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Why Judicial Recognition of a Constitutional Right Doesn't Necessarily Mean that the Right Will Actually Be Protected:

Robert Levy, co-counsel for the gun owners in the Heller Second Amendment case, makes an excellent point in his op ed on the case today. Even if the Court recognizes the existence of an individual constitutional right to bear arms, that doesn't necessarily mean that the right will get any effective protection. The Court might recognize the existence of the right, but defer to the government in defining its scope, thereby effectively leaving the right to the tender mercies of the very officials whom constitutional rights are intended to protect against:

[C]an Washington's ban on all functional firearms coexist with a Second Amendment that secures an individual right? That question might hinge on how rigorously the court reviews the constitutionality of Second Amendment restrictions. If the court believes the Second Amendment meaningfully constrains government, Washington's ban is impermissible....

If the district's outright ban on all handguns, in all homes, at all times, for all purposes, is determined by the court to pass muster, it will mean that the Supreme Court intends to rubberstamp just about any regulation that a legislature can dream up - no matter whether the government has offered any justification whatsoever, much less a justification that would survive strict scrutiny. That would, in effect, excise the Second Amendment from the Constitution. A right that cannot be enforced is no right at all.

Recognition of a "right that cannot be enforced" is exactly what the Court has often done in the field of property rights. As I noted in my last post, the Court - especially in recent years - has often held that individuals are entitled to protection for property rights under the Fifth Amendment's Takings Clause and other constitutional provisions. However, they have heavily deferred to the government in defining the scope of those rights, often effectively negating them as meaningful protections for individuals targeted by the state. For example, the Court has allowed government nearly unlimited authority to define the scope of what constitutes a "public use" justify condemnation of private property under the Fifth Amendment. Entrusting the political branches of government with the authority to define the scope of a constitutional right is much like giving wolves the power to determine how much access they will have to the chicken coop. The chickens - especially those who lack political influence over the wolfpack - are unlikely to last very long.

Unlike some of my co-conspirators I don't have the expertise to opine on the question of how far a constitutional right to bear arms should extend. However, experience in other areas of constitutional law suggests that any victory for individual rights will be a hollow one if the Court defers to the government in determining how broad the right should be.

There is perhaps, some symbolic value in having the Court recognize the existence of a right, even if it doesn't give the right any real protection. But that symbolic value must be weighed against the danger that the public will assume that the judiciary is actually enforcing the right even when it isn't. Given the rational ignorance of most voters, there is a real danger that the public will assume that a judicial decision recognizing the existence of a right without giving it any real protection has "solved" the problem of government overreaching in this area.

CONFLICT OF INTEREST WATCH: I suppose I should mention that I am an unpaid adjunct scholar at the Cato Institute, where Levy is a senior fellow, and that he has made generous financial contributions to George Mason Law School (my employer and his alma mater). I don't think any of this actually affects my evaluation of his arguments. But I note it here for the benefit of the blogging ethics mavens out there.

Related Posts (on one page):

  1. Watch Out for Those Sources:
  2. Why Judicial Recognition of a Constitutional Right Doesn't Necessarily Mean that the Right Will Actually Be Protected:
  3. Is the Supreme Court Pro-Business, Pro-Market, or Neither?
  4. Is the Business of the Court Business?
alkali (mail):
Note that the same phenomenon exists on the other side of the spectrum, in that lots of state constitutions purport to recognize a right to a clean environment, a right to a high quality education, etc. Most of the time, courts defer to the legislature to enforce those "rights" as they will.
3.18.2008 6:01pm
Ilya Somin:
Note that the same phenomenon exists on the other side of the spectrum, in that lots of state constitutions purport to recognize a right to a clean environment, a right to a high quality education, etc.

I think that this is correct (though some state courts have in fact mandated education spending increases in order to enforce a right to education). Note, however, that the political branches have stronger incentives to promote a constitutional right whose protection would require more government spending and activism than one whose protection requires limiting their own power.
3.18.2008 6:04pm
tvk:
There is a big, huge difference between property rights recognition and Second Amendment recognition. A judicially recognized but judicially unenforceable right just becomes a political football; a useful political slogan.

