The Volokh Conspiracy

My recent article for America’s 1st Freedom traces the rise and fall of the theory that the Second Amendment is not an individual right, but instead is a “collective right,” which, like “collective property” in a communist country, supposedly belongs to everyone collectively, but in fact belongs to no-one. The theory was created by a federal district judge in 1935, formally named by the New Jersey Supreme Court in 1968, and became popular among lower federal courts during the next quarter-century.

Historical and textual analysis made it increasingly clear that the theory was completely implausible, and it was unanimously rejected by the U.S. Supreme Court in the 2008 case District of Columbia v. Heller. In that case, all nine justices agreed that the Second Amendment right was individual, while they disagreed about its scope.

So rules a state judge in Bay City, Michigan. According to the ruling, the regulation of stun guns would be constitutional, but not their prohibition. Other than Michigan, the only states that prohibit stun guns are New Jersey and Rhode Island.

Eugene Volokh’s Stanford Law Review article, Nonlethal Self-Defense examines the Second Amendment issues involving stun guns, chemical sprays, and the like, concluding that they are protected by the Second Amendment.

In March 1994, I was in the Georgetown Gilbert & Sullivan Society‘s production of Gilbert & Sullivan‘s operetta Patience.

You can find a list of the Society’s past shows here; I was also in the same show the next time they produced it, in April 2007. Also, you can find the libretto of the show here.

In the March 1994 production, I played the character of the Major, which is perhaps the smallest part among the male principals. But hey, at least it was a principal.

Who was in the show with me? In the male chorus, playing one of the Heavy Dragoons, was Alan Gura, who represented Heller in D.C. v. Heller, and who’s counsel of record in McDonald v. Chicago, as you can see from the front page of the brief.

Who else was in the show with me? Why, playing the character of the Duke was none other than David Sigale, also McDonald’s lawyer listed on the front page of the brief.

Who else was in the show with me? This isn’t strictly speaking related to the McDonald case, but the character I married in the show, one “Angela,” was played by Alan Gura’s law partner, Laura Possessky.

Have Gilbert & Sullivan otherwise influenced the McDonald case? Well, p. 7 of the brief (p. 25 of the PDF) says that “The Privileges or Immunities Clause was all but erased from the Constitution in The SlaughterHouse Cases.” And, on the next page, it says that “SlaughterHouse‘s illegitimacy has long been all-but-universally understood.”

All but!

Surely, this is an echo of the sextet in Patience (see p. 19 of the libretto, i.e. p. 22 of the PDF, here), which I sang together with one of McDonald’s lawyers and the other lawyer’s law partner: “The pain that is all but a pleasure will change / For the pleasure that’s all but pain, / And never, oh never, this heart will range / From that old, old love again!” And MAIDENS embrace OFFICERS. Awww!

Or (see p. 28 of the libretto / p. 31 of the PDF), says Angela, commenting on the Major and the Duke: “Not supremely, perhaps, but oh, so all-but! (To SAPHIR.) Oh, Saphir, are they not quite too all-but?”

Perhaps Gilbert and Sullivan’s influence on the law now extends further than Iolanthe and Trial by Jury!

Today the Petitioners in McDonald v. City of Chicago, the case on whether the Second Amendment applies to the states, filed their merits brief.   You can read it here.  It’s a truly remarkable brief.  It devotes 55 pages to arguing that the Supreme Court should overturn The Slaughterhouse Cases (1873) and embark on a new era of a newly rejuvenated Privileges or Immunities Clause.  It then gives a mere seven pages, at the very end of the brief, to applying existing doctrine and arguing that the Second Amendment is incorporated and applies to the states under the Due Process clause.   It’s certainly an attention-getting way to brief the case. It’s not just arguing for a win: It’s arguing for a revolution.