Video Highlights
- Mark Smith, constitutional attorney and author, delivered a presentation at the University of Virginia law school on the application of the Second Amendment.
- He argues that the Heller and Bruin decisions form a robust originalist approach to interpreting the Second Amendment.
- Smith emphasizes the importance of the burden of proof shifting to the government when modern gun control laws are challenged.
- According to Smith, the government must provide a historical review demonstrating that the regulation aligns with the nation's historical tradition of firearm regulation.
- He asserts that late 19th-century laws cannot contradict or undermine the original meaning of the Second Amendment.
- Smith concludes that if the government fails to meet its burden, the regulation is deemed unconstitutional.
Video Summary
In a recent presentation at the University of Virginia law school, Mark Smith, a constitutional attorney and author, shed light on the application of originalism and the burden of proof in Second Amendment controversies. Smith argues that the Heller and Bruin decisions by the United States Supreme Court provide a robust originalist approach to interpreting the Second Amendment. According to Smith, these decisions have significant implications for the burden of proof in cases challenging modern gun control laws.
Smith begins by emphasizing the originalist nature of the Heller and Bruin decisions. He explains that the methodology outlined in Bruin is essentially an extension of the Heller methodology, which introduced the importance of text, history, and tradition in originalist interpretations of the Second Amendment. The Bruin decision, in particular, addresses the misconduct and misinterpretation that occurred in lower courts between Heller and Bruin, necessitating a more detailed clarification of the originalist approach.
The core of Smith's argument lies in the burden of proof shifting to the government when modern gun control laws are challenged. Drawing an analogy to the presumption of innocence in criminal cases, Smith asserts that once the Second Amendment is triggered by a modern-day gun control law, the burden becomes entirely upon the government to prove the law's constitutionality. This procedural posture is crucial, as it places the onus on the government to demonstrate that the regulation is consistent with the nation's historical tradition of firearm regulation.
Smith further explains that late 19th-century laws cannot override or contradict the original meaning of the Second Amendment. He refers to the Supreme Court's decision in Espinoza v. Montana Department of Revenue, where the Court held that late 19th-century laws that were inconsistent with the original understanding of the First Amendment could not undermine its original meaning. Similarly, Smith argues that any late 19th-century evidence that contradicts the 1791 understanding of the Second Amendment should be discounted. Late 19th-century laws can only confirm the 1791 understanding, serving as confirmatory analytics.
The burden on the government to meet its evidentiary obligations is substantial. Smith points to Bruin's footnote 11, which states that when in doubt, freedom prevails, and the government must prove its case. If the government fails to meet its burden, the regulation is deemed unconstitutional. This places a significant responsibility on the government to provide a historical review demonstrating that the regulation aligns with the nation's historical tradition of firearm regulation.
In conclusion, Smith's presentation clarifies the originalist approach to interpreting the Second Amendment and highlights the shifting burden of proof in gun law cases. He emphasizes the importance of the government's obligation to provide a historical review supporting the constitutionality of modern gun.
