Saturday, January 05, 2008
The Constitution - buffet style
The 2nd Amendment is back in the news again as DC tries to justify its near total ban on handguns within the city. Of interest was this argument put forward by the District:
"Even if the court decides the amendment does protect an individual right, the brief says, it must be read as a restriction only on the federal government, to which it was aimed. "District-specific" legislation cannot "implicate the amendment's purpose of protecting states and localities from the federal government." Gun Law Prevents Harm, D.C. Argues
Sounds like DC is now the ideological home of State-Right’ers…well, at least for this one sliver of the Constitution. For this argument to hold up, though, the Supreme Court will have to somehow conclude that prior decisions reading the Bill of Rights as also applying as prohibitions against state and local governments (and not just Congress) were never meant to include the 2nd Amendment…and, in this instance, a local government that is, in fact, a federal entity.
I’m not unsympathetic to such arguments as I believe the 14th amendment was never intended to fully incorporate the Bill of Rights into general state prohibitions. But of all the governmental entities to make such an argument, federal enclave District of Columbia is the least-well positioned to do so since it is a creation of Congress. That said, I have no doubt that there are some legal giants on this Court who possibly see this as another instance to apply Justice Brennan’s inane “living constitution” theorem and have the necessary legal flexibility to carve out such an exception.
On a larger scale, this gun battle is an excellent example of a peculiar tendency I note among predominantly leftist legal observers. Few things are as axiomatic among that group as there being a constitutional right to an abortion – with no restrictions of any kind being countenanced. This despite the Constitution never once mentioning abortion.
Yet, when it comes to matters the Constitution does mention, we find a different mindset. Leftist heroes Justices T. Marshall and Brennan somehow declared the Death Penalty to be unconstitutional despite its expressed legitimacy within the Constitution. Restrictions on speech – one of the hallmarks of our Constitutional protections - were approved as a legitimate restriction on cash. And, as seen above, many are striving mightily to codify a perceived loophole in the Constitution to restrict a right to gun ownership. From my vantage point, it seems many on the left – seeking an ever increasing presence of government in our daily lives - simply view the Constitution as more an obstacle than a bulwark
Side Notes I: DC has long had one of the most stringent restrictions on the books against gun ownership and yet it leads the league (by a significant amount) in number of deaths per 100,000. Although deterrence is not the only argument for a death penalty, a consistent argument against the death penalty is its ineffectiveness as deterrence. Well, deterrence is pretty much the only reason for restrictions on gun ownership…
"Even if the court decides the amendment does protect an individual right, the brief says, it must be read as a restriction only on the federal government, to which it was aimed. "District-specific" legislation cannot "implicate the amendment's purpose of protecting states and localities from the federal government." Gun Law Prevents Harm, D.C. Argues
Sounds like DC is now the ideological home of State-Right’ers…well, at least for this one sliver of the Constitution. For this argument to hold up, though, the Supreme Court will have to somehow conclude that prior decisions reading the Bill of Rights as also applying as prohibitions against state and local governments (and not just Congress) were never meant to include the 2nd Amendment…and, in this instance, a local government that is, in fact, a federal entity.
I’m not unsympathetic to such arguments as I believe the 14th amendment was never intended to fully incorporate the Bill of Rights into general state prohibitions. But of all the governmental entities to make such an argument, federal enclave District of Columbia is the least-well positioned to do so since it is a creation of Congress. That said, I have no doubt that there are some legal giants on this Court who possibly see this as another instance to apply Justice Brennan’s inane “living constitution” theorem and have the necessary legal flexibility to carve out such an exception.
On a larger scale, this gun battle is an excellent example of a peculiar tendency I note among predominantly leftist legal observers. Few things are as axiomatic among that group as there being a constitutional right to an abortion – with no restrictions of any kind being countenanced. This despite the Constitution never once mentioning abortion.
Yet, when it comes to matters the Constitution does mention, we find a different mindset. Leftist heroes Justices T. Marshall and Brennan somehow declared the Death Penalty to be unconstitutional despite its expressed legitimacy within the Constitution. Restrictions on speech – one of the hallmarks of our Constitutional protections - were approved as a legitimate restriction on cash. And, as seen above, many are striving mightily to codify a perceived loophole in the Constitution to restrict a right to gun ownership. From my vantage point, it seems many on the left – seeking an ever increasing presence of government in our daily lives - simply view the Constitution as more an obstacle than a bulwark
Side Notes I: DC has long had one of the most stringent restrictions on the books against gun ownership and yet it leads the league (by a significant amount) in number of deaths per 100,000. Although deterrence is not the only argument for a death penalty, a consistent argument against the death penalty is its ineffectiveness as deterrence. Well, deterrence is pretty much the only reason for restrictions on gun ownership…
