Mr. Dooley Returns, Packing Heat

Slate's blog on legal issues.
March 27 2008 8:25 AM

Mr. Dooley Returns, Packing Heat

This new Gallup poll suggests that if, as Mr. Dooley says, the Supreme Court follows the election returns (or more correctly, national public opinion) it will hold that there is an individual right to keep and bear arms unconnected with militia service, and that regulation of gun use is also perfectly fine. Approximately 73 percent of the public believes that there is an individual right to keep and bear arms unconnected with militia service, while 87 percent want gun laws to be as strict as they are now or stricter.

Many of the arguments for Second Amendment rights are originalist in form. But the adoption of individual Second Amendment rights in 2008 is consistent with living constitutionalism. The court (or at least what people predict the court will do) is responding to contemporary values and attitudes about guns, attitudes that have developed in the past three decades as a result of sustained social and political mobilization. The lesson: Don't assume that living constitutionalism only swings to the left. It doesn't.

Jack M. Balkin is Knight professor of constitutional law and the First Amendment at Yale Law School.

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