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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Friday, March 16, 2007

Erwin Chemerinsky vs. Second Amendment Ruling

And Also: One last storm before Spring over here -- no problemo, I say.


Erwin Chemerinsky, the liberal law professor who had the responsibility to argue against the Texas Ten Commandments display as designated counsel a few years back, had a fairly predictable response to the D.C. gun ruling. [H/t ScotusBlog.] He surely didn't much care for it, but tried to take a calm approach to the matter. First, he summarized Supreme Court precedent -- without noting that if he was right, the D.C. court was simply wrong (unless the law changed since then, a claim not made), since it was an inferior court:
One approach, adopted by the Supreme Court in 1939 and by most federal courts of appeals, sees the Second Amendment as preventing Congress from regulating firearms in a manner that would keep states from adequately protecting themselves.

I'm not sure if that is exactly what U.S. v. Miller said. The case argued that the purpose of the amendment was to further the efficiency of the militia, particularly in its role for federal service. It noted that there was a sentiment against standing armies, and anyway, states could not constitutionally have "troops" (Art. I, sec. 10). Thus, it did have an instrumental flavor, too much of one actually, since some were led to believe there was no individual component to this "civil" approach. But, protection of the state is not the only purpose. Even Miller spoke of the fear of standing armies etc. The ruling in no fashion implied that states -- if it decided it didn't need a militia to "adequately protect themselves" -- could totally disarm. Such is what some latter day "collective rights" theorists suggest. They see the institution as obsolete.

Then, EC tries to go for an in between approach:
In other words, even if the D.C. Circuit is right in holding that the Second Amendment creates individual rights, that does not answer the question as to the level of scrutiny to be used in evaluating gun control laws. I believe that there is a strong argument that the regulation of guns should be treated the same as other regulation of property under modern constitutional law: The regulation should be allowed so long as it is rationally related to achieving a legitimate government purpose.

In a fashion, the Fifth Circuit -- which also recognized an individual right -- did something like this. It held that the limit respecting those blocked by a domestic protective order was "reasonable" -- thus the person could be disarmed in that instance. Simply put, this is a bit dubious, since the ruling spent some time discussing how the right was so important to individual liberty. If it exists, is it not fundamental? And, excuse me, the comparison to limits allowed in First Amendment cases (to which the ruling, though EC conveniently elides past the fact, compares Second Amendment cases) is misleading. Surely, no "rational related" test exists, at least when the core of free speech rights are threatened. Is not home ownership of a commonly used weapon as "core" as let's say reading romance novels?

And, the issue here is rather blatant -- the right to have a workable weapon in one's own home, one that is not akin to an "assault weapon," but traditionally used for personal defense. The ruling referenced various "reasonable" regulations. And, if we respect what exactly is at stake here -- being part of a militia that is much more regulated than those who speak -- many can be considered. But, if there is an individual right -- as he assumed for the sake of argument -- why exactly should it be only granted rational review? It is particularly expressed, unlike property rights (and given the privacy aspect, they too are given a higher test in select situations) as a general matter.

Nice try, but won't quite give you that cigar. The NYT editors also didn't care for the ruling. It didn't do a good job mentioning how exactly the minority dissented (does it really think the amendment doesn't apply at all to D.C. residents?). Also, again, you can regulate firearms any number of ways, including perhaps requiring handguns to have a trigger lock (if the owner could readily switch it off) or other safety devices without de facto totally banning workable ownership in one's home. Not that the law as written appears to have been too successful anyway -- gun bans of that sort have their problems in practice.

There is a middle ground. Knee-jerk denials or too clever by half avoidance jobs aside.