The Volokh Conspiracy - Reuters on the "New Right" in Scalia's opinion in Heller.--

James Taranto has some fun at Justice Stevens's expense and then quotes and criticizes an amazing passage from Reuters:

"Although an individual now has a constitutional right to own guns, that new right is not unlimited, wrote [Justice Antonin] Scalia, a hunter," the news service reports today. Justice Stevens is 88, and he is generally considered old. If this right really dated back 217 years, Reuters could not describe it as new.

Reuters's spin — in a news story no less — is outrageous. The individual right to own a gun is not a "new right." It predates the 2d Amendment and was the interpretation given by a few early commentators on the 2d amendment. The individual right to arms has persisted at least as a substantial theory for over 300 years.

That the 2d Amendment protects only a collective right of states was a view expressed by no framer or early commentator. It was mentioned rarely before the Civil War and became a popular theory only in the 20th century. Although it was very commonly held by modern academics until about 10 years ago, finally even historians had to face the fact that no framer or early commentator ever said that the 2d Amendment protected a collective state's militia right and some early commentators had expressed an individual rights view of the 2d Amendment.

So about 10 years ago, scholars began to adopt a new theory — the civic rights view. Under the civic rights view of the 2d Amendment, the right is nominally an individual one, but the state is free to determine who may exercise it. That is the "new right" that was put forward in the historian's brief and the "new right" that Justice Stevens tried to introduce into the Constitution in his dissent. Although again no framer or early commentator ever expressed this civic rights view — and it was virtually unheard of until a decade ago — it at least is not directly contrary to some of the evidence of an individual right, since the civic rights view has a minor individual rights component.

If Justice Stevens's dissent had prevailed and it had become the law of the land, that would have been a "new right," since almost no one had ever heard of this interpretation of the 2d Amendment until scholars largely invented it fairly recently.

	[Jim Lindgren, June 27, 2008 at 1:00am] Trackbacks Reuters on the "New Right" in Scalia's opinion in Heller.-- James Taranto has some fun at Justice Stevens's expense and then quotes and criticizes an amazing passage from Reuters: "Although an individual now has a constitutional right to own guns, that new right is not unlimited, wrote [Justice Antonin] Scalia, a hunter," the news service reports today. Justice Stevens is 88, and he is generally considered old. If this right really dated back 217 years, Reuters could not describe it as new. Reuters's spin — in a news story no less — is outrageous. The individual right to own a gun is not a "new right." It predates the 2d Amendment and was the interpretation given by a few early commentators on the 2d amendment. The individual right to arms has persisted at least as a substantial theory for over 300 years. That the 2d Amendment protects only a collective right of states was a view expressed by no framer or early commentator. It was mentioned rarely before the Civil War and became a popular theory only in the 20th century. Although it was very commonly held by modern academics until about 10 years ago, finally even historians had to face the fact that no framer or early commentator ever said that the 2d Amendment protected a collective state's militia right and some early commentators had expressed an individual rights view of the 2d Amendment. So about 10 years ago, scholars began to adopt a new theory — the civic rights view. Under the civic rights view of the 2d Amendment, the right is nominally an individual one, but the state is free to determine who may exercise it. That is the "new right" that was put forward in the historian's brief and the "new right" that Justice Stevens tried to introduce into the Constitution in his dissent. Although again no framer or early commentator ever expressed this civic rights view — and it was virtually unheard of until a decade ago — it at least is not directly contrary to some of the evidence of an individual right, since the civic rights view has a minor individual rights component. If Justice Stevens's dissent had prevailed and it had become the law of the land, that would have been a "new right," since almost no one had ever heard of this interpretation of the 2d Amendment until scholars largely invented it fairly recently.