An unoriginal thought about Heller

An unoriginal thought about Heller

An unoriginal thought about Heller

Slate's blog on legal issues.
March 20 2008 8:30 PM

An unoriginal thought about Heller

Musing on the oral argument in Heller , which I just found time to digest (check out the read-along-picture-book -like function at Oyez.org):

Anyone else struck by the oddity of an originalist focus with regard to the existence vel non of an individual right, followed by a 20th century fast-forward with regard to application?  On the 1st point, nearly all (though not all) Justices spent the 1st third of the argument plumbing what words in the 2d Amendment used to mean, as far back as 1689.  Then, at p. 40, Justice Antonin Scalia:  "And yet we've never held that simply because it was pre-existing and that there were some regulations upon it, that we would not use strict scrutiny.  We certainly apply it to freedom of speech."  Litigants and Justices alike -- with the notable exception of Chief Justice John G. Roberts, Jr. (p. 44) -- seemed to accept that some "level of scrutiny" applied.

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No great thoughts here about what the Court ought to do, but was struck by this juxtaposition in 1 case of discourse from 2 eras.