Thursday, December 27, 2012

Amar on Gun Rights and Gay Rights

Jason Mazzone

Akhil Amar has a great opinion piece in the New York Daily News on the "ricocheting" effect of legal arguments and Supreme Court decisions. He says that gun rights advocates benefit from and would do well to embrace the Supreme Court's decision in Lawrence v. Texas (2003), a case based on unenumerated rights derived (in part) from canvassing state practices. Likewise, Amar says, liberals should embrace DC v. Heller (2008) and Chicago v. McDonald (2010) because those decisions nullify the slippery-slope argument historically put forth by gun owners and make some regulation of firearms easier now to accomplish. "Thanks to three sharply divided cases in the modern culture wars involving guns and gays," Amar concludes, "conservative justices could end up helping today’s political liberals, and liberal justices may have given today’s conservatives additional ammunition." Read Amar.


Amar: Neither case foreclosed reasonable gun regulations short of total prohibition — bans on military weapons wholly unnecessary for ordinary self-defense; caps on the amount of firepower a person may stockpile; limits on the size of gun clips; registration and permit requirements; insurance requirements, regular mental health check-ups and so on...

Precisely because the court has declared total confiscation off limits, there’s no legitimate fear that reasonable regulation will slide into tyrannical confiscation.

Instead, there is a legitimate fear that regulation will lead to the regime suggested by Amar in the preceding paragraph, making exercise of what little remains of the right to keep and bear arms so onerous that it becomes effective prohibition.

Gun enthusiasts who like Scalia’s and Thomas’ ideas in Heller and McDonald should side with the liberals in Lawrence. For in this case, the liberals recognized that not all rights — in that case, the right of sexual privacy — are explicitly listed in the Constitution itself. Some unenumerated rights deserve protection as well.

If courts do not recognize the rather categorical express command of the Second Amendment - the right of the People to keep and bear Arms, shall not be infringed - what hope is there that these same courts will recognize the right as unenumerated?

Conservative, libertarians and firearm owners would better advised to seek to enforce the Second Amendment as written and oppose "reasonable regulations" which infringe on the natural right guaranteed by the amendment.

I think the liberals were wrong to take such a strong path in McDonald and it was something of a blind-spot on Breyer's part to do so.

The ruling allowed any number of sensible regulations. Now that he made his opposition known & all, Breyer should be pragmatic and accept the state of affairs. He did this, e.g., in respect to religious funding or after school religious clubs.

Amar is quite right that Heller allows many regulations, more than some gun rights advocates wish. It also makes the home the "core." Even if Breyer dissents, e.g., on let's say a law the majority supports regarding let's say concealed or open carry, a mixed vote in support of regulations generally would be sensible merely pragmatically. Sort of his thing.

Heller doesn't make the home the "core". It was simply a case where the home was at issue.

The extent of the right outside the home simply remains unadjudicated.

You might, with equal justice, have said Brown made public schools the "core" of the 14th amendment...

Heller notes that "The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute."

"Most acute" to me suggests a certain "core" interest.


"And whatever else [the 2A] leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home."

Again, "above all other" things, the defense of the hearth and home is clearly protected.

The ruling did not "simply" involve the home. It specifically noted the right is strongest in that context. This is logical given various regulations in public would be less defensible in the privacy of the home. Also, the "homestead" is particularly important to protect.

Brett yet again refers to race in this context, something of trend by now. There education was specifically mentioned. I would say w/o additional case law that education was the "core" concern there. W/o more, e.g., the focus on education might lead someone to not think necessarily the rule would apply to public parks.

The extent of the right in general has not been adjudicated. Heller presumptively allows various regulations outside the home in dicta.

McDonald repeats the above.

I am by no means an american constitutional scholar, but I have two questions.

1) The second amendment mentions the right to keep (at home, presumably) and to bear (not only at home, presumably!) arms. So If we agree (I do not) that the second amendment should be construed without mention to the militia, and as guaranteeing a specific right to keep and bear arms per se, why restrict oneself to the right to keep arms at home (to avoid trespass, presumably) ? Why home should be the core case ? It's an all-or nothing deal, as far as I can see. Or at least it gan be so argued. So I do not see how, in this respect, Heller and MAcDonald allow for restrictions, in spite of the "most acute" formulation.

