[T]here’s natural law. And I believe that natural law includes some of our fundamental rights that were used by the British to craft a system of laws that our American legal system was initially predicated upon and our Constitution.
Then you have the Constitution which is our ‘super-norm’ in the United States. And that has a lot of wisdom in it. It’s application has been informed by history and has evolved as the Justices have interpreted it, and fleshed it out, I should say. …
And then you have our federal laws, of course, at the federal level. And then you have the principal of federalism where, generally speaking, almost everything should be left to the state(s). It isn’t. And a lot of judges have this temptation to rush in and…find some federal reason to set aside state law. But our system is actually a federalist system that holds that most things should be done at the state level including most police power. …
Look at a recent positive and very overdue development of jurisprudence with respect to the Second Amendment. I think that’s one where we find a very coherent framework that the Supreme Court has used to really reestablish what is the natural law or right to defend yourself. That springs from natural law. Of course the United States Second Amendment. The Framers codified that natural right in the Second Amendment, and then it has lain fallow. Under-interpreted or mis-interpreted for hundreds of years, certainly decades in the modern era.
And so we have just gotten to the point after many decades of those great Second Amendment lawyers, I mentioned my law firm did some of that work ourselves over the years before the Bruen decision and the Heller decisions, really brought those rights back into the fore. But in Bruen, the Court used an analysis of, what did the Framers intend and what was the backdrop when they passed the Second Amendment. They ratified that. And so, what did they mean?
The ruling is very coherent. Look at that framework and they say, well they clearly didn’t mean you can keep a cannon because a cannon isn’t something that’s commonly used for personal defense. It’s a weapon of war, so it doesn’t mean weapons of war. So that kind of undercuts that whole militia argument. And it’s in common use. It’s a bit of a circular argument because if it’s in common use, then it’s legal. And how did it come to be in common use if it wasn’t legal? But chicken and egg problem that’s a little bit interesting that has given a lot of judges some problems in interpretation.
But that’s a very coherent framework and I’m starting to see courts, and particularly the Supreme Court use that kind of flavor of originalism interpretation to look at some of the other fundamental rights.
— Assistant Attorney General for Civil Rights Harmeet Dhillon