As you point out, having a useful political slogan doesn't help property rights advocates too much--because they have no political constituency anyway. Having a useful political slogan helps the NRA plenty, since it is already an incredibly powerful political lobby. Judicial recognition of the right magnifies the relevant lobby's power, and the vast initial difference in power between the NRA and hapless unorganized properly owners is self-evident.
3.18.2008 6:07pm
Ai:
The right to property has been perverted so that legislatures define it; analogously, one can be sure that legislatures will be defining the right to keep and bear arms.

We are neck-deep in statism.
3.18.2008 6:23pm
ambrose (mail):
Do you folks really think it is a good idea to overthrow the government by violent force? More to the point do you think hand guns would be of any effect on the arms of a modern government? I thought the Civil War decided that neither individuals or states had the right to overthrow the United States government violently. How many people have successfully defended themselves from attack with any type of gun? How many people are killed accidentally with hand guns? Are you really safer with a handgun than without or do you merely feel safer?
3.18.2008 6:23pm
Daniel Chapman (mail):
Asking whether you're "really" safer or just "feel" safer is an irrelevent distinction. If you feel safer with a shotgun under your matress, go ahead. Fact is, we have this nifty little clause in the Constitution saying this right shall not be infringed, so the government can't deny me my right to "feel safer."

You might be able to convince a couple people not to buy a gun with that argument, but it's irrelevent to the issue at hand.
3.18.2008 6:28pm
Brett Bellmore:

Do you folks really think it is a good idea to overthrow the government by violent force?


Sometimes, yeah. If the 20th century tells us anything, it's that when government go bad, they can go REALLY bad.
3.18.2008 6:34pm
procrastinating clerk (mail):
Ambrose,

I may not think it is a good idea to overthrow this government by force, but I don't think that is a very good argument for banning guns because I could imagine governments that I would want to overthrow by force. On you last point, with all the empirical evidence out there on gun violence your question could be thrown back at you. "Are you really safer with a handgun ban than without or do you merely feel safer?"
3.18.2008 6:36pm
kelvin mccabe:
Dont have anything of import to say- other than to say thanks for writing this comment and pointing out the article.

You can pull a McGreevey's driver with the author of that op-ed for all i care - the point remains valid. "A right that is unenforced is no right at all."

Bingo.
3.18.2008 6:37pm
Andy Freeman (mail):
> How many people are killed accidentally with hand guns?

The official numbers have been trending downward for some time and were less than 1500/year a couple of years ago for all guns. (It may be down to 1000 by now.) The real numbers are lower. Better investigation of a sample suggests that a significant fraction are "got away with it" murders and another significant fraction are "the family doesn't need the stigma and does need the insurance" suicides.
3.18.2008 6:50pm
hawkins:
I am unfamiliar with the Second Amendment arguments. Given that everyone supports the government's right to ban some types of weapons, what is the difference between a ban on machine guns and a ban on handguns? Even with a complete prohibition on handguns, isnt there still a right to bear arms?
3.18.2008 6:53pm
Everyone (mail):

Given that everyone supports the government's right to ban some types of weapons.


Please don't speak for "everyone." I don't support "the government's right to ban some types of weapons."

So it's not a given. What about Nukes? If you can figure out how to make one, knock yourself out. That capability will arrive some day and I certainly hope people are ready for it. Making a machine gun in this day and age is trivial.
3.18.2008 7:02pm
Andy Freeman (mail):
> How many people have successfully defended themselves from attack with any type of gun?

If guns are useless for self-defense, why do police "need" them?

Note that police can almost always wait until they've got numbers on their side and are in better shape than the average victim. Those factors argue that police need guns even less than potential victims.

Curiously, police are rarely targetted for robbery and the like.
3.18.2008 7:04pm
hawkins:

Please don't speak for "everyone." I don't support "the government's right to ban some types of weapons."


