down the culture war that currently exists between the leadership of “pro-gun” organizations like the National Rifle Association and of “anti-gun” groups like the National Handgun Coalition, both of whom have all sorts of incentives to demonize their opponents and to exaggerate the consequences of any concessions made to the other side. The court has an unusual opportunity to talk sense to the American people. One can only hope the nine justices will seize that opportunity. Sanford Levinson is a professor at the University of Texas School of Law, where he teaches constitutional law. He is the author of Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It) (2006).

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