Tuesday, July 6, 2010

Clayton Cramer on the Lessons of McDonald v. Chicago

Clayton Cramer, historian and Second Amendment advocate, finds two essential lessons in the McDonald decision. The lessons he finds do not come from the decision itself but rather from the events necessary to build a majority that would find for the Second Amendment and from a body of both legal and historical scholarship used to support that decision.

The first lesson is that elections have consequences. He notes that the election of George W. Bush in 2000 and then the reelection in 2004 allowed Bush to appoint Chief Justice Roberts and Justice Alito to the Court.

Does anyone seriously think that President Gore’s appointments to the Supreme Court would have been part of 5-4 majorities in support of the Second Amendment? No matter how strong the arguments, Gore’s appointees would simply not have considered the Second Amendment an individual right.

The second lesson is that conservative scholarly research and support for it is just as important.

Scholarly research is important; even justices that are sympathetic to our perspective needed something to point to as evidence in support of the individual right. Quite a number of us have been researching the history of the right to arms for many years now, and the results of our work provided something that the justices could support without embarrassment.

Both are necessary. Winning presidential elections means sympathetic justices, and scholarly research means arguments that stand up well at oral arguments and in decisions. You can’t do just one and expect victory. You have to do both.

Unlike winning elections, building support for conservative social, legal, and historical research is a long-term proposition. If we don't start to support these scholars now, it may just be too late.

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