With the national debate over guns and gun control at an impasse, there was probably no better time than last week for Lewis & Clark Law Professor Jim Oleske to visit the Lake Oswego Public Library and talk about the Second Amendment.
Oleske's lecture, the third he's given this summer, looked at the original intent of the law and at how its use and interpretation has evolved over the years. It was well-attended, with approximately 50 guests in the audience.
But unlike Oleske's other presentations, this one came on the heels of Supreme Court Justice Anthony Kennedy's retirement and President Donald Trump's nomination of Appeals Court Judge Brett Kavanaugh to succeed him.
"We could not be having this conversation at a more relevant time," Oleske said, noting that Kavanaugh has written past opinions on Second Amendment issues that might offer insight into how he would influence the Supreme Court in future cases.
Hypothetically, if the Democrats were able to retake the House, Senate and Presidency in the next few years, Oleske noted, they might try to enact new gun control measures. But those laws might have a tougher time passing muster in a Supreme Court challenge if Kavanaugh solidifies the Court's 5-4 conservative majority.
"You could see those victories perhaps not being sustained in court," he said.
Much of Oleske's lecture at the library focused on the text of the Second Amendment, drawing attention to the distinction between the law's prefatory clause ("a well-regulated militia, being necessary to the security of a free state") and its operative clause ("the right of the people to keep and bear Arms, shall not be infringed.")
Until the 1980s, Oleske said, the Supreme Court tended to view the Second Amendment purely in terms of militias rather than as an individual right. In the 1939 case United States v. Miller, for example, the court ruled that short-barrel shotguns were not lawfully protected because they didn't help preserve a militia.
However, he noted, the Miller decision did include language about the assumption that militia members would supply their own weapons of a "common kind." That phrase would later play a role in more recent decisions that have taken a more individual view of the application of the right to bear arms.
In a 5-4 decision in the 2008 case District of Columbia v. Heller, the court struck down a ban on handgun ownership in Washington, D.C., and held that there is an individual right to possess firearms. In that decision, Oleske said, the court viewed the prefatory clause as a statement of the reason for the existence of the right to keep and bear arms, but not as a definition of the scope of that right.
Oleske also touched on the various meanings and types of "constitutional originalism," the judicial philosophy often closely associated with the late Justice Antonin Scalia, who wrote the majority opinion in Heller.
Scalia's opinion examined the historical context at the time the Constitution was written, including a pre-existing individual right to bear arms under English common law. But Oleske noted that Justice Stephen Breyer's dissent also took an historical perspective, but arrived at different conclusions.
Heller has been the standard for recent gun control cases, Oleske said, including McDonald v. Chicago, which struck down Chicago's handgun ban on the grounds that the 14th Amendment prevents states from denying the individual right of possession laid out in Heller.
But in recent years, Oleske said, lower courts have been deciding challenges to other types of restrictions, such as bans on semi-automatic rifles, and that's where Kavanaugh comes into the picture. In one case before the Washington, D.C., Circuit Court of Appeals, Oleske said, Kavanaugh wrote a dissent in which he pointed to the "common use" phrase in both the Miller and Heller decisions and said that rifles are in common use and therefore should be included in the individual right of possession.
Like Oleske's lecture, much of the subsequent Q&A and discussion last week focused on the specific text of the Second Amendment rather than present-day firearm policy, and touched on topics such as the historical role of militias and whether the types of militias that existed in the 18th century have any modern equivalents.
Attendees also asked about other uses of the word "militia" and other prefatory clauses in the Constitution that might serve as a guide for interpreting the word choice of the Second Amendment. Oleske noted that the inclusion of the Second Amendment's prefatory clause is somewhat unique, which was something Stevens noted in his Heller dissent.
Oleske characterized a court decision to deny an individual right to keep and bear arms as the "holy grail" of some gun control advocates, but said any such decision is highly unlikely given the Supreme Court's precedents and current ideological makeup, especially if Kavanaugh joins the bench.
Instead, he said, the debate in the courts and public policy will likely continue to focus on the area where it has been in recent years: the types of restrictions to individual ownership that are permissible.
Oleske started his career as a law clerk to Third Circuit District Court Judge Samuel Alito, who is now a Supreme Court justice. He served as an appellate attorney at the National Labor Relations Board and later worked as the chief of staff of the White House Office of Legislative Affairs under former President Barack Obama.
Last week's lecture was sponsored by the Friends of the Lake Oswego Public Library.
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