Justice Kennedy on Heller and 14th Amendment
Here it is, in RealMedia video format. Justice Kennedy is speaking at the 9th Circuit Judicial Conference. He gets to Heller about 38 minutes in (and the rest of it is interesting, too. He has a great sense of humor.
Audience member asks him what are the best teaching cases of his time on the Court. He names Heller, and continues:
I taught a 2A course for one year back in the 1970s, just because it was interesting. Back then, there was no there, there. Few cases and no "highly restrictive laws." Heller is a "great teaching case."
14th Amendment -- we'll have to revisit the entire incorporation doctrine (he sounds like he relishes the idea). And it's a very important case [he's referring to Heller, but I wonder if he means in follow up cases, or the 2A iin general] case for levels of scrutiny. Is the right to arms like the right to property, subject to many restrictions, or like the right to speech, subject to few?
The dissent said -- you're discovering this right after 200 years? What gives? That's not unusual. The first time we struck down a state law for violation of the establishment clause was in the 1940s, the first time we struck down a state law for violating freedom of speech was in the 1930s. Nothing wrong with that. The Constitution takes on new meaning over time. [This could be read as "living constitution," but I think he means that new meaning may be discovered by the Court]. I'm not in a class with the great Justices, Marshall, Holmes, but I do have the advantage of being able to view 200 years of history and know thereby what was folly and what was wisdom. If a right takes on new relevance, the Framers would have wanted us to recognize that.
Update: the link (rtsp://video1.c-span.org/60days/ac080908.rm) is a strange one, and I think it only works if you have RealPlayer installed).