Tuesday, March 18, 2008

Heller v. DC is at the Supreme Court Today

In what is one of the most anticipated cases all term, the Supreme Court will hear oral arguments in Heller v. DC today. Randy Barnett a Georgetown law professor and author of an amicus brief, has a column in todays Wall Street Journal about the case.

He makes a couple of interesting points about what will likely be a 5-4 decision (and just so you know, no not all Supreme Court Decisions are a 5-4 split). The one point that I like (and have talked about before) is:
The Second Amendment protects an individual right. In the 1960s, gun control advocates dismissed the Second Amendment as protecting the so-called "collective right" of states to preserve their militias -- notwithstanding that, everywhere else in the Constitution, a "right" of "the people" refers to an individual right of persons, and the 10th Amendment expressly distinguishes between "the people" and "the states." Now even the District asserts the new theory that, while this right is individual, it is "conditioned" on a citizen being an active participant in an organized militia. Therefore, whoever wins, Heller won't be based on a "collective" right of the states.
I have argued that it is somewhat ludicrous to look at the Bill of Rights and see that the First Amendment is a series of individual rights and protections as are Amendments 3 through 9. The Tenth Amendment distinguishes between states and people. So how it is that the Framers stuck a "collective" right into the Second Amendment.

Keep in mind, the Bill of Rights was a condition of ratification for a number of states. There were concerns about the power of the new national government and a fair number of leaders, namely the Anti-Federalists, but a few others, felt that a Bill of Rights, laws that prohibited the national government from infringing upon the rights of the People were necessary. Read the Preamble to the Constitution, it read "We the People... do ordain and establish."

Now for a little esoterica. The Constitution is nothing if not a contract between the People of the United States and the Government they created. The contract gives the Government certain rights to do certain things and prevents them from doing other things. For example, the People decided that having and Army and a Navy were good things, but things that individuals and even states are not equipped or capable of doing. The same thing with a Postal System (although obviously less true today), or immigration laws. But the People also decided, by ratifying a Bill of Rights, that the government was not permitted to do other things, like prohibit the freedom of speech or quarter soldiers in someone's home (that was a big problem in pre-Revolutionary times) or have an unwarranted serach and seizure. So the People created a Constitution, between themselves and the govnerment that provided for the rights and obligations of each--a contract.

One of the most basic principles of contract interpretation, indeed so basic that law students learn within the first few weeks of law school, is to look at the words on the page. What do they say and what do they mean. Certain inferences based on the words of the page are also relevant, but they must derive logically from the actual words.

So it is a logical step to say that the Second Amendment, when looked at from the perspective of all the other Bill of Rights--individual rights save the 10th Amendment, which distinguishes between individual rights and states' rights, and come to the conclusion that the Second Amendment is a collective right? It just seems to strain the logic and hangs too much upon an anachronism--of a militia. Keep in mind, in the late 18th Century, the militia was not nearly as regulated as you might think--particularly in comparison to our National Guard of today.

At any rate, there will be a great of discussion and parsing of the oral arugments. A decision is likely in June.

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