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What Would the Founders Have Said?

Susan Estrich on

California's ban on assault weapons is back on the books, at least for now. After a federal district court decided that the ban on AK-47s was a "failed policy" that had not reduced violent crime, and was therefore unconstitutional, a unanimous panel stayed the lower court's order, thus leaving the ban in place -- for the time being. Few doubt that the issue will end up being decided by the Supreme Court.

But how?

And I mean that literally.

How do nine men and women in 2021 go about deciding whether an amendment written when no one could even imagine the killing power of an assault weapon guarantees a citizen the right to own one?

Assuming that is the right question, which it probably isn't.

The idea that the meaning of the Constitution can somehow be divined by examining the intent of the founders meets its match these days fairly frequently in a world they could not have easily imagined.

 

And in this case, much to the chagrin of some purists on the right, the case is complicated by the fact that the conservative trope has long been, when in doubt, leave it to the states.

So, when in doubt about civil rights (as only they were), leave it to the states.

So, when in doubt about abortion (as most Americans actually aren't), leave it to the states.

So, when in doubt about gun regulation, leave it to the states?

...continued

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