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Randy Barnett knows a few things about the DC gun case.

By Ann Althouse

The Heller case will ? he assures us ? be decided on originalist grounds, because both sides are arguing the case that way:

The challengers of the law contend that the original meaning of the Second Amendment protects an individual ?right to keep and bear arms? that ?shall not be abridged.? In response, the District does not contend that this right is outmoded and that the Second Amendment should now be reinterpreted in light of changing social conditions. Not at all. It contends instead that, because the original intentions of the framers of the Second Amendment was to protect the continued existence of ?a well regulated militia,? the right it protects was limited to the militia context.

Barnett also knows that the the Court will uphold the individual right to bear arms and not the collective right theory, because even the District of Columbia is saying it's an individual right (albeit "'conditioned' on a citizen being an active participant in an organized militia").

So it will be an individual right, but it won't change much of anything. Barnett explains: First, because it's a D.C. case, the issue of whether the 2d Amendment applies to the states won't be decided. Second, Heller presents an extreme fact pattern: the ban on having an operable gun in your house. The Court can strike that down without threatening other less drastic laws.

Barnett is reminding me of one reason why I haven't gotten too excited about this case. (Another reason is that it's a personal quirk of mine to get unexcited when I see other people getting too excited.) But Barnett tries in the end to say why the case is actually important:

For one thing, it would be a vindication of originalism. More importantly, the private ownership of firearms is a hallmark of American liberty....

This seems like a small pay off after so much work. There will be a right, but it won't be too useful. Barnett even frets that legislators will slack off on the protection of gun rights because they'll be able to act like the courts will take over. Announcing the individual right is a "risk," he says, but it's "worth taking," now that the case is before the Court. It would be worse for gun rights supporters to hear that the right isn't there at all, wouldn't it?

Full post as published by Althouse on March 19, 2008 (boomark / email).