Douglas W. Kmiec
Professor Posner is right that – by originalist lights – the argument for gun rights belongs in the legislature, not the Court. Nothing said in the Heller oral argument persuasively demonstrated that the Second Amendment as originally understood protects an individual right of self-defense. The Court may decide to the contrary, but it will be doing something other than originalism, as Justice Scalia has practiced it. That said, a right of self-defense, especially in one’s home, existed at common law as confirmed by the 1744 case of Mallock v. Eastly ( 87 Eng. Rep. 1370, 1374, 7 Mod. Rep. 482 (C.P. 1744) [viewing the issue as “settled and determined” that “a man may keep a gun for the defence of his house and family …”]; and the common law being merely the natural law applied, as the late Edward Corwin elegantly pointed out, there is a natural right of self-preservation. Professor Posner is mistaken to understand natural law as also supporting a right to disarm to secure public safety. Whether or not disarming the general public is a good idea is at most a derivative policy choice of the right of self-preservation, not the right itself. The Second Amendment was designed ” to assure the continuation and render possible the effectiveness of” the Militia.” In 1939, Miller treated this as the purpose guiding its construction. ( Miller , 307 U.S. at 178.). Why Justice Kennedy thinks this “deficient” is unexplained by anything other than the fear of announcing to a portion of the general public that the NRA mailings they have received over the years have been overstated unless originalism includes the natural law of the Declaration of Independence which is the same natural law of the Ninth and Fourteenth Amendments so well explicated by my Pepperdine colleague Akhil Reed Amar .
A construction of the Second Amendment which assures the existence of militias by guaranteeing the private right to keep and bear arms is entirely consistent with Miller and the language and history of the Second Amendment, but for it to have any application in Heller, it would require someone in a state militia to assert it, and the existence of a militia that, as I have said in a previous post , is BYOG. Mr. Heller is neither in a self-arming militia nor in a state, and the Court has no business deciding this case without seriously accepting the premises of natural law originalism which as far as anyone can tell only resonates in the silence of Justice Thomas’ mind, and perhaps, not even there.
Maybe if the Court would write out its thinking first, before voting on it , it would grasp that it is error to make the Second Amendment into something it is not.