Besides anonymous blog posters, I mean. Im glad to hear you dont have any concern with your neighbor making biological weapons in his basement.
3.18.2008 7:06pm
Andy Freeman (mail):
One of the interesting things about gun control arguments is that there are very few new proposals. Better still, almost all of the old proposals have been tried somewhere.

It would be nice if folks who advocate a specific proposal would cite the experience, if any, with that proposal. For example, "the UK's gun control laws weren't associated with any reduction in murder in the UK, therefore we should adopt them in the US."

It also helps to know US law before suggesting "stronger" or changes. (or example, surveys taken during the first round of the "assault weapons" controversy found that the typical person thought that the "right" machine gun law was significantly less strict than the actual law AND thought that the "right" law was stricter than the actual law.
3.18.2008 7:13pm
Everyone (mail):
That document you wish to interpret? It has clear instructions on how to get it revised.

If my neighbor has access to the technology to make biological weapon in their basement I wish them well. That neighbor would be made of straw. Does that mean the biological weapon would be an affliction for grasses?

If it disturbs you greatly use the provided mechanism to modify it.
3.18.2008 7:14pm
gattsuru (mail) (www):
Given that everyone supports the government's right to ban some types of weapons, what is the difference between a ban on machine guns and a ban on handguns?


Generally speaking, a ban on machine guns is far more likely to pass strict scrutiny than a ban on machine guns : while both could be argued to have a compelling government interest behind them, a ban on handguns is simply going to be less narrowly tailored and more restrictive to a given individual than a ban on machine guns would be. There simply aren't that many real benefits to a machine gun, while a handgun is kinda the only way to (reasonably) concealed carry, as well as having a few dozen other benefits.

Some weapons might be argued more as ordnance than arms (the two were fairly distinct until the 1910s or so), as well.

Even with a complete prohibition on handguns, isnt there still a right to bear arms?


If there were a complete ban on everything but flintlocks, is there still a right to bear arms? If there's a complete ban on every type of communication but Morse code, isn't there still a right to freedom of speech?

The question isn't whether it's possible to keep and bear a single individual brand of arm, just as it isn't whether an individual can possibly speak something in some way. The standards are "make no law", and "shall not be infringed".
3.18.2008 7:17pm
hawkins:

If it disturbs you greatly use the provided mechanism to modify it.


No clue what you're talking about. If you read my post, I expressly stated a lack of knowledge regarding the arguments for and against gun control. I do not have a position one way or the other.

I also notice that you still havent answered my question.
3.18.2008 7:17pm
David Muellenhoff (mail):
Ambrose said "More to the point do you think hand guns would be of any effect on the arms of a modern government?"

I was a student when the California assault weapons ban took effect. A few days before it hit I was in a gun store and it was the topic of discussion. A San Jose police officer who was a recent emigrant from the former Soviet Union was there buying an AR. He told me not to worry, because no matter what they ban, when the revolution comes, even a handgun or a rimfire rifle will allow you to take out a cop or a soldier and appropriate his more powerful weapons for yourself.

As you might imagine, hearing this from a uniformed police officer who had recently lived under a totalitarian regime left a lasting impression on me.
3.18.2008 7:18pm
Everyone (mail):
I will make exactly one more post on this matter.

What I find disturbing it the court's desire to work backwards from the solution. Perhaps I should say "the solicitor general's desire." The 2nd Amendment is crystal clear. If they wish to ban machine guns, and that seems to be what disturbs him, do so using the provided methods. Don't decide what you want the impact of the law to be and then find accordingly. Using subterfuges such as tax laws to accomplish that just makes the court look foolish.

Don't think people should have certain weapons? Work to pass an amendment to that effect. In the case of nuclear, chemical, and biological devices that should be pretty easy. I'd even support that amendment. What I don't support is arbitrary decisions and enforcement of custom fabricated "laws."
3.18.2008 7:19pm
rmark (mail):
"I am unfamiliar with the Second Amendment arguments. Given that everyone supports the government's right to ban some types of weapons, what is the difference between a ban on machine guns and a ban on handguns? Even with a complete prohibition on handguns, isnt there still a right to bear arms?"

