Jack Balkin and Sandy Levinson are right to probe with hypothetical the dimensions of the newly-minted, or perhaps ancient, right of self-defense, or right to own handguns, in one's home, or maybe outside it, or maybe also to own other weaponry, or maybe not, so firmly established in District of Columbia v. Heller (2008) per those ...

Yesterday, in Giles v. California, Justice Scalia, true to the originalist method, kept to the text of the Constitution and enforced the Confrontation Clause for the benefit of a criminal defendant complaining that his conviction was wrongful because he did not have the ability to cross-examine the out of court testimony of his girl-friend about ...

While deducing from the calendar who is likely to write an opinion from any given sitting is a matter of considerable speculation, there is reason to believe that Justice Scalia may be writing D.C. v. Heller. Should that prove to be true, it is worth recalling Justice Scalia's own definition of originalism, and his particular ''originalist'' ...

  Jack is right to point out that the privileges or immunities clause of the 14th amendment was indeed, as Senator Howard at the time explained, intended to incorporate Corfield's partial listing of natural rights as well as the Bill of Rights, including the Second Amendment, as against the States declaring the body of these rights to be ...

The Supreme Court is cogitating over the meaning of the Second Amendment. I have previously suggested that it might wish to research and draft the opinion first before voting.   It is an important case not just for the scope of a largely under-interpreted provision, but also for the legitimacy of the Court. The oral argument, ...

Jack's got it right when he writes:  ''Don't assume that living constitutionalism only swings to the left. It doesn't.'' And that's a lesson that extends beyond the question of whether today, 217 years after ratification, the 2d Amendment to the U.S. Constitution includes an individual right to keep and bear arms.  It applies as well to ...

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 ...

Over at Obsidian Wings, my friend Publius [not his real name -- a.w.] suggests that states should enjoy flexibility under the Second Amendment to calibrate gun-control regulations in light of the varying needs of different cities and towns: If your world is 18th century Massachusetts, then broad gun rights make a lot of sense. If your world is ...

So here's where I think our arguments are passing in the ether, Jack. First, I've always understood there to be an at least doctrinal (perish the thought) distinction between ''fundamental rights'' and ''everything in the Bill of Rights.'' (So when, for example, we studied in law school why a state law forcing the sterilization of certain ...

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 ...