"Restoring the Right to Keep and Bear Arms"

This is the title of David Kopel's latest academic paper (h/t InstaPundit). I'm reading it this morning, and it's quite interesting. My own view of the right to keep and bear arms, and of the Second Amendment, is chiefly philosophical; Kopel understands the legal history quite precisely, having participated in much of it in the last few decades. 

Starting in 1989, the Court began occasionally to take cases that vindicated the rights of gun owners—but always on grounds other than the Second Amendment.4 One such case was 1997’s Printz v. United States. Back in 1993, Congress had enacted a statute ordering local law enforcement officials to carry out background checks on handgun buyers. Sheriffs around the nation sued, arguing that Congress had no power to dragoon local officials into enforcing congressional statutes. If Congress wanted background checks, it could hire federal employees to conduct the checks.

By 5-4, the Supreme Court agreed, with Justice Thomas joining Justice Antonin Scalia’s majority opinion. While Printz was about federalism, not the Second Amendment, Justice Thomas wrote a briefing concurring opinion to point out the Second Amendment issue. He was dubious that the 1993 statute was compliant with the Second Amendment.... he wrote: “Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms ‘has justly been considered, as the palladium of the liberties of a republic.’”

In those days there was a strong sense in the establishment that the Second Amendment was like the Ninth or Tenth, something that had been voided by the silent artillery of time. It took decades of disciplined pursuit of good arguments and the developing of thinkers who would rise to be lawyers, judges, and yes philosophers, to restore it to a right that the nation's courts take seriously and apply vigorously.  

That work must continue. As he points out, even a SCOTUS victory does not guarantee that other judges will undermine the decision. This violates their oaths, but they did it anyway:

Most of the lower federal courts adopted the test that Justice Stephen Breyer had proposed in his dissent in Heller, and which had specifically been repudiated by the Heller majority. 

Likewise there was a SCOTUS majority, it turns out, for not taking any gun cases until Ginsberg's death and replacement. Roberts was against it too.

By the end there is a useful meditation on what limits to the Second Amendment may still be enacted under the current decision, and which sorts may not be.