A matter of scale - I doubt the founding fathers expected households to maintain crew served weapons such as mountain howitzers and volley guns. However, long guns and hand guns were in common civilian use. As a practical matter, the commom militia musket was just a long barreled shotgun.
3.18.2008 7:22pm
hawkins:
gattsuru and rmark - thank you. Your responses were informative and helpful.
3.18.2008 7:28pm
gattsuru (mail) (www):
I should note that I don't particularly support machine gun bans from a policy or constitutional viewpoint -- the guns are ridiculously easy to produce, making such a ban rather ineffective unless it becomes remarkably probing, the laws against them tend to be unconstitutionally vague, they do could have a potentially wide range of users, and they're not nearly as dangerous as they're made out to be -- but they remain rather unlikely to be protected by act of judiciary any time soon.
3.18.2008 7:32pm
Horatio (mail):
I thought the Civil War decided that neither individuals or states had the right to overthrow the United States government violently.


The South had no intention of overthrowing the US - just to secede from it. There was no goal to impose slavery on the North, or to take over the Federal government.

In any event, the issue is only decided until someone or some group tries again.
3.18.2008 7:33pm
Asher Steinberg (mail):
As far as standards of review go, I find this comment from Roberts today revealing:

these various phrases under the different standards that are proposed, "compelling interest," "significant interest," "narrowly tailored," none of them appear in the Constitution... these standards that apply in the First Amendment just kind of developed over the years as sort of baggage that the First Amendment picked up. But I don't know why when we are starting afresh, we would try to articulate a whole standard that would apply in every case?

I've always thought that the various tiers of review don't make a lot of sense, but it's surprising to hear a member of the Court deriding them as "just... sort of baggage." And about machine guns, I think a machine gun ban would be fine under strict scrutiny. One doesn't need a machine gun to defend oneself (unless a small private army is invading one's home, as in Scarface), the reasons for banning machine gun ownership are compelling - I don't see the difficulty.
3.18.2008 7:39pm
gattsuru (mail) (www):
Ah, and as to Ilya Somin's post, I'd personally be more concerned if they court simply recognizes a right, even leaving it to the judicial branch to define, but then ignores it afterward. Miller had that particular joyous history, and it resulted in it meaning pretty much anything the local judicial branch wanted.
3.18.2008 7:49pm
Waldensian (mail):

How many people have successfully defended themselves from attack with any type of gun?

I have. So that's one. I didn't have to actually fire it, thank goodness -- does that still count in your view?
3.18.2008 7:51pm
DangerMouse:
Ah, and as to Ilya Somin's post, I'd personally be more concerned if they court simply recognizes a right, even leaving it to the judicial branch to define, but then ignores it afterward. Miller had that particular joyous history, and it resulted in it meaning pretty much anything the local judicial branch wanted.

That is exactly what I predict will happen. The Court is all about expanding its own power. It will do its best to make sure that the entire judicial branch gets to weigh in and regulate every aspect of this issue all across the country. The Court, as an institution, hates elected government, because THEY'RE the ones who decide which legislation lives and dies. They can't do that if they adopt a strict standard.
3.18.2008 7:53pm
CrazyTrain (mail):
CONFLICT OF INTEREST WATCH

I think it was Kevin Drum who first made this point, but I am not sure: These "conflict of interest" things that bloggers put on their posts usually seem like excuses for the blogger to say how s/he has great connections and is "in the know" on an issue. Just saying.
3.18.2008 7:54pm
big dirigible (mail) (www):
"I doubt the founding fathers expected households to maintain crew served weapons such as mountain howitzers and volley guns."

Households? The specification seems arbitrary. If you mean private pwnership of ordnance, they certainly did expect it. Privately-owned ships of the era didn't even need any licensing to carry the most powerful weapons of the day. In fact, through the War of 1812, the government depended on them doing so.
3.18.2008 7:57pm
H Bowman, MD:

How many people have successfully defended themselves from attack with any type of gun?


