I generally agree with Professor Schaff's treatment of Kennedy v. Louisiana. It is a decision ungrounded in the text of the Constitution, precedent, or other legal or legislative traditions and practices. This is not to say that I am in favor of the death penalty for child rapists or anyone else. For all sorts of reasons, I think the death penalty is more trouble than it's worth.
I turn to D.C. v. Heller, in which the Court affirms for the first time that the Constitution protects the rights of law-abiding citizens to possess firearms. I should say that I have possessed and fired both a hand gun and a shotgun, but so far I have never nailed anything more sentient than a trashcan. But I am more interested in black ink than in black powder. I think the Court (5 to 4) was obviously right, but I think the decision allows for a lot more gun control that most places have now and I think a case can be made for such control.
Here, from ePublius! (my work and Jon's) is the text of the Second Amendment to the Constitution:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The question in the case is this:
does the 2nd Amendment protect the right of the people (meaning individual citizens) to keep and bear arms, or
does the 2nd Amendment protect only the right of the state governments to arm their citizens and create state militias?
Or at least it seems obvious to me that this is question. Justice Stevens, writing his dissent, denies that this is the question, and his denial, I think, greatly reduces the force of his argument.
The 2nd Amendment contains a prefatory clause, apparently explaining the purpose of the amendment. Such a clause is unique to the Constitution, though not to other documents of the era. But as Antonin Scalia ably demonstrates, the prefatory clause clearly does not control the operative clause. Suppose Professor Schaff is present at the reading of his uncle Ferdinand's will. The will contains this clause:
My nephew Jon, being handsome, always right in his opinions, and a snappy dresser, I leave him my entire estate of 1787 million dollars.
The prefatory clause explains why Uncle Ferdinand decided to give Jon the cash. But it has no effect on the fact that Jon gets the cash. The disappointed relations might hire me to refute all three of Uncle Ferdinand's opinions about Jon, and I suspect I could earn that money. But it wouldn't help. "I leave him my entire estate," means "I leave him my entire estate."
Likewise, the phrase "the right of the people to keep and bear arms shall not be infringed," means what it says, regardless of why the Founders said it. And there is no reasonable doubt about what it says. The "right of the people" clearly means the right of those individuals who make up the body politic: the citizens who collectively are "we the people." To say otherwise would undermine a very precious right only a few inches south of the 2nd Amendment.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Nor is it uncertain what the right to keep and bear arms means. It means the right to keep and bear arms. Here "bear" at least admits of more than one meaning. It means to carry arms in defense of the community or in defense of oneself. By contrast, "keep" has only one meaning: to possess.
The first ten amendments to the Constitution were added because the original document had no bill of rights. With the sole exception of the 10th Amendment, the Constitutional Bill of Rights is devoted to rights of individuals. To deny that the 2nd Amendment does not protect the rights of individuals to keep and bear arms would mean that nothing in the Bill of Rights, or anything else in the Constitution for that matter, need mean what it says.
I think the Court's ruling is pretty narrow here, as it should be. As the Constitution stands, neither the District of Columbia, nor any other government in these United States can prohibit law abiding citizens from possessing firearms. The right to bear is a little more problematic, but I think it can be interpreted in a way that allows all reasonable restrictions. The 4th Amendment does not prohibit general searches at airports. Likewise a much more thorough licensing and registration regime for all firearms would be consistent with the second amendment, just as the 1st Amendment does not prevent government from requiring radio stations to be licensed.
If we really believe in constitutional rights, we ought to be concerned with how they apply to the various circumstances that arise. It is bad faith to spend one's time trying to smudge out the original text.
Recent Comments