Special Section: New Dynamics in Constitutional Law
Armed with the Facts
Some say the Constitution supports an individual’s right to bear arms. Others say it supports only a collective right. In an excerpt from his new book, Mark Tushnet says: It’s a draw.
“What’s the bottom line? On balance, originalism supports some version of an individual-rights interpretation, although the case for such an interpretation is closer than proponents of the gun-rights position acknowledge, and the states’ rights interpretation preferred by gun-control advocates isn’t entirely ruled out by originalist interpretation. Approaching the question of interpreting the Second Amendment as judges do—that is, by treating original meaning as important but taking other matters, such as precedent, into account—changes the bottom line. Gun-control proponents have a significantly stronger case than their adversaries if we treat the question of interpreting the Second Amendment as an ordinary constitutional question and use all the interpretive tools judges ordinarily use.”
Mark Tushnet, “Out of Range: Why the Constitution Can’t End the Battle Over Guns” ©2007 Oxford University Press