A fifty-three minute podcast interview with Stephen Halbrook. Over the last three decades, Halbrook has been the greatest legal champion of Second Amendment rights. As a scholar, as an attorney (with a 3-0 record in the Supreme Court), and as a public advocate, Halbrook has done tremendous work in saving the Second Amendment from nullification, and in putting the courts and the legal academy back on the track of recognizing the right to arms in the Second and Fourteenth Amendments. We talk about the broad scope of Halbrook’s career, and about McDonald v. Chicago, in which Halbrook is representing the National Rifle Association as a party “respondent in support of petitioner.”
Andrew says:
I listened to this interview, and was disappointed by Dave Kopel’s argument for substantive due process. Dave, you gave the following example of why SDP is needed: because otherwise a state legislature might take the house of person A and give it to person B. There are several reasons why this is an awful argument. The Supreme Court’s jurisprudence already holds that the Takings Clause forbids any taking that is not for a public purpose, even if just compensation is paid. So, there is no reason whatsoever to rely on the Due Process Clause in order to quash this parade of horribles. And suppose the Takings Clause did not exist in the federal Constitution; still, each state has a state constitution that can be used to restrain the respective legislatures.
I agree that the Second Amendment should be incorporated into the Fourteenth (via the PorI Clause), and should apply against the states just as Madison and his contemporaries intended it to apply against the federal government. But the same principle also applies to the Due Process Clause; we need to look at how Madison and his contemporaries intended it to apply against the federal government, before applying it against the states. There is no doubt that the framers of the Bill of Rights did not intend the Due Process Clause to encompass the right to keep and bear arms; otherwise, Congess in 1789 would not have allowed the states to ratify the Fifth Amendment (including the DP Clause) while simultaneously rejecting the Second Amendment (including the RKBA). Due process and the right to keep and bear arms were in separate amendments in the Bill of Rights because they covered distinct and unconnected subjects. Judges should not overturn statutes using the Due Process Clause, just because the judges find the statutes to be really, really horrible. That decision is generally for the voters to decide, according to a very ancient and sacred right: the right to vote and the3 right of self-government.
December 17, 2009, 11:27 pmStephen Halbrook Christmas Special | Liberal Whoppers says:
[...] posted here: Stephen Halbrook Christmas Special Share this [...]
December 18, 2009, 12:51 amTweets that mention The Volokh Conspiracy » Blog Archive » Stephen Halbrook Christmas Special -- Topsy.com says:
[...] This post was mentioned on Twitter by Eugene Volokh, Eugene Volokh. Eugene Volokh said: Stephen Halbrook Christmas Special: A fifty-three minute podcast interview with Stephen Halbrook. Over the last.. http://bit.ly/4FOCJe [...]
December 18, 2009, 12:55 amJ. Aldridge says:
Then you also agree there is no real purpose for the states to possess their own constitutions, courts and laws?
December 18, 2009, 2:34 amAndrew says:
Obviously, applying the Second Amendment against the states leaves innumerable subjects for states to legislate upon as they wish.
December 18, 2009, 2:37 amJ. Aldridge says:
Not as long as groups of activists are allowed to revise and define it such as the NRA has over the last 20 years.
December 18, 2009, 2:44 amJ. Aldridge says:
Or anything else … It was strictly a process as found under the 39th chapter of the Magna. This truth is so obvious is why the court won’t dare say how due process explicitly includes fundamental rights. So they lie and pretend to “assume” it magically does.
December 18, 2009, 2:56 amAndrew says:
No one can plausibly revise and redefine the right to keep and bear arms so that it relates to a right to divorce, or a right to have adequate electrical wiring, or a right to pay a certain amount in state taxes, or a right to go camping in a state park after October 1, or a million other things that are provided by state law.
December 18, 2009, 3:27 amStephen Halbrook Christmas Special | Snowflakes in Hell says:
[...] to Dave Kopel for pointing this podcast interview out. Have a very merry Second Amendment Christmas. For those of [...]
December 18, 2009, 10:07 amTom Glass says:
Blackstone (1 Commentaries on the Law of England 125) defines privileges and immunities:
“The rights . . . consist in a number of private immunities; which will appear, from what has been premised, to be indeed no other, than either that residium of natural liberty, which is not required by the laws of society to be sacrificed to public convenience; or else those civil privileges, which society hath engaged to provide, in lieu of the natural liberties so given up by individuals.”
In other words, immunities are natural rights that no government can rightfully infringe. Privileges are protections (such as due process, trial by jury, right against self-incrimination, right to counsel, etc.) provided to citizens who have entered into the social compact.
The 14th immunities clause gives the federal government the legal right to stop states from infringing on the natural rights of citizens. That was the whole purpose of the 14th. It provides another legal tool for the protection of liberty. So, the 14th immunities clause applies the Second Amendment (and the Ninth Amendment, for that matter) to the states. The 14th does not take all power away from states or make them unnecessary. It just allows the feds to step in to stop states from denying natural rights to its citizens.
December 19, 2009, 10:55 amSanta says:
Hello mate, nice site Happy Holidays!
December 21, 2009, 9:39 pm