I have, on three separate occasions (two resulting in shots fired).

My wife defended her life twice with firearms, once in college and once in pharmacy school.

I have family members who have had to deter burglers in the small hours of the night, again with firearms.

BTW, all this was in Encino, California - not exactly the 'hood.

Why do we have firearms? Because when seconds count, the police are only minutes away
3.18.2008 8:16pm
H Bowman, MD:

A matter of scale - I doubt the founding fathers expected households to maintain crew served weapons such as mountain howitzers and volley guns. However, long guns and hand guns were in common civilian use. As a practical matter, the commom militia musket was just a long barreled shotgun.


Those 'redcoats' that Paul Revere was talking about? They were after privately held cannon and ammunition therefore, in Lexington. Those cannon were the WMD's of the day.
3.18.2008 8:20pm
H Bowman, MD:
Err, in Concord.

Here's one of the cannon itself:

http://www.concordma.com/magazine/spring05/cannons.html
3.18.2008 8:23pm
rmark:
"Households? The specification seems arbitrary. If you mean private pwnership of ordnance, they certainly did expect it. Privately-owned ships of the era didn't even need any licensing to carry the most powerful weapons of the day. In fact, through the War of 1812, the government depended on them doing so."


With the vast majority of citizens being small farmers amd tradesman, they simply didn't have the income to purchase and maintain larger scale weapons. Frontier trading posts often had company supplied light artillery for protection. And ocean going vessels certainly carried cannon to protect themselves from pirates and recived charters as privateers from the government during wartime, which were intended to protect them from being accused as being pirates themselves.
3.18.2008 8:29pm
George Weiss (mail) (www):
since the second amendment, so far, has no 14th due process jurisprudence to extend it to the states, and thus the case only applies to dc and the federal government-and not the states...its pretty hollow no matter how the justices recognize the right
3.18.2008 8:31pm
rmark:
"Those 'redcoats' that Paul Revere was talking about? They were after privately held cannon and ammunition therefore, in Lexington."

The winter of 1774-75 was mild for New England, however the affairs of men met no tempering influences. The Committee of Safety set up by the Provincial Congress of Massachusetts (it was given the power to call out the entire militia of the colony), voted that "all kinds of warlike stores be purchased sufficient for an army of 15,000 men," and selected the village of Concord as a suitable depot, far from the reach of British Major General Thomas Gage's raids.

http://americanrevwar.homestead.com/files/LEXCON.HTM
3.18.2008 8:37pm
Joshua:
I'm reminded of the case several years ago in which SCOTUS effectively legalized virtual kiddie porn. The AG's office responded by basically declaring their intent to ignore the ruling. To my knowledge, no one ever complained, much less tried to bring the AG to heel on that matter. SCOTUS certainly didn't, because they had no practical way of doing so. And therein, it seems to me, lies the real dilemma with regard to any pro-gun-rights ruling by SCOTUS in Heller.

Which President was it who, when SCOTUS handed down a ruling he didn't like, said "Let the Supreme Court enforce its own decisions"?
3.18.2008 8:55pm
K Parker (mail):
ambrose,

You must have missed yesterday's post: see here for almost daily updates on the defensive use of handguns by private citizens. Many of the cases are like Waldensian's, where the mere display of the gun was enough to cause the attacker to break off.
3.18.2008 9:17pm
Ric Locke (mail):
Bah.

In Kelo the court essentially ruled that any crack-brained act of a city council counts as "due process of law" for the purpose of taking.

This is gonna be the same thing. They'll rule that the Government can make any damn regulation it cares to, because it's the Government.

Regards,
Ric
3.18.2008 9:35pm
John P. Lawyer (mail):
Ilya,
How do you propose the Court ensure that a person's constitutional right to own a gun (if it exists) is protected? In other words, what sort of prophylatic rule do you propose? Do you have trouble with any of the Court's other prophylatic rules, such as Miranda? Do you think those type of protections ensure that the Government respects an individual's cosntitutional rights?

