Can We Settle This Once And For All?

At a debate at Columbia Law School in November, Robert A. Levy, one of the lawyers for the plaintiffs in the case before the Supreme Court, District of Columbia v. Heller, proposed a thought experiment. Suppose there were a constitutional amendment that said, “A well-educated electorate, being necessary to the self-governance of a free state, the right of the people to keep and read books shall not be infringed.” Who would doubt that such an amendment protected a right to possess all books and to read books for purposes other than civic self-betterment?

His opponent, Michael Dorf, a law professor at Columbia, countered that the amendment might well not protect pornographic books.

Courts have routinely upheld those laws for decades against Second Amendment challenges, the prosecutors said. The rulings have held either that the amendment does not guarantee an individual the right to own guns, that it applies only to the federal government and not to the states, or that it allows reasonable restrictions to protect the public.

The prosecutors said the possibility that a law could be challenged on Second Amendment grounds would weaken their hand in negotiations that lead to guilty pleas – the basis of 95 percent of all state criminal convictions – and would encourage some defendants to go to trial, straining already backlogged court systems.