Monday, July 14, 2008

The Supreme Court and the Second Amendment

AS I said, I have some old drafts that I am publishing today. The handgun decision probably seems ancient by now. I have not had time to read the case (too many to read that directly impact my practice need being read). I thought the following from the Washington Post being as it is from the city where this ruling directly impacts had the most interest. They also show my division on the subject.

What I have not yet been able to learn is this: did the United States Supreme Court impose the Second Amendment on the States? If not, I will call that a good thing and the debate is a bit of a tempest in a teapot. If it did impose the Second Amendment on the States, then it creates a bit of a federalism problem for the conservatives. After all, the states have their own version of this right and now the conservatives have nationalized the right.

I do need to read the opinion, but if the descriptions are as I have heard, then it is pretty poorly reasoned opinion. Yes, it does have some relationship to a militia.

E. J. Dionne Jr. - The D.C. Handgun Ruling:

"In knocking down the District's 32-year-old ban on handgun possession, the conservatives on the Supreme Court have again shown their willingness to abandon precedent in order to do whatever is necessary to further the agenda of the contemporary political right.

The court's five most conservative members have demonstrated that for all of Justice Antonin Scalia's talk about 'originalism' as a coherent constitutional doctrine, those on the judicial right regularly succumb to the temptation to legislate from the bench. They fall in line behind whatever fashions political conservatism is promoting.

Conservative justices claim that they defer to local authority. Not in this case. They insist that political questions should be decided by elected officials. Not in this case. They argue that they pay careful attention to the precise words of the Constitution. Not in this case."

Deadly Consequences -- But the Right Call

The big problem, for me, is the clarity of the Second Amendment's guarantee of the "right of the people to keep and bear arms." The traditional argument in favor of gun control has been that this is a collective right, accorded to state militias. This has always struck me as a real stretch, if not a total dodge.

I've never been able to understand why the Founders would stick a collective right into the middle of the greatest charter of individual rights and freedoms ever written -- and give it such pride of place -- the No. 2 position, right behind such bedrock freedoms as speech and religion. Even Barack Obama, a longtime advocate of gun control -- but also a one-time professor of constitutional law -- has said he believes the amendment confers an individual right to gun ownership.

***

But I also believe that if the Constitution says yes, you can't just blithely pretend it says no. Yesterday's decision appears to leave room for laws that place some restrictions on gun ownership but still observe the Second Amendment's guarantee. If not, then the way to fix the Constitution is to amend it -- not ignore it.

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