Separately, why do you have a problem with the Court (judiciary) deferring to the other branches of Government in defining the scope of constitutional rights? Is this, as a normative matter, improper?
3.18.2008 9:37pm
rosignol (mail):
Which President was it who, when SCOTUS handed down a ruling he didn't like, said "Let the Supreme Court enforce its own decisions"?

Andrew Jackson, IIRC.
3.18.2008 10:28pm
Steve2:
Joshua, there that "Mr. Marshall has made his decision, now let him enforce it" precedent from one President... but there was also the "I'm deploying elements of the 101st Airborne to Little Rock to enforce an unpopular court ruling" precedent a more recent President set.

Regarding founding-era crew served weapons &ships in particular, I'd been told once that the "grant letters of marque and reprisal, and make rules concerning captures on land and water" constituted an enumeration of authority to regulate ships' arsenals. I don't know if the person who told me that was right or not, nor do I have an easier way to check at hand than to ask here.

Now, to the important stuff:

Professor Somin, you stated, "There is perhaps, some symbolic value in having the Court recognize the existence of a right, even if it doesn't give the right any real protection." I realize you aren't arguing that this symbolic value's any more than a minimal value, but I was wondering if you could identify that value since it isn't self-evident to me. Seems to me there's no difference between a right whose existence gets denied and a right whose existence gets recognized but that can't be exercised in a practical manner, so I'm not seeing what the value of a symbolic victory would be.
3.18.2008 10:38pm
Brett Bellmore:
Personally, I find the symbolic value of a right, recognized by the Court but not enforced, to be indistinguishable from that of an upraised finger. It's the Court's way of making sure everyone realizes that the Justices are deliberately refusing to do their duty, rather than failing it inadvertently due to mistaking what it is.
3.18.2008 10:56pm
Tony Tutins (mail):

since the second amendment, so far, has no 14th due process jurisprudence to extend it to the states, and thus the case only applies to dc and the federal government-and not the states...its pretty hollow no matter how the justices recognize the right

Don't put the cart in front of the horse --
first establish the right against the federal government, then it can be applied against the states. Baby steps, baby steps: like when I trained my dog to get me a beer out of the refrigerator.
3.19.2008 12:57am
Tony Tutins (mail):

How many people are killed accidentally with hand guns?

According to the Centers for Disease Control, 789 people were killed by accidental use of all types of firearms, for the most recent year, 2005. Scroll down to List of Detailed Tables, and click on Table 10., "Number of deaths from 113 selected causes by age: United States, 2005."
3.19.2008 1:23am
Mark Robinson (mail):
Some people have brought up the fear of a Kelo style ruling. Although that does scare me. I do not see it as a ruling on "property rights". If you look at the 5th amendment, it states only "nor shall private property be taken for public use, without just compensation". That is the end of federal involvement. There is a certain duty upon the state to detail the criteria for taking property. If you then look to the "due process" clause of the 5th "nor be deprived of life, liberty, or property, without due process of law" That refers more to criminal seizure.

The case before the court in Heller is much different. It goes straight to the heart of a personal right. The big danger,the phrase "the right of the people " in the 2nd is also in the 1st, 4th and 9th. Any precedent that weakens that phrase is a huge danger and that is what scares the hell out of me. That would include a lowered standard of review. Because if the court grants a lowered standard of review, then that can be taken later to lower the standard elsewhere.
3.19.2008 2:39am
Bill Quick (mail) (www):



since the second amendment, so far, has no 14th due process jurisprudence to extend it to the states, and thus the case only applies to dc and the federal government-and not the states...its pretty hollow no matter how the justices recognize the right
Actually, in those states lucky enough to make up the Fifth Circuit, the Second is alreadyrecognized as an individual right.

