Better living through recycling:

Yesterday Slate posted this item, with the front-page teaser “Sorry, Hoss: You Have No Right To Bear Arms”:

Wake Up, Little Uzi
Is there an individual right to carry a gun?
Posted Monday, Sept. 13, 2004, at 10:44 AM PT

With the 10-year-old ban on assault weapons set to expire tonight, debate rages yet again about the rights of gun owners under the Second Amendment of the Constitution. Three years ago, this “Explainer” attempted to answer this narrow legal question: Does the Second Amendment confer a personal right to bear arms upon American citizens?

The earlier Explainer, dated July 10, 2001, reported that, though there’s a hot academic and public debate about the meaning of the Second Amendment, “virtually every lower court has accepted the state militia/collective rights test as a settled point of law” — fair enough as of July 10.

But in October 2001, the Fifth Circuit court of appeals held that there is indeed an individual right to keep and bear arms (though far from an unlimited one), see United States v. Emerson. This still leaves a lopsided split against the Fifth Circuit’s position: There are probably seven or eight circuits on the states’ right side, all dating back from the era where the states’ right side was largely unchallenged orthodoxy in the courts of appeals (though the Ninth Circuit’s Silveira v. Lockyer decision did provide a spirited and detailed defense of the states’ right view, though over spirited and detailed dissent).

Still, it seems pretty clear that something has changed — the issue is now clearly a matter of judicial debate as well as academic and popular debate, and in fact quite a few judges on other circuits have also spoken up in favor of the individual rights position. The law has shifted from settled to at least somewhat unsettled. Judges on other circuits are debating the matter anew. It seems to me a mistake for Slate to recycle pre-Emerson summaries as if nothing at all had happened.