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The Second Amendment and Textualism or How Justice Scalia might be a judicial activist after all?

Here is an interesting Findlaw column by Professor Michael Dorf on the next big gun case.

The question for the Court is whether the Second Amendment applies to the states but the real question is what part of the constitution makes the second amendment binding on the states. The Bill of Rights only applies to the Federal Government.But most of its provisions have come t0 apply to the states through their “incorporation” into the Due Process Clause of the 14th Amendment.

Dorf argues that Justice Scalia is in an analytical bind: does he adhere to Heller’s textualism and his distate for substantive due process or not:

“Justice Scalia has been one of the most vocal critics of substantive due process, which is, after all, the basis for the Court’s recognition of unenumerated rights such as those protecting abortion and same-sex sexual conduct. The Constitution does not mention these rights, Scalia says, and therefore the Court has no business recognizing or enforcing them.

Yet the Constitution also does not mention a right to firearms possession as a limit on the states. The way that right will limit the states, if it does limit them, is via substantive due process or, if the Court chooses to overrule the Slaughterhouse Cases, via the Privileges or Immunities Clause. Neither doctrinal path will offer a sound basis for distinguishing between enumerated and unenumerated rights.”

So will Justice Scalia announce that the Constitution’s textual limitation of the Second Amendment to the Federal Goverment has no meaning and that he has peered into the depths of the term “liberty” and found a personal right to bear arms that states must respect even though his predecessors decided two cases expressly holding that such a right did not exist?

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October 7, 2009   5,012 Comments