The SCOTUS recognizing it as an individual right will engender a flood of lawsuits in other Circuits seeking the same outcome as that in the Fifth. What do you think the chances are plaintiffs will get it, following a friendly SCOTUS ruling, incorporated or not?
3.19.2008 3:54am
RKRK:
I'm wondering what Kennedy meant by Miller being "insufficient". Because it only recognized protection for military arms, or because it did in fact recognize military arms? By the rational of Miller, if Mr. Miller had been arrested with a Thompson submachine gun or Browning Automatic Rifle instead of a sawed off shotgun, NFA 1934 would have been declared unconstitutional. Both Mr. Gura and Mr. Clement seem greatly concerned about this.

Mr. Gura argues a machine gun ban is A OK 'cause they aren't in "common use at this time". That's true, but handguns haven't been "in common use" in D.C. since 1976 and for the same reason!
3.19.2008 7:02am
David Schwartz (mail):
I find the "in common use" argument truly bizarre. If the government could prohibit Internet blogging, it would never become in common use, and thus the government can prohibit it? Isn't that crazily circular?
3.19.2008 8:38am
RKV (mail):
As to what type of weapons are protected we need look no further than Article 1 Section 8. "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." So, weapons which can be "borne," commonly used by police ("execute the Laws") are protected, as are those of the military ("repel Invasions"). The 2nd Amendment further says the militia ("composed of the people, trained to arms" James Madison) is "necessary." So by extension, the arms which the people have a right to keep and bear, are those necessary for their Constitutionally defined missions.
3.19.2008 8:47am
PersonFromPorlock:
John P. Lawyer:

Separately, why do you have a problem with the Court (judiciary) deferring to the other branches of Government in defining the scope of constitutional rights? Is this, as a normative matter, improper?

The problem is that the Court is supposed to defer to the Constitution, not the "other branches." Presuming that those other branches are applying their Constitutional powers correctly - which isn't unreasonable, but a little goes a long way - is a license for abuse.
3.19.2008 9:33am
wuzzagrunt (mail):
RKRK wrote:
I'm wondering what Kennedy meant by Miller being "insufficient". Because it only recognized protection for military arms, or because it did in fact recognize military arms? By the rational of Miller, if Mr. Miller had been arrested with a Thompson submachine gun or Browning Automatic Rifle instead of a sawed off shotgun, NFA 1934 would have been declared unconstitutional. Both Mr. Gura and Mr. Clement seem greatly concerned about this.

...

As to what type of weapons are protected we need look no further than Article 1 Section 8. "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." So, weapons which can be "borne," commonly used by police ("execute the Laws") are protected, as are those of the military ("repel Invasions"). The 2nd Amendment further says the militia ("composed of the people, trained to arms" James Madison) is "necessary." So by extension, the arms which the people have a right to keep and bear, are those necessary for their Constitutionally defined missions.

It's a pretty safe bet that if Mr. Miller had shown up with competent counsel, the court would have done whatever they had to do to uphold the conviction. The ruling would likely have been far worse than it was.

If the court were to actually take Art. I, Sec 8 seriously we'd have the entertaining spectacle of the nanny-staters arguing that the federal government's duty to regulate (train/organize) the militia, and provide for equipment and logistical support would be unbearable fiscal burden, It would divert too many resources from the gifting of taxpayer monies to the unworthy, and that the attendant nose-wiping, nagging, and intrusive prying into the affairs of the giftees would have to be cutailed to an unacceptable degree. The budgets of the nose-wiping/nagging/prying bureaucracies would suffer great damage.
3.19.2008 10:00am
JohnEMack (mail):
Actually, the recognition of a right can be legally important even if the right is not judicially enforced. That is because the Courts may uphold legislative enactments which enforce the right when they might not do so otherwise. For example, conceal and carry laws are not popular with the bench. But if there is a recognized constitutional right to bear arms, the Courts are much less likely to find a conceal and carry law either unconstitutional or otherwise infirm. After all, the legislation was passed to protect a constitutional right and thus under a grant of constitutional authority.
3.19.2008 10:05am
Robert Lutton:
llya,

(by the way, I have always liked that name since "the man from UNCLE")

I agree with your main point about have a right that is recognized but not protected is thin comfort, but I don't think property rights is a good example. Clearly the right recognized in Kelo is the right of compensation, not the right to not have your property taken. By deciding as the SC did, they expressly denied any right to KEEP property.

