21 Nov 2007

Predicting the Court’s Decision

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Glenn Reynolds offers, in the New York Post, his view of the Supreme Court’s options in the DC Gun Ban case.

It can find that the Second Amendment doesn’t really do anything – that it’s merely a relic of an older era. But that’s a rather dangerous approach: What other parts of the Constitution might be considered relics? And can a judicial approach that leaves a tenth of the Bill of Rights meaningless possibly be sound?

It can find that the Second Amendment doesn’t grant individual rights, but only protects the right of states to arm their militias (or “state armies,” as some gun-control advocates put it). This would make the DC case go away, but at some cost: If states have a constitutional right, as against the federal government, to arm their militias as they see fit, then states that don’t like federal gun-control laws could just enroll every law-abiding citizen in the state militia and authorize those citizens to possess machine guns, tanks and other military gear.

Other consequences of “state armies” seem even more drastic. As Tom Lehrer put it:

    We’ll try to stay serene and calm /

    When Alabama gets the bomb.

Finally, the court can find – in accordance with the views of law professors as diverse as Harvard’s Laurence Tribe and, well, me – that the Second Amendment supports an individual right on the part of law-abiding citizens to possess firearms of the sort that are in ordinary use. As with other rights, such as freedom of speech, this is subject to reasonable regulation that stops well short of a ban.

This last would be the least radical approach, as it’s consistent with public opinion (most Americans think the Second Amendment gives them a right to own a gun) and with the 40-plus states whose own constitutions already provide for a right to arms. It would probably be the easiest to implement, too, as federal courts could (to a degree at least) look to state law for some guidance on how to implement it.

Finding otherwise would be ticklish for the court in another way. In recent decades, the Supreme Court has found many rights that aren’t specifically spelled out in the Constitution – rights to things like abortion, contraception or sodomy. If the court now follows up by denying a right that does seem to be spelled out, it would put its own legitimacy in the public eye at grave risk.

One Feedback on "Predicting the Court’s Decision"

Dominique R. Poirier

From Wikipedia.

“One of the most famous and ancient militias is the Swiss Armed Forces. Switzerland long maintained, proportionally, the second largest military force in the world, with about half the proportional amount of reserve forces of the Israeli Defence Force, a militia of some 33% of the total population. Article 58.1 of the 1999 Swiss constitution provides that the armed forces (armee) is “in principle” organized as a militia, implicitly allowing a small number of professional soldiers. In 1995, the number of soldiers was reduced to 400,000 (including reservists, amounting to some 5.6% of the population) and again in 2004, to 200,000 (including 80,000 reservists, or 2.7% of the population). However, the Swiss Militia continues to consist of the entire adult male population, with voluntary participation by women and children, required to keep an automatic rifle and ammunition at home and to periodically engage in combat and marksmanship training.”

What the problem with guns?


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