Re: OT: Case decided (was 2nd Amendment case)
Posted by: Ed Huntress
"Tom Quackenbush" wrote in message
> Ed Huntress wrote:
>>Tom Quackenbush wrote:
>>> I'm not entirely happy with the logic of the majority opinion or of
>>> the dissents. You?
>>FWIW, I'm not happy with the logic of any of this, to the extent that
>>says it's unequivocal and "absolutely clear." Nothing about it is clear.
>>It's all a matter of which evidence you give the greatest weight to.
>>I'm comfortable with Scalia's take on it, although I would never say it
>>the absolute truth of the matter. I'm less comfortable with the dissents.
> I delayed my response to your post, thinking that I should reread
> the decision, linearly this time. Silly me. Consider the following
> random, preliminary thoughts about the decision.
> I guess that I'm comfortable with his take on it, but some of that
> comfort may be "results oriented" and I'm mentally bending over
> backward eliminate that part from consideration.
I do the same thing. I'm not sure it's successful. It's a real test of one's
objectivity. It's actually easier for me to deal with the reasoning in Roe
> Specifically I didn't care for his "common use" criteria, basically
> for the same reasons that J. Breyer articulated So far, that's the
> only thing I agree with J. Breyer about.
> More generally, I was a little disappointed in both sides reliance
> on the Second Amendment to define the right to keep and bear arms. I
> think that the 2nd was constructed and ratified because of the militia
> issues involved. It certainly doesn't detract from self defense or
> other aspects of the right, but it doesn't speak to them either. It
> does, however, recognize an existing right - why not just acknowledge
> that and then explore the limits of that right, independent of the
> purpose of the Second Amendment?
I have the same reaction, because, as you realize, the pre-existing right
was not an issue in the context of the Bill of Rights. AFAIC, the B of R
support for an individual right hangs by a thread, which appears in the 2nd
almost as an aside. But the related historical documents, which are handled
better in the 5th Circuit's Emerson case, IMO, make it clear (to me) that
the right was assumed almost without question. With the caveat that the B of
R was a political document, and that it applied at the time of its writing
only to the federal government, I still find the evidence that an individual
right is supported to be fairly convincing. If one has to come down on one
side versus the other, I come down on the individual right side. It's a
stronger argument than the right to privacy found in Griswold v.
Connecticut, and I also feel that Griswold was a proper decision.
The hard part of this decision is being doctrinally consistent.
Jurisprudence exists so that people can make sense of the law and understand
the principles on which contested cases are decided -- the reliance
doctrine. This is, on its face, a case that has been decided on originalist
grounds, within a (judicially) conservative doctrine of interpretation.
Only it isn't. The conservative doctrine would dictate that the debates in
the First Congress, which talked only about militias in regard to the 2nd,
would be the beginning and almost the end of the discussion. I believe that
was the case with Miller back in the '30s. It's that principle that gave us
almost 100 years of lower court rulings that the right is a collective one
that applies only to the states.
So what I'm speculating here is that Scalia wasn't going to go any farther
off the reservation by treating the individual right as an entity in itself,
completely independent of the states' right to run their own militias as
they see fit. That would have brought him dangerously close to the lines he
has criticized so brutally in the past, the "penumbras and emanations" that
produced Griswold, and the "substantive due process" that give us individual
rights over the heads of the states. This would explain why he accepts the
logical leap that produces the "common use" criterion. I don't buy it. I
*do* buy the idea that there is a common understanding of what constitutes
reasonable types of weapons for self-defense. It just doesn't make sense to
extend that to the circumstances today and to tie it to militias, in which
the militia connection suggests that a much wider range of more destructive
weapons should be protected. That, too, was a bridge he didn't want to
cross, because it would severely limit very popular types of gun controls.
That may be why he left the militia connection as part of the decision,
because he'd be hanging out in the breeze with an independent "right" to
self defense that dictates a right to keep and bear arms. And it just ain't
in the Constitution -- explicitly, at least.
> Perhaps I'm just not attuned enough to the subtleties of decision
> writing. I know that both sides quoted the English bill of rights,
> Blackstone, and common law to support their opinions, but I don't
> think that any them clearly articulated that this right's limits are
> not defined solely by the 2nd.
Maybe they ran out of space and steam. d8-)
> On a related note, I've only recently thought about the common law
> approach to interpreting the Constitution, the Bill of Rights in
> particular. Seems pretty obvious, in retrospect, but when that thought
> occurred to me, I thought that it might be a symptom of my ignorance
> of Constitutional law. When I Googled it, I turned up a question from
> Prof. Akhil Amar to J. Scalia about the same issue:
> Made me feel smart for about a minute. I felt humble almost
> immediately, though.
Hey, you're into the game now. You can pontificate all you want.
A couple of closing thoughts: I could go on forever with this, but I'll
restrain myself, so I'll necessarily have to skip a lot. I suspected from
the beginning that Scalia and company were going to "reach out," as I put
it, to peripheral historical documents to support the case for an individual
right. That's what the 5th Circuit did in the Emerson case, and to a lesser
extent, what the DC Circuit did in the original Heller case. I don't object
to this but it's definitely in the line of liberal interpretation. On the
other hand, I didn't expect the liberals to follow such a conservative line
of interpretation, which leads to the collective right view.
I had a long discussion a few days ago with Richard Feldman, author of
_Ricochet: Confessions of a Gun Lobbyist_. We weren't going over the details
of Heller but it was an issue, and he remarked that he was surprised by the
5:4 decision. He expected 7:3 or 6:4, he said. A few months back I said
exactly the same thing.
Both of us apparently underestimated the vehement objection of the liberals
to overturning the DC handgun ban. To me, it follows logically from the
individual right. I note that Laurence Tribe, Sanford Levinson, and other
liberals now agree to the individual right, but also object sharply to
overturning DC's ban on constitutional grounds. There's some reasoning there
that I don't fully understand.
I think that Heller will be chewed on in law circles for many years to come.
We'll almost certainly get an incorporation case to the Court before long,
so we'll probably see further elaboration of some of the principles and an
unrolling of their implications. It will be interesting.