In the gun case I will eagerly be looking forward to the expected silly result where the "conservative" members of the court will probably decide that it is important for protection against grizzlies and to protect liberty against a potential tyrant that there is a constitutional right to have guns that would be totally ineffective against any tyrant I know of.

The logical position of "defense against tyrants" would allow SAMs and machine guns at least, Grizzlies maybe not so much...although I don't think a pistol would be the ideal weapon either.
3.19.2008 10:06am
Dan in Atlanta:
Two comments (can't find my registration info while here at work):

1) Did I hear Clement right? He seemed at one point to say that a 'plastic gun' that could get through metal detectors (the Glock scare story) would have a hard time securing protection because of its lack of militia value, but that machine guns would have a much easier time meeting that standard. Isn't he conceding the 1986 law is unconstitutional? (The GHWB (41) law)

2) The language in the 1st is 'Congress shall make no law'. The language is the 2nd is 'shall not be infringed'. I have a hard time seeing how the 1st makes incorporation but the 2nd wouldn't.
3.19.2008 10:45am
wuzzagrunt (mail):
The Congress has affirmed an individual right to arms, by virtue of their amicus brief. If the SCOTUS follows suit, enforcement is mostly irrelevant. If 80 million armed citizens can't hold the right, then maybe we don't deserve to have it.
3.19.2008 11:01am
The Ace (mail):
How many people have successfully defended themselves from attack with any type of gun?


A pretty large number.

How many people are killed accidentally with hand guns?

Fewer than successfully defend themselves.

Are you really safer with a handgun than without or do you merely feel safer?

Are you serious? Of course you're safer.
3.19.2008 11:03am
Tony Tutins (mail):

Separately, why do you have a problem with the Court (judiciary) deferring to the other branches of Government in defining the scope of constitutional rights? Is this, as a normative matter, improper?

The problem is that the Court is supposed to defer to the Constitution, not the "other branches." Presuming that those other branches are applying their Constitutional powers correctly - which isn't unreasonable, but a little goes a long way - is a license for abuse.

To my understanding, the USSC made it pretty clear in City of Boerne that it, and not Congress, was the delineator of the scope of our Constitutional rights, when it smacked down the Religious Freedom Restoration Act.
3.19.2008 11:32am
David M (www):
The Thunder Run has linked to this post in the - Web Reconnaissance for 03/19/2008 A short recon of what's out there that might draw your attention, updated throughout the day...so check back often.
3.19.2008 11:47am
FWB (mail):
No branch, portion, section, piece, office, desk, chair, person, group, ... that is part of the government created by the Constitution holds any authority to define rights, or to define any part, portion, section, piece, clause, phrase,... of the constitution. The Constitution is the creator of all things government and is thus superior to and undefinable by its creations. However, those in power do as they wish because those who delegated that power are either too lazy to enforce the rules or too ignorant to know the limitations.
3.19.2008 1:16pm
Tony Tutins (mail):

No branch,... that is part of the government created by the Constitution holds any authority to define ... any part, ... of the constitution.

That horse left the barn a long time ago, in 1803 in fact.
3.19.2008 2:13pm
PersonFromPorlock:
wuzzagrunt:

The Congress has affirmed an individual right to arms, by virtue of their amicus brief.

Yes, but that's this week.
3.19.2008 8:41pm
wuzzagrunt (mail):
PersonFromPorlock wrote:

wuzzagrunt:
The Congress has affirmed an individual right to arms, by virtue of their amicus brief.


Yes, but that's this week.


I'll take what I can get from that bunch.
3.20.2008 3:57am
M. Simon (mail) (www):
Aren't machine guns militia weapons?
3.20.2008 10:17pm