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Thursday, January 1, 2009

Here Comes the Judge

I've argued previously (though not on this blog) that the Second Amendment makes no sense if it's not construed as granting an individual right to bear arms. Opponents of this view typically invoke a strand of Constitutional originalism: the Second Amendment says you have a right to form militias, not have a gun for self-defense. (Politics makes strange bed-fellows; progressives who suddenly discover the value of Constitutional originalism.)

My argument for the individual right to bear arms is grounded in the absurdity of granting folks the right to band together to form militias but denying the right in the case of a solitary individual. If gun toting militias are protected by the Second Amendment, a fortiori should individuals.

But my argument has a flaw, which I've recently come to realize; namely, that the "militia" language in the Second Amendment is interpreted as a statement about federalism: the states, under the "militia" reading, have the right to form militias. This makes more sense. And, alas, it leaves unanswered the separate question about whether the right to bear arms extends to individuals for the purposes of self defense (the right in both cases -- individual or state -- is essentially intended as protection against tyranny).

Anyway, the Heller decision last year upheld the individual rights interpretation of the Second Amendment. As might be expected it was cheered by opponents of Gun Control. Interesting, however, that conservatives like George Will have questioned the Heller decision. Will points to 4th US Circuit Court of Appeals Judge Wilkinson's argument that Heller, like, over three decades ago, Roe v. Wade, uses the ambiguous wording of the Constitution as license for judicial subjectivity. With Heller, we get an individual gun right from the ambiguous language of the Second Amendment. With Roe v. Wade, we get a right to privacy that exists somehow in the due process clause of the 14th Amendment ("under the penumbra" is I think the famous phrase).

Wilkinson argues that judicial subjectivity is not the bromide for Constitutional ambiguity; rather, the matter should shift to legislation:

"...when a right's definition is debatable, generous judicial deference should be accorded to legislative judgments -- particularly those of the states, which should enjoy constitutional space to function as laboratories for testing policy variations."

I hate to admit it, but I tend to agree.


mijopo said...

Yeah, Will and Krauthammer are two of the conservative commentators I read most regularly. (Helps that they're in the Post) I usually disagree with them strongly but they're not just mindless ideologues and they're both very intelligent and articulate. Anyway, Will makes, or points to, a good point here and I thought his recent article about what the President was doing with the auto bailout was also bang on.

Erik said...

Cool. I'm thinking about what American politics would look like if the major parties were actually consistent. For instance, if Conservatives sceptical of big government were therefore against the Shivo case on grounds of non-interference. Will's piece about the judicial activism in the Heller decision reminds me of this consistency.