Interesting debate at the Volokh conspiracy between David Kopel, New Orleans Gun Confiscation is Blatantly Illegal, and Orin Kerr, Response to David Kopel. Kopel’s original post has an update to respond to Kerr, who has a further post of his own.
I claim no relevant expertise, but in the past I have found Prof. Kerr’s work on statutory interpretation to be of the highest quality (we part company sometimes on constitutional interpretation). As for Kopel, well, Kopel’s approval of shooting New Orleans ‘looters’ is a view that justly revolts reasonable people. Of course the demerits of a speaker don’t necessarily reflect on his cause.
Personally, I do not think private ownership of guns has on balance proved to be a social good, espeicially in urban areas, but I recognize that the Second Amendment protects them (up to a point, whose exact extent I remain uncertain about) whatever I may think. More generally, if we’re going to argue for expansive constructions of other parts of the Bill of Rights — and I sure am — I think the Second Amendment gets to come along for the ride. Thus, although my knee jerks that the confiscations are suspect, I wouldn’t be at all surprised if a court would side with Prof. Kerr.