2° The second amendment is quite short, and the SCOTUS jurisprudence on this matter is quite recent. So, now, there is a right to bear "arms". How do we interpret "arms". Once removed the hypothesis of "arms" meaning the upper counterpart of legs (sorry, I could not resist), it remains : today, a bazzoka is adequately described as an "arm", as well as a knife, a handgun, a shotgun, an AK47, etc. If you are a "textualist" or "semantic" originalist, you have to interpret arms as referring to the kind of things that were referred to by the word "arms": that is one-shot guns, muskets, sabres, etc ! Antiques! If you argue that the contemporary meaning of "arms" should be relevant, then on what basis will you distinguish between a handgun and a bazooka, since such disinctions are not to be found in the Constitution ? Well you may ground your distincion on a feeling of what is reasonable (on any reasonable interpretation of the 2nd amendment, bazookas are not protected). But one's sense of what is reasonable may vary from another's. And I do not see what prevents an NRA-enthusiast to argue that, once you entrench the 2nd amendment, all types of arms should be protected under it.

In other words, I do not see how Heller and Macdonald do really allow for restrictions, once the right to keep and bear arms is an absolute right. In any civilized country, there is a right to K&B arms, but it is conditional right : you may have arms only if you correspond to certain conditions. This is problem of legal philosophy if you will : there is a difference between a conditional right even to all arms (and conditions may vary of course with the type of arms); and an absolute right to only some types of arms, the others being (possibly) restricted. SCOUS has chosen the second. And since there is no basis for restriction given the actual composition of the Court and the 5 Justices's sense of what is reasonable, I do not see how things can change unless Heller and MacDonald are overruled.

As usual, sorry for my poor English.

[1] I think we should refer to the "militia" in some way (e.g., it helps determine proper regulations, such as some sort of training requirement).

Also, the right isn't only present in the home either in regard to keep or bear. Heller just notes that it is specifically clear there, regulation harder to justify. See previous comment.

[2] There was previous interpret ion, e.g. U.S. v. Miller (1930s) and (in dicta) acceptance of concealed carry bans (Robertson v. Baldwin) decades before that.

As to defining "arms," there have been various state rulings on the point. Heller also cited tradition and common use, practicality to advance the ends cited while noting that "dangerous and unusual" weapons have been banned in a presumptive correct way, citing precedent.

There is no "absolute right" and Heller said as much. There isn't an absolute right to speech either and the contours are determined over time, partially by a myriad of case law. The same probably will be a factor here.

Also, I'm not sure why a "textualist" should think the term applies to 18th Century technology instead of some open-ended concept any more than "the press" needs to apply only to printing presses and not Kindle devices.

This comment has been removed by the author.

Mathieu Carpentier:

Your English is fine and far better than my French.

The right guaranteed by the 2A is written pretty categorically: "the right of the people to keep and bear arms, shall not be infringed."

Keep means to own and bear means to carry.

There is no basis in the text to restrict the carry of arms to the home. The only limit on the right to carry should be the countervailing rights of other property owners.

The right protects arms that an individual citizen can carry or what we call small arms. I think a reasonable argument can be made to restrict protected arms to firearms and cutting implements like knives. At the time the 2A was drafted, small arms did not mean explosives, artillery and the like. Thus, I don't believe that modern miniaturization of artillery into man-packed anti-tank and anti-aircraft rockets should be included in the class of protected arms.

There is no conflict between the prefatory clause discussing the desirability of a militia and the right set out in the main clause. The militia under the republican theory of the day was an armed citizenry meant to counter government tyranny both foreign and domestic. Thus, the prefatory clause describes one reason for the right - to ensure an armed citizenry, but not the only reason.

However, because arming a citizen militia is an important reason for the right, a very strong argument can be made that protected arms include all firearms normally possessed by a militia, which would include automatic rifles like those the Swiss and Israeli's allow their citizens to keep and sometimes bear. Justice Scalia in his Heller opinion was unwilling to go that far and instead limited protected arms to those commonly owned by the citizenry. The problem with that truncated reading of the right is that future governments could infringe on the right by outlawing new evolutions in firearms as they emerge.

Furthermore, because arming the citizen militia is a reason for the 2A right and the Constitution expressly grants Congress the power to regulate and train the militia, then Congress arguably has the power to require all armed citizens to undergo firearm training, which IMHO would be a very good idea.

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