Wednesday, March 30, 2016

Our Modern Constitution

Stun guns may not be banned on grounds that they were not in common use at the time of the Second Amendment's enactment. So says the Supreme Court in Caetano v. Massachusetts, a summary per curiam opinion issued last week emphasizing that the Court meant what it said in Heller. May stun guns be banned on other grounds? The Court does not say; it simply remands the case for further proceedings.

Perhaps of greater interest is Justice Alito's concurrence, which reminds us that, even under an originalist view, modern technology is not outside the reach of our centuries-old constitution:
Electronic stun guns are no more exempt from the Second Amendment’s protections, simply because they were unknown to the First Congress, than electronic communications are exempt from the First Amendment, or electronic imaging devices are exempt from the Fourth Amendment . . . . As Heller aptly put it: "We do not interpret constitutional rights that way."
Is this the beginning of the end of originalism? Talk amongst yourselves.

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