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9/22/2017 12:11:25 AM
Posted: 12/6/2002 3:35:07 PM EDT
[url=www.nationalreview.com-END Of Script Attempt-
/printpage.asp?ref=/comment/comment-volohk120602.asp]Who’s Right on Second?[/url]
Someone asked me a few days ago, after the Ninth Circuit's latest decision about the Second Amendment: Shouldn't courts read the Second Amendment as part of an evolving Constitution? Say the Ninth Circuit was wrong, last year's Emerson decision from the Fifth Circuit was right, and the Framers thought of the Amendment as securing an individual right. Shouldn't judges update it due to the passage of time, based on evolving standards of justice and practicality? 1. Well, here's one way to justify this position: The Second Amendment as written was meant to apply only to the federal government, and can only apply to the states via the Fourteenth Amendment. Thus, when we consider what the Second Amendment means with regard to state laws, we shouldn't look at what people in 1791 thought of the right-to-bear arms — we should look at what people in 1868 thought the Fourteenth Amendment would do as to the right-to-bear arms.
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Much more. Read the whole thing. It paints perfectly the thinking of the 9th Circuit. Volokh ROCKS!
Link Posted: 12/6/2002 3:44:04 PM EDT
[Last Edit: 12/6/2002 3:44:28 PM EDT by Vulch]
Link Posted: 12/6/2002 4:00:41 PM EDT
I love this quote:
"The very purpose of a Bill of Rights," Justice Jackson wrote in the 1943 flag-salute case, "was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."
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He brings up a good point: Don't JUST rely on the 2nd, point to the Bill of Rights in your state Constitution if you can. That's what I do. I say to people: regardless of what the 2nd means: look at Art I Section 21 of the PA Constitution: "The right of the people to keep and bear arms shall not be questioned." Seems straightforward to me. BTW, the Fed. Constitution was modelled on PA's. I should point out that it doesn't really matter what the Constitutions say: Judges freely ignore them anyway if they can get away with it(and they often do).
Link Posted: 12/6/2002 7:28:14 PM EDT
Having met and spoken with Volokh and seen him speak on several occasions, I can confirm that he does, indeed, rock. He has a personal involvement in this 9th Circuit case because the court cites and quotes his scholarship in their opinion, and then disagrees with it. In some sense he has an academic obligation to reply.
Link Posted: 12/6/2002 8:12:55 PM EDT
This one strikes me as especially important in any future Federal RKBA incedents:
The Freedmen's Bureau Act of 1866 (surely not intended by Congress to preserve states' powers to maintain their own armed military forces!) provided that in every State or district where the ordinary course of judicial proceedings has been interrupted by the rebellion . . . the right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, [i]including the constitutional right to bear arms[/i], shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color, or previous condition of slavery
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So Congress itself admits, in 1866, that the right to keep and bear arms is (as we know) an individual right. Which can also be used to argue that they meant to 'incorporate' said right via the 14th ammendment (issues with 'incorporation' aside), thus applying it to all the states.
Link Posted: 12/7/2002 2:06:58 AM EDT
Link Posted: 12/7/2002 7:38:53 AM EDT
The real problem is the thumb-sucking lawmakers who do not understand the Bill of Rights, and regularly vote into law measures that violate those Rights. Without the stupid laws, the courts would have no say in this. Being a Congressperson or Senator should entail many more requirements than simply receiving a plurality of a vote. Frankly, I'd like to see the entire U. S. Congress on an episode of Leno's Jaywalking and see how many of them know nothing of history or law. It would probably be appalling. Any Senator or Congressperson who demonstrates ignorance of history and constitutional law should be buried up to his or her neck and used as a golf tee.
Link Posted: 12/7/2002 11:02:03 AM EDT
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