June 30, 2008
I’M WRITING A SHORT PIECE ON HELLER FOR NORTHWESTERN, and something became clear to me as soon as I started writing: What’s most striking about Heller is that absolutely everybody — majority and dissents — says the Second Amendment protects an individual right.
It’s true that the dissenters’ view of that right is somewhere between “minimalist” (to be charitable) and “incoherent” (to be accurate). But nonetheless, all nine Justices specifically said the right is individual, and thus rejected the “collective right” position on the Second Amendment, a position that’s been the mainstay of gun-control groups, newspaper editorialists, and lower federal courts for decades, and one that was presented by those adherents as so obviously correct that those arguing for an individual right were called “frauds” and shills for the NRA.
Yet the collective right theory could not command a single vote on the Court when actually tested. It was, it seems, a paper tiger all along.